A very important judgment: Eamon (Ted) Kelly vs An Bord Pleanala

turbines and birds

Court judgments are often confusing to read as cases are not linear – they are more like Russian dolls, they come in layers. The judge is not only concerned with the decision in front of him or her because a judgment is a lot more than that. The judge must carefully consider previous similar cases (the rule of precedent) and must also respond to the particular evidence and arguments of the lawyers representing the litigants. This can be very confusing for the reader if he or she has not worked out where these arguments come from or how they fit together in the particular case.

I am going to attempt to explain this very important judgment of Judge Finlay Geoghegan, by breaking it down in chewable bits. This was a long and complex judgment, so I have restricted myself to the crucial ‘highlights’.

Who are the people involved?
The applicant in this case was Eamon (Ted) Kelly who was supported by the Department of the Arts, Heritage and the Gaeltacht. In opposition was An Bord Pleanála (ABP), supported by Galetech Energy Developments Limited, the wind turbine company. The court was the High Court, with Ms. Justice Finlay Geoghegan presiding.

There were also various notice parties – which is a party who is not actually litigating but because they have an interest in the outcome of the case, they are allowed to make submissions and arguments for the consideration of the court. Notice parties in this case included the various residents’ groups, the Roscommon County Council, and of course the Department and Galetech, as mentioned.

Why are they there?
ABP granted planning permission to Galetech to erect two wind farms in County Roscommon, namely sixteen wind turbines with a hub height of 85m, rotor diameter of 1OOm at Croan, Gmiaphuill, Mullaghardagh, Dysaii, County Roscommon (Appeal Reference PL20.239759 Planning Register Ref. 10/541) (“Phase 1 Decision”) and nineteen wind turbines with a hub height of 85111, rotor diameter of 100111 and overall height of 135m and 85m anemometer mass and 11Okv substation at Milltown, Skeavally, Tawnagh, Tobermacloghlin, County Roscommon (Appeal ref. PL20.241069 Planning Register Ref. 11/273) (“Phase 2 Decision”).

What are they asking for?
The Applicant, Ted Kelly, is the chairperson of the Wind Turbine Action Group South Roscommon, and asks that the decision of ABP be reversed. As this was a judicial review, it means that if the application is successful the decision is annulled and the matter is referred back to the ABP to do it again, but properly this time.

What are the legally relevant facts?
In 2010, the Roscommon County Council granted planning permission to Galetech for the Phase 1 wind farm, and in 2011 the same County Council granted planning permission for the Phase 2 wind farm, despite these wind farms being in the vicinity of a number of European sites, both Special Areas of Conservation (SAC) and Special Protection Areas (SPA), as they have important numbers of wetland and water birds.

These planning permissions were appealed by the local residents.

ABP appointed inspectors to look at both the Phase 1 and Phase 2 wind farms respectively. Both inspectors recommended refusal of planning permission because of the impact that these wind farms would have on the local bird populations.

Despite that, ABP refused the appeal against the planning permissions and confirmed those permissions (by a majority of four to one).

It was this decision that was the subject of the application for judicial review before the High Court.

What exactly are the legal arguments being put forward by the parties?
The primary argument being put forward by the applicant was that the ABP failed to carry out a proper environmental impact assessment of the proposed development as is required under Irish and European law. Mention was also made of the fact that the ABP ignored its own inspectors, and failed to give proper reasons for its decision.

What is the law (at the time this case was decided)?
In a nutshell, Section 37 of the Planning and Development Act (the PDA) says that in considering an appeal against the grant (or refusal) of a planning permission, the ABP need to take account of three distinct areas of law and the legal requirements therein.

These are:
1. Consideration of what might be termed normal or general planning requirements under the PDA and compliance with its procedural requirements.
2. The carrying out of an environmental impact assessment required by the EIA Directive as implemented into Irish planning law by Part X of the PDA. The definition of an EIA as being “an examination, analysis and evaluation” carried out by the Board and the obligation of the Board pursuant to s. l 72(1J)(b) to make available to the public its evaluation of the direct and indirect effects of the proposed development on the matters set out in s. 171A was a very important consideration in this case.
3. The carrying out of an appropriate assessment as required by Article 6(3) of the Habitats Directive implemented by Part XAB of the PDA including making a determination. What 6(3) envisages is a full impact assessment being carried out with a view to avoiding impacting SPAs and SCIs, and if these are impacted, the development can only be allowed to continue for “imperative reasons of overriding public interest”.

