High Court dismisses planning challenge except for failure to publish specific documents online.

[2024] IEHC 300

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2022.1022]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS

AMENDED)

BETWEEN

CARROWNAGOWAN CONCERN GROUP, UTE RUMBERGER AND NICOLA HENLEY

APPLICANTS

AND

AN BORD PLEANÁLA, COILLTE CUIDEACHTA GHNÍOMHAÍOCHTA AINMNITHE, THE

MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE, THE MINISTER FOR

AGRICULTURE, FOOD AND THE MARINE, IRELAND, THE ATTORNEY GENERAL AND CLARE

COUNTY COUNCIL

RESPONDENTS

AND

FUTURENERGY CARROWNAGOWAN DESIGNATED ACTIVITY COMPANY (BY ORDER)

NOTICE PARTY

(No. 2)

JUDGMENT of Humphreys J. delivered on Monday the 20th day of May, 2024

1. European law requires that assessment of effects of a project should be as complete as

possible for environmental impact assessment and habitats purposes. Where an error occurs in an

appropriate assessment, but the opposing parties bring forward uncontradicted expert evidence to

the effect that the error made no difference to the conclusion, should a development consent be

quashed for such a harmless error? That is the primary albeit not sole question in the present

challenge.

Judgment history

2. In Carrownagowan Concern Group & Ors v. An Bord Pleanála & Ors (No. 1) [2023] IEHC

579, [2023] 10 JIC 2704 I made an order striking out part of the applicant’s case. We now come to

the substantive hearing of the balance of the proceedings.

Geographical context

3. The development at issue is for a windfarm and associated works in the townlands of

Ballydonaghan, Caherhurley, Coumnagun, Carrownagowan, lnchalughoge, Killokennedy, Kilbane,

Coolready and Drummod, County Clare. The area is located north west of Killaloe, near the village

of Bodyke (for more on that village see Minogue v. Clare County Council [2021] IECA 98, [2021] 3

JIC 2902).

4. As stated in the AA screening document, the area of the proposed Wind Farm is located

within forested lands on the northern slopes of Slieve Bernagh mountain, approximately 4 km

northeast of the village of Broadford, 7 km north-west of Killaloe and 2.5 km south of the village of

Bodyke, at its closest point. Lough Derg lies approximately 4 km to the east of the proposed

development area.

5. The approximate location of the Carrownagowan area is in or near:

https://www.google.com/maps/place/Carrownagowan,+Co.+Clare/@52.8364435,-

8.5734419,4387m/data=!3m2!1e3!4b1!4m6!3m5!1s0x485b6230f6ab51d9:0xd6bb5494bd7c7fe9!

8m2!3d52.8368989!4d-8.5595302!16s%2Fg%2F119tmf4qs!5m1!1e4?entry=ttu.

6. The development is proposed to take place effectively within the Slieve Bernagh area. Doon

Lough is to the west of the site, and the site drains to Doon Lough via the Owenogarney (Ratty)

River within the regional Shannon Estuary North catchment. Lough O’Grady is to the north and

Slieve Aughty to the further north across the Co. Galway border. An unnamed stream from the site

leads to the Annaghmullahaun River which connects the site to Lough O’Grady. Lough O’Grady is in

turn connected to Lough Derg to the east, with the Clare/ Tipperary border running through it along

a roughly north-south axis.

7. By way of context, the birds directive 79/409 provides for relevant areas to be classified as

Special Protection Areas (SPAs). The habitats directive 92/43 requires relevant habitats to be

classified as Special Areas of Conservation (SACs). SPAs and SACs collectively are known as Natura

2000 sites or simply as European sites.

8. While domestically protected areas rather than European sites, natural heritage areas

(NHAs) are designated pursuant to s. 18 of the Wildlife (Amendment) Act 2010 for the protection of

species or habitats.

9. Generally, candidate SPAs (cSPAs) or SACs (cSACs) are treated as European sites. Proposed

NHAs (pNHAs) are also generally treated as NHAs – but there are a lot of these. The NPWS helpfully

states in public domain material (https://www.npws.ie/protected-sites/nha):

“In addition, there are 630 proposed NHAs (pNHAs), which were published on a non-

statutory basis in 1995, but have not since been statutorily proposed or designated. These

sites are of significance for wildlife and habitats. Some of the pNHAs are tiny, such as a

roosting place for rare bats. Others are large - a woodland or a lake, for example. The

pNHAs cover approximately 65,000ha and designation will proceed on a phased basis over

the coming years.”

10. One might have thought that 29 years would be long enough for these designations to take

place but things move slowly apparently. Whether that has legal consequences isn’t an issue in the

present case.

11. The AA screening report (pp. 13-15) identifies 14 European sites for screening purposes

within 15 km, but only a few of these are relied on by the applicants in their fourth amended

statement of grounds.

12. The applicant’s pleadings refer specifically to the following:

“Slieve Bernagh SAC: an SAC located to the north and south of the Proposed Development,

designated as such by the European Union Habitats (Slieve Bernagh Bog Special Area of

Conservation 002312) Regulations 2022, S.I. No. 385 of 2022”

“Slieve Aughty SPA: an SPA to the north of the Site designated as such by the European

Communities (Conservation of Wild Birds (Slieve Aughty Mountains Special Protection Area

004168)) Regulations 2012, S.I. No. 83 of 2012.”

13. The formal name for the foregoing ins the Slieve Bernagh Bog SAC and its features are as

follows (https://www.npws.ie/protected-sites/sac/002312):

“Slieve Bernagh Bog SAC

Site Details Site code 002312

Designation Special Area of Conservation (SAC)

County Clare

Coordinates Latitude: 52.8393

Longitude: -8.55176

Qualifying Interests

Northern Atlantic wet heaths with Erica tetralix [4010]

European dry heaths [4030]

Blanket bogs (* if active bog) [7130]”

14. The formal name for the second mentioned site is the Slieve Aughty Mountains SPA and its

features are as follows (https://www.npws.ie/protected-sites/spa/004168):

“Slieve Aughty Mountains SPA

Site Details Site code 004168

Designation Special Protection Area (SPA)

Counties Clare

Galway

Coordinates Latitude: 53.0203

Longitude: -8.60545

Qualifying Interests

Hen Harrier (Circus cyaneus) [A082]

Merlin (Falco columbarius) [A098]”

15. The pleadings also refer to the Lough Derg (Shannon) SPA whose features are as follows

(https://www.npws.ie/protected-sites/spa/004058):

“Lough Derg (Shannon) SPA

Site Details Site code 004058

Designation Special Protection Area (SPA)

Counties Clare

Galway

Tipperary

Coordinates Latitude: 52.9609

Longitude: -8.32454

Qualifying Interests

Cormorant (Phalacrocorax carbo) [A017]

Tufted Duck (Aythya fuligula) [A061]

Goldeneye (Bucephala clangula) [A067]

Common Tern (Sterna hirundo) [A193]

Wetland and Waterbirds [A999]”

16. In terms of NHAs the pleadings refer to the following:

“Doon Lough NHA: a NHA to the west of the site, designated as such by the Natural Heritage

Area (Doon Lough NHA 000337) Order 2005, S.I. No. 571 of 2005”

“Lough O'Grady pNHA: a proposed NHA to the north east of the Site, given reference number

001019 by the NPWS.”

