Judgment Title: Kelly -v- An Bord Pleanála
Neutral Citation:  IEHC 400
High Court Record Number: 2013 802 JR
Date of Delivery: 25/07/2014
Court: High Court
Composition of Court:
Judgment by: Finlay Geoghegan J.
Status of Judgment: Approved
Neutral Citation:  IEHC 400
THE HIGH COURT
[2013 No. 802 J.R.]
EAMON (TED) KELLY
AN BORD PLEANÁLA
ROSCOMMON COUNTY COUNCIL, GALETECH ENERGY DEVELOPMENTS LIMITED, SKY VALLEY CONCERNED RESIDENTS GROUP, WIND TURBINE ACTION GROUP SOUTH ROSCOMMON, THE DEPARTMENT OF ARTS, HERITAGE AND THE GAELTACHT, SKY VALLEY WIND COMPANY, THE HERITAGE COUNCIL AND THE COMMISSION FOR ENERGY REGULATION, PAUL DONOHUE, JAMES FRANCIS FALLON, THOMAS BURKE, MARIA DONNELLY, TOM AND FIONA FARRELL, LIAM KILDEA SKY VALLEY CONCERNED RESIDENTS GROUP, THE HERITAGE COUNCIL AND THE COMMISSION FOR ENERGY REGULATION
JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 25th day of July 2014.
1. The applicant, supported by one notice party, namely, the Department of Arts, Heritage and the Gaeltacht (“the Department”) in this judicial review, seeks, by way of primary relief orders of certiorari, to quash two decisions of the respondent to grant planning permission for wind turbine developments in County Roscommon. The challenged decisions are:
(2) A decision made on the 13th of September, 2013, to grant planning permission for a development comprising nineteen wind turbines with a hub height of 85m, rotor diameter of 100m and overall height of 135m and 85m anemometer mass and 110kv substation a Milltown, Skeavally, Tawnagh, Tobermacloghlin, County Roscommon (Appeal ref. PL20.241069 Planning Register Ref. 11/273) (“Phase 2 Decision”).
3. As appears, the applications for planning permission relate to two developments of wind turbines in County Roscommon. The applicant is resident in Dysart, County Roscommon, is the Chairman of a group of local residents called the Wind Turbine Action Group South Roscommon and was an appellant before the Board in relation to each appeal.
5. The proposed developments are in the vicinity of a number of European sites, both Special Areas of Conservation (SAC) and Special Protection Areas (SPA). There are ten conservation sites within 10km of the Phase 1 site. These include three Natura 2000 sites, Loghcroan SAC, Four Road Turlough CSAC and the River Suck Callows SPA. Those sites have important numbers of wetland and water birds, including Whooper Swan, Golden Plover and Greenland White Fronted Geese, all Annexe 1 species. Within 15km of the Phase 2 site, there are 14 Natura sites including the three Natura 2000 sites already mentioned.
6. The Board appointed a Planning Inspector to prepare a report on the appeal in relation to Phase 1, Ms. Kelly. Ms. Kelly reported on 11th March, 2012. She recommended refusal of planning permission.
7. The Board appointed Ms. MacGabhann as Inspector in relation to the Phase 2 appeal. Ms. MacGabhann reported on 6th February, 2013. She also recommended refusal of planning permission.
8. The Board considered each of the appeals at a meeting of the Board held on 8th August, 2013, and decided by a majority of 4:1 to grant permission for each of the proposed developments in accordance with reasons, considerations and decisions set out in the respective written decisions. It is those decisions, and the procedure leading to them, that are the subject matter of the present application for judicial review.
Grounds of Challenge
(2) The Natura Impact Statements (NIS) accompanying the applications for permission were inadequate and did not meet the requirements of national and European law. The Board erred in law in considering the statements to be adequate and proceeding to grant permission.
(3) The Board failed to carry out a proper environmental impact assessment of the proposed development as is required under Irish and European law.
(4) The Board failed to carry out a proper appropriate assessment of the proposed development as is required under Irish and European law.
(5) The Inspectors in each appeal recommended a refusal of permission for the proposed development, the Board erred in failing to have any or any proper regard to these recommendations and in particular the scientific doubt expressed in these recommendation.
(6) The Board failed to properly or at all record its conclusions or to give any or any proper statement of its reasons or considerations contrary to national and European law.
(7) The Board erred in applying an incorrect test in its purported appropriate assessment.
(8) The Board’s decision was irrational.”
11. The Department supports the applicant on his grounds of challenge which relate to compliance with the requirements of the Council Directive 92/43/EEC (as amended) (the “Habitats Directive”) and the relevant implementing national legislation identified in grounds (4), (5), (6) and (7) above.