Article 6(3) envisages a two-stage process which is implemented in greater detail by Sections 177U and 177V of the PDA:

(i) a screening for appropriate assessment in accordance with s. 177U;

(ii) if, on a screening, the Board determines that an appropriate assessment is required then it must carry out an appropriate assessment in accordance with s. 177V.

The law is clear is that if the initial S177U assessment raises the possibility of there being a significant effect on the site, this will generate the need for the full appropriate assessment under Section 177U. In other words, if it is likely that the proposed project will have a significant effect on the SPAs or SCIs, this is the trigger for the obligation to carry out an appropriate (full) assessment. There is no need to prove such an effect; it is enough to determine that there may be such a significant effect.

The applicant argued that the ABP had failed to conduct this two-stage assessment. The ABP argued that it did not have to specifically carry out this two-stage assessment process because the planning application was accompanied by a Natura impact statement.

What was the decision?
The High Court made it clear that the EIA under the EIA Directive and the assessment under the Habitats Directive (Sections 177 U and V of the PDA) are distinct processes and are quite different. Whilst the former might be satisfied by an EIA carried out before the planning application as it informs rather than determines the planning process, the Habitats Directive was clear that the APB itself had to carry out the two-stage assessment, which requires the ABP to:

“make a determination as to whether or not the proposed development would adversely affect the integrity of the relevant European site or sites in view of its conservation objectives. The determination which the Board makes on that issue in the appropriate assessment determines its jurisdiction to take the planning decision. Unless the appropriate assessment determination is that the proposed development will not adversely affect the integrity of any relevant European site, the Board may not take a decision giving consent for the proposed development unless it does so pursuant to Article 6(4) of the Habitats Directive. It is agreed that the decisions made by the Board herein were not taken pursuant to Article 6(4) of the Habitats Directive. Hence, for the purposes of these appeals, the Board was precluded from granting consent for the proposed developments unless, having conducted an appropriate assessment in accordance with Article 6(3), as construed by the CJEU, it reached a determination that the proposed development will not adversely affect the integrity of the European sites.”

In other words, where SPAs or SACs might be impacted, the ABP must carry out this two-stage assessment and can only grant planning permission if the assessment shows that the proposed project will not impact on the protected sites, or, if it will impact, that there really isn’t an alternative and the project is of such crucial public importance that it must be built.

This is critically important as unlike the usual planning permission appeals where the ABP has a very wide discretion, when it comes to applications covered by the Habitats Directive, the ABP has no discretion at all – in fact, its jurisdiction to deal with the appeal depends on it properly carrying out the assessment. If it does not do the proper assessment, it is precluded from making a decision. This is perhaps the most important aspect of this judgment.

As regards the extent of that assessment, the Court held:

“Section 177V must be construed so as to give effect to Article 6(3) of the Habitats Directive, and hence, an appropriate assessment carried out under the section must meet the requirements of Article 6(3) as set out in the CJEU case law. If an appropriate assessment is to comply with the criteria set out by the CJEU in the cases referred to, then it must, in my judgment, include an examination, analysis, evaluation, findings, conclusions and a final determination.
It must be recalled that the appropriate assessment, or a stage two assessment, will only arise where, in the stage one screening process, it has been determined (or it has been implicitly accepted) that the proposed development meets the threshold of being considered likely to have significant effects on a European site. Where that is the position, then, in accordance with the preceding case law, the appropriate assessment to be lawfully conducted in summary:
(i) Must identify, in the light of the best scientific knowledge in the field, all aspects of the development project which can, by itself or in combination with other plans or projects, affect the European site in the light of its conservation objectives. This clearly requires both examination and analysis.
(ii) Must contain complete, precise and definitive findings and conclusions and may not have lacunae or gaps. The requirement for precise and definitive findings and conclusions appears to require analysis, evaluation and decisions. Further, the reference to findings and conclusions in a scientific context requires both findings following analysis and conclusions following an evaluation each in the light of the best scientific knowledge in the field.
(iii) May only include a determination that the proposed development will not adversely affect the integrity of any relevant European site where upon the basis of complete, precise and definitive findings and conclusions made the Board decides that no reasonable scientific doubt remains as to the absence of the identified potential effects.
Hence in my judgment the full appropriate assessment required by s. l 77V must include all of the above elements and not just the determination expressly referred to in the sub-section. “

With regard to the reasons supplied by ABP as an explanation for their decision (particularly when it went against their Inspector’s recommendation), the High Court adopted quite a strict test as to the quality and extent of the information supplied in those reasons:

“In accordance with the CJEU decision in Sweetman, it is for the national court to determine whether the appropriate assessment (including the determination) was lawfully carried out or reached, and to do so, it appears to me that the reasons given for the Board’s determination in an appropriate assessment must include the complete, precise and definitive findings and conclusions relied upon by the Board as the basis for its determination. They must also include the main rationale or reason for which the Board considered those findings and conclusions capable of removing all scientific doubt as to the effects of the proposed development on the European site concerned in the light of the its conservation objectives. In the absence of such reasons, it would not be possible for a court to decide whether the appropriate assessment was lawfully concluded or whether the determination meets the legal test required by the judgments of the CJEU.”