17. The former has the following features (https://www.npws.ie/protected-sites/nha/000337 ):

“Doon Lough NHA

Site Details Site code 000337

Designation Natural Heritage Area (NHA)

County Clare

Coordinates Latitude: 52.8177

Longitude: -8.66683

Qualifying Interests

Peatlands [4]”

Facts

18. On 30th November 2020, Coillte lodged an application for permission (File Reference ABP-

308799-20) to construct the development.

19. The application included a Natura Impact Statement for the purposes of the habitats

directive, and an EIA report for the purpose of the EIA directive 2011/92/EU.

20. Whilst Coillte was the applicant for planning permission, all development rights in respect of

Carrownagowan Wind Farm were transferred from Coillte to FEC, although the development lands

have not yet transferred. FEC’s onshore wind development rights in respect of the relevant Coillte

lands are held pursuant to an exclusive option for lease, which option allows for entry into a long-

term lease prior to commencement of the construction of Carrownagowan Wind Farm.

21. On 27th November 2020, the developer published notice of the making of the application -

available for public inspection from 7th December 2020 for a period of 7 weeks.

22. The second applicant made a submission on 12th January 2021 and the first named applicant

made a submission received on 3rd February 2021.

23. The Development Applications Unit (DAU) of the Department of Tourism, Culture, Arts,

Gaeltacht, Sport and Media also made a submission.

24. On 3rd February 2021, the deadline for submissions expired.

25. In early 2021, on foot of the DAU submission, the board requested further information from

the developer.

26. On 8th July 2021, the developer submitted further information.

27. The developer submitted a second tranche of further information on 23rd December 2021.

28. This further information was advertised, and notified to those who had made submissions in

January 2022, and the second and third applicants made submissions on 14th and 16th February

2022 respectively.

29. The third named applicant Nicola Henley made a submission in which she reiterated the

points she had made in a first, rejected, submission.

30. The inspector prepared a report dated 31st August 2022.

31. The board adopted a decision on 29th September 2022 granting permission. The board order

agreed with the inspector that at screening there was the possibility of significant effects on Slieve

Bernagh Bog SAC (002312) and Slieve Aughty Mountains SPA (004168), and that on appropriate

assessment such effects could be ruled out. The inspector’s conclusion as to the effects being

acceptable following EIA was also agreed with.

Procedural history

32. The proceedings challenging the decision and including a variety of other reliefs were

instituted on 23rd November 2022 when papers were filed and the matter was opened before the

court. Liberty was given to amend the statement of grounds.

33. An amended statement of grounds was filed dated 5th December 2022.

34. On 12th December 2022, a further order was made allowing another amendment to the

statement of grounds.

35. A second amended statement of grounds was filed dated 13th January 2023.

36. Further liberty to amend was given on 30th January 2023. On 13th February 2023 the time

to comply with that order was extended.

37. On the same date the court dealt with a motion from the applicants seeking further

information on a pre-leave basis. Paragraph 1 of the motion was adjourned generally. The extension

of time for the amended statement was granted under paragraph 2. Costs were reserved by consent.

38. Once the papers were in order to the necessary minimum extent, leave was granted on 20th

February 2023.

39. The order did not grant an extension of time in the absence of a request for that.

40. The substantive notice of motion for relief by way of judicial review was dated 1st March

2023.

41. On 6th March 2023, FuturEnergy was added as a notice party and the matter was adjourned

to 24th April 2023 to allow motions to be brought.

42. On 18th April 2023, Coillte brought a motion to strike out.

43. On 18th April 2023, the State brought a motion to strike out.

44. On 19th April 2023, the applicants brought a motion for discovery,

45. On 5th September 2023, written submissions of applicants on the discovery motion were

delivered.

46. On 6th June 2023, additional affidavits from the State parties were delivered.

47. On 6th September 2023, written submissions by Coillte on the motion to strike out were

delivered.

48. On 6th September 2023, additional affidavits from Coillte were delivered.

49. On 7th September 2023, additional affidavits from the State were delivered.

50. On 12th September 2023, the State submissions on strike out motion were delivered.

51. On 6th October 2023, replying submissions of the applicants were delivered.

52. On 10th October 2023, replying submissions of Coillte were delivered.

53. On 11th October 2023, replying submissions of the State were delivered.

54. The discovery and strike-out motions and the issue of the remedial obligation were then

heard on 17th to 19th October 2023. At the hearing it emerged that some pages of the response

to Item 1 of the request for further information had not been exhibited formally so the developers

agreed to file a short affidavit by 20th October 2023 to exhibit the full document.

55. In the No. 1 judgment on 27th October 2023, I made an order as follows:

(i) the leave order be amended under the slip rule so as to delete the reference to

certification of two counsel;

(ii) the application for an extension of time as set out in relief 13 be refused;

(iii) on foot of the motions by the opposing parties, the leave order be discharged in

respect of:

a. reliefs 12 and 16; and

b. core ground 10 and associated sub-grounds insofar as they relate to those

reliefs;

(iv) on foot of the motions by the opposing parties, the following be struck out:

a. reliefs 10, 11, 14, 15, 17-19;

b. core grounds 4, 6, 8 and associated sub-grounds; and

c. core ground 10 and associated sub-grounds (other than insofar as they

relate to reliefs 12 and 16);

(v) the applicants’ motion for discovery and the application to amend that application

be refused;

(vi) the State respondents and the council be released from further participation in the

proceedings with liberty to apply;

(vii) subject to the foregoing, the applicants are to have liberty to file a further amended

statement of grounds within 2 weeks from the date of this judgment on the basis of

a clean version to be the filed version and a tracked version being served for

information:

a. reformatting the pleadings in accordance with the format set out in Stapleton

v. An Bord Pleanála [2023] IEHC 344;

b. deleting matters that have been struck out or refused, or where the leave

order has been discharged, and making any consequential rewording; and

c. changing the heading so as to provide that the fourth amended statement

is filed on foot of the present order and the third amended statement was

filed under the orders of 30th January, 2023 and 13th February, 2023

rather than simply the latter;

(viii) the applicants have liberty to file further affidavits from Lorcan O’Toole and Dr

Eimear Rooney without prejudice to any argument as to their admissibility in due

course, and on the basis that if such an issue is raised the applicants will have to

demonstrate that the affidavits should be admitted and that this exercise will be

conducted in advance of close of exchange of affidavits if so required by the opposing

parties;

(ix) unless the parties apply otherwise by written submission within 7 days, the foregoing

order be perfected forthwith thereafter on the basis of no order as to costs; and

(x) the matter be listed for mention on a date to be notified by the List Registrar for

further case-management.

56. On 23rd December 2024, the order arising from the judgment of 27th October 2023 was

perfected.

57. That order was appealed by the applicants (Court of Appeal record no. 2024/3) and is listed

for hearing on 7th June 2024.

58. On 14th February 2024, a hearing date was assigned for the substantive judicial review.

59. The substantive matter was listed for hearing on Tuesday 7th May 2024 and was heard on

that date and 8th May 2024. Judgment was reserved on the latter date.

Relief sought - third amended statement of grounds

60. In order to facilitate legibility of reference to the differently numbered paragraphs in the No.

1 judgment and the present judgment, it would be better to set out the reliefs and grounds in both

the third and fourth amended statements of grounds, albeit that the third statement is now of

historical interest, subject to the appeal.

61. The reliefs set out in the third amended statement of grounds are as follows:

“D, Remedies

Preliminary Remedies

1. Directions requiring the First Respondent, the Board, pursuant to S146 of the

Planning and Development Act 2000 as amended, to put on its website within such time as

the Court may specify, all material relating to Board Decision file reference ABP-308799-20,

dated 29 September 2022, relating to a proposed windfarm development at Carrownagowan,

County Clare.