12. As appears, the primary ground relied upon by both the applicant and the Department is that the decisions of the Board to grant each planning permission were made in breach of the requirements of Article 6(3) of the Habitats Directive as transposed into national law by Part XAB of the Planning and Development Act 2000 (as amended) (“the PDA”). The main contention is that the Board, as competent authority, failed to carry out an appropriate assessment in either appeal in accordance with Article 6(3) and the decisions of the Court of Justice of the European Union (CJEU), or to give reasons for the determination made in the course of the purported appropriate assessments.
13. The applicant pursued ground (3) in relation to the alleged failure by the Board to carry out an environmental impact assessment as required by Directive 2011/92/EU (“EIA Directive”) as implemented by the PDA.
14. Whilst I propose, initially, considering the grounds which relate to the alleged breach of the requirements of Article 6(3) of the Habitats Directive, as transposed into Irish law, it is necessary to set out in summary all relevant parts of the Statutory Scheme which applied to the challenged decisions taken by the Board to consider appropriately the Board decisions.
(ii) The carrying out of an environmental impact assessment required by the EIA Directive as implemented by Part X of the PDA; and
(iii) 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.
16. The Board assigned an Inspector to report to it on each appeal pursuant to s. 146(1) of the PDA. The Inspector’s Report must include a recommendation to the Board, which it is obliged to consider before determining the appeal (s. 146(2)).
17. In accordance with s. 34(10) of the PDA, the Board must state the main reasons and considerations on which the decision is based. Also, as where, in this case, the decision on the appeal is different to the recommendation in the Inspector’s Report, the decision of the Board must “indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission”.
Environmental Impact Assessment
(a) human beings, flora and fauna;
(b) soil, water, air, climate and the landscape;
(c) material assets and the cultural heritage and
(d) the interaction between the factors mentioned in paragraphs (a), (b) and (c).”
20. Section 172(1J) obliges the Board, when it has decided whether to grant or refuse consent for the proposed development, to inform the applicant and the public of the decision and to make the following information available to them:
(b) an evaluation of the direct and indirect effects of the proposed development on the matters set out in section 171A;
(c) having examined any submission or observation validly made:
(i) the main reasons and considerations on which the decision is based and
(ii) the main reasons and considerations for the attachment of any conditions, including reasons and considerations arising from or related to submissions or observations made by members of the public;
(d) where relevant, description of the main measures to avoid, reduce and, if possible, offset the major adverse effects;
(e) any report referred to in sub-section (1H);
(f) information for the public on the procedures available to review the substantive and procedural legality of the decision, and
(g) the views, if any, furnished by other Member States of the European Union pursuant to s. 174.”
23. Whilst the provisions of Part XAB are more detailed than Article 6 of the Habitats Directive, it was common case between the parties at the hearing that they are intended to and do impose similar obligations on the Board to those imposed by Article 6(3) of the Habitats Directive as construed by reference to the case law of the CJEU.
24. Article 6 of the Habitats Directive, insofar as relevant, provides:
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.”
(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.
48. The requirement that the effect in question be ‘significant’ exists in order to lay down a de minimis threshold. Plans or projects that have no appreciable effect on the site are thereby excluded. If all plans or projects capable of having any effect whatsoever on the site were to be caught by Article 6(3), activities on or near the site would risk being impossible by reason of legislative overkill.
49. The threshold at the first stage of Article 6(3) is thus a very low one. It operates merely as a trigger, in order to determine whether an appropriate assessment must be undertaken on the implications of the plan or project for the conservation objectives of the site [. . . ]”
28. Sub-sections 177U(1) and (2), in their terms, impose a mandatory obligation on a competent authority, such as the Board, to carry out screening for appropriate assessment before consent is given for a proposed development. These sub-sections, insofar as relevant, provide:
(2) A competent authority shall carry out a screening for appropriate assessment under subsection (1) before-
(a) . . .
(b) consent for a proposed development is given.”
(5) The competent authority shall determine that an appropriate assessment of . . . a proposed development, . . . is not required if it can be excluded, on the basis of objective information, that the . . . proposed development, individually or in combination with other plans or projects, will have a significant effect on a European site.”
30. Whilst the above statutory scheme appears in its express terms to impose a mandatory obligation under sub-sections (1) and (2) on the Board to carry out a screening for appropriate assessment prior to giving consent for a all proposed developments, sub-section (6), in its express terms, only appears to require notice of its determination with reasons to be given to certain persons where it reaches a positive conclusion that an appropriate assessment is required and then relieves the Board of giving notice of its determination in circumstances where the application for consent was accompanied by a Natura impact statement. As I have already observed, it is not necessary, for the determination of this judicial review application, to decide the proper construction of these provisions as the Board accepted an appropriate assessment was required. It is, however, relevant to the subsequent issues in dispute in relation to the nature of the full appropriate assessment which must be carried out and the reasons which must be given therefor, to note that an appropriate assessment is the second stage of a two-stage process and only arises where the first stage or screening process has either determined (or it was at least implicitly accepted) that the proposed development, alone or in combination with other plans or projects, is likely to have a significant effect on a European site within the meaning of the low threshold set out by Advocate General Sharpston in Sweetman.
