Domestic Cases

Friends of the Irish Environment v An Bord Pleanála – [2018] IEHC 136 - 9 March 2018

Lack of information on identity of landowners/occupiers sufficient for dismissal An Bord Pleanála of section 5 referral.

The Applicants sought section 5 declarations as to whether peat extraction activities being carried on at lands in County Westmeath were or were not exempted development. These requests were then referred to An Bord Pleanála (the "Board"). It should be noted that the referral as submitted by the Applicant, and as sent to the Board from Westmeath County Council, simply identified town lands delineated on a map, and did not include any supplementary information as to the owners and / or occupiers of the lands.

The Board requested further information from the Council on the identity of the owners / occupiers. The Council submitted some 13 land registry folios which identified 9 parties. The Board idependently made further enquiries with these 9 parties, but ultimately dismissed the referral on the basis that the question was “not sufficiently particular or detailed enough to enable the Board to carry out its obligations under s. 129 of the Planning and Development Act, 2000, as amended.”

The Court held that the decision of the Board was not irrational or unreasonable, as it did not have sufficient information to make a determination that was safe in law that concerned the property rights of those involved, and refused to grant the applicants the reliefs sought.

The decision can be found here.

North Meath Wind Farm Ltd. & Anor v An Bord Pleanála [2018] IEHC 107 – 7 March 2018

Inspector report categorisation errors found NOT to make An Bord Pleanála’s refusal to grant a wind farm planning permission unlawful

The Court upheld An Bord Pleanála’s (the “Board”) decision to refuse planning permission. North Meath Wind Farm Limited and Element Power (together the “Applicants”) challenged the refusal. They submitted that in making its decision, the Board had wrongly relied on an Inspector’s Report which contained errors such that the court should set aside the Board's refusal:

The Applicants alleged that:

  • The Board miscategorised the proposed development site as overwhelmingly ‘hilly and farmland’, rather than as ‘hilly and flat farmland’ and ‘flat peatland’ which they submitted was relevant, as under the Wind Energy Development Guidelines 2006 there is greater scope for planning permission to be granted to wind farms on lands categorised as ‘flat peatland’ as well as ‘hilly and flat farmland’.

  • The inspector referred to 452 ‘sensitive receptors’ (a term which includes homes) within 1.31 km of the turbines on the proposed site a Castletownmoor, when in fact there were 251 homes within that area.

The Court held that the Applicants’ views on the miscategorisation of the development site and the number of sensitive receptors were not relevant. This was on the basis that specialist administrative bodies, such as the Board, were entitled to make errors without them necessarily impacting upon the validity of the decision, even where those errors impact upon the decision reached. The job of judicial review is deciding if a decision, even if it is an incorrect decision, is lawful. If it is considered to be lawful then that decision which could or should have been overturned on its merits on appeal will not be disturbed in a judicial review.

The decision can be found here.

North Meath Wind Farm Limited & Anor –v An Bord Pleanála & Anor [2018] IECA 49 – 23 March 2018

Court of Appeal decision that s.50 of the Planning and Development Acts 2000-2017 (the “Acts") does not apply to the costs ruling arising in an earlier application in the North Meath Wind Farm Limited case

In the context of the substantive judicial review proceedings (in which the above judgment was delivered), North Meath Wind Information Group and John Callaghan sought to be joined as notice parties. This application was refused by the High Court, and the costs of the application were awarded to North Meath Wind Farm Limited and Element Power. North Meath Wind Information Group and John Callaghan appealed both the refusal and the decision on costs. The appeal was refused on the following grounds:

  • Locus Standi / Rights of unincorporated bodies:Section 50A of the Planning Acts, along with the Public Participation Directive, do not create a right for an unincorporated body to be joined in planning proceedings as a notice party.

  • Locus Standi / whether an applicant is substantially affected by a development: On the question of whether the trial judge erred in deciding that Mr Callaghan was not affected or substantially affected by the development in question, and did not have the necessary locus standi, the Court considered the issue to be whether the North Meath Wind Information Group and Mr Callaghan stood to "lose [anything] directly” from the decision of the Court. The Court determined they did not.

  • Costs: The Court found that s.50 of the Planning Acts had to be read as a whole, and applied only to question of the costs “of persons and bodies who are parties to the proceedings, and not in relation to the costs as between a party to the proceedings and persons who are not parties, such as the appellants”.

The decision can be found here.

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Domestic Legislation

Establishment of Forestry Appeals Committee

The Forestry Appeals Committee Regulations 2018 set out the composition of, and procedures to be adopted by, the Forestry Appeals Committee which was established under section 14A (1) of the Agriculture Appeals Act 2001. The Forestry Appeals Committee was established to hear appeals against decisions on forestry licences as well as tree felling, forest road works and aerial fertilisation. The delay in its establishment was met with much criticism from the media, the courts and the Irish Farmers Association.

The Regulations can be found here.

Establishment of 10 further areas as Special Areas of Conservation (SACs)

Ten new SACs have been established under the EU Habitats Directive. They are set out below, along with the corresponding Statutory Instrument which designates them. Notice was published of these new designations in Iris Oifigiúil on 16 March 2018.

  • Ballyallia Lake SAC (Clare) – Regulations can be found here.

  • Lough Gash Turlough SAC (Clare) – Regulations can be found here.

  • Castletaylor Complex SAC (Galway) – Regulations can be found here.

  • Lough Derg, Northeast Shore SAC (Galway and Tipperary) – Regulations can be found here.

  • Bellacragher Saltmarsh SAC (Mayo) – Regulations can be found here.

  • Red Bog, Kildare SAC (Kildare) – Regulations can be found here.

  • Achill Head SAC (Mayo) – Regulations can be found here.

  • Bricklieve Mountains and Keishcorran SAC (Sligo) – Regulations can be found here.

  • Streedagh Point Dunes SAC (Sligo) – Regulations can be found here.

  • Lough Owel SAC (Westmeath) – Regulations can be found here.

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