2. Directions permitting the Applicants to file an amended Statement of Grounds

containing such further particulars and further grounds as it may consider appropriate,

subject to leave of the Court in relation thereto, within the period of 8 weeks following the

placing on the Board's website in accordance with relief Dl above, of all material relating to

Board Decision file reference ABP-308799-20, dated 29 September 2022, relating to a

proposed windfarm development at Carrownagowan, County Clare.

3. Directions permitting the First Named Applicant to consider the further information

submitted by the Developer between June 2021 and December 2021 relating to Board file

reference ABP-308799-20, and granting liberty to the First Named Applicant to file an

Affidavit outlining such submission as it would have made had it been aware of the

determination of the Board that the said further information was significant and that it was

appropriate to allow the making of submissions in relation thereto, as provided for pursuant

to S37E(3)(a).

4. Directions of the type outlined at paragraph 81 of the decision in Reid v Bord

Pleanala, [2021] IEHC 362 requiring the Board to file an Affidavit providing, in respect of

Board Decision file reference ABP-308799-20, dated 29 September 2022, relating to a

proposed windfarm development at Carrownagowan, County Clare, details of the expertise

applied by the Board in respect of the issues raised, including but not limited to the expertise

applied by it to independently, demonstrably and impartially, deploy sufficient expertise,

detailed scrutiny and a high standard of investigation, and showing it had the resources with

which to do so, per paragraph §243 of the judgment of this Court in the case of

Environmental Trust Ireland v Bord Pleanala, [2022] IEHC 540.

5. Such mandatory order or injunction to the like effect as the Court may consider

appropriate.

6. Discovery

Substantive Remedies

7. An Order of Certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986

as amended and Section 50 of the Planning and Development Act 2000 as amended quashing

the decision of the First Respondent, An Bord Pleanala (the Board), dated 29 September

2022, file reference ABP-308799-20, and there described as: Proposed Development: The

proposed development is for a ten-year permission that will constitute the provision [of] the

[following]:

a) nineteen (19) number wind turbines (blade tip height up [to] 169 metres);

b) nineteen (19) number wind turbine foundations and associated hardstand areas,

c) one (1) number permanent [meteorological] mast (100 metre height) and

associated foundation and hardstand area,

d) one (1) number substation (110 kilovolts) including associated ancillary buildings

(electrical building including [control], switchgear and metering rooms and the

operational building including welfare facilities, workshop and office), security

fencing and all associated works,

e) upgraded site entrance,

f) new and upgraded internal site service roads (8.4 kilometres of existing tracks to be

upgraded and 11.4 kilometres of new service roads to be constructed),

g) provision of an onsite visitor cabin and parking,

h) underground electrical collection and SCADA system linking each turbine to the

proposed on-site substation,

i) construction of new roadways and localised widening along the turbine delivery

route,

j) two (2) number temporary construction site compounds

k) three (3) number burrow pits to be used as a source of stone material during

construction,

l) three (3) number peat and spoil deposition areas (at burrow pit locations),

m) associated surface water management systems,

n) tree felling for windfarm infrastructure, and

o) all associated site development works.

All in the [townlands] of Ballydonaghan, Caherhurley, Coumnagun, Carrawnagowan,

lnchalughoge, Killokennedy, Kilbane, [Coolready] and Drumnod, County Clare.

8. Such declaration(s) of the legal rights and/or legal position of the applicant[s] and

(if and insofar as legally permissible and appropriate) persons similarly situated and/or of

the legal duties and/or legal position of the Respondents as the court considers appropriate.

9. A stay pursuant to Order 84 Rule 20(8)(b) of the Rules of the Superior Courts on

the operation of the above Board Decision of 29 September 2022, file reference ABP-

308799-20, pending conclusion of the present proceedings.

Forestry Consent Remedies

10. Directions of the type outlined at paragraph 81 of the decision in Reid v Bord

Pleanala, [2021] IEHC 362 requiring the Developer to file an Affidavit providing details of all

licences, permissions or other consents granted relating to projects for afforestation, felling

or reafforestation of any lands in the townlands of Ballydonaghan, Caherhurley, Coumnagun,

Carrownagowan, lnchalughoge, Killokennedy, Kilbane, Coolready and Drummod, County

Clare, from 1 June 1970 to date, the dates of such licences, of all forestry related works

carried out on those lands during that period (in particular the fire break between the Slieve

Bernagh SAC and the afforested area) and of all environmental impact assessments and

appropriate assessments carried out in relation to such licences, permissions or consents,

and all screening determinations relating to whether such assessments were required, and

to provide copies of all documents so identified.

11. Discovery

12. An Order of Certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986

as amended and/ or Section 50 of the Planning and Development Act 2000 as amended

quashing all and/ or any decisions taken between 1 June 1988 and the present by the

Minister for Agriculture Food and the Marine or any other competent authority, authorising

the carrying out of any afforestation, felling and/ or reafforestation project, and all forestry

related works (in particular the fire break between the Slieve Bernagh SAC and the afforested

area), in the townlands of Ballydonaghan, Caherhurley, Coumnagun, Carrownagowan,

lnchalughoge, Killokennedy, Kilbane, Coolready and Drummed, County Clare.

13. An Order pursuant to Section 50(8) of the Planning and Development Act 2000 as

amended, or pursuant to Order 84 Rule 21(3) of the Rules of the Superior Courts 1986 as

amended, extending time for the bringing of any application referred to in the preceding

paragraph.

14. A Declaration for the purposes of S177B of the 2000 Act in relation to all and/ or

any such decisions taken between 1 June 1988 and the present by the Minister for

Agriculture Food and the Marine or any other competent authority, authorising the carrying

out of any afforestation, felling and/ or reafforestation project in the townlands of

Ballydonaghan, Caherhurley, Coumnagun, Carrownagowan, lnchalughoge, Killokennedy,

Kilbane, Coolready and Drummed, County Clare, to the effect that such decisions relate to

a development or project in the administrative area of Clare County Council for which

authorisation was granted by the Minister for Agriculture Food and the Marine or such other

competent authority as may appear to have issued such authorisation, or by the planning

authority or the Board, and for which - (a) an environmental impact assessment, (b) a

determination in relation to whether an environmental impact assessment is required, or (c)

an appropriate assessment, was or is required, that such consent was in breach of law,

invalid or otherwise defective in a material respect because of - (i) any matter contained in

or omitted from the application for consent including omission of an environmental impact

assessment report (or environmental impact statement) or a Natura impact statement or

both that report and that statement, as the case may be, or inadequacy of an environmental

impact assessment report or a Natura impact statement or both that report and that

statement], as the case may be, or (ii) any error of fact or law or procedural error.

15. A mandatory order or injunction requiring the Council, pursuant to the Order in the

preceding paragraph, to serve the notice specified in S177B of the Planning and

Development Act 2000 as amended in respect of all and / or any decisions taken between 1

June 1988 and the present by the Minister for Agriculture Food and the Marine or any other

competent authority, authorising the carrying out of any afforestation, felling and/ or

reafforestation project in the townlands of Ballydonaghan, Caherhurley, Coumnagun,

Carrownagowan, lnchalughoge, Killokennedy, Kilbane, Coolready and Drummod, County

Clare, and any other forestry related works (in particular the fire break between the Slieve

Bernagh SAC and the afforested area).