31. Unlike, in the case of an environmental impact assessment, s. 177V does not contain a stand alone definition of an “appropriate assessment”. Sub-section 177V(1) provides that “An appropriate assessment carried out under this Part shall include a determination by the competent authority under Article 6(3) of the Habitats Directive as to whether or not a . . . proposed development would adversely affect the integrity of a European site”. The Board is the competent authority for the purposes of Part XAB in relation to a planning appeal. If as expressly required by s.177V(1) the determination to be made as part of the appropriate assessment is to meet the requirements of Article 6.3 of the Habitats Directive, it follows that the full appropriate assessment must meet the requirements of Article 6(3) of the Habitats Directive as construed in CJEU case law.
32. Sub-section 177V(1) also expressly requires the appropriate assessment to be carried out before consent is given for a proposed development. Further Sub-section (3) provides that “Notwithstanding any other provision in this Act [and other named Acts]”, the Board shall give consent to a proposed development only after having determined that the . . .proposed development shall not adversely affect the integrity of a European site”. Sub-section (4) then “subject to the other provisions of the Act” permits consent to be given where modifications or conditions are attached and the Board has determined that “the proposed development would not adversely affect the integrity of the European site if it is carried out in accordance with the consent and the modifications or conditions attaching thereto. On the facts herein no such determination was made in either appeal and s.177V(4) is not relevant to the issues to be determined.
33. As appears, the respective effects on the decision making process of the Board of the environmental impact assessment and the appropriate assessment (where both have to be carried out by the Board prior to taking its planning decision) are quite different. In carrying out an environmental impact assessment, the Board is required to conduct an examination, analysis and evaluation of and identify the direct and indirect effects of the proposed developments on the matters specified in section 171A(1). However, the outcome of that examination, analysis, evaluation and identification informs rather than determines the planning decision which should or may be made. The Board has jurisdiction in its discretion to grant consent regardless of the outcome of the EIA though of course it impacts on how it should exercise its discretion.
34. In contrast, the Board, in carrying out an appropriate assessment under Article 6(3) and s.177V, is obliged, as part of same, 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.
Nature of Appropriate Assessment
100. An assessment made under Article 6(3) of the Habitats Directive cannot be regarded as appropriate if it contains gaps and lacks complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the SPA concerned (see, to that effect, Case C-304/05 Commission v Italy  ECR1-7495, paragraph 69.”
39. Section 177V(1) 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.
40. 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:
(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.
42. In Sweetman (Case C-258/11), the CJEU also gave guidance as to the scope of the expression “adversely affect the integrity of the site”. It is unnecessary to consider this in detail save to note that the Board is legally constrained as to how it should address the issue. The Court at para. 39 of its judgment, stated:
44. It is agreed that the Board is under an express obligation pursuant to s. 177V(5) of the PDA to give reasons for the determination made under Article 6(3) of the Habitats Directive as to whether or not the proposed development would adversely affect the integrity of a European site. The dispute relates to the extent or nature of the reasons which must be given. The applicant and the Department submit that where, as in these appeals, the determination is that the proposed development would not adversely affect the integrity of any European site in view of the conversation objectives of those sites, then the reasons must include complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed development on the European sites in the light of the conservation objectives of the sites. They submit that such reasons are required in order that the Court may, in an application for judicial review, be able to ascertain whether or not an appropriate assessment has been conducted in accordance with the requirements of Article 6(3) of the Habitats Directive, as explained in the case law of the CJEU. They refer by analogy to the purpose of the requirement to state reasons as explained by the CJEU in Mellor (Case C-75/08)  ECR I-3799 in relation to an implied duty to give reasons for a negative screening decision under the Environmental Impact Assessment Directive. In that judgment, at paras. 57 to 60, the CJEU stated:-
58. Furthermore, interested parties, as well as other national authorities concerned, must be able to ensure, if necessary through legal action, compliance with the competent authority’s screening obligation. That requirement may be met, as in the main proceedings, by the possibility of bringing an action directly against the determination not to carry out an EIA.
59. In that regard, effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general, that the court to which the matter is referred may require the competent authority to notify its reasons. However where it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts. Consequently, in such circumstances, the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request (see Case 222/86 Heylens and Others  ECR 4097, paragraph 15).
60. That subsequent communication may take the form, not only of an express statement of the reasons, but also of information and relevant documents being made available in response to the request made.”
