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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Sliabh Luachra Against Ballydesmond Windfarm Committee v An Bord Pleanala [2019] IEHC 888 (20 December 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC888.html
Cite as: [2019] 12 JIC 2017, [2019] IEHC 888

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27th November, 2018 granting planning permission for the construction of a windfarm

and associated works on elevated ground between the villages of Gneeveguilla, County

Kerry and Ballydesmond, County Cork. The application for permission for the proposed

windfarm development envisaged the erection of fourteen turbines with a rotor diameter

up to 120m and a blade tip height of up to 150m above ground level, two permanent

meteorological masts, two medium voltage substations, one high voltage substation,

thirteen site entrances comprising seven new site entrances and six upgraded site

entrances, three barrow pits and adjacent repositories, the provision of new and upgraded

internal site service roads and surface water management measures, temporary site

compounds, underground cabling and associated infrastructure necessary to construct the

development. The respondent, in its decision to grant permission, reduced the number of

turbines from fourteen to twelve. As described in more detail below, the exclusion of two

of the turbines from the development was largely prompted by concerns about the impact

of those particular turbines on the hen harrier.

hectares and will extend across 15 individual land holdings. The site is located to the

west of and sloping towards the upper reaches of the Blackwater river valley. The

southwestern extent of the proposed site is located close to the watershed between the

Blackwater river and Laune river catchments. The site is drained by a number of

tributaries of the river Blackwater including the Tooreengarriv/Carhoonoe, Mountinfant

and Reansup streams. Although the site is located close to the watershed between the

Blackwater and Laune catchments, all drainage serving the proposed infrastructure will be

designed to discharge via the Blackwater catchment with one minor exception which is

not relevant for present purposes.

(“Silverbirch”). Its application for planning permission for the proposed development was

rejected by the County Council (the second named notice party) (“the County Council”)

on 30 May, 2017 for the following reasons:-

(a) In the first place, having regard to the extent, size and scale of the turbines the

County Council considered that the development would create a significant visual

intrusion in the landscape by reason of the height and spatial extent of the

proposed turbines which would be excessively dominant and visually intrusive. The

County Council took the view that the development would therefore seriously injure

the residential amenity and visual amenities of the area and would, inter alia,

contravene Objective ZL-1 of the Kerry County Development Plan, 2015-2021:

Page 3 ⇓

(b) Secondly, noting that the site is located within the catchment of the Blackwater

river which provides a home to the endangered freshwater pearl mussel, the

County Council was not satisfied that the construction would not cause pollution of

local water courses;

(c) Thirdly, the County Council took the view that two of the turbines (namely T8 and

T9) are located within an area known as Barna Bog used by hunting hen harriers

which may breed in the nearby Stacks Mullaghareirk Mountains, West Limerick hills

and Mount Eagle Special Protection Area (“The Stacks SPA”). In particular, the

County Council considered that the proposed development would cause the loss of

hen harrier hunting habitat which would have a significant adverse effect on the

Stacks SPA.

respondent appointed an inspector to review the matter and prepare a report with

recommendations. The inspector conducted an analysis of the proposed development and

reported with a recommendation that planning permission might be granted by the

respondent for a development comprising twelve of the proposed turbines but excluding

turbines T8 and T9. Thereafter on 23rd November, 2018 the respondent, by direction of

that date, decided to grant permission. The relevant decision to grant subsequently

issued on 27th November, 2018.

The grounds of challenge

the development on the following grounds:-

(a) The principal ground on which the applicant seeks to challenge the decision of the

respondent is that there was a failure to carry out and record any Appropriate

Assessment in accordance with national and European law. In making this case,

the applicant has raised concerns in relation to both the hen harrier and the

freshwater pearl mussel;

(b) Next, the applicant makes the case that there is nothing to suggest that the

respondent carried out an Environmental Impact Assessment (“EIA”). In this

context, although the issue is addressed in the report of the inspector appointed by

the respondent, neither the direction nor the decision of the respondent record that

the respondent carried out an EIA;

(c) Thirdly, the applicant contends that, in granting permission for the proposed

development, the respondent has contravened s. 37 (2) of the Planning and

Development Act, 2000 (“the 2000 Act”) in circumstances where (so the applicant

contends) the proposed development materially contravenes the Kerry County

Development Plan (“the development plan”).

Page 4 ⇓

briefly, I propose to deal with that issue first. Thereafter, I will address the first and

second issues listed in para. 5 above.

Material contravention of the development plan

for the proposed development was that it would contravene Objective ZL-1 of the

development plan. According to that plan, the purpose of Objective ZL-1 is to protect the

landscape of County Kerry as a major economic asset and an invaluable amenity which

contributes to the quality of peoples’ lives. The applicant contends that the decision of

the respondent to grant permission contravenes s. 37 (2) of the 2000 Act. Under s. 37,

the respondent may only grant permission for a development which materially

contravenes a development plan where certain conditions (described in para. 9 below) are

met.

development materially contravened the development plan. That is the language which is

used in the 2000 Act. Section 37 (2) (a) of the 2000 Act provides as follows:-

“(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this

section decide to grant a permission even if the proposed development contravenes

materially the development plan relating to the area of the planning authority to

whose decision the appeal relates.”

provisions of s. 37 (2) (b) which are in the following terms:-

“(b) Where a planning authority has decided to refuse permission on the grounds that a

proposed development materially contravenes the development plan, the Board

may only grant permission in accordance with paragraph (a) where it considers

that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not

clearly stated, insofar as the proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to

regional spatial and economic strategy for the area, guidelines section 28, policy

directives under section 29, the statutory obligations of any local authority in the

area, and any relevant policy of the Government, the Minister or any Minister of the

Government, or

(iv) permission for the proposed development should be granted having regard to the

pattern of development, and permissions granted, in the area since the making of

the development plan.”

Page 5 ⇓

concerned with material contravention of a development plan. As noted in para. 8 above,

that is not the language which the County Council used in its decision of 30th May, 2017

to refuse permission. The relevant reference to the County Development Plan is in fact

rolled up with a number of other considerations. The relevant reason is in the following

terms:-

“Having regard to the spatial extent, size and scale of the proposed turbines

relative to the nature of the receiving environment of hilly and flat farmlands and

transitional marginal landscapes, it is considered that a windfarm development of

the scale proposed would create a significant visual intrusion in this landscape by

reason of the height and spatial extent of the proposed turbines which would be

excessively dominant and visually obtrusive when viewed from the surrounding

countryside and villages. The proposed wind farm would have a significant impact

on the value and character of the landscapes in the area and would seriously injure

the amenity and quality of life of communities and individuals who dwell in the

area. The proposed development would, therefore, seriously injure the residential

amenities and visual amenities of the area, would be contrary to the provisions of

the Wind Energy Guidelines… and Section 7.4.5.15 of the Renewable Energy

Strategy 2012, would contravene Objective ZL-1 of the Kerry County Development

Plan… and would be contrary to the proper planning and sustainable development

of the area”.

that, as the text of the reason relied on by the County Council makes very clear, the

decision to refuse permission was not stated to be on the basis that the development

would materially contravene the development plan. I can therefore see no basis to

distinguish the present case from the circumstances addressed by Haughton J. in People

considered by Haughton J. in People Over Wind. In the present case, there is nothing in

the materials before the court to support the suggestion that it had been the intention of

the County Council to conclude that the development constituted a material contravention

of the Development Plan.

in material contravention of the Development Plan. The impact of the proposed

development on the landscape is addressed extensively in paras. 8.12.1 to 8.12.8 of the

inspector’s report. Having carefully considered the issue, the inspector came to the

conclusion that he was satisfied that the overall visual impact of the development on the

area would be “within acceptable limits”. In turn, the respondent, in its direction of 23rd

November, 2018 expressly decided to grant permission in accordance with the inspector’s

recommendation. In doing so, the respondent stated that it had taken into account the

policies of the County Council as set out in the Development Plan. Having considered,

inter alia, the Development Plan, the character of the landscape and the topography

surrounding the site, the characteristics of the site and of the general vicinity, the pattern

of existing and permitted development in the area, the distances from the proposed

development to dwellings or other sensitive receptors, and the report of the inspector, the

respondent considered that the development would not have a significant adverse effect

on the landscape or the visual or residential amenities of the area. Thus, in deciding to

grant permission, there is nothing to suggest that the respondent (who, in accordance

with the provisions of the 2000 Act conducts a de novo assessment of the application)

was exercising any jurisdiction under s. 37 (2) (a). It only exercises such a jurisdiction

where there is a material contravention. Based on the extensive analysis carried out by

the inspector in relation to this issue, and based on the reasons set out in the Board

direction (summarised above) it is clear that the respondent took the view that the

proposed development was acceptable in terms of landscape and visual amenity.

refused permission on the grounds that the development would materially contravene the

Development Plan and in circumstances where the decision of the respondent was not

taken in exercise of its jurisdiction under s. 37 (2) (a), it follows that this ground of

challenge to the decision of the respondent fails.

The legal requirements for appropriate assessment

be set out here. No issue arises in relation to the language used in Article 6. Nor does

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any issue arise in relation to the provisions of the 2000 Act implementing Article 6. It is

not, therefore necessary, to set out the relevant statutory provisions which apply.

development site is not located within any Natura 2000 designation, there are a number

of protected sites in the wider area including the Stacks SPA and the Blackwater River

Special Area of Conservation (“the Blackwater SAC”). In light of the potential for the

development to have adverse impacts on the integrity of those Natura 2000 sites, the

inspector stated as follows at p. 112 of his report:-

“… any development likely to have a serious adverse effect on a Natura 2000 site

would not normally be permitted and… any development proposal in the vicinity of,

or affecting in any way, a designated site should be accompanied by such sufficient

information as to show how the proposal will impact on the designated site.

Therefore, a proposed development may only be authorised after it has been

established that the development will not have a negative impact on the fauna,

flora or habitat being protected through an Appropriate Assessment pursuant to

Article 6 of the Habitats Directive. Accordingly, it is necessary to screen the subject

proposal for the purposes of ‘appropriate assessment’”

had the potential to have an adverse impact upon, inter alia, the Stacks SPA and the

Blackwater SAC. Insofar as those two sites are concerned, the inspector recognised, in

particular, that the development could have a potential impact on the roosting, breeding,

and foraging habits of the hen harrier but it also had potential implications for

downstream protected habitats and species within the Blackwater SAC. These include the

freshwater pearl mussel.

well established that there are quite stringent requirements that must be complied with

where a stage 2 appropriate assessment is carried out. Those requirements have been

the subject of a number of decisions of the CJEU which, in turn, have been applied in

out an appropriate assessment. The case made overlaps with the applicant’s complaints in

relation to EIA and, for that reason, it may be convenient, at this point, to summarise

both elements of the applicant’s case. In making that case, the applicant has made the

following points:-

(a) In para. 4 of the statement of grounds it is alleged (in quite general terms) that

there was a failure to carry out and record any or any adequate EIA in respect of

the proposed development.

(b) In para. 9 of the statement of grounds, it is alleged that the respondent has failed

to engage with its obligation to maintain and restore the habitat of the freshwater

pearl mussel. It is alleged that the respondent has taken an entirely different

approach in this case to the mitigation measures (necessary to ensure that there

are no adverse effects on the mussel) to the approach taken in other cases where it

is alleged more extensive measures were required to be put in place. In this

Page 9 ⇓

context, the applicant contends that the mitigation measures which the respondent

has found to be satisfactory in this case are “different and significantly less

advanced than those considered (and indeed considered insufficient) in other cases.