16. A Declaration pursuant to Order 84 Rule 18(2) of the Rules of the Superior Courts

as amended to the effect that, in authorising the carrying out afforestation, felling and / or

reafforestation projects in the townlands of Ballydonaghan, Caherhurley, Coumnagun,

Carrownagowan, lnchalughoge, Killokennedy, Kilbane, Coolready and Drummod, County

Clare, and any other forestry related works (in particular the fire break between the Slieve

Bernagh SAC and the afforested area), the Minister and / or the State has failed to consider

and determine whether the carrying out of such projects or works was compatible with the

preservation of a species listed in Annex I to the Birds Directives (79/409 and 2009/147),

namely hen harrier (Circus Cynaeus), and compatible with maintaining the population of

that species at a level which corresponds to ecological, scientific and cultural requirements,

or whether the authorisation of such projects or works was compatible with the requirement

to take the requisite measures to preserve, maintain or re-establish a sufficient diversity

and area of habitats for hen harrier, for the purposes of Articles 2 and 3 of those Directives.

17. A mandatory order or injunction pursuant to Order 84 Rule 18(2) of the Rules of the

Superior Courts 1986 as amended, S160 of the 2000 Act, A6(2) of the Habitats Directive,

A9(3) and (4) of the Aarhus Convention, A47 of the Charter, and A4(3) and A19(1) TEU,

and/ or some or all of those provisions, requiring the Developer to assess, identify and

remediate the negative environmental impacts identified in the Hen Harrier Programme

included with its Responses to Requests for Further Information between June and December

2021 (in which the Developer identified such effects in the context of proposals to carry out

works to provide compensatory habitat for hen harrier disturbed by the existing forestry

project on the site.)

18. Such mandatory order or injunction to the like effect as the Court may consider

appropriate.

Non-Transposition Remedies

19. A declaration that the State failed, in the period between I June 1988 and 2010

correctly to implement Al, A2, A3, A4, AS, A6, A8 and/ or A9 of Directive 85/337 on

environmental impact assessment as amended and A6 of Directive 92/43 on habitats, and

that S177B of the Planning and Development Act 2000 as amended should be interpreted

as applying retrospectively to any consent to afforestation, felling and/ or reafforestation

project in the townlands of Ballydonaghan, Caherhurley, Coumnagun, Carrownagowan,

lnchalughoge, Killokennedy, Kilbane, Coolready and Drummod, County Clare between 1 June

1988 and the present.

20. Such declaration(s) of the legal rights and/or legal position of the applicant[s] and

(if and insofar as legally permissible and appropriate) persons similarly situated and/or of

the legal duties and/or legal position of the Respondents as the court considers appropriate.

Costs protection

21. A Declaratory Order pursuant to Section 7 of the Environment (Miscellaneous

Provisions) Act 2011 as amended, Order 99 of the Rules of the Superior Courts as amended,

the inherent jurisdiction of the Court, Article 47 of the Charter on Fundamental Rights of the

European Union, Articles 4(3) and 19(1) of the Treaty on European Union, and/ or Article 9

of the Convention on Access to Information, Public Participation In Decision-Making and

Access to Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (the

Aarhus Convention), confirming that Section SOB of the Planning and Development Act 2000

as amended and/ or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act

2011 apply to the Grounds set out at Part E hereof.

Further Orders

22. Liberty to file further Affidavits containing further particulars or expert evidence in

support of the grounds already advanced.

23. Liberty to amend grounds on foot of expert advice if and when received.

24. Liberty to amend grounds on foot of any material added to the website of the Board

following commencement of the present proceedings.

25. Liberty to amend grounds on foot of any material obtained by the Applicants in

relation to the authorisations granted for the planting of forestry in the townlands of

Ballydonaghan, Caherhurley, Coumnagun, Carrownagowan, lnchalughoge, Killokennedy,

Kilbane, Coolready and Drummod, County Clare.

26. An order referring a question or questions of law for determination by the Court of

Justice of the European Union.

27. Further or other relief.

28. Discovery

29. Costs”

Relief sought – fourth amended statement of grounds

62. In the fourth amended statement of grounds, following the No. 1 judgment, the reliefs had

been slimmed down to a more manageable 17 items, as follows:

“Preliminary Remedies

1. Directions requiring the First Respondent, the Board, pursuant to S146 of the

Planning and Development Act 2000 as amended, to put on its website within such time as

the Court may specify, all material relating to Board Decision file reference ABP-308799-20,

dated 29 September 2022, relating to a proposed windfarm development at Carrownagowan,

County Clare.

2. Directions permitting the Applicants to file an amended Statement of Grounds

containing such further particulars and further grounds as it may consider appropriate,

subject to leave of the Court in relation thereto, within the period of 8 weeks following the

placing on the Board's website in accordance with relief Dl above, of all material relating to

Board Decision file reference ABP-308799-20, dated 29 September 2022, relating to a

proposed windfarm development at Carrownagowan, County Clare.

3. Directions of the type outlined at paragraph 81 of the decision in Reid v Bord

Pleanala, [2021] IEHC 362 requiring the Board to file an Affidavit providing, in respect of

Board Decision file reference ABP-308799-20, dated 29 September 2022, relating to a

proposed windfarm development at Carrownagowan, County Clare, details of the expertise

applied by the Board in respect of the issues raised, including but not limited to the expertise

applied by it to independently, demonstrably and impartially, deploy sufficient expertise,

detailed scrutiny and a high standard of investigation, and showing it had the resources with

which to do so, per paragraph §243 of the judgment of this Court in the case of

Environmental Trust Ireland v Bord Pleanala, [2022] IEHC 540.

4. Such mandatory order or injunction to the like effect as the Court may consider

appropriate.

5. Discovery

Substantive Remedies

6. An Order of Certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986

as amended and Section 50 of the Planning and Development Act 2000 as amended quashing

the decision of the First Respondent, An Bord Pleanala (the Board), dated 29 September

2022, file reference ABP-308799-20, and there described as:

Proposed Development: The proposed development is for a ten-year permission that will

constitute the provision [of] the [following]:

• nineteen (19) number wind turbines (blade tip height up [to] 169 metres),

• nineteen (19) number wind turbine foundations and associated hardstand areas,

• one (1) number permanent [meteorological] mast (100 metre height) and

associated foundation and hardstand area,

• one (1) number substation (110 kilovolts) including associated ancillary buildings

(electrical building including contra/, switchgear and metering rooms and the operational

building including welfare facilities, workshop and office), security fencing and all associated

works,

• upgraded site entrance,

• new and upgraded internal site service roads (8.4 kilometres of existing tracks to be

upgraded and 11.4 kilometres of new service roads to be constructed),

• provision of an onsite visitor cabin and parking,

• underground electrical collection and SCADA system linking each turbine to the

proposed on-site substation,

• construction of new roadways and localised widening along the turbine delivery

route,

• two (2) number temporary construction site compounds,

• three (3) number burrow pits to be used as a source of stone material during

construction,

• three (3) number peat and spoil deposition areas (at burrow pit locations),

• associated surface water management systems,

• tree felling for windfarm infrastructure, and

• all associated site development works.

All in the town/ands of Ballydonaghan, Caherhurley, Coumnagun, Carrawnagowan,

lnchalughoge, Killokennedy, Kilbane, Coo/ready and Drumnod, County Clare.

7. Such declaration(s) of the legal rights and/or legal position of the applicant[s] and

(if and insofar as legally permissible and appropriate) persons similarly situated and/or of

the legal duties and/or legal position of the Respondents as the court considers appropriate.