47. The Board, supported by Galetech, did not dispute the above principles or their applicability to its obligation to give reasons for its determination in the appropriate assessment. It referred, however, to the Irish case law, and in particular, that relating to s. 34 of the PDA and the obligation on the Board where it departs from its inspectors’ recommendations to state “the main reasons” for the departure. In particular, the Board noted case law establishing not only the position that the reasons need not be discursive but also that they should be read from the perspective of an intelligent person who has participated in the proceedings and should give sufficient information to enable an appeal of the decision while demonstrating that the decision maker adequately turned his/her mind to the matters in issue (O’Neill v. An Bord Pleanála  IEHC 202 at paras. 27 to 34). Also Counsel for the Board tied the interpretative approach urged by the respondent to the judgment of Kelly J. in Mulholland v. An Bord Pleanála (No.2)  IEHC 306,  1 IR 453. In particular, he noted the comments of Kelly J. at p. 464, paras. 30 to 32, that while new obligations in respect of when reasons are given were introduced by s. 34 of the PDA, the jurisprudence in respect of the content of reasons given by a planning authority had been left unchanged by the legislature. Counsel submitted this position is indicative of a continuing legal position in Irish law on the content of reasons required to be given by a planning authority and, as such, requires that the same interpretation should be given to the statutory obligations in respect of reasons arising under s. 177V(5) of the PDA.
48. On this issue, I have concluded that the submission made on behalf of the applicant and the Department is correct. First, the essential principle is that the reasons must be such as to enable an interested party assess the lawfulness of the decision and in the event of a challenge being brought, the court must have access to sufficient information to enable an assessment as to lawfulness to be made. On the facts of this judicial review, the challenged decisions are those to grant planning permissions. However, the grounds of challenge include the failure of the Board to carry out a proper or lawful appropriate assessment under Article 6(3) as implemented in Ireland. For the reasons already stated in this judgment, the Board could not make a lawful decision to grant planning permission unless it had reached a lawful determination, in an appropriate assessment lawfully conducted, that the proposed development would not adversely impact on the European sites in question. 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.
49. Secondly, it appears to me that whilst the requirement for an appropriate assessment has been implemented in Ireland by amendment of the Planning Acts and requires to be carried out inter alia as part of the planning process, the determination which must be made by the Board as competent authority it is not a “planning decision” in the sense used in the judgments relating to reasons relied upon by the Board. In such a planning decision, the Board is exercising a jurisdiction with a very wide discretion. By contrast, the determination it must make as part of an appropriate assessment is significantly narrower and legally constrained as explained in the CJEU cases cited. It also determines the Board’s continuing jurisdiction to grant planning consent, and therefore a decision which goes to its jurisdiction. The application of the principles set out by Clarke J. in Christian, Rawson and EMI to the different types of decision results as envisaged therein in a requirement for reasons of a different order in relation to the different types of decision.
50. In reaching that conclusion, I am not deciding that the findings and conclusions always have to be ones made by the Board itself. Where the Board appoints an inspector to prepare a report, and the inspector carries out an appropriate assessment as part of his or her report, it may be that if the Board, on consideration, accepts the relevant findings made and conclusions reached by its Inspector in his or her report, that the production of the report may satisfy some or all of the obligation of the Board to give reasons for its determination. This would depend upon the relevant facts.
51. It is now intended to apply the above principles and consider the lawfulness of the appropriate assessment including the determination conducted by the Board in relation to each of the challenged decisions and the adequacy of the reasons given for its determinations. It is necessary to consider each decision separately.
Phase 1 Decision and Appropriate Assessment
53. The structure of the Board’s decision is that it commences by stating its planning decision; it then identifies the matters considered; it then appears to include a number of paragraphs relating to the environmental impact assessment, it carried out; and then in two paragraphs identifies the appropriate assessment conducted and its reasons for the determination reached therein before returning to its final planning assessment and then sets out the conditions to be attached to the grant of permission. Counsel on behalf of the Board submitted that this was the structure of the decision. The two paragraphs expressly referring to the appropriate assessment are in the following terms:-
The Board did not agree with the Inspector’s conclusions set out in section 32.3.6 of her report regarding the adverse effects of the proposed development on feeding/roosting/commuting area and natural flight lines of certain water birds in the light of the comprehensive additional data in this regard submitted as further information to the Board on the 6th day of June 2013. The Board did not agree with the further conclusion of the Inspector in relation to the adverse effects of the proposed development on the integrity of European sites at Lough Croan SAC (Site No. 000610) and Lough Croan SPA (Site No. 004139). The Board considered that it could not reasonably be concluded on the basis of the information on ground conditions and other material submitted; the nature of the proposed development and the use of normal good construction practice, that the integrity of these sites would be adversely affected by the proposed development.”
