In a previous blog, I wrote about the importance of the Kelly vs An Bord Pleanála judgment.
The High Court recently handed down another judgment which, on the face of it, appears to contradict the Kelly judgment, as it concluded that the ABP was not obliged to carry out an independent ecological assessment. I will argue that this first impression is deceiving, and that this second judgment is consistent with the Kelly judgment.
In Harrington -v- An Bord Pleanála  IEHC 232 (High Court, Ó Néill J, 9 June 2014); the planning authority had granted planning permission for the construction of a sports facility in Mayo. The applicant had opposed the planning application, claiming that the site was a ‘blanket bog’ and accordingly a priority natural habitat. The company seeking the planning permission was ordered by the planning authority to conduct and submit a Natura Impact Statement, which it did. Planning permission was then granted. This decision was appealed to An Bord Pleanála (ABP) but the decision was confirmed and planning permission approved.
The applicant took the ABP on review, arguing that as she had alleged that the site was a protected habitat, the ABP was obliged to conduct an independent ecological assessment (the two-stage assessment required by the Habitats Directive as described by the High Court in the Kelly judgment).
The High Court rejected this argument saying that it was not enough to just assert that the site was a protected site, you had to prove it. The applicant had failed to produce any proof that this was indeed a Natura site (or even that it was being considered as a Natura site).
“41. There is no doubt that in an appeal to the respondent, there is a duty resting upon the respondent to conduct appropriate enquiries. But there has to be a reason for those enquiries. In my opinion, such reason must be based on credible evidence. It is not sufficient for an objector to a planning permission merely to make a bald assertion, and no more, and thereby place on the respondent a duty to carry out such enquiries as would be necessary to counter that assertion. It would be unfair to applicants for planning permission if they were put to the considerable expense in meeting an objection to their application for planning permission, in an appeal before the respondents, of having to assemble expert evidence to counter mere assertion by an objector.
42. I am quite satisfied that the duty of the respondent to make appropriate enquiries does not go so far as to require them to respond to assertions unsupported by any credible evidence.
43. The making of a bald assertion without any evidence to support it could not be said to give rise to “a scientific doubt” which would require, in the case of a site potentially qualifying as a priority habitat, the respondents to do, by way of enquiry, whatever was necessary to eliminate that doubt. Thus, in my view, the applicant’s reliance upon the extensive line of authority open to the court relating to the obligations of public authority, when confronted with a situation of “scientific doubt” relating to the status of either a “European site” or a site in the process of consideration for such status, is misconceived.”
And this is why this decision does not contradict the Kelly judgment. In the Kelly judgment there was clear evidence, both in the Inspector’s Report and in the submissions by objectors, that the proposed development was going to adversely impact on a Special Area of Conservation (SAC) and on that basis the ABP should have themselves conducted an independent environmental impact assessment. In the present case, however, the applicant did not lead any evidence that the site was a protected site, and indeed the investigation by the Inspector and the Natura Impact Statement contained no evidence that there was a ‘blanket bog’ on the site. Importantly, the High Court again confirmed that there was a duty on the ABP to conduct the assessment if there was evidence that the proposed development would impact on a Natura site, thus confirming the Kelly judgment.
What is clear is that when you are researching your objections to a planning application, ensure that you conduct thorough research, including whether the proposed site impacts on either a Special Protection Area (SPA) or a SAC.
Clearly the proposed construction site does not have to be in a SPA or SAC, it just has to adversely impact on an SPA or SAC. This is important. For example, in the case of the Drumhill industrial wind farm, although the proposed site is not in a SAC, it is directly adjacent to the Blackwater SAC, which is a very important breeding and roosting ground for the very rare Hen Harrier and the endangered Whooper Swan. Both these birds fly over the proposed wind farm site and so would be in danger from those very high blades if the wind farm went ahead. Accordingly, despite the wind farm not being in the Blackwater SAC, it will definitely adversely impact upon it.
Given the number of SACs and SPAs all over the country, this is very important weapon against these monstrosities. You can find a list of them here: http://www.npws.ie/protectedsites/. Further, if you know of a rare bird, animal or plant in your area that is not in a SAC or SPA, then apply to have the area designated a Natura site.
What the Harrington judgment says is that it is not enough just to allege that a site is a protected site, it must be proved. That is the challenge.