8. A stay pursuant to Order 84 Rule 20(8)(b) of the Rules of the Superior Courts on

the operation of the above Board Decision of 29 September 2022, file reference ABP-

308799-20, pending conclusion of the present proceedings.

Costs protection

9. A Declaratory Order pursuant to Section 7 of the Environment (Miscellaneous

Provisions) Act 2011 as amended, Order 99 of the Rules of the Superior Courts as amended,

the inherent jurisdiction of the Court, Article 47 of the Charter on Fundamental Rights of the

European Union, Articles 4(3) and 19(1) of the Treaty on European Union, and/ or Article 9

of the Convention on Access to Information, Public Participation In Decision-Making and

Access to Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (the

Aarhus Convention), confirming that Section SOB of the Planning and Development Act 2000

as amended and/ or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act

2011 apply to the Grounds set out at Part E hereof.

Further Orders

10. Liberty to file further Affidavits containing further particulars or expert evidence in

support of the grounds already advanced.

11. Liberty to amend grounds on foot of expert advice if and when received.

12. Liberty to amend grounds on foot of any material added to the website of the Board

following commencement of the present proceedings.

13. Liberty to amend grounds on foot of any material obtained by the Applicants in

relation to the authorisations granted for the planting of forestry in the townlands of

Ballydonaghan, Caherhurley, Coumnagun, Carrownagowan, lnchalughoge, Killokennedy,

Kilbane, Coolready and Drummod, County Clare.

14. An order referring a question or questions of law for determination by the Court of

Justice of the European Union.

15. Further or other relief.

16. Discovery

17. Costs”

63. We now need to identify what is actually live out of this menu of 17 reliefs. Insofar as the

reliefs remain viable after the No. 1 judgment, no preliminary applications were made after the

fourth amended statement, so 1 to 5 fall automatically. The order looking for publication of the

documents not on the website was sought as interlocutory relief, not as a final order of mandamus,

and it wasn’t pursued as interlocutory relief.

64. Reliefs 6 and 7 remain, 8 wasn’t pursued, 9 isn’t necessary as costs protection is not an

issue, and 10 to 13 and 16 were not pursued either.

65. That doesn’t leave a whole lot substantively other than certiorari and a declaration, and

limited ancillary orders.

Grounds of challenge – third amended statement of grounds

66. The core grounds as set out in the third amended statement of grounds were as follows:

“E1. Core Grounds

National Law Grounds

1. The Board failed to put all the documents relating to the matter the subject of the

Decision on its website contrary to S146(5) and (7)(a) of the 2000 Act.

2. The Board failed to make a prior determination to the effect that the Proposed

Development would constitute strategic infrastructure for the purposes of S37A and

Schedule 7 of the 2000 Act, and failed to make a direction as to the plans, particulars or

other information which the Board will require for the purposes of consideration of an

application, as required by A210(2)(a) of the 2001 Regulations.

2A. The Impugned Decision is invalid because the Board failed to comply with S37E(3)(c)

of the 2000 Act and / or A213(1)(h) of the 2001 Regulations in that the Applicant failed to

notify Tipperary County Council and Limerick City and County Council of the application for

permission, both of which are local authorities from whose functional areas the Proposed

Development would be visible and which are therefore required. Additionally or in the

alternative the Board failed to obtain any evidence of that notification, and / or failed to

satisfy itself as to the making of that notification.

EU Law Grounds

3. The Impugned Decision is invalid because the Board failed to ensure it had sufficient

expertise to examine the EIAR in order to ensure its completeness and quality and to carry

out an assessment that would be as complete as possible, contrary to S172(1H) of the 2000

Act, and A6 of the EIA Directive and to carry out an assessment that would be as complete

as possible (5S171A, 5S172, A3(6)), and failed to give adequate reasons to establish that it

had access to such expertise (5S71A, 5S172, A8a).

4. In the alternative the Decision If the Impugned Decision is not invalid for the reasons

set out in the preceding Ground, it must nonetheless be set aside because the State has

failed to create an effective procedure of review, in breach of Article 9(4) of the Aarhus

Convention, All of the EIA Directive, A47 of the Charter, Article 19(1) of the TEU, and/ or

some or all of those provisions and a Decision that fails to comply with the EIA Directive but

that cannot be effectively reviewed is necessarily either invalid or incapable of having any

effect.

5. The Impugned Decision is invalid because the Impugned Decision is invalid because

it fails to incorporate environmental conditions into the decision, and fails to incorporate a

description of measures intended to avoid, prevent, reduce or offset effects contrary to

S37H(2A), S172(1H), and S172(11) of the 2000 Act read in light of A8a of the EIA Directive;

or those subsections constitute an inadequate transposition of A8a.

6. In the alternative the Decision If the Impugned Decision is not invalid for the reasons

set out in the preceding Ground, it must nonetheless be set aside because the State has

failed to adequately transpose A8a(1) of the EIA Directive contrary to A4(3) and 19(1) TEU

and a Decision adopted pursuant to provisions of an Act that fail to give effect to a Directive,

where the Board does not apply the interpretative obligation, and / or, where appropriate,

the set aside obligation, in order to correctly apply A8a of the EIA Directive, is invalid, void

and of no legal effect.

7. The Impugned Decision is invalid because the Board failed to investigate and analyse

the information submitted by the Developer, and/ or to carry out as complete an assessment

as possible, and therefore its EIA failed to meet the definition of an EIA in S171A when

interpreted in accordance with Articles 1, 2 and 3 of the EIA Directive.

8. In the alternative, the State failed adequately to implement the requirement that an

EIA must involve as complete an assessment as possible and thereby failed to give full effect

to A1(2)(g), A2(1) and A3 of the EIA Directive as required pursuant to A4(3) and A19(1)

TEU, and to A288 TFEU which provides that a Directive is binding as to the result to be

achieved and a Decision adopted pursuant to provisions of an Act that fail to give effect to

a Directive, where the Board does not apply the interpretative obligation, and / or, where

appropriate, the set aside obligation, to correct the defect, is invalid, void and of no legal

effect.

9. The impugned Decision is invalid because the Board failed to carry out a proper

screening for appropriate assessment of the Application and further information submitted

by the Developer for the purposes of S177S of the 2000 Act read in light of A6(3) of the

Habitats Directive.

10. The Impugned Decision is invalid because the Board failed to carry out as complete

an assessment as possible in that it failed to assess the cumulative effects of the Proposed

Development together with the effects of the existing forestry developments on the site, and

failed to have regard to the EIA and Appropriate Assessment(s), if any, carried out in respect

of those forestry developments and in so doing contravened A2, 3 and 4 of the EIA Directive,

and A6 of the Habitats Directive; the Developer erred in law by carrying out projects for

which prior EIA and Appropriate Assessment was required without those assessments being

carried out and in so doing contravened A5 of the EIA Directive, A6 of the Habitats Directive,

and A4(3) and A19(1) of the Treaty on European Union; and the State erred in law in

granting the underlying forestry consents for the application contrary to A2, 3 and 4 of the

EIA Directive, A6 of the Habitats Directive, and A2 and A3 of the 1979 and 2009 Birds

Directives, and substitute consent is required for the purposes of S177B of the 2000 Act.”

Grounds of challenge – fourth amended statement of grounds

67. The core grounds as set out in the fourth amended statement of grounds are as follows:

“Part EI. Core Grounds

National Law Grounds

1. The Board failed to put all the documents relating to the matter the subject of the

Decision on its website contrary to S146(5) and (7)(a) of the 2000 Act.