• landscape and visual impacts
• hydrology and groundwater quality and flows, and
• bird movements in the area, for the reasons set out below.”
The Board is satisfied on the basis of the survey information submitted to the planning authority (Chapter 8, EIS) and the further information submitted on 6th day of June 2013 to An Bord Pleanála in relation to bird movements in the area that the proposed development is unlikely to have any significant impacts on avifauna including species of water birds of conservation interest. While the Board reached this view independently of the applicant’s proposed use of a radar detection system as an additional mitigant it is of the view that this system may be of valued as an aid to minimising impacts on specific bird species in the area.”
57. The two paragraphs included by the Board in its decision in relation to the appropriate assessment must be considered in the context of that part of the Inspector’s Report, which includes the appropriate assessment conducted by her and her findings and conclusion. It assists in identifying the relevant sites, their conservation objectives and potential impacts of the proposed developments.
58. The Inspector set out the appropriate assessment conducted by her at section 32 of her report. It commences by identifying ten Natura 2000 sites in the area of the proposed development. She then gives a short summary of the five nearest conservation sites, their objectives and the impacts on them in the following terms:-
1. Lough Croan - part turlough / part floating fen; supports multitude of highly diverse vegetation, including Red Data - Northern Yellow Cress; important ornithological site; species using site include Whooper Swan, Golden Plover, Greenland White-Fronted Goose (River Suck population), Shoveler, Bewick Swan, Wigeon, Gadwall, Teal, Mallard, Pintail, Lapwing, Curlew, Blackheaded Gull; wintering water fowl numbers are large and site is especially useful to dabbling duck; important site due to its overall size, birdlife and rare plant communities and the species it supports;
2. Four Roads Turlough - very important site as refuge and feeding area for wildfowl and waders; bird numbers variable; can be very large; extensively used by Greenland White-Fronted Goose (River Suck population); other species include Wigeon, Teal, Shoveler; Bewicks Swan, Golden Plover, Lapwing, Curlew; occasional use by Whooper Swan;
3. River Suck Callows - extensive linear site (70km) that floods each winter; important for Greenland White-Fronted Geese (flock of international importance), Whooper Swan, Golden Plover, Wigeon, Lapwing, Mute Swan, Teal, Pintail, Curlew, Black-headed Gull as well as Otter and Hare. There is a wild fowl sanctuary north of Ballyforan;
4. Lough Funshinagh - classified as turlough; water levels fluctuate significantly; important for wintering waterfowl including Whooper Swan, Bewicks Swan, Golden Plover, Wigeon, Teal, Mallard, Shoveler, Pochard, Tufted Duck, Coot, Lapwing and Curlew and also used by River Suck, Greenland White-Fronted Geese;
5. Lisduff Turlough - important for waders and wintering wildfowl; Bewick Swan, Golden Plover, Dunlin, Pintail, Pochard, Lapwing, Curlew, Snipe.
The conservation objectives for these sites are:
• Lough Croan - (i) maintain Annex I habitat - Turlough; (ii) maintain or restore favourable conservation conditions for Shoveler, Golden Plover and Greenland White-Fronted Geese; (iii) additional conservation interest for Wetlands and Water birds;
• Four Roads - (i) maintain Annex I habitat - Turlough; (ii) maintain or restore favourable conservation conditions for Golden Plover and Greenland White-Fronted Geese; (iii) additional conservation interest for wetlands and water birds;
• River Suck - (i) maintain special conservation interest for Whooper Swan, Greenland White-Fronted Geese, Wigeon, Lapwing, Wetlands and Water birds;
• Louth Funshinagh - (i) maintain Annex I habitat - Turlough;
• Lisduff Turlough - (i) maintain Annex I habitat - Turlough;
32.2 Direct and Indirect Impacts
32.2.1 1 consider the main direct impacts will be from
• Displacement of Golden Plover and Lapwing in the short term due to construction noise and loss of habitat and in the long term due to the sight, noise and vibration of turbines;
• Disturbance of feeding/ roosting/ commuting area and interference with natural flight lines of Whooper Swans, Greenland White-Fronted Geese and Golden Plover;
• Bird strikes due to collision with wind turbines;
32.2.2 I consider the main indirect impact in the short and long term will be from
• Change in turlough habitat.”
32.3.1 Displacement of Golden Plover and Lapwing within and in the vicinity of the site
32.3.3 Disturbance of feeding/ roosting/ commuting area and natural flight lines of Whooper Swan, Greenland White-Fronted Geese, Golden Plover and Water birds
32.3.5 The conservation areas provide a cluster of wetland areas. They are supported by the non-conservation wetland sites in the area, including Thomas Street Turlough, Lough Feacle Loughs Cuilleenirwan and Coolagarry and the Ballyglass Canal, as well as the smaller flooded area adjoining the site. The data submitted refers to the large number of Whooper Swans at Lough Feacle and along the Ballyglass Canal. I am satisfied from my inspection and other appeal submissions that Whooper Swan also use Thomas Street Turlough and the flooded lands east of the site. Together, these wetlands provide an extensive network of feeding and roosting areas for the Whooper Swan and Greenland White-Fronted Goose.