Reference is made to the refusal by the respondent in respect of an appeal in

respect of a wind farm in Doonbeg and to the decision of the Board the subject of

an affidavit sworn by Fred O’Sullivan on behalf of the applicant on 30th January, 2019.

Thereafter, Silverbirch made an application to admit the proceedings into the Commercial

List. An order to that effect was made by Haughton J. on 11th March, 2019. In that

order, the court, in accordance with an agreed directions timetable, directed that

opposition papers should be filed by 15th April, 2019, a replying affidavit on behalf of the

Page 11 ⇓

applicant (if required) should be filed by 27th May, 2019 and thereafter any replying

affidavits by the respondent or the notice parties should be delivered by 17th June, 2019.

There was some slippage in that timetable in that the opposition papers on behalf of the

respondent were not filed until 29th April, 2019. As a consequence, the timetable was

adjusted. The last adjustment made to the timetable is recorded in an order made by me

on 31st July, 2019 which extended the time for filing of the replying affidavit on behalf of

the applicant to 7th August, 2019 following which the submissions of the parties were to

be exchanged.

was sworn by Dr. Allan Mee (who had been one of the authors of the submission made to

the respondent by the Irish Raptor Study Group). Dr. Mee is a zoologist and a

professional ornithologist and his affidavit, consisting of 69 paragraphs, deals extensively

with the hen harrier and with the impacts of the proposed development on that bird. The

affidavit also raised issues in relation to merlins, bats, woodcock, red grouse and the

short-eared owl. He also raised issues in relation to cumulative impacts of the

development along with other windfarm developments in the vicinity. The affidavit also

contains a number of criticisms of the approach taken by the inspector and the

respondent.

interest in wetland and aquatic habitats. As his affidavit makes clear, Mr. Reidy is

associated with the Duhallow Environment Working Group (which also made submissions

to the respondent in the course of the appeal). His affidavit, comprising 59 paragraphs,

deals extensively with the freshwater pearl mussel, the proximity of the known

populations of the mussel to the proposed windfarm, and the threats facing the long-term

survival of the mussel. He highlights that the national population of the mussel is in

decline as a result of eutrophication and sedimentation of habitat. As I understand it,

eutrophication arises as a consequence of algal growth which uses up oxygen in the

water. The affidavit also contains a critique of the approach taken by the respondent and

Mr. Reidy also addresses and takes issue with the extent of the mitigation measures

proposed. In common with Dr. Mee, Mr. Reidy also raises issues in relation to cumulative

impacts. He also raises questions in relation to impacts on salmon, lamprey, plant

surveys and flora assessment (specifically Japanese knotweed and giant rhubarb).

reply to the affidavits sworn on behalf of the respondent and Silverbirch. In substance

and in form, they do not even purport to respond to the averments made by Mr. Pierce

Dillon in his affidavit sworn on behalf of the respondent or to the averments made by Mr.

Damien Courtney in his affidavit sworn on behalf of Silverbirch. They also canvass a

number of issues which are not raised in the Statement of Grounds at all. In this context,

in the course of the hearing before me, counsel for the applicant very properly

acknowledged that the applicant is not entitled to advance a case which is not pleaded in

the Statement of Grounds. In their written submissions delivered in advance of the

hearing and in the course of oral argument at the hearing, both the respondent and

Page 12 ⇓

Silverbirch have strongly objected to the admission of the affidavits sworn by Dr. Mee and

Mr. Reidy.

applicant’s position to file all of the evidence to support the case made within the relevant

eight-week period allowed for the bringing of judicial review proceedings. Counsel argued

that an applicant cannot be expected to source and engage experts in that timeframe. He

also suggested (although there was no affidavit evidence on behalf of the applicant in

these proceedings to this effect) that an applicant seeking judicial review can have great

difficulty in sourcing an appropriate expert and persuading that expert to provide expert

opinion evidence. Some latitude should be allowed for that purpose. Counsel also

suggested that there was no prejudice to the respondent or to Silverbirch.

evidence from an appropriate expert within the relatively short period of time allowed for

a challenge to a decision of the respondent. Where that occurs and where such expert

evidence is necessary, one would expect that an applicant would, at the very least, make

clear in the Statement of Grounds and verifying affidavit that it is intended to support the

case by reference to expert evidence. In such circumstances, both the court and the

relevant respondent and notice party would be put on notice of the applicant’s intention

and would have an opportunity to address, by means of appropriate directions, a timeline

for the delivery of such evidence and any necessary response from the respondent and

notice party. However, that is not what occurred here. There was no suggestion made at

any point prior to August 2019 that stand-alone expert evidence would be adduced on

behalf of the applicant. The directions given by the court (on the basis of an agreement

between the parties) merely envisaged the delivery of a replying affidavit. As noted

above, the affidavits of Dr. Mee and Mr. Reidy are not by way of reply to the opposition

papers and verifying affidavits filed on behalf of the respondent and Silverbirch. In truth,

both affidavits are stand-alone affidavits which make no attempt to address what was

said in the opposition papers.

associated with groups who participated in the appeal process before the respondent and

made submissions to the respondent. In circumstances where both the Irish Raptor

Study Group and the Duhallow Environment Working Group had participated in the

appeal, they were already fully familiar with the documents filed in the course of the

appeal and in particular were familiar with the nature of the proposed development and

the Natura 2000 interests which they believed could be adversely affected by the

proposed development. No explanation has been furnished as to why, in those

circumstances, it was not possible to obtain affidavits from Dr. Mee and Mr. Reidy at the

outset or, at the very least, at an early stage in these proceedings.

been suffered by the respondent and Silverbirch, it is important to bear in mind that, as

counsel for the respondent highlighted, in the course of her submissions, the affidavits

Page 13 ⇓

(comprising 128 paragraphs in total) were delivered in the middle of the long vacation in

relation to a Commercial Court case which was due to commence on the second day of

term. The arguments made in both affidavits are extensive. As counsel said they are

“roving”. I believe counsel was correct to suggest that they bear all the hallmarks of

authorship by someone who has taken a microscope to try and find any point that could

possibly be made and then to cover those points in extenso in the affidavits.

Notwithstanding the very proper confirmation by counsel for the applicant that the

applicant cannot go beyond the case made in the Statement of Grounds, no attempt is

made in the affidavits by either deponent to confine themselves to the matters

complained of in the Statement of Grounds.

about the timing of the delivery of the affidavits. They were delivered at a time which

made it virtually impossible to respond to them while, at the same time being in a

position to maintain the hearing date of 8th October, 2019 (namely the second day of

Michaelmas term). In this context, it seems to me that, contrary to the submissions

made by counsel for the applicant, there is a real prejudice to the respondent and the

notice party by reason of the late delivery of affidavits of this kind. The nature of this

prejudice was described by Clarke J. (as he then was) in Woori Bank v. KDB (Ireland) Ltd

seems to me that very similar considerations arise here where, without any prior warning,

expert evidence (particularly extensive expert evidence of the kind set out in the

affidavits of Dr. Mee and Mr. Reidy) is delivered at a very late stage in the proceedings

when a trial is imminent and when the opposing parties would have no ability to respond

to those affidavits without putting the trial date in jeopardy. As noted previously, there is

no basis on which it could plausibly be suggested (and counsel for the applicant very

wisely did not make the suggestion) that the affidavits are in the nature of a reply to the

case made by the respondent and Silverbirch in their respective opposition papers.

kind. Trial dates are allocated well in advance of a trial. If a trial cannot proceed on the

date allocated to it, it may take many months before the court is in a position to allocate

a new trial date. In this case, the trial date was fixed in March 2019 on the basis of the

directions (agreed between the parties at that time) recorded in the order of Haughton J.

I have no doubt that, in March 2019, there were ample trial dates available in Michaelmas

term 2019. However, by the time these affidavits were delivered in August 2019, the trial

dates for Michaelmas term were already fully allocated. It would not have been possible

to secure a new trial date for a four day hearing before Hilary term 2020 at the very

earliest. This would be a particular prejudice in a case of this kind in circumstances

where, as the relatively short timeframe for challenge provided by the 2000 Act

demonstrates, the underlying legislative intention is that challenges of this kind should be

dealt with promptly.

which are brought pursuant to such statutory provisions and against a backdrop where

the Commercial Court has already been persuaded that the proceedings are of sufficient

urgency to merit entry into the Commercial List and case management by the judge in

charge of that list. In para. 13 of the affidavit of Damien Courtney grounding the

application for admission of the proceedings into the Commercial List, Mr. Courtney

stated:-

“13. Given the importance of the Silverbirch Windfarm to meeting the State’s targets for

greenhouse gas emission reduction and renewable energy sources, the capital

expenditure incurred to date, the further expenditure to complete the project, the

Page 15 ⇓

long delay in the planning process already in the proposed new [Renewable

Electricity Support Scheme], the awaited decision on connections after ECP-1 and

the deadlines for lease options, Silverbirch is very anxious to have the within

challenge to the permission granted dealt with as expeditiously as possible. Having

the within proceedings case managed within the Commercial List … is, I say and

believe, the most effective way in which to achieve this outcome”.

delivered nine months after the decision of the respondent which is now the subject of the

challenge in these proceedings. In my view, the delay in this case is such and the timing

of delivery of the affidavits is such that it was incumbent on the applicant, if it wished to

be in a position to rely on such affidavits, to fully explain and justify their delivery at such

a late (and crucial) stage of the proceedings. No satisfactory explanation or reason has

been put forward to justify the late delivery of these affidavits. The timing of the delivery

of the affidavits is not addressed anywhere on oath by the applicant. In light of the failure

to properly explain and justify the delivery of these affidavits, I am left with no alternative

but to exclude them from consideration. In the absence of an objectively justifiable

explanation for their late delivery, the logistical prejudice to the respondent and

Silverbirch is such that the affidavits must be excluded.

to have been an apprehension that, without expert evidence, the applicant could find

itself without any evidence to support the case made in the Statement of Grounds. This

concern appears to have arisen as a consequence of the approach taken by White J. in An

the respondent and Silverbirch in relation to the admissibility of the affidavits of Dr. Mee

and Mr. Reidy. For completeness, it should be noted that it was strongly urged by the

respondent, as an additional basis for contesting the admissibility of the late affidavits,

that the affidavits contained material which had never been placed before the respondent

in the course of the appeal. Reliance was placed on the decision of Murphy J. in Hennessy

v. An Bord Pleanála [2018] IEHC 678 and the decision of Haughton J. in People Over Wind

the case on the basis of the Statement of Grounds and the affidavit of Mr. O’Sullivan

together with the affidavits and materials placed before the court by the respondent and

Silverbirch. I do not propose to consider the affidavits of Dr. Mee or Mr. Reidy save to

observe that, while the affidavits go beyond the Statement of Grounds in a number of

respects, there are significant parts of the affidavits which are consistent with the

Statement of Grounds. In circumstances where, it will be necessary, in any event, to

address the Statement of Grounds, the applicant can therefore be assured that the case

which it makes will still be determined notwithstanding the exclusion of these two

affidavits. Given that counsel for the applicant has, as previously noted, very properly

conceded that the applicant is confined to the case made in the Statement of Grounds, I

do not believe that the applicant is, in truth, disadvantaged by the exclusion of these

affidavits.