2. The Board failed to make a prior determination to the effect that the Proposed

Development would constitute strategic infrastructure for the purposes of S37A and

Schedule 7 of the 2000 Act, and failed to make a direction as to the plans, particulars or

other information which the Board will require for the purposes of consideration of an

application, as required by A210(2)(a) of the 2001 Regulations.

3. The Impugned Decision is invalid because the Board failed to comply with S37E(3)(c)

of the 2000 Act and / or A213(1)(h) of the 2001 Regulations in that the Applicant failed to

notify Tipperary County Council and Limerick City and County Council of the application for

permission, both of which are local authorities from whose functional areas the Proposed

Development would be visible and which are therefore required. Additionally or in the

alternative the Board failed to obtain any evidence of that notification, and / or failed to

satisfy itself as to the making of that notification.

EU Law Grounds

4. The Impugned Decision is invalid because the Board failed to ensure it had sufficient

expertise to examine the EIAR in order to ensure its completeness and quality and to carry

out an assessment that would be as complete as possible, contrary to S172(1H) of the 2000

Act, and A6 of the EIA Directive and to carry out an assessment that would be as complete

as possible (S171A, S172, A3(6)), and failed to give adequate reasons to establish that it

had access to such expertise (S71A, S172, A8a).

5. The Impugned Decision is invalid because it fails to incorporate environmental

conditions into the decision, and fails to incorporate a description of measures intended to

avoid, prevent, reduce or offset effects contrary to S37H(2A), S172(1H), and S172(11) of

the 2000 Act read in light of A8a of the EIA Directive; or those subsections constitute an

inadequate transposition of A8a.

6. The Impugned Decision is invalid because the Board failed to investigate and analyse

the information submitted by the Developer, and/ or to carry out as complete an assessment

as possible, and therefore its EIA failed to meet the definition of an EIA in S171A when

interpreted in accordance with Articles 1, 2 and 3 of the EIA Directive.

7. The impugned Decision is invalid because the Board failed to carry out a proper

screening for appropriate assessment of the Application and further information submitted

by the Developer for the purposes of S177S of the 2000 Act read in light of A6(3) of the

Habitats Directive.”

68. Core ground 3 was withdrawn in the written legal submissions at para. 30.

Domestic law issues

Core ground 1 – s. 146(7)(a) and alleged failure to publish material

69. Core ground 1 is:

“1. The Board failed to put all the documents relating to the matter the subject of the

Decision on its website contrary to S146(5) and (7)(a) of the 2000 Act.”

70. The parties’ positions as recorded in the statement of case are summarised as follows:

“Ground 1

26. Ground 1 is that the Board failed to place documents on its website as required by

S146(5) PDA. The Board responds that it is not obliged to do so, but accepts that it did not.

27. Board’s position on Ground 1. The Applicants accept this ground only goes to

declaratory relief. On a holistic overview of all of the circumstances a declaration is not

warranted and, in any event, the Applicants underlying contention about what has to be

placed on the website in an EIA case is not well founded and it’s not clear what the Applicants

actually says has to be so placed. The Applicants’ claim in suffering prejudice fails because

no actual unfairness to these particular Applicants contrary to their rights has been

demonstrated. Further, any theoretical prejudice to third parties could not be categorised as

major, in the light of all of the materials (including the ... actual decision, the other decision

documents generated by the Board (i.e. the Inspector’s Report and the Board Direction) and

the planning application documents, including the EIAR and the NIS) that were published on

the Board’s website in this case.

28. Coillte and FEC agree with the Board’s position in relation to Ground 1.”

71. The sub-grounds relating to this complaint are as follows:

“9. S146(5) and (7)(a) of the 2000 Act require the Board to put all the documents

relating to the matter the subject of the Decision on its website in perpetuity beginning on

the third day following the making by the Board of the Decision; but it failed to do so. As a

result the Applicants suffered prejudice because they were unable, in the time available to

them, to obtain and analyse all the material that was before the Board, to verify the

correctness of the grounds which they seek to advance, and to determine whether there are

other grounds of challenge which may be open to them.

10. Insofar as the Board may provide such documents to the Applicant[s] by some other

means prior to closure of the pleadings, in order to allow for potential amendment of

grounds, a Declaration that the Board is required to place all the documents relating to the

matter the subject of the Decision on its website in [perpetuity] beginning on such day as

the Court may specify, pursuant to S146(5) and (7)(a) of the 2000 Act is sought as a final

order only.”

72. Section 146(5) to (7) provides as follows:

“(5) Within 3 days following the making of a decision on any matter falling to be decided by

it in performance of a function under or transferred by this Act or under any other enactment,

the documents relating to the matter—

(a) shall be made available by the Board for inspection at the offices of the Board by

members of the public, and

(b) may be made available by the Board for such inspection—

(i) at any other place, or

(ii) by electronic means,

as the Board considers appropriate.

(6) Copies of the documents referred to in subsection (5) and of extracts from such

documents shall be made available for purchase at the offices of the Board, or such other

places as the Board may determine, for a fee not exceeding the reasonable cost of making

the copy.

(7) The documents referred to in subsection (5) shall—

(a) where an environmental impact assessment was carried out, be made available for

inspection on the Board’s website in perpetuity beginning on the third day following the

making by the Board of the decision on the matter concerned, or

(b) where no environmental impact assessment was carried out, be made available by the

means referred to in subsection (5)(b) for a period of at least 5 years beginning on the third

day following the making by the Board of the decision on the matter concerned.”

73. The applicants make the implausible point that merely because they got something on the

hard copy file it should have been on the website. That doesn’t stand up – the mere inclusion of

something in the hard copy file doesn’t make it a “document relating to the matter” if it wouldn’t

otherwise be so.

74. There are three basic questions – the legal issue as to what has to be put online, the factual

issue of whether this was complied with, and the procedural issue as to whether to grant a

declaration in the event of a finding of non-compliance.

75. The fact that some of the documents were published on the developer’s website does not

constitute compliance with the statutory provision to publish on the board’s website. So that doesn’t

help the board’s defence of this point.

76. The statutory intention is that only documents “of the board” need to be published (as set

out in the marginal note to s. 146 – “Reports and documents of the Board”, which I can look at

under s. 7 of the Interpretation Act 2005). However, that isn’t confined to documents generated

“by” the board, but rather to documents that come into existence, or that become part of the board’s

statutory processes, by reason of the board being seized of the matter. It does not cover pre-

existing documents that were created prior to and independently of the board being seized of the

issue and that are not part of the board’s deliberative process. Those are not “documents relating

to the matter” within the statutory intention. So for example an application form to a council is not

a document relating to the matter in the context of an appeal to the board. An expert report

submitted to the council however does become a document relating to the matter if it is resubmitted

for consideration by the board as part of the statutory appeal process.

77. The primary issue is what is the extent of the requirement to put documents online (under

sub-s. (7)(a) because this is an EIA case). That in effect boils down to the question of what does

“documents relating to the matter” mean.

78. The board submits:

“The expansive interpretation of the subsections advanced by the Applicants in this regard

appears incongruous with the evidently narrower interpretation of s.146(5) set out by

Charleton J. in Kerry County Council v. An Bord Pleanála [2014] IEHC 238 at §10-§11. Given

this court[’]s consideration of matters in Clonres and Reid (No.7), Kerry is simply cited as

support for the proposition which appears to have been accepted in Clonres that the terms

‘documents relating to the matter’ cannot be given a literal meaning.”

