The High Court has quashed An Bord Pleanála’s refusal of permission for the proposed Maighne wind farm and sent the planning application back to the board for reconsideration. The court found that the board’s first refusal reason, based on the absence of national and local wind energy strategies, was unlawful. It upheld the other two reasons but concluded that the decision should be reconsidered as a whole.
Element Power Ireland Ltd sought judicial review of the board’s October 2016 refusal of a proposal for up to 47 turbines, a substation and associated works across Kildare and Meath. The board had refused permission for three reasons: the absence of wind strategies with a spatial dimension; concerns about the project’s dispersed clusters and their effects; and potential damage to local roads from cable trenching.
Mr Justice Robert Haughton rejected the company’s argument that the first reason was too vague. Read alongside the inspector’s report, he said, it was clear that the board meant the absence of national and local strategies identifying suitable areas for large-scale wind development.
But the judge held that the board could not treat the prospect of future policies or strategies as a reason to refuse the application. The existing planning framework required the board to assess the proposal against policies and guidelines then in force. Draft documents and the possibility that new national or local strategies might later be adopted did not provide a lawful basis for refusal. The judge found the first reason ultra vires, based on irrelevant considerations and invalid.
The judge rejected challenges to the other two reasons. He found that the second reason, concerning the spread of turbine clusters, visual effects, cabling and sensitive areas, was clear when read as a whole. He also treated the board’s view that a more concentrated project might use land more efficiently as a matter of planning judgment. On the third reason, he found an evidential basis for the board’s concern about road damage from trench reinstatement, particularly in areas affected by peat or alluvium.
Although the second and third reasons remained valid, the judge said the first reason was prominent and connected to the board’s assessment of the project’s location and scale. The court could not assume what the board would have decided without it. The judge therefore quashed the refusal in its entirety and remitted the matter to the board.
The remittal was intended to let the board reconsider the application on the material before it when it issued its direction in October 2016. Subject to the planning law and regulations, the board could seek further information or invite revised plans. The judge said he would hear counsel on the form of the final order; the judgment does not record a final remittal order being made.