Some subsidiary issues raised by the applicant in relation to the assessment carried

out by the respondent

Grounds, whether the assessment carried out by the respondent complies with the

requirements summarised in para. 19 above. Before doing so, it may be helpful, at this

point, to dispose of one aspect of the case made by the applicant. This relates to an

aspect of the case summarised in para. 20 (c) above. During the course of the hearing, it

was suggested by counsel for the applicant that the respondent had failed to take into

account the submissions made by some of the observers who participated in the course of

the appeal including the Irish Raptor Study Group and Duhallow Environment Working

Group. In this context, I note the submission made by counsel for the respondent that

the task facing the respondent carrying out an appropriate assessment in an appeal of

this kind is not to address submissions as such but the specific issues that arise in the

context of the Habitats Directive. Counsel for the respondent referred to the decision of

Costello J. in O’Brien v. An Bord Pleanála [2017] IEHC 773. In that case, the issue arose

in the context of an EIA rather than in the context of appropriate assessment. However,

it was submitted by counsel for the respondent that similar considerations apply in the

context of appropriate assessment where the focus of the planning authority will be on

the qualifying interests in the protected site and the potential impacts of the development

on those interests. In O’Brien, Costello J. said at paras. 44-45:-

“44. The implications of the submissions of the applicants in this case are that the

Inspector and the Board must examine, analyse and evaluate each of the

submissions or observations validly made to the Board. This is not what is required

by either the EIA Directive or the Act of 2000, which simply requires that the direct

and indirect effects of a proposed development be so assessed, not the submissions

or observations. The arguments advanced by the applicants leads to a result which

would render the provision of s. 172(1J) (c) effectively otiose. Why would the

Oireachtas stipulate that the planning authority or the Board had an obligation to

Page 18 ⇓

consider the submissions and observations submitted by third parties before the

planning authority or the Board informed the public of the main reasons and

considerations for their decision, if they were already obliged to examine, analyse

and evaluate the individual submissions and observations and make that

assessment available to the public under the provisions of s. 172(1J) (b)?

45. In my judgment it was not necessary for the Board (or the Inspector) to examine,

analyse or evaluate the Bowdler Report or the points made in the report or the

experience of the applicants (or their neighbours) in relation to noise in order to

carry out a lawful EIA. It is sufficient that there is an examination, analysis and

evaluation of the direct and indirect effects (including the noise implications) of the

proposed development on the environment as set out in … the Inspector's report.”

light of the very recent decision of the Supreme Court in Balz v. An Bord Pleanála

the 28 observations that had been received from interested parties during the course of

the appeal and summarised the principal points made. Among the points highlighted by

the inspector in this section of the report included concerns in relation to the hen harrier,

the potential loss of breeding and foraging habitat for hen harriers, displacement and

disturbance during both construction and operational phases and collision risk; the

Page 19 ⇓

inspector also highlighted concerns with regard to the potential for landslides and peat

slippage and the associated ecological pollution; and the inspector also drew attention to

the concerns that had been expressed that construction of the development would likely

have a detrimental effect on water quality and the hydrological regime of the area with

adverse downstream impacts on aquatic habitats including the Blackwater SAC which

supports a population of freshwater pearl mussel.

in particular, during the course of the submissions made by counsel for the applicant.

This relates to the case made by the applicant that none of the concerns of the County

Council in relation to appropriate assessment are addressed in the inspector’s report.

This submission needs to be put in context. It is clear from a consideration of the report

that the inspector carefully summarised the planning history and the particular history of

the unsuccessful application to the County Council for permission which led to the appeal.

Section 4 of the inspector’s report addresses the process before the County Council in

some detail summarising, inter alia, the decision of the County Council and the reasons

for it and also summarising the reports of the County Council planning department

(including the report relating to the environment which considers the freshwater pearl

mussel) and the report of the biodiversity officer of the County Council that addresses

both the impact on the Blackwater SAC and the impact on the Stacks SPA. However,

counsel for the applicant submitted that, thereafter, when the inspector came to carry out

the assessment for the purposes of Article 6 of the Habitats Directive, there was no

reference back to the concerns of the County Council in relation to the impact of the

development on the freshwater pearl mussel and the loss of hen harrier hunting habitat.

consideration of s. 37 (1) (b) of the 2000 Act that an appeal to the respondent requires

the respondent to treat the appeal as though it were an application that had been made

to it in the first instance. Insofar as relevant, s. 37 (1) (b) provides as follows:-

“…where an appeal is brought against a decision of a planning authority…, the

Board shall determine the application as if it had been made to the Board in the

first instance and the decision of the Board shall operate to annul the decision of

the planning authority as from the time when it was given …”.

planning authority is not unlike the position of the High Court on an appeal from the

Circuit Court under s. 38 (2) of the Courts of Justice Act, 1936 (save to the extent that

the High Court, on such an appeal, is confined to hearing from the same witnesses in

relation to the same subject matter as gave evidence in the Circuit Court). The High

Court hears such appeals without any reference to the decision actually made by the

Circuit Court and reaches its own decision on the evidence heard afresh by it. If

anything, the position of the respondent on an appeal from a planning authority is even

broader than the position of the High Court on an appeal from the Circuit Court. In the

Page 20 ⇓

case of the respondent, it can entertain observations from persons and bodies who did

not participate in the original application before the planning authority.

assessment, would not refer back to the decision of the County Council or the approach

taken by the County Council. It is, in any event, clear from a consideration of the report

of the inspector that he did, as part of his assessment, have regard to the concerns that

were voiced in relation to the freshwater pearl mussel and the hen harrier. The question

is whether the assessment carried out by the inspector (and by extension the respondent)

complied with the requirements summarised in para. 19 above. It is to that issue to

which I now turn.

The assessment carried out by the inspector and the respondent

purposes of carrying out a valid appropriate assessment. As highlighted by Clarke C.J. in

Connelly at para. 8.16, a valid appropriate assessment decision is a necessary pre-

condition to a planning consent in cases where appropriate assessment is required. It is

therefore necessary, in the present case, to consider each of the requirements

summarised in para. 19 above. I deal below with each of those requirements in turn.

Did the assessment identify, in the light of the best scientific knowledge, all aspects of

the development which could adversely affect the hen harrier or the freshwater pearl

mussel?

arises solely in relation to the hen harrier and freshwater pearl mussel since they are the

relevant interests, the subject of the Stacks SPA and the Blackwater SAC respectively,

which are in issue in these proceedings. It is clear from the report of the inspector in this

case that these interests were at the forefront of his consideration of the application.

Potential impacts on the hen harrier

species under the Birds Directive, the likely potential impacts on bird populations within

the development site area would typically include:-

(a) The disturbance of bird communities within the site and the surrounding area which

may lead to the desertion of nest sites during the breeding season or avoidance of

the site by new and returning birds for breeding purposes;

(b) The direct loss of habitat from the construction of the turbine bases and hard

standing area;

(c) The indirect habitat loss through site development works near the turbine locations

and on access tracks to the site which may reduce the extent of suitable habitat

locations;

(d) The risk of collisions with turbine blades.

Page 21 ⇓

site area as a whole. The observations are not confined to the area in the immediate

vicinity of turbines T8 and T9 located on or near Barna Bog. Thereafter, at p.p. 81-85 of

the report, the inspector addresses the potential impacts on the hen harrier in more

detail. He deals, first, with direct disturbance of nesting birds. The inspector notes that it

is acknowledged in the EIS that breeding hen harriers could be disturbed if turbines were

to be constructed in close proximity to nesting territories. The inspector records that

surveys carried out in 2016 and 2017 identified the presence of one territorial pair of hen

harriers within the Barna Bog area approximately 700 metres northwest of the nearest

proposed turbine which successfully raised two juveniles. While the applicant draws

attention to the fact that the observations made by the Irish Raptor Study Group

identified one additional breeding pair in this area, I do not believe that this is material in

the context of the identification of the impacts of the development. The key point is that

the inspector identified the potential impact of the development on breeding pairs.

Whether that is one pair or two pairs is not material. The potential for adverse impacts is

the same whether one is dealing with one or more pairs of hen harrier. The inspector

noted that it was in this context that the Department of Arts, Heritage, Regional, Rural

and Gaeltacht Affairs (“the department”) submitted that, in light of this information,

turbines T8 and T9 should be omitted. The inspector recorded that the department had

made this submission in circumstances where those turbines were located within 1km of

the SPA in an area used regularly by hunting hen harriers and that the loss of hunting

habitat due to disturbance/displacement and mortality attributable to collision are

significant risks which cannot be ruled out.

could be reduced as a result of habitat loss following construction or through disturbance

during the construction phase. The inspector noted in particular that three bird species

(which make up a substantial proportion of the hen harriers’ diet) have been recorded

breeding within the proposed development site. This observation was made by the

inspector in respect of the entire site and is not confined to the immediate area around

turbines T8 and T9. In this context, the inspector, at p. 83, said that he would “reiterate

the concerns raised by the Department…that hen harriers will be displaced from hunting

habitat within 250m of operational wind turbines”.

that a submission had been made that the hen harriers are well known to fly at lower

elevations (below ten metres in height) when hunting and flights at higher elevations will

usually only occur when the birds are returning to the nest, performing display flights, or

simply when flying from one location to another. However, the inspector noted in

particular that juvenile hen harriers are initially quite clumsy and unskilled in the air and

thus would be at a greater risk of collision. The inspector also noted that the majority of

hen harrier flying activity recorded within both the development site itself and the 2016

study area was below 30 metres in height. The inspector explained that this had led to a

submission being made that the risk of collision with the proposed turbines is considered

to be low. However, the inspector added the observation that the collision risk for

Page 22 ⇓

juvenile birds from a nest within 500 metres of a turbine “could be much higher”. The

inspector also noted the submission made by the department that there was evidence in

the previous two-year period of hen harrier mortality within the Stacks SPA due to

collisions with turbine blades and that, as a consequence, the risk of collision may have

been underestimated in previous studies.

to habitat loss. He referred to a number of studies which gave rise to mixed results which

suggested that in some cases there was avoidance of an area of least 250m from a

turbine while in other instances birds had been noted hunting within 50-100 metres of

turbines. The inspector noted that the department had rejected the suggestion made by

the applicant that hen harriers would continue to hunt and had advised that hen harriers

“will be displaced from using hunting habitat within 250m of operational wind turbines

(which would seem to correspond with the UK study referenced in the EIS)”. These

observations by the inspector must be read in conjunction with his observations in

relation to the availability of prey for hunting (summarised in para. 48 above). As noted

in para. 48, three bird species (which are an important source of prey for the hen harrier)

have been recorded breeding on the development site.

development on the hen harrier albeit that the applicant contends that this assessment is

manifestly insufficient and, in particular, does not address anything other than the

immediate area of Barna Bog and turbines T8 and T9. That is an issue that I will address

when I come to consider the next element of the Article 6 (3) requirements. At this point,

I will confine my consideration to the first element of those requirements.

context of the EIA carried by the inspector. However, on p. 118 of his report, the

inspector expressly refers back to this section of the report for the purposes of

identifying, in the context of appropriate assessment, the potential impacts of the

development on the hen harrier. I do not believe that the inspector can be faulted for

taking that course. It is an entirely logical and sensible course to adopt once all relevant

potential impacts for the purposes of appropriate assessment have been identified.

impacts that arise for the hen harrier and, in the course of the hearing before me, no one

has identified a potential impact which has been omitted or overlooked.