79. We need to be clear what we are talking about here. The board is correct insofar as it rejects

the applicants’ proposition that “documents relating to the matter” means absolutely everything.

That literal interpretation is not sustainable. However that doesn’t mean that the phrase must

exclude documents that are properly part of the statutory process.

80. Kerry County Council dealt with a quite different point which was whether failure to keep

draft notes was a basis for certiorari of a decision. Charleton J., unsurprisingly, thought not:

“Points

6. Counsel for Kerry County Council has helpfully structured the voluminous materials into

a number of points that are at the essence of this review. These arguments are:

1. The Board was required to furnish documents publicly within 3 days but the

decision of the Board was based on notes taken by one member and then destroyed:

this does not constitute statutory compliance and the reasons given are not those of

the Board and, further, are inadequate.

2. The Board, in considering the widths required for the cycleways as contributing

to overall road width as 28 meters, decided on the basis of incorrect figures since

the Board’s decision was based on reckoning that without cycleways the road would

be merely 13 metres wide whereas, in fact, drainage etc must be added as to 6

meters on each side, thereby making 25 metres or, at minimum, 24 metres.

3. The Board failed to carry out any appropriate assessment of the information

provided by Kerry County Council and failed to make any decision as to whether the

proposed alternative trail for cyclists and walkers, the green way alternative, was

suitable; thus side-stepping the issue of gradients.

4. That a Board member had done a road trip along the N86, and other routes,

reporting to the Board, noting the frequency of cyclists, thus behaving

inappropriately and introducing immaterial and prejudicial material.

5. That section 13(5) of the Roads Act, 1993, concerning the approval for roads,

required the relevant Minister to consider all road users in considering road schemes

for approval, which includes cyclists and pedestrians, and that since this function

now is devolved to the Board, there was a total failure to exercise this function;

whereby the Board were wrong to confine themselves to a consideration only of

proper planning and sustainable development.

7. This case has in common with most other judicial review applications of environmental

planning cases that every conceivable point is put in the mix. The result must be that the

High Court is required to exercise its discretion as to costs so that only those aspects of the

case which succeed bring costs, with the result while those that do not may result in an

award of costs the other way. The overall result, as this is an environmental protection case

may in any event be no order as to costs. Nonetheless, the Court will consider all these

points. Numbers 5, 3 and 2 require to be considered together. Points 1 and 3 will be

considered first.

Destroyed notes

8. The first point is insubstantial. The Board had a different view to that of the statutory

inspector. This was a proper exercise of its discretion. The matter was debated by the Board

at some length, apparently over three hours. The Board came to its conclusion by a vote of

3 to 2. Tasked with noting the reasons, settled through debate, the deputy chairman, Conal

Boland took notes, went away, wrote up his jottings and formulated the reasons as they

have been quoted. As a matter of policy, notes and papers of members of the Board are

destroyed after such meetings. The point made is that this was an inaccurate reconstruction

of what was decided or, alternatively, that the note-taker simply made up his own reasons

which were only tangentially related to anything which the Board had decided. Conal Boland

has given evidence and been cross examined. He emerged as trustworthy and conscientious.

Since the Board had previously expressed a view to Kerry County Council on the unsuitability

of the road, it was no surprise to him, he said, that the Board stayed with the substance of

their original reasoning. What emerged was, therefore, broadly parallel to the letter written

by the Board on 7th November, 2012. The reason for refusal was in accordance with a

condensed version of that letter with particular reference to its first paragraph. He denied

adding vocabulary in writing up the decision. That evidence must be accepted as probable.

9. Further, it is to be presumed that statutory bodies function lawfully as they are designed

by legislation. Keeping records of everything is not necessarily a guide to the fundamentals

of a decision. In any corporate undertaking, different views will be expressed by different

people some of them, as in this decision by a bare majority, widely differing. What matters

is the responsibility of the Board as a statutory corporation. In O’Donoghue v An Bord

Pleanála [1991] I.L.R.M. 750 an issue arose as to the keeping of records by the Board. A

sensible view was adopted by Murphy J at p. 759-760 which is equally applicable to the facts

of this case: I find it difficult to envisage circumstances in which the failure of an

administrative body to keep appropriate records would be of itself sufficient grounds to

render its decision a nullity. I suspect that ordinarily the inadequate record would fall to be

considered in conjunction with an inexplicable decision. In any event it seems to me that by

any criterion the paucity of the records in the present case would not justify quashing the

decision of the [Board] which was manifestly within its jurisdiction and for which they did

have adequate material.

10. Section 146 of the Act of 2000, as amended, deals with the appointment of an inspector,

and consequent reports, and with the furnishing of documents and maps to interested

parties. Once a decision is made, the Board is only required under s. 146(5) to inform the

public by making ‘documents relating to the matter’ available for inspection. Since the

principle of construction applicable requires words to be seen in context, it should be quoted.

The subsection reads: (5) Within 3 days following the making of a decision on any matter

falling to be decided by it in performance of a function under or transferred by this Act or

under any other enactment, the documents relating to the matter—

(a) shall be made available by the Board for inspection at the offices of the Board by

members of the public, and

(b) may be made available by the Board for such inspection— (i) at any other place, or (ii)

by electronic means, as the Board considers appropriate.

11. The decision was made available two days after the Board met. That decision mirrors in

its wording what the Board had decided. The statutory scheme is thus fulfilled down to its

last letter.”

81. That is only an “evidently narrower” interpretation to the limited extent that it means that

an informal draft note which was prepared for the sole purpose of creating a formal document is not

a “document relating to the matter”. I agree. But if the document reaches a certain level of

formality, say a submitted inspector’s report, it remains a document relating to the matter even if it

is later amended – both versions should be published.

82. Clonres CLG v. An Bord Pleanála (No 2) [2021] IEHC 303, [2021] 5 JIC 0706 only helps the

board to a limited extent. At para. 21 I said that

“insofar as s. 146(5) of the Planning and Development Act 2000 requires that documents

relating to the matter be made available by the board, this cannot include documents relating

to a quashed decision. Indeed, to do so could be seen to contaminate the process. It seems

to me there is no basis for a suggestion that documents relating to how a remitted file was

handled are to be included. Section 146(5) relates to documents that are part of the

statutory process, not internal administrative documents.”

83. So a quashed decision should be removed from the website – that’s a consequence of

certiorari, but that has only limited relevance here.

84. Again we need to be clear what is covered by any excluded category. The reference to

internal administrative documents means things like memoranda indicating who will be assigned to

the case, giving notice of the meeting date and time, and so forth. It doesn’t mean that formal

documents part of the statutory process don’t need to be published.

85. The documents fall into five separate categories:

(i) documents that were in fact published on the website;

(ii) documents that were part of the statutory process;

(iii) invalid submissions;

(iv) administrative correspondence; and

(v) internal board memoranda.

86. The board classified all of these documents on its own analysis, and in fact I accept their

classifications with only two exceptions to which we will come.

87. We don’t need to worry about the first category – if documents were published, the applicant

doesn’t have a point even if they didn’t have to be published.

88. Documents that are part of the statutory process are core to the obligation to publish

documents relating to the matter. In principle those can’t be excluded by the board from the

material to be put on the website.

89. As regards invalid submissions, by analogy with Clonres these are not properly part of the

process and don’t need to be published. Indeed doing so could be said to contaminate the process.

90. As regards internal board memoranda, Clonres indicated that these were not properly

documents relating to the matter. They are more closely analogous to the internal notes regarded

as falling outside the obligation in Kerry County Council.

