The Supreme Court has quashed An Bord Pleanála’s permission for an 11-turbine wind farm at Bear na Gaoithe, County Cork, after finding that the Board wrongly excluded relevant submissions about the adequacy of noise guidelines from its consideration.
The appeal by Klaus Balz and Hanna Heubach concerned a single issue: how the Board treated submissions that the 2006 Wind Energy Development Guidelines were outdated and not fit for purpose. The couple have lived at Bear na Gaoithe since 1992 and run a family horticulture nursery, flowers and gardening business there. Their house is 637 metres from the nearest proposed turbine.
The guidelines required the Board to “have regard” to them, but did not require it to follow them. The appellants’ submissions included material about the guidelines’ technical basis, a 2013 government review proposing a 40 dB noise limit, and a local planner’s view that the guidelines were no longer fit for purpose. The Board’s Inspector described claims that the underlying ETSU publication was outdated as “not a relevant planning consideration” and said the 2006 guidelines remained in force.
The Board argued on appeal that the Inspector had considered the substance of the appellants’ noise submissions when assessing the limit for the development. The Supreme Court considered that the Inspector’s report more naturally indicated the submissions had been treated as irrelevant. The Board provided no evidence rebutting that inference, the court said. The 43 dB limit imposed by the Board did not show that the appellants’ submissions had been considered; the court noted that this was the limit sought by the developer.
The court held that a decision-maker must engage with submissions asking it to depart from guidelines, including material suggesting that they are outdated. The Board could still give substantial weight to official guidelines and could decide, after considering the submissions, not to depart from them. But it could not exclude the challenge as irrelevant, particularly where it had support from official sources.
The Supreme Court therefore concluded that the Board’s approach was legally erroneous and quashed its permission. It did not decide the noise limit that should apply or direct what the Board should decide on reconsideration. The judgment said the court would hear counsel on ancillary orders, including whether and at what stage the matter should be remitted to the Board.