The potential impacts on the freshwater pearl mussel

addressed at p.p. 87-90 of the inspector’s report. The inspector considers a number of

surveys of the River Blackwater dealing with the presence of the pearl mussel. The

inspector highlights, in particular, the additional impact assessment appended to the

grounds of appeal which had clarified that, while previously, the nearest recorded

freshwater pearl mussel in the River Blackwater were at or near Lisheen Bridge, a

population of 21 mussels had been observed close to Scrahan approximately 2.6km

Page 23 ⇓

hydrologically downstream of the site boundary (and closer than those previously

recorded at Lisheen Bridge). The inspector then draws attention to the susceptibility of

the freshwater pearl mussel to changes in water quality, the requirement for very high-

quality rivers with clean river beds and waters with very low levels of nutrients. The

inspector also noted the fact that the population of the freshwater pearl mussel in the

Blackwater is currently at an unfavourable conservation status. The inspector then

highlighted that, in these circumstances, it is clear that any further deterioration in

surface water quality within the tributaries and watercourses draining to the River

Blackwater consequent on the development could potentially have a significant indirect

impact on the freshwater pearl mussel.

91-92 and also at p.p. 97-98. The potential negative impacts are not confined to the

construction phase but the inspector also said that potential negative impacts might arise

at the operational stage. The potential impacts comprise:-

(a) The pollution of watercourses with suspended solids due to run off of soil from

construction and clear-felled areas due to disturbance of fine subsurface substrates

in the course of construction and excavations at and adjacent to watercourse

crossings. At p. 98, the inspector specifically refers to the potential for sediment

release during clear-felling and construction phase earthworks and the danger of

the discharge of water with high concentrations of sediment to water courses due

to the dewatering of the excavations required for the turbine and meteorological

mast foundations;

(b) At p.p. 91-92 of his report, the inspector identifies that one of the most significant

potential impacts arising as a direct result of the construction of the proposed

development is the possibility of bog failure/slippage given the peaty subsoil

conditions on site. While this section of his report is not concerned directly with the

issue of the freshwater pearl mussel, peat slippage would have obvious

consequences for the freshwater pearl mussel if peat fragments were to enter the

watercourses leading to the River Blackwater thereby increasing the level of

sediment. In the course of his oral argument, counsel for the applicant placed

some emphasis on the possibility of peat slippage. While I do not believe that this

forms part of the applicant’s pleaded case (and therefore is not an issue that the

applicant is entitled to pursue) I will, nonetheless, for completeness and without

prejudice to any pleading point that may arise, briefly consider the arguments that

were made during the course of the hearing in relation to peat slippage;

(c) The contamination of surface waters during construction (and operational works)

through the accidental release or discharge of hydrocarbons or other contaminated

site run-off. At p. 98, the inspector notes that this could include the risk of sewage

pollution from temporary toilet facilities on site;

(d) Changes to the hydrological regime of the area through the alteration of the flow

rates of streams and rivers; and

Page 24 ⇓

(e) The creation of preferential flow paths for surface water resulting in a significant

increase in the volume of water entering local watercourses which could interfere

with the sustained flow of water particularly during dry weather.

with regard to previous experience of construction projects in the vicinity of the

Blackwater SAC impacting on downstream water quality. While the inspector does not

regard an anecdotal report of serious siltation (raised by the department) as sufficiently

robust evidence, it is clear from p. 90 of the report that the inspector identified that

siltation or pollution of a watercourse is a potential impact of a development of this kind.

This is reinforced by what is said by the inspector at p.p. 118-119 of his report where he

draws attention to the potential for the pollution of watercourses through the release of

suspended solids.

with EIA issues, the inspector, when he came to address the appropriate assessment

issues, specifically referred back (at p.p. 118-119 of his report) to the section dealing

with EIA. With regard to the Blackwater SAC, he also stated at p.p. 119-120:-

“Potential pathways for impact have been identified in the form of a hydrological

connection from the proposed windfarm development site to the SAC, in particular

during the groundworks phase of the construction of the turbines and associated

roadways etc. (such as by way of sedimentation, the accidental release of

pollutants and the risk of landslide). In the absence of more detailed consideration

of mitigation measures (e.g. site management and drainage design measures),

there is the potential for adverse effects on the European Site which will require

further assessment by way of Natura Impact Statement”.

arising from the operational stage of the proposed development, this is something which,

as noted above, he expressly identified at p. 88 of his report. It seems to me that the

passage quoted above which highlights the construction phase does not exclude what had

previously been said by the inspector at p.p. 88-89. It should be noted that the reference

to “the groundworks phase of the construction…” is prefaced by the words “in particular”.

which have the potential to affect the freshwater pearl mussel. In this context, it is clear

from the material available to the respondent during the course of the appeal and in

particular from the expert report of Dr. William O’Connor submitted with the appeal that

the principal aspects of the development which have the potential to have an impact on

the freshwater pearl mussel will arise during the construction phase. At s. 2.1 of Mr.

O’Connor’s report, he identifies that, during the construction phase, the most likely

potential impact of the proposed development is the release of silt laden runoff into

watercourses and subsequent transport of that material to downstream locations with

negative impacts on the freshwater pearl mussel. The potential impacts on water quality

identified by Mr. O’Connor are consistent with the impacts identified by the inspector at

Page 25 ⇓

p.p. 88-89 of his report. It should be noted that, at one point in the hearing, it was

suggested by counsel for the applicant that Dr. O’Connor’s report predated the appeal and

provided no new information that was not already available to the County Council.

However, in the course of the hearing, it was confirmed that Dr. O’Connor’s report was

prepared for the purposes of the appeal. It is dated June 2017 and therefore post-dates

the decision of the County Council in May 2017.

operational phase of the development. He explains that the main risk would arise from

maintenance of the facility when oils and lubricants may be used on site. Again, this is

consistent with what is said by the inspector at p.p. 88-89 of his report.

aspects of the development which have the potential to adversely affect the freshwater

pearl mussel in the Blackwater SAC. As the respondent has adopted the inspector’s

report, I can find no fault with the manner in which the respondent has conducted the

first element of the Article 6 (3) appropriate assessment exercise. The stage 1 screening

exercise carried out by the respondent appears to me to have been conducted wholly

lawfully.

Have the necessary complete precise and definitive findings and conclusions been

made?

findings were made to the requisite standard regarding the identified potential effects on

the hen harrier and the freshwater pearl mussel. As noted in para. 19 above, if planning

consent is to be given for the proposed development, the findings must have no lacunae

or gaps and the respondent must have been able to determine that no reasonable

scientific doubt remains that the development will not have an adverse impact upon the

hen harrier and the freshwater pearl mussel. I deal below, in turn, with the hen harrier

and the mussel.

The hen harrier

of his report and at p.p. 121-122. As noted previously, there is a crossover between what

is said in the report about the hen harrier in the context of EIA and in the context of

appropriate assessment. At p. 122 (in the section dealing with appropriate assessment)

the inspector expressly refers the respondent to his earlier comments in the context of

EIA. It is therefore necessary to consider what is said by the inspector in both sections of

his report.

“On balance, given the inclusion of the hen harrier within Annex I of the E.U. Birds

Directive and the protection afforded to same, the overall suitability of the

Barna/Barna Bog area for hen harrier breeding and foraging activities as

established by historical records and more recent survey work, the proximity of the

Barna lands to the … [Stacks SPA] …, and the availability/potential usage of the

Page 26 ⇓

said lands by hen harrier from within the SPA, I am inclined to conclude that the

Barna area is of local importance to hen harrier and that the proposed development

of turbine Nos. T8 & T9 within same would be likely to have an unacceptable

environmental impact on the hen harrier in the locality given the consequential

loss/disturbance of suitable habitat and the potential risk of collision. Moreover, for

the purposes of appropriate assessment, and having regard to the precautionary

principle, it is my opinion that it cannot be definitively established that the

development of turbines (Nos. T8 & T9) within the Barna area would not have an

adverse impact on hen harrier. Accordingly, in the event of a grant of permission, I

would recommend the emission of Turbine Nos. T8 & T9.

(N.B. in support of the omission of Turbine No. 9, I would refer the Board to the

‘High’ risk weighting applied to the construction of that turbine in the ‘Peat stability

Hazard Ranking Assessment.’ Furthermore, the associated omission of the

road/service infrastructure serving Turbine No. T9 would negate any requirement

for a new crossing of the Carhoonoe Stream thereby addressing the concerns of the

Department…as regards same)”.

equivocal language used in the passage quoted above. In particular, the use of the

words: “on balance” and “I am inclined to conclude…”. Some criticism is also made of the

formula of words used later in the same extract where the inspector said that: “it is my

opinion that it cannot be definitively established that the development of turbines…T8 &

T9 …would not have an adverse impact on hen harrier”. I do not believe, however, that

the language used by the inspector warrants criticism. As counsel for the respondent

made clear, in the course of her submissions, this finding by the inspector in this section

of his report is a finding that the development of the windfarm (by the construction of

turbines T8 and T9) in the Barna Bog area would give rise to an unacceptable impact on

the hen harrier given “the consequential loss/disturbance of suitable habitat and the

potential risk of collision”. As counsel for the respondent noted, there is no requirement

that the inspector has to be satisfied that this risk exists beyond a reasonable scientific

doubt. On the contrary, a precautionary approach must be taken in the context of the

Habitats Directive. Thus, the inspector (and, in turn, the respondent) only has to be

satisfied that the risk cannot be excluded. In my view, this submission of counsel for the

respondent is entirely correct.

of the inspector’s report, the inspector concentrates on the Barna Bog area and does not

address the remainder of the development (i.e. other than turbines T8 and T9). Counsel

stressed that this was particularly important given the recognition in the report that the

development had the potential for adverse effects on hen harriers within the Stacks SPA.

It should be recalled that, as noted in paras. 46 to 50 above, the inspector had previously

identified a number of potential impacts on the hen harrier:-

(a) Mortality due to collision with turbines;

Page 27 ⇓

(b) Site avoidance by foraging birds. As noted in para. 48 above, the inspector had

noted in particular that three bird species (which make up a proportion of the hen

harriers’ diet) have been recorded breeding within the proposed development site.

The inspector did not suggest that this was solely within the area of Barna Bog.

(c) Habitat loss and displacement. In this context, it should be noted that, at p. 79 of

his report, the inspector identified that there were “notable levels of activity within

Reaboy in the vicinity of Turbine Nos. T5, T6 & T7”. This is also potentially relevant

to the issue of mortality risk;

(d) Disturbance of nesting birds. However, the only evidence of nesting birds was in

the vicinity of Barna Bog.

p.p. 121-122 where, referring back to the potential impacts of the hen harrier which he

had identified in the course of his Stage 1 appropriate assessment, the inspector

continued as follows:-

“The NIS has subsequently concluded that, subject to adherence of a series of

specified mitigation measures, there would be [no] adverse effects on the integrity

of the identified Natura 2000 sites as a result of the proposed development.