In other words, the reasons supplied by the ABP when deciding that the proposed development will not impact a protected site must be sufficiently complete and understandable to allow a person who may wish to challenge the decision to be able to understand those reasons, whilst at the same time the reasons must be sufficiently technically robust so as to remove “all scientific doubt” that there will be no impact on the protected site when one considers the original conservation objectives of that site. That is quite a tall order and means that the members of ABP will not be able to bash out some flimsy one-size-fits-all justification for their approval of planning permission. The reasons must be clear and understandable, but also able to withstand close scientific scrutiny.

Conclusion – the finding
The High Court found that ABP did not conduct an appropriate assessment for either Phase 1 or Phase 2 before making its decision, and accordingly this meant that ABP did not have the jurisdiction to grant permission for the wind farms to be built.

According to the National Parks and Wildlife Service (http://www.npws.ie/protectedsites/specialprotectionareasspa/):

“Ireland is situated along the east Atlantic flyway for waterbirds that breed in more northerly latitudes. It is our typical mild and wet winters that make the wetlands of Ireland such an important resource for over three-quarters of a million of these waterbirds each year. Over 50 species of waterbird migrate here either on passage to more southerly resorts or to spend the entire winter here. They seek out the relatively undisturbed wetland areas for ice-free feeding conditions and for safe roosting opportunities. In some cases significant proportions of the biogeographic populations of waterbird overwinter here (e.g. Light-bellied Brent Goose, Black-tailed Godwit, Whooper Swan, Greenland White-fronted Goose and Ringed Plover).
Ireland’s SPA Network encompasses over 570,000 hectares of marine and terrestrial habitats. The marine areas include some of the productive intertidal zones of our bays and estuaries that provide vital food resources for several wintering wader species including Dunlin, Knot and Bar-tailed Godwit. Marine waters adjacent to the breeding seabird colonies and other important areas for seaducks, divers and grebes are also included in the network.
The remaining areas of the SPA network include inland wetland sites important for wintering waterbirds and extensive areas of blanket bog and upland habitats that provide breeding and foraging resources for species including Merlin and Golden Plover.
Agricultural land represents a share of the SPA network ranging from the extensive farmland of upland areas where its hedgerows, wet grassland and scrub offer feeding and/or breeding opportunities for Hen Harrier to the intensively farmed coastal polderland where internationally important numbers of swans and geese occur.
Coastal habitats including Machair are also represented in the network, which are of high importance for Chough and breeding Dunlin.
The majority of the breeding seabirds and wintering waterbirds are considered to be regularly occurring migratory birds; over 60% of 25 Annex I listed species that now occur in Ireland on a regular basis belong to the breeding seabird and wintering waterbird groups. This has in part led to the situation that the majority (> 80%) of Ireland’s SPAs are designated for these two bird groups. Other species listed on Annex I of the Birds Directive that are relevant to Ireland SPA network include Chough, Peregrine, Hen Harrier, Corncrake, Kingfisher, Merlin, Golden Plover, Dunlin (schinzii) and Merlin.”

It is somewhat ironic that Irish birds and animals are better protected from wind farms then their human counterparts as far as their lifestyles and habitats are concerned. That is the truth of the matter and therefore we must use whatever means we can to stop these monstrosities, which are based on greed energy, rather than green energy.

The current government plans to build wind farms the length and breadth of the country for the purpose of exporting electricity to the UK and France, whilst making huge amounts of money off the Irish consumer in the forms of subsidies for these wind farms.

Given the magnitude of these plans compared with the large number of protected sites to be found across Ireland, it is almost inevitable that many of these proposed wind farms will impact on one or more protected sites. Therefore, this judgment provides valuable ammunition to challenge the building of windfarms, particularly in coastal areas and in the midland bog areas, as they will most certainly impact the habitats and breeding of many protected bird species, not to mention many protected animal and fish species.

And why should we stop at challenging wind farms? Surely similar arguments can be raised against pylons and their impact on the local flaura and fauna?

For that reason alone this is a very important judgment indeed.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from full-time practice in 2002 to take up a lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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