The High Court has dismissed a judicial review challenge by Kiaran Brophy and Peter Sweetman to planning permissions for a wind farm and associated works in counties Laois and Kilkenny.
An Bord Pleanála granted the permissions to Pinewood Wind Limited on 3 September 2019. The applicants sought to have them quashed. Ireland and the Attorney General were initially respondents but were released from the proceedings after the applicants decided not to pursue claims against them.
The case narrowed during a four-day hearing. The applicants abandoned challenges concerning the assessment of 14 surface-water ponds and the consideration of alternatives. They also dropped the substantive challenge to leaving some matters for later agreement with the planning authorities, including arguments about possible harm to freshwater pearl mussels and water flow.
The court considered whether the Board had given adequate reasons for deferring matters for later agreement. It held that this specific argument had not been properly pleaded and had been raised too late. No application to amend the pleadings was made. The judge said that, even if the argument had been allowed, he would have rejected it: the applicants had not established a requirement for reasons in those circumstances. He also noted that the challenge to the relevant conditions had been abandoned.
The applicants also argued that the Board failed to give adequate reasons for its environmental impact assessment and appropriate assessment. The judge found that this specific claim was not properly pleaded, had not been supported by an application to amend, and was not substantiated by identifying any specific inadequacy in the inspector’s reports or the Board’s adoption of them. He said the reports provided sufficient reasons, and would have decided this issue against the applicants.
The remaining substantive issue concerned 2019 guidance on bats and onshore wind turbines. The applicants argued that updated guidance was materially relevant to the assessment of risks to Leisler’s bats. The judge found that the site-specific assessment had already recognised the risk of collision and the difficulty of mitigating it. He concluded that the applicants had not shown the 2019 guidance introduced relevant and material information the Board was obliged to consider. He also found that the technical question required expert evidence, which the applicants had not provided. It was therefore unnecessary to decide whether the Board had a legal duty to seek out the updated guidance.
The court dismissed the proceedings. It did not quash either planning permission.