In order to avoid unnecessary repetition, I would refer the Board to my earlier

comments with regard to the implications of the proposed development for the hen

harrier as set out in my environment impact assessment ….I would reiterate my

opinion that given the inclusion of the hen harrier within Annex 1 of the E.U. Birds

Directive…, the overall suitability of the Barna/Barna Bog area for hen harrier

breeding and foraging activities as established by historical records and more

recent survey work, and the proximity of the Barna lands to the [Stacks SPA] and

the availability/potential usage of the said lands by hen harrier from within the SPA,

I am inclined to include that the Barna area is of local importance to hen harrier

and that the proposed development of Turbine Nos. T8 & T9 within same would be

likely to have an unacceptable environmental impact on hen harrier in the locality

given the consequential loss/disturbance of suitable habitat and the potential risk of

collision. Therefore, for the purposes of appropriate assessment, and having regard

to the precautionary principle, it is my opinion that it cannot be definitively

established that the development of Turbines Nos. T8 & T9 within the Barna area

would not have an adverse impact on hen harriers. Accordingly, in order to ensure

that the proposed development will not adversely affect the integrity of the SPA or

undermine/conflict with the Conservation objectives applicable to same, I would

recommend the omission of Turbine Nos. T8 & T9 by way of mitigation”.

86 (quoted in para. 64 above). The only other relevant observation of the inspector in

this section of his report is at p. 123 where he says (having previously dealt with

cumulative impacts):-

Page 28 ⇓

“Therefore, I consider it reasonable to conclude, on the basis of the information

available, that the proposed development, when taken individually and in

combination with other plans or projects, will not adversely affect the integrity of

the [Stacks SPA] …”.

contained complete precise and definitive findings and conclusions in relation to the entire

development and that the inspector was, in substance, confirming that there were no

issues with the balance of the development over and above turbines T8 and T9. She also

carried out a careful analysis of the submission made to the respondent by the Irish

Raptor Study Group and suggested that the points made by the study group in respect of

adverse impacts for the hen harrier did not withstand scrutiny. Counsel accepted that the

points raised by the study group in relation to the alleged inadequacy of the surveys

conducted was not specifically addressed by the inspector but she submitted that the

criticisms of the surveys were so “manifestly wrong that it’s not something that needs to

be addressed…”.

Raptor Study Group do not withstand scrutiny. She may also be correct in her submission

that there was sufficient material available to allow him to be satisfied that the

development (other than turbines T8 and T9) would not have an adverse impact on the

hen harrier. Given the role of the court in proceedings of this kind, it would not be

appropriate for me to express any view on that issue. However, I cannot accept that the

conclusion articulated by the inspector and adopted by the respondent satisfies the

requirements summarised in para. 19 (b) above namely the obligation to make complete,

precise and definitive findings and conclusions regarding the identified potential effects on

the hen harrier, following appropriate analysis and evaluation in light of the best scientific

knowledge. In my view, there is nothing in the report of the inspector to explain how the

development other than turbines T8 and T9 will not have an adverse impact on the hen

harrier. The material just quoted focusses solely on the Barna Bog and turbines T8 and

T9. It is clear from the earlier sections of the inspector’s report that, as noted in paras.

46-47 above, the potential impacts listed in para. 46 arose in relation to the site area as a

whole. They were not confined to the area in the immediate vicinity of turbines T8 and

T9 located on or near Barna Bog. Accordingly, if the proposed development other than

turbines T8 and T9 was to pass an appropriate assessment (insofar as potential impacts

on the hen harrier is concerned) there would have to be a conclusion reached as to how it

was that the potential impacts previously identified would not, in fact, arise if the

remaining turbines (and associated infrastructure) were to be constructed and operated.

appropriate analysis and evaluation. While there is, very clearly, analysis and evaluation

in the inspector’s report of turbines T8 and T9, there is no equivalent evaluation and

analysis of the remainder of the site. In reaching a conclusion in relation to the balance

of the development, the inspector may have had regard to the material contained in the

Natura Impact Study (“NIS”). In this context, it appears to follow from the decision in

Page 29 ⇓

Connelly that a person in the position of the inspector is entitled to rely on other materials

for the purposes of providing reasons for findings. This appears to be so even where no

express reference is made by the decision maker to those materials so long as it is

sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the

matters contained in the materials in question formed part of the reasoning for the

relevant decision. At para. 9.2 of his judgment in that case, Clarke C.J. said:-

“The test is, in my view, that identified in Christian. Any materials can be relied on

as being a source for relevant reasons subject to the important caveat that it must

be reasonably clear to any interested party that the materials sought to be relied on

actually provide the reasons which led to the decision concerned. In that regard, it

seems to me that the trial judge has, put the matter much too far. The trial judge

was clearly correct to state that a party cannot be expected to trawl through a vast

amount of documentation to attempt to discern the reasons for a decision.

However, it is not necessary that all of the reasons must be found in the decision

itself or in other documents expressly referred to in the decision. The reasons may

be found anywhere, provided that it is sufficiently clear to a reasonable observer

carrying out a reasonable enquiry that the matters contended actually formed part

of the reasoning. If the search required were to be excessive then the reasons

could not be said to be reasonably clear.”

made by the Irish Raptor Study Group in the course of the appeal and it seems to me to

have been incumbent on the inspector in those circumstances to address the substantive

points raised by the Irish Raptor Study Group so as to explain how he came to the

conclusion that the points raised by them did not alter the conclusions reached in the NIS.

In my view, that required the inspector, at minimum, to identify where in the NIS the

relevant analysis is contained which satisfied him that the development (other than

turbines T8 and T9) would not have an adverse impact on the hen harrier. It also seems

to me to have been incumbent on the inspector to explain why he was not persuaded by

the substantive points made by the Irish Raptor Study Group. As noted in paras. 37-38

above, I do not believe that it was necessary for the inspector to address every individual

submission that was made to the respondent so long as the substantive points relevant to

the hen harrier were addressed. There will often be an overlap between the submissions

of one observer and another. The crucial requirement is that the points should be

addressed. If the points are without merit, then that should be stated and the basis for

that view should be explained.

the NIS where, in his view, it provides an appropriate level of assurance that the potential

effects previously described by the inspector at an earlier point in his report will not give

rise to the adverse effects which were identified as potential impacts at the stage 1

screening stage. In particular, there would need to be an answer to the concerns

expressed about the loss of foraging for the hen harrier given the fact recorded in the

inspector’s report that the entire site was frequented by three important species of bird

Page 30 ⇓

favoured by the hen harrier as prey. It also seems to me that the inspector should have

explained how he came to the conclusion that, notwithstanding what he had said (as

noted in para. 66(c) above) about the level of hen harrier activity in Reaboy in the vicinity

of turbines T5, T6 and T7, the development of those turbines and related infrastructure

could safely proceed.

report itself or by reference to specific sections of the NIS, why he was satisfied that the

concerns outlined by him at p. 83 of his report about collision risk (in particular for

juvenile hen harriers, as summarised in para. 49 above) have been satisfactorily resolved.

It seems to me that the inspector should, at minimum, have identified where in the NIS

there is material which explains to the requisite standard (i.e. to the extent that there be

no reasonable scientific doubt) that the development other than T8 and T9 will not give

rise to a material risk of collision.

inspector’s report will be left at a loss to understand how the potential impacts identified

in the report can be said to have been addressed to the extent necessary to enable a

conclusion to be reached, following appropriate analysis and evaluation, that the adverse

impacts previously identified at the screening stage will not arise.

comply with the requirements summarised in para. 19 (b) above. As a consequence, it

seems to me to follow that the third requirement (summarised in para. 19 (c) above) is

also incapable of being satisfied on the basis of the material currently contained in the

inspector’s report. It follows that the decision of the respondent must be quashed on this

ground. As the decision in Connelly makes clear, a failure to comply with the Article 6 (3)

requirements goes to jurisdiction and invalidates a decision taken by the respondent in

breach of those requirements. The only order that can be made in the circumstances is

an order quashing the decision. I am, however, conscious that there may well be

sufficient materials before the respondent which would enable the respondent to make

complete precise and definitive findings and conclusions regarding the previously

identified potential effects on the hen harrier as outlined in the inspector’s report. There

may well therefore be a basis to remit the matter to the respondent for a further

determination. I will, however, postpone making any order to that effect pending further

submissions from the parties.

The freshwater pearl mussel

summarised at para. 55 – 58. It is now necessary to consider whether the Inspector

(and, in turn, the respondent) have made complete, precise and definitive findings and

conclusions regarding the previously identified potential effects on the freshwater pearl

mussel. This is addressed, in the first instance, at pp. 89-90 of the inspector’s report

where he says:-

Page 31 ⇓

“In order to minimise the potential constructional and operational impacts on the

aquatic environment attributable to the proposed development, it is intended to

implement a series of mitigation measures as set out in Section 5.8 of the EIS,

although regard should also be had to the measures contained in Chapter 6: ‘Soil

and Geology’ and Chapter 7: ‘Hydrology’ of the EIS (as supplemented by the

associated appendices and the additional information provided with the grounds of

appeal). Of particular relevance of the context of preserving downstream water

quality during the construction stage is the proposal to implement a spoil

management strategy in conjunction with a surface water management plan in

order to prevent sediment-laden surface water runoff from the earth works entering

water courses. It is also proposed to prepare a detailed Construction and

Environmental Management Plan for the project which will include Construction

Method Statements and a Construction Stage Surface Water Management Plan that

will incorporate various erosion and sediment control measures including the

installation of drainage of runoff controls prior to the commencement of site

development and clearance works; the minimisation of the area of exposed ground;

the prevention of runoff entering the site from adjacent grounds; the provision of

appropriate control and containment measures on site; the monitoring and

maintenance of erosion and sediment controls throughout the project; and

establishing vegetation as soon as practical on all areas where soil has been

exposed. These measures are to be further supplemented by a Habitat

Management Plan, the inclusion of an emergency erosion and soil control response

plan as a contingency measure in the Surface Water Management Plan, the

implementation of a water sampling programme both before and during

construction, and the adoption of best practice techniques including the installation

of interceptor drains, silt fences, check dams, silt traps and settlement/siltation

ponds etc.

It is also proposed to implement an Operational Phase Environmental Management

Plan for the monitoring of wildlife for the efficacy of the mitigation measures to be

undertaken both during and post construction.

Whilst I would acknowledge that concerns have been raised by the Department …

as regards previous experience of construction projects impacting on downstream

water quality … and that reference has been made to an anecdotal report of serious

siltation of an upper Blackwater Watercourse being attributable to the construction

of a windfarm with general mitigation measures similar to those cited in the

submitted EIS, in my opinion, this does not form a sufficiently robust basis on

which to refuse permission for the subject proposal. In the event that any siltation

or pollution of a watercourse could be attributed to a particular development

project, I would suggest that it would be necessary in the first instance to

definitively ascertain the actual cause of the pollution event. For example, it is

unclear whether or not the occurrence of any such situation would be attributable

to a deficiency in the overall design of the project or the mitigation measures

Page 32 ⇓

proposed or whether it arose from a failure by the developer/contractor to

adequately adhere to the prescribed programme of mitigation.