32.3.6 The surveys do not address the interconnections between the conservation sites and provide no information on the movement of Greenland White-Fronted Geese in the area. The 2007/2008 census indicates that there are still significant numbers on the River Suck, notwithstanding a decline in numbers. Overall, I would be concerned that the level of information provided is lacking in detail, is unduly focussed at Lough Feacle, due to the separate application in this area and does not provide a definitive picture of the flight paths of protected species in the area of the site, as they move between the different wetlands in the area. Furthermore, I do not consider the applicant has provided adequate information to prove beyond reasonable scientific doubt that the wind farm will not impact on the feeding/ roosting/ commuting area and natural flight lines of Whooper Swan, Greenland White-Fronted Geese, Golden Plover and Water birds, and would not have an adverse impact on these protected species and on the integrity of the three conservation sites, River Suck, Lough Croan and Four Roads Turlough, nearest the proposed wind farm.
32.3.7 Bird strikes due to collision with wind turbines
32.3.9 It is argued that Whooper Swan generally fly at heights well below the minimum rotor sweep of 35m proposed and that the risk of collision is therefore very small. A reduction in turbine height and concomitant reduction in rotor sweep will increase the risk of bird strike. I do not consider the proposed turbine height is acceptable in the mixed hilly, flat farmland, where the development is located and consider, therefore that this argument is not acceptable. Overall, I consider the applicant has not proven beyond reasonable scientific doubt that adverse effects on the integrity of the site with respect to its impact on conservation species in terms of bird strike will not occur.
32.3.10 Changes in turlough habitat
32.3.12 There are a number of turloughs on the lower lands immediately below the site as well as the cluster of conservation sites in the wider area. The nearest turlough conservation site is Lough Croan. It is an extensive, linear wetland about 1.1k n from the nearest turbine. The turlough habitat, which underpins the conservation species in the area, and the potential impact of the development on the habitat is not discussed in the NIS.
32.3.13 The site is located on karst limestone and all rainwater falling on the site recharges directly to groundwater through the fissures and conduits in the underlying bedrock. The results of 2-D resistivity testing indicate that further investigations are required to determine the depth to competent rock and inform the design of the base, at ten of the turbine sites. At a number of sites, excavation may extend below groundwater level. The potential to alter the pattern of recharge within the site as a result of the depth of excavation into the karstic layer or by the proposals to discharge surface water throughout the site is not addressed in the application. It is stated that these matters will be addressed following further investigations necessary to determine the detailed design of the turbine base. Turloughs are a relatively shallow habitat. A small alteration in the pattern of recharge has the potential to have a significant impact on the ecology of the area. Furthermore, given that turloughs generally occur in an area with an extensive groundwater system and where water can flow rapidly over significant distances, I consider that a higher burden of proof is required to demonstrate that the development will not have adverse impacts on Lough Croan the nearest conservation site to the proposed development. I consider that the development raises significant concerns. and it has not been established beyond reasonable scientific doubt that adverse effects on the integrity of Lough Croan will not occur.
32.3.14 On the basis of the Appropriate Assessment, I consider it reasonable to conclude, on the basis of the information available, that the proposed development would adversely affect the integrity of the European sites Lough Croan Turlough SAC, Site No. 000610 and Lough Croan Turlough SPA, Site No. 004139 in view of these sites' conservation objectives.”
(ii) bird strikes due to collision with wind turbines; and
(iii) changes in turlough, habitat,
61. Subsequent to the Inspector’s Report, the Board obtained further information. That information was a wintering bird survey undertaken between January and March 2013. It was furnished in response to a letter seeking further information from the Board dated 7th December 2012. The survey related to Whooper swans and Greenland white-fronted geese. Whilst, in the course of the hearing, there were submissions made by counsel for the Department and the Board for and against the adequacy of the survey as a response to the request dated 7th December, 2012, and in particular, the absence of any survey of Golden Plover, that issue need not be decided as part of the present consideration of the lawfulness or otherwise of the appropriate assessment conducted by the Board.
62. Returning to the evidence before the Court of the appropriate assessment conducted by the Board, taking into account the appropriate assessment conducted by the Inspector, it consists only of the four sentences in the two paragraphs in the Board Decision, together with what is stated by the Inspector in section 32 of her report, insofar as the Board has not disagreed with same. There is uncertainty as to how much of the appropriate assessment conducted by the Inspector or the findings made or conclusions reached by her is accepted by the Board in its decision by reason of the general statement of acceptance save in relation to matters the matters specified but not by reference to the appropriate assessment part of the Inspector’s report.
