Irishplanningnews.ie

In a recent court judgment at the end of 2014, O’Griana v An Bord Pleanala, Cork Co Council and Framore Limited, Justice Peart ruled that planning permission should not be granted for an windfarm project requiring a grid connection unless the grid connection details are provided in the Environmental Impact Assessment (EIA) process.

The case related to a 6 turbine wind farm in at Réidh na nDoirí, Ballingeary, Co. Cork and is one of many wind farm permissions which are currently being challenged in the courts.

To date planning authorities have accepted developers’ claims that details from ESB Networks are often not available at the time of planning and this element can be dealt with via a separate application subsequent to the application for the wind farm itself.

Essentially Justice Peart quashed the decision of An Board Pleanala to grant permission on the basis of ‘project splitting’, which is a recognised term for dividing up the true extent of a development. The grid connection for the proposed wind farm was considered to be an integral part of the project and the wind farm could not be dealt with as a stand-alone project in respect of EIA.

This decision could yet be appealed.

The High Court has quashed planning permissions for a 33 turbine wind farm development in Roscommon following a judicial review brought by local residents.

The main issue was compliance with the Habitats Directive. The Judge ruled that the appropriate assessment carried out by the Board was not lawfully conducted and did not meet the requirements of the Habitats Directive. A determination has still to be made regarding costs and whether the planning application should be sent to An Bord Pleanala for reconsideration. The Department of Arts, Heritage and the Gaeltacht had expressed concern about the developments on environmental grounds.

The Board’s inspector had recommended a refusal on the basis of the proximity to the Lough Croan Turlough Special Area of Conservation and Lough Croan Turlough SPA and recommended the Board refuse permission on the basis of the hydrological impacts on karst limestone and underlying groundwater system in an area of known flooding and concerns about migratory water bird species that use the area as part of their wintering range.

Eamon (Ted) Kelly, chairman of the Wind Turbine Action Group South Roscommon is seeking a Judicial Review of an An Bord Pleanala decision to grant planning permission for two wind farm developments in County Roscommon. The Judicial Review is being sought on the basis that An Bord Pleanála failed to specify why it approved permission for the wind farm close to special areas of protection and conservation in Co Roscommon, when two of its own inspectors recommended permission be refused.

Leave for a Judicial Review has to be granted by the High Court in the first instance and this was obtained by the action group in November 2013. A Judicial Review of a decision by a planning authority focuses on the procedures involved in arriving at the determination rather than the decision itself. As such it is generally accepted that there is a very high bar to win any such review. However, Judicial Reviews are also very expensive and therefore they tend only to be taken when there are very strong grounds for argument.

The Supreme Court have unanimously ruled that An Bord Pleanala decisions become final only when they are put in formal writing in the form of an order and not when they are made at Board meetings, as was contended by An Bord Pleanala.

This important clarification arose from two commercial developments whereby objectors has withdrawn appeals yet An Bord Pleanala continued to issue a decision on the appeal as the withdrawal occurred after the decision was made at the Board meeting.

The decision means the two commercial developments, one in Wicklow and one in Wexford, can now proceed.

Further to a previous article on the Council taking enforcement action against a homeowner in Co. Wicklow (see  post from Nov 7th 2012) there is now an update:

The High Court have refused to make a demolition order against Ms. Katie Fortune for building a chalet in Lough Dan, Roundwood, Co. Wicklow.  Ms. Fortune has lived in the chalet for 14 years in an Area of Outstanding Natural Beauty.

Mr Justice Gerard Hogan refused to make a demolition order as the council had not provided any compelling evidence that the house was completely at odds with public policy objectives.  Although the chalet was unauthorised in his view the house did not jeopardise or threaten other parties’ rights.  In relation to the issue of being located in an outstanding area of natural beauty the Judge, having visited the site, considered the chalet was entirely hidden away from view and did not detract from any of the great vistas which are one of the glories of the Wicklow uplands.

Other unauthorised structures on the site are still to be determined in terms of their potential demolition.

The issue of the ‘integrity’ of a habitat has been addressed by the Court of Justice following a referral from the Irish Supreme Court.

An Bord Pleanala had determined that the loss of 1.5h of Annex 1 priority habitat as part of the development of the Galway outer by-pass was a localised impact on the Lough Corrib cSAC and would not adversely affect the integrity of the cSAC.   This decision appears to have been based on the fact that the 1.5h represented only approx. 2% of the overall cSAC and the loss, although permanent, would not affect the balance of the site and therefore its integrity as a whole. 

The Court of Justice placed strong emphasis on the fact that the habitat concerned was a priority habitat (limestone pavement) and cannot be replaced. It effectively ruled that the permanent impact on the very habitat upon which the site has been designated did affect the integrity of the site.  A ruling is now awaited from the Supreme Court.

A recent judgment delivered by Mr. Justice Hogan in the High Court (4^th October 2012) has raised a very interesting issue in terms of the weight that should be placed on Article 40.5 of the Irish Constitution in terms of deciding on an application by a local authority to seeking an order to demolish a dwelling built without the benefit of planning permission.  Article 40.5 states that:

 “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law”.

In the case of Wicklow County Council -v- Fortune Justice Hogan was dealing with a situation where the defendant, Ms. Fortune, had constructed a small timber framed chalet approximately 70 sq. m. in size in a wooded area of high natural beauty in Lough Dan, Co. Wicklow. The Council had postponed enforcement proceedings pending a retention application by Mr. Fortune however when An Bord Pleanala ultimately refused permission for the house the Council made an application to the Circuit Court for an injunction to remove the dwelling.  The Circuit Court found in favour of the Council and ordered that the site should be demolished. The case came before Justice Hogan on appeal to the High Court.

Justice Hogan noted in his judgement that this appeal from a decision of the Circuit Court raises “difficult and, in some respects, novel issues concerning the application of the Planning and Development Act 2000”.  One of the key issues related to the nature of the “inviolability” of the dwelling as provided for in Article 40.5 of the Constitution and to what extent, if at all, can this constitutional provision be invoked by the home owner by way of defence to an application for an injunction which would seek to compel him or her to remove an unauthorized dwelling.

As noted by Justice Hogan Read the rest of this entry »

Leefield Ltd, SuperValu, Tramore, Co Waterford, has instigated proceedings against An Bord Pleanála seeking a judicial review of the Board’s decision to grant permission to O’Flynn Construction for the construction of a retail store, café, and staff facility near the former Murphy barracks at Ballincollig. Leefield Ltd runs a supermarket in Ballincollig and claims the Board’s decision is flawed and should be quashed as the Board failed to give proper reasons for granting permission and failed to address the loss of woodland that would occur if the development proceeded. The Board’s planning inspector had recommended that the planning application be refused.