Accordingly, having reviewed the submitted information, including the measures to

be implemented with respect to drainage design and site management during the

construction and operational phases of the proposed development, in addition to

the proposal to conduct water quality monitoring during all phases of the project

which would allow for the opportunity to review and revise measures as

appropriate, it is my opinion that the risk of a detrimental impact on downstream

water quality and the consequence of same on aquatic ecological considerations can

be satisfactorily mitigated both through the nature/design of the works proposed

and the implementation of an appropriate programme of pollution control measures

which are linked to good construction and site management best practice.”

issues. However, in common with the hen harrier, the inspector effectively adopts this

section of his report when he comes to address the appropriate assessment issues. A

number of criticisms were made by counsel for the applicant of this passage. In support

of the case made in the statement of grounds (summarised in para. 20(g) above),

counsel emphasised that the Construction and Environmental Management Plan (“CEMP”)

is not yet in existence and therefore could not be assessed by the inspector. He also

drew attention to what he described as the “vague” and “aspirational” nature of the

Surface Water Management Plan (“SWMP”).

counsel criticised the approach taken by the inspector on the basis that the inspector did

not satisfy himself as to what happened in relation to the unnamed development

mentioned in the anecdotal report. However, that is not part of the case made in the

statement of grounds and I therefore do not believe that it is something that I should

address in this judgment. Moreover, the failure of another developer to take appropriate

steps to prevent ecological damage would not, in any event, have entitled the inspector to

take an adverse view in respect of the development proposed by Silverbirch.

specifically address the concerns expressed by the Duhallow Environment Working Group.

I cannot accept that this criticism is valid. The submissions made by that group do not

appear to me to raise any issue which is not addressed by the inspector. I therefore do

not propose to consider this criticism further in this judgment. As noted in para. 38

above, I do not believe that it is necessary that every individual submission should be

identified by name so long as the relevant substantive points made in the submission are

appropriately addressed.

in para. 77 above suggests that the assessment carried out by the inspector was done to

an EIA standard even though the stage 2 appropriate assessment requires a much higher

standard. Counsel also argued that this section of the inspector’s report does not engage

Page 33 ⇓

with the essential elements of the Article 6(3) test and he highlighted in particular that

there is no finding in this section of the inspector’s report that the development will not

adversely affect the integrity of the Blackwater SAC and the freshwater pearl mussel in

particular.

a later stage in his report, to carry out a stage 2 appropriate assessment. As noted above

in the context of the hen harrier, the inspector, at p. 121 of his report, draws attention to

the NIS which he suggests has concluded that “subject to adherence to a series of

specified mitigation measures, there would be [no] adverse effects on the integrity of the

identified Natura 2000 sites as a result of the proposed development”.

the Blackwater SAC, at p. 122 as follows: -

“Similarly, I would refer the Board to my earlier comments with regard to the

hydrological implications of the proposed development as set out in my

environmental impact assessment of the subject application. In my opinion, this

outlines how the design of the proposed development, when taken in combination

with specified mitigation measures, will not adversely impact on the integrity of the

Blackwater … [SAC] and thus will not compromise its qualifying interests …

Therefore, I consider it reasonable to conclude, on the basis of the information

available, that the proposed development, when taken individually and in

combination with other plans or projects, will not adversely affect the integrity of …

the Blackwater … SAC in view of the sites conservation objectives”.

it contains no analysis or evaluation of the mitigation measures and that it does not

explain how the inspector came to the conclusion that the mitigation measures were

sufficient to allow a conclusion to be reached, capable of removing any scientific doubt,

that the freshwater pearl mussel would not be adversely affected by the proposed

development. In addition, counsel emphasised the points made in the statement of

grounds summarised in para. 20(a), (f) and (g) above. Counsel also criticised the report

because it does not set out what the mitigation measures are. While I agree that it would

be preferable that the mitigation measures should have been set out, it is nonetheless

clear from the decision of the Supreme Court in Connelly that a party in the position of

the respondent (and this applies equally to an inspector of the respondent) is entitled to

rely on other documents submitted in the course of the appeal if it is sufficiently clear to a

reasonable observer carrying out a reasonable enquiry that the material contained in

those documents actually formed part of the reasoning relied on for the purposes of

making the relevant decision. Thus, it will be necessary to consider the relevant material

before the board to ascertain whether it would be sufficiently clear to a reasonable

observer carrying out a reasonable enquiry that the inspector had a proper basis to form

the view that the proposed development would not have an adverse impact on the

Page 34 ⇓

freshwater pearl mussel. The material available to the respondent is considered in paras.

86 to 93 below.

completeness, address the inspector’s assessment of the issue relating to peat stability.

As noted in para. 55 above, the inspector identified that the most significant potential

impact arising as a direct result of the construction of the proposed development is the

possibility of bog failure/slippage given the peaty subsoil conditions on site. While issues

relating to peat stability do not appear to me to form part of the applicant’s pleaded case,

it should be noted that at p.p. 93-97 of his report, the inspector carries out a careful

review of the information in relation to peat slippage. The inspector identified a number

of discrepancies in the peat stability assessment submitted on behalf of Silverbirch. In

particular, he recalculated the relevant factors of safety in respect of the turbines and also

in respect of the proposed Ballynahulla substation. At p. 96 the inspector identified that

the approach taken in the EIS in relation to historical peat failures in the area was to

apply the precautionary principle. Having regard to that principle, Silverbirch, in the EIS

utilised a conservative risk allocation for historical failure. While a peat slide had occurred

in the Sliabh Luachra area in 1896, there were a number of factors which justified a risk

ranking for the affected areas of the site as “very low” or “low”. In this context, a

number of factors were considered including the fact that significant peat extraction had

taken place in the intervening 121 years. There was also now the presence of extensive

man-made and natural drainage channels which serve to limit the presence of water on

the affected slopes. At p. 97, the inspector came to the conclusion that the peat stability

analysis, notwithstanding certain discrepancies in the material submitted by Silverbirch

(which he effectively corrected himself through the analysis undertaken by him)

established that the proposed development can safely proceed without giving rise to peat

slippage. This is subject to the implementation of a series of mitigation measures. It

seems to me, on the basis of the extensive analysis undertaken by the inspector in

relation to the peat slippage issue, the inspector has arrived at a decision (following

evaluation and analysis) which meets the requirements of the case law, in particular the

decision of the High Court in Kelly and of the Supreme Court in Connelly.

Connelly, to consider the material available to the respondent in relation to the freshwater

pearl mussel. In this regard, very extensive material was placed before the respondent by

Silverbirch to address the concerns in relation to the Blackwater SAC and the freshwater

pearl mussel in particular. At s. 5.1.1 of the EIS, it was acknowledged that particular care

is required with regard to the Blackwater and its feeder streams that drain the proposed

development. The EIS stated that protection of these water courses “will be imperative in

preventing water quality deterioration downstream”. The EIS also stated that best

practice pollution control measures (which are described in detail elsewhere) will be

employed during the construction phase to prevent the transport of deleterious

substances to the Blackwater SAC. In this context, it was specifically stated:

Page 35 ⇓

“release of suspended solids to all surface waters will be controlled by interception

(E.G. Silt Traps) and management of site runoff. Any surface water run-off must

be treated to ensure that it is free from suspended solids, oil or any other polluting

materials”.

caught by condition 2 of the conditions imposed by the respondent in its decision to grant

permission. Condition 2 requires that all of the environmental, construction and

ecological mitigation measures set out in the EIS, the NIS and the other particulars

submitted with the application (expressly including the report of Dr. William O’Connor

discussed further below) should be implemented by Silverbirch. Counsel for Silverbirch

submitted (correctly in my view) that the passage quoted above, although it does not say

so in terms, amounts to a “zero silt requirement” equivalent in its effect to the express

condition contained in the decision of the respondent in the People Over Wind Case. I

should also make clear that, in my view, condition 2 goes significantly further than what

was described by counsel for the applicant, during the course of the hearing, as the

standard or “generic” condition requiring that all environmental and ecological mitigation

measures should be implemented. Condition 2 specifically addresses the mitigation

measures in respect of the freshwater pearl mussel since it refers, in terms, to the pearl

mussel impact assessment (i.e. the report of Dr. O’Connor).

the mitigation measures which are proposed to be used in this case. He explained that

the drainage from the windfarm development will be kept separate from the natural

drainage on the site and that the drainage from the development site will not discharge

directly to water courses but instead will be discharged over land through the use of level

spreaders after any siltation has settled out in settlement ponds. He drew attention to

the objective of the SWMP which is to ensure that the drainage network for the

development does not impact on the existing natural drainage network on the subject

site. Thus, at s. 3.1 of the SWMP it is specifically stated that it is a fundamental principle

of the drainage design that: -

“… clean water flowing in the upstream catchment, including overland flow and flow

in existing drains, is allowed to bypass the works areas without being contaminated

by silt from the works. This will be achieved by intercepting the clean water and

conveying it to the downstream side of the works areas either by piping it or

diverting it by means of new drains or earth mounds. In the same section of the

SWMP, it is explained that the mitigation measures proposed are designed to the

standard recommended in a 2006 study of freshwater pearl mussel populations in

the Lutter River in Germany by Altmuller & Dettmer. The significance of this is that

the measures described in Altmuller & Dettmer are specifically referred to in the

sub Basin Management Plan for the Blackwater as the appropriate standard of

sediment control for construction projects within the sub basin. The Altmuller &

Dettmer study describes a two phase treatment system comprising a sediment trap

and plant filtration bed. Water from construction works first enters the sediment

Page 36 ⇓

traps and then flows through the plant filtration bed. There is a secondary

vegetative system which attenuates and absorbs the residual particles which do not

settle in the sediment trap. According to the SWMP this two phase system has

proven to be successful in the protection and influential in the restoration of the

resident freshwater pearl mussel pollution in the Lutter river in Germany. However,

as the SWMP makes clear, the system which is to be put in place here adds a

further phase to the Altmuller & Dettmer system. This will involve a secondary

treatment system in the form of a graded gravel filter bed through which water

from the ponds will pass before being dispersed across a wide area of vegetation”.

and for every 1.2 km area of internal access road ensuring that each item of windfarm

infrastructure will have its own individual three tier treatment system including settlement

pond and vegetative filter. In addition to this system, the SWMP describes additional

measures to minimise sediment and erosion at source by minimising exposed areas,

establishing vegetation, road cleaning, silt fences, check dams, wheel washes, and the

avoidance of works in or near water courses.

SWMP. A detailed description of the settlement pond design is contained in s. 4.5.

Detailed descriptions of the attenuation design are contained in s. 4.6. In s. 4.3.11, a

commitment is given that the drainage and treatment system will be managed and

monitored at all times particularly after heavy rainfall events during the construction

phase. The drainage and treatment system will be regularly inspected and maintained to

ensure that any failures are quickly identified and repaired so as to prevent water

pollution. Similarly, s. 4.3.1.3.1 requires that continuous turbidity monitors will be

installed upstream and downstream of the site in the river Blackwater which will relay

real-time information and can trigger an alarm if limit values are being approached. This

will give advance warning of a potential difficulty. The relevant limits in this regard are

set out in Dr. O’Connor’s report at p. 7. These limits are in accordance with the

recommendations in the Freshwater Pearl Mussel Conservation Status Assessment Report

published by the National Parks & Wildlife Service (“NPWS”) in 2015. It is confirmed on

p. 20 of Dr. O’Connor’s report that, prior to construction, the aquatic monitoring

programme will be agreed in consultation with NPWS and Inland Fisheries Ireland (“IFI”).