63. In the Board’s own appropriate assessment, set out in its Decision, the first sentence is simply the statement of its determination and the identification of the material upon which the determination was based. Of the material identified, the only part which may constitute evidence of an assessment made by or on behalf of the Board, as distinct from information which the Board might have taken into account in making its assessment, is the Inspector’s Report.
64. One of the consequences of the absence of any formal screening for an appropriate assessment pursuant to s. 177U as to whether the proposed development is likely to have a significant effect on the European site is that there is no identification, in advance of carrying out the appropriate assessment, of the reasons for which it is has been determined that the proposed developments meet the, admittedly low, threshold of being likely to have a significant effect on the European sites, having regard to their conservation objectives and require an appropriate assessment. On the facts herein, the Inspector, in her report, identified the potential direct and indirect effects in relation to wintering waterfowl and waders under the headings of ‘Displacement’, ‘Disturbance of Feeding/Roosting/Commuting Areas and Interference with Natural Flight Lines and Bird Strikes’, and in addition, a change in turlough habitat, the latter being by reason, principally, of the karst limestone underlying the site of the proposed development, the extensive ground water system and potential to alter the pattern of recharge.
65. In relation to the potential impact on the water fowl and waders by reason of disturbance of feeding/roosting/commuting area and interference with natural flight lines and potential bird strikes, the only evidence of any assessment conducted by the Board itself is its statement in its decision that it “did not agree with the Inspector’s conclusions set out in s. 32.3.6 of her report regarding the adverse effects of the proposed development on feeding/roosting/commuting area and natural flight lines of certain water birds in the light of the comprehensive additional data in this regard submitted as further information to the Board on the 6th day of June 2013”. There is no evidence of any analysis or evaluation conducted by the Board of the further information or findings made by it.
66. In relation to the effects of potential changes in the turlough habitat identified by the Inspector in paras. 32.3.11 to 32.3.13 of her report, the Board does not, in its Decision, provide any evidence of any further or different assessment conducted by it and simply states it did not agree with the conclusion reached by the Inspector at para. 32.3.14 of her report that the proposed development would adversely affect the integrity of three of the named sites in the light of those sites’ conservation objectives and then adds its conclusion “that it could not reasonably be concluded on the basis of the information on ground conditions and other material submitted; the nature of the proposed development and the use of normal good construction practice, that the integrity of these sites would be adversely affected by the proposed development”.
Conclusion on Phase 1 Appropriate Assessment
68. For the reasons set out earlier in this judgment, the determination made by the Board that the proposed development, individually or in combination with other plans or projects, would not adversely affect the integrity of any European site in view of the conservation objectives of those sites cannot be considered lawful unless such determination is made as part of an appropriate assessment which is lawfully conducted. Further, in the absence of such a lawful determination, the Board did not have jurisdiction to grant planning permission for the proposed development pursuant to s. 177V(3) of the PDA. It follows that the applicant is entitled to an order of certiorari of the Phase 1 decision.
69. I have also concluded on the same evidence that the Board failed to give reasons for its determination in the appropriate assessment which meets the requirements set out earlier in this judgment.
Phase 2 Decision and Appropriate Assessment
71. The Board Decision follows the same format as that in Phase 1. The Department and applicant laid emphasis upon the fact that, unlike the Decision in relation to Phase 1, there is no reference to the additional information by way of bird survey furnished to the Board on 6th June, 2013, either in the list of matters to which the Board had regard or in those paragraphs of the Decision which appear to constitute the appropriate assessment. I will return to this.
72. In relation to the appropriate assessment, the Board stated, in its Decision:
The Board did not agree with the Inspector’s conclusions, as set out in section 11 of her report, regarding the adverse effects of the proposed development on bird species utilising the site in the light of the comprehensive data in this regard submitted with the application as referenced above. With regard to impacts on karst limestone bedrock the Board considered that it could not reasonably be concluded, on the basis of the information on ground conditions and other material submitted, the nature of the proposed development and the use of normal good construction practice, that the integrity of these sites would be adversely affected by the proposed development. Finally, with regard to the impact of the proposed development on bats, the Board noted the substantial survey work completed prior to the application as well as the further information submitted to the planning authority on the 8th day of June, 2012 and considered that, subject to the implementation of the proposed mitigation measures, the residual impacts of the proposed development on bats would be minimal.”