In addition, a weekly monitoring report will be forwarded to (among others) NPWS and

IFI. Crucially, all of these commitments are caught by condition 2 attached to the

respondent’s decision and will therefore be fully enforceable.

s. 4.4, it provides that, following construction, runoff on the roads, hardstands and other

work areas will continue to be directed to the outfall weirs. The check dams within the

drainage channels will remain in place to ensure that runoff continues to be attenuated

and dispersed across existing vegetation. Water monitoring will continue during years

one and two of the operational phase, commencing after the complement of construction.

The sediment ponds will be kept in situ once construction has been completed.

Page 37 ⇓

earlier version of the SWMP, that its terms were vague and uncertain; that the mitigation

measures were generic and were not specifically designed with the Freshwater Pearl

Mussel in mind. It is unnecessary to form any view as to whether those criticisms were

well founded with regard to the first version of the SWMP. However, in light of the very

considerable detail that is contained in the SWMP which was before the respondent and in

light of the standard by which the mitigation measures were to be applied (namely the

Altmuller & Dettmer report), I do not believe that these criticisms are justified in the case

of the SWMP which was considered by the inspector and the respondent. Moreover, the

SWMP must also be read in conjunction with the report of Dr. O’Connor. In that report,

Dr. O’Connor reviews the SWMP and he expresses the view that the highest standards of

surface water quality management and pollution control will be employed during the

construction of the development. Among the features which he highlighted was the use

of sedimats which will be used in water courses draining the site. Dr. O’Connor explained

that these sedimats have been successfully used downstream of drainage maintenance

works on the River Nore in Co. Laois upstream of the location of a population of Nore

pearl mussels (which are a particularly rare species of freshwater pearl mussel). Dr.

O’Connor also draws attention to the use of continuous turbidity monitors which will

provide real-time information and can trigger an alarm if limit values are being

approached. Dr. O’Connor expresses the view that, because the development has taken

on board key elements and the recommendations of the Blackwater sub-basin

management plan, it will be part of the solution rather than the problem for the

Blackwater catchment. Crucially, having reviewed the mitigation measures and the

proposed monitoring Dr. O’Connor expresses the following view in relation to predicted

impacts: -

“the developers demonstrated via a detailed surface water management plan

(including erosion and sediment control details) the intention and ability to protect

water quality. With agreement of method statements and a monitoring programme

with IFI and NPWS, implementation of mitigation measures proposed and due to

the considerable distance upstream of the nearest FPM population, no impacts on

FPM are predicted to occur as a result of the proposed development. The mitigation

measures are also considered to be sufficient to protect aquatic species such as

salmon and trout which are present in the streams on and near sites. The

measures will be more than sufficient to protect the nearest FPM population which

occurs c.2.6 downstream of the boundary of the site and both distance and water

dilution will provide further significant protection to this mussel population”.

impressive. Given the approach taken by the Supreme Court in Connelly, it seems to me

that the SWMP and the report of Dr. O’Connor in this case provide extensive analysis and

evaluation which assist in understanding the conclusion reached by the inspector and

subsequently, by the respondent that the proposed development will not have an adverse

impact on the freshwater pearl mussel in the Blackwater SAC.

Page 38 ⇓

the case made by the applicant at the hearing before me:-

(a) In the course of opening the report of Dr. O’Connor to the court, counsel for the

applicant drew attention to the manner in which Dr. O’Connor dealt with the

potential for a landslide or a peat slide. In this context, it should be noted that

Sliabh Luachra was the scene of a natural disaster in 1896 when a moving bog

caused a number of fatalities in the area. As noted above, a concern in relation to

peat slippage does not appear to me to be part of the case made in the statement

of grounds and to the extent that I address it below, I do so for completeness and

without prejudice to the fact that this case has not been pleaded.

(b) Secondly, as summarised in para. 20 above, the applicant contends that the

conditions attached to the decision of the respondent impermissibly leave over for

consideration to a later stage, the construction-stage details of proposals for the

management of surface water through a Construction Stage SWMP. It might also

appear from the passage of the inspector’s report quoted in para. 77 above that a

CEMP of any kind has yet to be prepared.

Peat slippage

in the report of Dr. O’Connor notes as follows:-

“The risk of a potential bogburst or landslide occurring on the site as a consequence

of the works required to facilitate construction of the windfarm is negligible.

Therefore, the risk of serious pollution or siltation of the watercourses occurring as

a consequence of such an incident is negligible subject to the appropriate mitigation

measures outlined… in the EIS”. (emphasis added).

entirely the wrong standard. He argued that it was clear that this fell far short of the

“reasonable scientific doubt” standard. However, in response, counsel for the respondent

strongly urged that a negligible risk of an adverse impact was not sufficient to warrant

refusal of a planning consent. She argued that Article 6(3) does not require that the risk

of adverse effects should be ruled out to the standard of absolute certainty. She relied, in

this context, on the judgment of the CJEU in Case C-236/01 Monsanto [2003] ECR I-

8166. That case was concerned with novel food ingredients which are regulated by

Regulation (EC) No. 258/97 (“The Novel Foods Regulation”). Under the Novel Foods

Regulation, novel foods cannot be placed on the market for human use without first giving

notice to the EU Commission. However, there is an accelerated and simplified procedure

for the authorised use of such foods where, on the basis of scientific evidence, the novel

foods are substantially equivalent to existing foods or food ingredients as regards their

composition, nutritional value, metabolism, intended use and the level of undesirable

ingredients. In that case, the simplified procedure was used by Monsanto in order to

place on the market novel foods derived from maize. The Italian Health Ministry alleged

that the use of the simplified procedure was improper. The Ministry was concerned that

Page 39 ⇓

the proposed product contained a number of transgenic ingredients. The Italian Ministry

expressed concern that the product would be a danger to human health. However, the

Commission consulted the EU Scientific Committee for Food which expressed the view

that the information presented by the Italian Ministry did not provide specific scientific

grounds for considering that the use of the novel foods at issue endangered human

health. Nonetheless, the Italian authorities issued a decree prohibiting the sale of the

product. This was challenged by Monsanto. While the facts of this case are very different

from the present case, counsel for the respondent argued that the approach taken by the

CJEU is instructive given that, in common with Article 6(3) of the Habitats Directive, the

Novel Foods Regulation proceeds on the basis of the precautionary principle. Counsel also

highlighted the fact that the decision of the CJEU in Monsanto was subsequently cited by

the CJEU in its seminal decision in the context of Article 6(3) in Case C-127/02

Waddenzee [2004] ECR I-7448 at para. 59. Crucially, Monsanto was cited in the context

of reasonable scientific doubt (as para. 59 of the judgment in Waddenzee makes clear).

“If the twofold objective of [the Novel Foods Regulation], namely ensuring the

functioning of the internal market in novel foods and protecting public health

against the risks to which those foods may give rise, is not to be adversely affected,

protective measures adopted under the safeguard clause may not properly be

based on a purely hypothetical approach to risk, founded on mere suppositions

which are not yet scientifically verified”. (emphasis added).

case, Advocate General Kokott expressed the view that absolute certainty is not required

under Article 6(3). At paras. 107-108 of her opinion, she said:-

“107. However, the necessary certainty cannot be construed as meaning absolute

certainty since that is almost impossible to attain. Instead, it is clear from the

second sentence of Article 6(3)… that the competent authorities must take a

decision having assessed all the relevant information which is set out in particular

in the appropriate assessment. The conclusion of this assessment is, of necessity,

subjective in nature. Therefore, the competent authorities can, from their point of

view, be certain that there will be no adverse effects even though, from an

objective point of view, there is no absolute certainty.

108. Such a conclusion of the assessment is tenable only where the deciding authorities

at least are satisfied that there is no reasonable doubt as to the absence of adverse

effects on the integrity of the site concerned. As in the case of a preliminary

assessment – provided for in the first sentence of Article 6(3)… – to establish

whether a significant adverse effect on the site concerned is possible, account must

also be taken here of the likelihood of harm occurring on the extent and nature of

the anticipated harm. Measures to minimise and avoid harm can also be of

relevance. Precisely where scientific uncertainty exists, it is possible to gain further

Page 40 ⇓

knowledge of the adverse effects by means of associated scientific observation and

to manage implementation of the plan or project accordingly”.

the same case that the Article 6(3) standard is a stringent one. As all of the case law

makes clear, planning consent can only be granted where the deciding authority is

satisfied that there is no reasonable doubt as to the absence of adverse effects on the

relevant protected interest. However, it is striking that in para. 59 of its judgment, the

CJEU expressly cited the Monsanto decision in the context of reasonable scientific doubt.

At para. 59, the CJEU said:-

“59. Therefore, pursuant to Article 6(3)…, the competent national authorities, taking

account of the conclusions of the appropriate assessment of the implications of [the

relevant development] for the site concerned, in the light of the site’s conservation

objectives, are to authorise such activity only if they have made certain that it will

not adversely affect the integrity of that site. That is the case where no reasonable

scientific doubt remains as to the absence of such effects (see, by analogy, Case C-

236/01 Monsanto…, para. 106 and 113)”.

para. 97 above) is the paragraph which expressly says that decisions should not be made

on a purely hypothetical approach to risk founded on mere suppositions which are not

scientifically verified. Thus, although the CJEU, in para. 59 of its judgment in Waddenzee

refers to the planning authority having “made certain that [the development] will not

adversely affect the integrity of that site”, the CJEU was clearly not intending to override

or reverse the approach taken previously in Monsanto. On the contrary, the CJEU was

reiterating the approach taken in para. 106 of Monsanto. In the circumstances, it seems

to me that the submission of counsel for the respondent is correct. As an expert body,

the respondent is in a much better position than the court to form a view as to whether a

risk which was described by an expert as no more than “negligible”, is sufficiently remote

to be discounted in the context of an Article 6 (3) appropriate assessment of risk. In my

view, having regard to the approach taken in Monsanto, the respondent was not required

to be absolutely certain that a bog movement or landslide would never occur in the

future. The relevant standard is reasonable doubt.

Post consent conditions

conditions imposed by the respondent and contends in particular that the conditions leave

over a number of matters for consideration at a later stage, post consent. The applicant

submits that this is contrary to the approach taken by the CJEU in Holohan. The applicant

also contends that condition 17 imposes no more than generic construction techniques

and does not include a zero silt requirement such as the condition imposed in the People

Over Wind case.

for future determination where the authority is certain that the planning consent

Page 41 ⇓

establishes sufficiently strict conditions to guarantee that the integrity of the Natura site

will not be adversely affected. At para. 47 of its judgment in Holohan, the CJEU said:-

“ … Article 6(3) … must be interpreted as meaning that the competent authority is

permitted to grant to a plan or project development consent which leaves the

developer free to determine later certain parameters relating to the construction

phase, such as the location of the construction compound and haul routes, only if

that authority is certain that the development consent granted establishes

conditions that are strict enough to guarantee that those parameters will not

adversely affect the integrity of the site.”

respondent had left over for future determination the details of the CEMP relating to the

method statements for construction, the location of the site and material compound and

the other elements of the construction required for the development to be carried. One

might also get a similar impression from what is said by the inspector at p.p. 89-90 of his

report (quoted in para. 77 above) where he speaks of the proposal to prepare a detailed

CEMP and a construction stage SWMP. However, condition 16 and the relevant section of

the inspector’s report must both be read in context. In particular, they must be read in

the context of condition 2 and the detailed mitigation measures which are required to be

put in place as a condition of the grant of permission. Under condition 2, Silverbirch is

required to implement all of the environmental, construction and ecological mitigation

measures set out in the EIS, the NIS and the other particulars furnished in the course of

the planning appeal process including Dr. O’Connor’s report. These include, insofar as

condition 16 is concerned, all of the material set out in Chapter 2 of the EIS dealing with

the construction of turbine foundations, associated crane hardstanding areas, drainage

infrastructure, borrow pits/repositories, windfarm entrances and access roads which are

described at p.p. 657-662 of the EIS. They also include the detail in relation to

construction materials, tree felling, forestry replanting works, site establishment

(including temporary site facilities and access) at p.p. 678-679 of the EIS. In addition,

further details are given in relation to crane hardstanding area construction, turbine

foundation construction and drainage construction and borrow pits at p.p. 680-683 of the

EIS. Thus, it is clear that the matters listed in condition 16 are already addressed in

detail in the material which must be read with condition 16. The CEMP required under

condition 16 is necessary so that the local planning authority will be in a position to

maintain oversight and control during the construction phase. As counsel for the

respondent said, in the course of oral submissions, condition 16 is not, as contended by

the applicant, a licence to agree terms and conditions in the future. It must be seen

against the framework of what has been already been addressed in detail in the EIS. To

paraphrase what has been said by the CJEU in Holohan, the decision of the respondent

contains conditions in condition 1 and condition 2 that are, when read with the underlying

documents, detailed enough and strict enough to ensure that the parameters of condition

16 will not adversely affect the Blackwater SAC or the freshwater pearl mussel in

particular.

Page 42 ⇓

construction, construction-stage details of proposals for the management of surface water

by means of a construction SWMP must be submitted to and agreed with the planning

authority. Again, if one read condition 17 on its own, one might form the impression that,

contrary to Holohan, the decision of the respondent left over important matters to be

agreed in the future. However, as in the case of condition 16, it is clear that the

parameters of the SWMP have already been addressed in detail in the material filed

during the course of the appeal, in particular in the SWMP described in paras. 88 to 90

above. By virtue of conditions 1 and, in particular, condition 2, Silverbirch is obliged to

carry out surface water management measures in accordance with the existing SWMP.

The purpose of condition 17 is to ensure that the local planning authority will be in a

position to oversee and monitor the carrying out of those surface water management

measures in accordance with the criteria set out in the SWMP which has already been

reviewed and accepted by the respondent. In those circumstances, I cannot see how

there is any breach of the principles laid down by the CJEU in Holohan insofar as condition

17 is concerned.

than a requirement to follow generic construction techniques and that the condition fails

to impose a zero silt limit such as that imposed in the People Over Wind case. However,

as discussed in paras. 86-87 above, there is, in substance but not in name, a zero silt

requirement in this case as a consequence of the commitment made by Silverbirch that

any surface water run-off must be treated to ensure that it is free from suspended solids

oils or any other polluting material. Furthermore, there are a suite of very specific

measures which Silverbirch is required to take in this case (as outlined in paras. 88 to 91

above) which are very clearly designed to ensure that sediment is not released into any

watercourse. Very specific measures are to be put in place which are designed to protect

the freshwater pearl mussel. The measures in question are detailed and impressive and I

do not believe that one can dismiss them as being merely “generic”.

water quality and aquatic ecology including the freshwater pearl mussel. Condition 18

requires that the water quality downstream should not materially deteriorate as a result

of felling or construction. It also requires that proposals for a detailed programme of

water quality monitoring throughout the construction period should be submitted to and

agreed with the planning authorities. Finally, it requires that continuous turbidity

monitors should be installed upstream and downstream of the site during any felling

activities and construction. Similar issues arise in relation to condition 18. The applicant

argues that condition 18 is not sufficiently precise. The case is also made that it leaves

over matters for agreement with the planning authority. There is also a contention that

the relevant standard to which monitoring is to take place is not specified anywhere in the

condition.

17. While condition 18, on its face, might appear to be imprecise and contrary to the

Page 43 ⇓

Holohan principle, it must also be read in context. In particular, it must be read with

condition 2 and with all of the material that was placed before the respondent which

Silverbirch is now required to implement in order to protect the freshwater pearl mussel.

This includes all of the measures previously discussed in paras. 88 to 91 above and the

measures in the report of Dr. O’Connor. That report also provides the relevant limits

against which the requirements of condition 18 are to be assessed. Insofar as matters

are left over for agreement with the local planning authority, it is clear that the measures

in question have already been prescribed in the EIS and the SWMP which were before the

respondent and which are now enforceable pursuant to conditions 1 and 2. It is

important that the local planning authority should have oversight and control over the

carrying out of the measures (the parameters of which are already set out in the material

furnished to the respondent) so as to ensure that Silverbirch and any contractor retained

by it should fully implement the measures concerned.

Conclusions in relation to appropriate assessment

by the applicant in relation to conditions 16, 17 and 18 must fail. It also seems to me

that the balance of the applicant’s complaints in relation to appropriate assessment,

insofar as the freshwater pearl mussel is concerned, has not been made out. The only

element of the applicant’s case that succeeds in relation to appropriate assessment is in

relation to the hen harrier to the extent that it is unclear from the inspector’s report how

a conclusion could have been reached that all of the potential impacts on the hen harrier

had been satisfactorily resolved at the stage 2 appropriate assessment.

EIA

discussion at the hearing (or in the written submissions of the parties) of EIA issues. The

principal argument made on behalf of the applicant was that there was no evidence that

any EIA had been carried out by the respondent. This was on the basis that there is an

absence of any reference to the carrying out of an EIA in the board direction issued by the

respondent or in the decision ultimately made by the respondent. Nonetheless, the

applicant also made a case (as recorded in para. 20 above) that there had been no

satisfactory analysis, evaluation or assessment of the direct and indirect effects and

impacts of the proposed development on the receiving environment contrary to ss. 171A

and 172 of the 2000 Act and Article 3 of the EIA Directive (Directive 2014/52/EU). The

case was also made that the only EIA carried out was in respect of turbines 8 and 9 and

that no assessment of the remaining turbines had been carried out. To that extent, there

was an overlap between the case made in relation to appropriate assessment and in

relation to EIA.

to an EIA in the board direction and decision of the respondent, it can be said that an EIA

was carried out by it. In this context it is clear from the board direction dated 23rd

November, 2018 that the decision of the respondent to grant permission for the

development was significantly based on the inspector’s report and recommendations. The

second paragraph of the board direction expressly states that the respondent:

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“…decided to grant permission generally in accordance with the Inspector’s

recommendation …”.

The board direction also refers to the EIS submitted by Silverbirch.

to, inter alia, the EIS the submissions and observations made in connection with the

planning application and appeal (including the observations and submissions made in

relation to the environmental and Natura impacts of the proposed development), and the

inspector’s report. The decision also expressly states that the respondent accepted and

adopted the appropriate assessment carried out in the Inspector’s report in respect of the

potential effects of the proposed development on the conservation objectives of, inter

alia, the Stacks SPA and the Blackwater SAC. It will be recalled that the inspector, in his

report, expressly adopted, as part of his appropriate assessment, the assessment

previously described in the EIA exercise carried out by him. That said, it is striking that

there is no express adoption by the respondent of the EIA carried out by the inspector.

Supreme Court in Ní Eili v. EPA (Supreme Court, unreported, 30th July, 1999, Murphy J.),

the decision of Clarke J. (as he then was) in Maxol v. An Bord Pleanála [2011] IEHC 537,

the decision of Finnegan J. (as he then was) in Fairyhouse Club Ltd v. An Bord Pleanála

(High Court, unreported, 18th July, 2001), the decision of Kelly J. (as he then was) in

J. in Buckley. Nonetheless, it seems to me that, applying the principles set out in the

judgment of Cregan J. and the further case law analysed by him, the result must be the

same. In this case, the respondent expressly stated in the board direction drawn up on

the date of the meeting at which the respondent considered the appeal that it decided to

grant permission generally in accordance with the recommendations of the inspector. In

addition, as noted in the decision itself, the respondent expressly states, as part of its

reasons and considerations, that it has had regard to the report of the inspector.

Furthermore, in common with the facts considered by Cregan J. in Buckley, the conditions

attached to the respondent’s decision are precisely those which were recommended by

the inspector. In those circumstances, it seems to me to be reasonable to conclude that

the respondent adopted the report of the inspector for the purposes of arriving at its

decision. Thus, if the inspector carried out an EIA which meets the requirements of s.

171A of the 2000 Act and of the EIA Directive, it follows that this has been adopted by

the respondent. In such circumstances, there is no substance to the complaint made by

the applicant that the respondent failed to carry out an EIA.

statement of grounds) whether the EIA carried out by the inspector satisfies the

requirements of s. 171A of the 2000 Act and the EIA Directive. In this context, it is

important to bear in mind that the focus of the applicant’s case has been the hen harrier

and the freshwater pearl mussel. While that case was principally made in the context of

appropriate assessment, this overlapped with the case made in respect of EIA. The

applicant contended that there had been a failure to examine, analyse and evaluate the

direct and indirect effects of the proposed development on the hen harrier and the

freshwater pearl mussel. There was no attack on the EIA in other respects. This is

unsurprising given the very extensive material contained in the report of the inspector in

relation to EIA. The inspector’s report runs to 137 pages in total. 61 of those pages are

taken up with the very detailed EIA carried out by the inspector which, subject to what I

say below in respect of the hen harrier, assesses the direct and indirect effects of the

proposed development on each of the interests identified in s. 171A (1) of the 2000 Act.

explained in paras. 46-61 above that the inspector has identified all of the potential

Page 46 ⇓

effects on both species in his report. Furthermore, having regard to my finding that

precise and definite conclusions have been reached as to the absence of adverse impacts

on the freshwater pearl mussel, it must follow, in my view, that, for the purposes of EIA,

this amounts, in substance, to a finding that there will be no direct or indirect effects on

the mussel.

drawn attention in paras. 72 - 74 above to the fact that the report is silent in relation to

the effects on the hen harrier in respect of those elements of the development other than

turbines T8 and T9. It seems to me to follow that the report is insufficiently complete to

form the view that the inspector has identified all of the actual effects (whether direct or

indirect) of the development on the hen harrier. As noted in para. 76 above, it may well

be the case that the inspector was in a position to form the view that the development

(other than turbines T8 and T9) would not have an effect on the hen harrier. However, as

the report does not, in my view, rule out the possibility that such effects might occur, I

am compelled to conclude that there was no sufficient evidence that an EIA was

completed in respect of the effects of the development (other than turbines T8 and T9) on

the hen harrier. It seems to me to follow that, accordingly, the decision of the

respondent must be quashed on the grounds that there is insufficient evidence to

conclude that an EIA was completed in respect of the effects of the development on the

hen harrier. However, there may well be a basis to remit the matter to the respondent

for further determination. I will, however, postpone making any order to that effect

pending further submissions from the parties.

Overall Conclusion

respondent must be quashed on the grounds set out in paras. 76 and 117 above. I find

against the applicant in relation to the balance of the claim made by it. I will hear the

parties in due course in relation to any consequential orders that should follow. I will also

hear the parties in relation to whether or not the matter should be remitted to the

respondent.