74. Similar to Phase 1, there is no formal screening determination. However, also similarly, the Inspector (who was a different Inspector to that appointed in respect of the Phase 1 appeal) conducted an appropriate assessment from paras. 10.124 to 10.163 of her report. The Inspector states at para. 10.128 that she followed the Department of Environment’s guidance document on appropriate assessment and the European Commission’s advice on appropriate assessment. She also refers to the earlier part of her report which, she states, sets out much of the information required for the appropriate assessment and then summarises the key aspects of the development as it relates to the appropriate assessment. The Inspector considers in some detail the short and long-term, indirect and cumulative impacts which are likely to arise from the construction and operational phases of the development from paras. 10.136 to 10.153. She then considers certain mitigation issues. It is unnecessary to set these out in full. She identifies the residual impacts and states her appropriate assessment conclusion at paras. 10.160 to 10.163 in the following terms:
a. Detailed geo-technical investigations regarding the construction of the proposed turbine bases and sub-station in areas of karstified limestone and
b. Detailed design solutions for the site specific disposal of surface water arising on site,
10.161 There is a risk that the construction of the wind farm will impact on groundwater flow paths within the karst landscape which may in turn affect the hydrology/hydrogeology of the network of designated wetland systems (notably turloughs) in the vicinity of the site and their associated habitats and species.
10.162 Secondly, in the absence of detailed survey information on the use of the appeal site by bird species listed of Conservation Interest in the surrounding network of SPA’s there is a risk that the proposed development will adversely impact on these species by virtue of disturbance, barrier effects to movement and collision risk arising from the construction and operation of the wind farm. These impacts could disrupt factors which maintain the favourable conditions for the species in the wider environment and in the network of SPAs in particular.
10.163 In view of the above, I consider that it is not reasonable to conclude on the basis of the information available that the proposed development would not individually, and in combination with other projects, adversely affect the integrity of the European sites in the vicinity of the appeal site (Lough Croan Turlough SPA, site code 004139; Four Roads Turlough SPA, site code 004140; River Suck Callows SPA, site code 004097) in view of the site’s conservation objectives.”
11.1 International and national policies actively support and encourage the growth of renewable energy sources and wind energy development in particular. However, the government’s guidelines on wind energy development state that the implementation of renewable energy policies must have regard for the environment, specifically the legally binding requirements of the EU Directives on Birds and Habitats.
11.2 The appeal site lies within 15km of 14 statutorily designated European sites as part of the European Natura 2000 network and the site itself hosts bird species of national Importance and bird species which are listed of Special Conservation Interest in the 3 no. Special Protection Areas in the vicinity of the site. On the basis of the information provided by the applicant, I am not satisfied that the applicant has demonstrated that the proposed development will not adversely impact on bird species utilising the site, by way of disturbance, barrier effects to movement and collision risk arising from the construction and operation of the
wind farm. In particular, these impacts could disrupt factors which maintain the favourable conditions for the species in the wider environment and in the network of SPA’s in particular.
11.3 The appeal site is underlain by karstified limestone bedrock and within the same groundwater bodies as the network of designated wetland habitats within 15km of the site. I do not consider that the applicant has adequately demonstrated that the proposed development will not adversely impact on groundwater flowpaths within the karst landscape or indirectly therefore the groundwater regime of the designated wetland habitats in the vicinity of the site.
. . .
11.6 In summary, I consider that the proposed development should be refused for the two above substantive reasons set out above, impact on
hydrology/hydrogeology of related designated wetland systems and impact on bird species of Special Conservation Interest occurring on the site and in the surrounding network of Special Protection Areas.”
(1) hydrology and groundwater quality and flow, and
(2) bird movements in the area,
for the reasons set out below.”
78. Again, the first paragraph of the Board’s Decision relating to the appropriate assessment is no more than its determination or conclusion that the proposed development, either individually or in combination with other plans or projects, would not adversely affect the integrity of any European site in view of the conservation objectives.
79. In the first sentence of the second paragraph, the Board again simply disagrees with the Inspector’s conclusions regarding the adverse effects of the proposed development on the bird species using the conservation sites. There is no evidence of any assessment conducted by the Board which includes complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed development on the Natura 2000 sites concerned, having regard to their conservation objective of supporting the wintering wild fowl and waders identified.
80. In relation to the potential hydrological/hydrogeological impacts of the construction of the proposed development on Natura 2000 wetlands systems in the vicinity of the site, and in particular, certain turloughs, the Board has not conducted any assessment which includes complete and precise findings and conclusions capable of removing all reasonable scientific doubt as to the effect of the works proposed on the habitat of the Natura 2000 sites in the light of its conservation objectives, having regard, in particular, to the potential indirect effects and lacunae in the information supplied identified by its own Inspector.
Conclusion on Phase 2 Decision
82. I have also concluded that it failed to give reasons for its determination in the appropriate assessment in the Phase 2 Decision in accordance with the principles set out in this judgment.