91. Going back to “administrative correspondence”, that sounds innocuous but it really depends

on whether the correspondence is actually administrative or whether it is part of the statutory

process. I think the litmus test for that is asking the question as to whether the document was

generated under a statutory provision, or creates legal consequences, or whether failure to generate

the correspondence would give rise to a legal wrong on the part of the board. If so then it is a

“document relating to the matter” because it is actually a formal part of the process. That makes

sense in policy terms because it is something whose existence should be known for the purposes of

legal transparency. If it is a superfluous letter that is neither legally required nor of legal import

then it is purely administrative and hence not a document relating to the matter. To put it another

way, not every piece of paper is of sufficient import to be a “document relating to the matter”. An

open-ended interpretation would create unworkable vagueness as to the board’s publication

obligations. The existence or otherwise of what the board called in submissions a “statutory

pedigree” is the primary touchstone.

92. To take the two examples relevant here, an acknowledgement of a submission is a statutory

step – art. 217(2) of the 2001 regulations provides:

“(a) The Board shall acknowledge in writing the receipt of any submission or observation

referred to in sub-article (1) as soon as may be following receipt of the submission or

observation.”

93. Secondly, s. 134(3) of the 2000 Act requires notification of a decision on an application for

an oral hearing:

“(3) Where the Board is requested to hold an oral hearing of an appeal, referral or application

and decides to determine the appeal, referral or application without an oral hearing, the

Board shall serve notice of its decision on—

(a) the person who requested the hearing and on each other party to the appeal or referral

or, as appropriate, (unless he or she was the requester) the applicant under section 37E,

and

(b) each person who has made submissions or observations to the Board in relation to the

appeal, referral or application (not being the person who was the requester).”

94. The board argued that there were 9 documents that fell into the bracket of “administrative

correspondence” separate from “the statutory process”. With just two exceptions, I agree. The

position in relation to those 9 documents is as follows:

(i) statutory receipt of payment – that does not appear to be a statutory document;

(ii) notice to applicant (developer) that application has been received – that does not

appear to be a statutory document;

(iii) notice to CEO of Clare County Council regarding application – this does not seem to

be a statutory requirement;

(iv) letter to applicant requesting further information – this is not a statutory document

under art. 218 but rather simply a non-statutory administrative request for

additional copies of existing documents;

(v) letter to applicant (developer) acknowledging additional information – that does not

seem to be statutorily required;

(vi) board letter acknowledging observation received from IAA – that is required under

art. 217;

(vii) TII - acknowledgement letter from board – in fact TII had no observation to make

so the letter acknowledging that falls outside art. 217;

(viii) letters notifying applicant and county council regarding observations made – that

does not appear to be a statutory document; and

(ix) notification letters regarding no oral hearing – that is a statutory document under s.

134(3).

95. Or to put it another way, this applicants haven’t shown that the other seven documents have

a statutory pedigree. That doesn’t preclude some other applicant being able to do so in relation to

an analogous document if it is argued that these applicants have failed to draw attention to some

relevant statutory provision (or if the statutory landscape changes, of course – a more than

hypothetical qualification in the field of planning law).

96. On this basis it seems to me that documents nos. (vi) and (ix) above (documents 61 and 62

in the table below) are properly statutory documents and not mere administrative correspondence.

With those two limited exceptions I would accept the board’s categorisation of the documents, as

reflected in the third and fourth columns below.

97. So the overall situation regarding the 84 documents at issue here can be represented by the

following table:

DATE NAME OR SUBJECT CATEGORY WAS IT PUBLISHED

(YY.MM.DD) MATTER OF THE 1 Documents that ON THE BOARD’S

DOCUMENT are part of the WEBSITE IN A

statutory process TIMELY MANNER?

2 Invalid Yes or No

documents (e.g.,

invalid third-party

submissions/obser

vations on the

application)

3 Administrative

correspondence

(e.g., ABP letters

acknowledging

receipt of

submissions etc)

4 Internal Board

Memoranda

22.08.31 1. The 1 Yes

Inspector’s

Report (ABP-

308799-20)

22.09.29 2. The Board 1 Yes

Order (ABP-

308799-20)

22.09.26 3. The Board 1 Yes

Direction (BD-

011318-22)

20.11.30 4. EIAR (Volume 1 Yes

I: Non-

Technical

Summary)

20.11.30 5. EIAR (Volume 1 Yes

II: EIAR Main

Report – 17

Chapters,

EIAR

References.p

df and

Volume II

Table of

Contents.pdf)

20.11.30 6. EIAR (Volume 1 Yes

III:

Appendices)

20.11.30 7. EIAR (Volume 1 Yes

IV:

Photomontag

es)

20.11.30 8. Natura 1 Yes

Impact

Statement

(NIS)

20.11.23 9. EIA Portal 1 Yes

Receipt

20.11.30 10. Planning 1 Yes

Application

Drawings

(including

Schedule of

Planning

drawings)

20.11.30 11. Planning 1 Yes

Application

Form

20.11.30 12. Policy and 1 Yes

Planning

Context

Report

13. Application 1 Yes

Fee- receipt

of payment

20.11.30 14. Newspaper 1 Yes

Notice, Clare

Champion,

27th

November

2020

20.11.30 15. Newspaper 1 Yes

Notice, Irish

Independent,

26th

November

2020

20.11.30 16. Application 1 Yes

Cover letter

to An Bord

Pleanála

dated 30th

November

2020

20.11.30 17. Sample Copy 1 Yes

of Notice to

Prescribed

Bodies

20.11.30 18. Landowner 1 Yes

Consents (7

no.)

20.11.30 19. Site Notice 1 Yes

(erected 26th

November

2020)

19.11.04 20. SID 1 Yes

Determinatio

n by ABP

dated 4th

November

2019

20.11.30 21. Schedule of 1 Yes

Notified

Prescribed

Bodies

20.11.30 22. Schedule of 1 Yes

Pre-

application

Consultation

21.12.21 23. Cover Letter 1 No

dated

21/12/21

21.12.21 24. RFI Response 1 No

Item 1

21.07.07 25. Cover letter 1 No

dated 7/7/21

21.07.07 26. RFI Response 1 No

Item 2

21.07.07 27. RFI Response 1 No

Item 3

21.07.07 28. RFI Response 1 No

Item 4

22.02.18 29. Revised Site 1 No

Notice dated

11/2/22

22.02.18 30. Revised 1 No

Newspaper

Notices, dated

11/2/22

22.02.18 31. Letters to 1 No

prescribed

bodies, dated

11/2/22

21.12.21 32. Drawing 1 No

19107-5061

21.12.23 33. Consent letter 1 No

re Folios

CE29025 and

CE5859F

23/12/21

20.11.23 34. Drawing 1 No

Transmittal

Sheet

22.06.14 35. Board 1 No

Direction BD-

010865-22

(relating to

ABP decision

to not hold an

oral hearing)

20.12.21 36. Letter to 1 No

Board from

Irish Aviation

Authority

21.01.12 37. Submission - 1 No

Ute and

Konrad

Rumberger

Pt2

21.01.09 38. Submission - 1 No

Donal

O'Connor

21.01.12 39. Submission - 1 No

Ute and

Konrad

Rumberger

21.01.13 40. Submission - 1 No

Michael and

Siobhan

Cooney

21.01.21 41. Submission - 1 No

Tommy

Melody and

Michael

Moloney

21.01.26 42. Submission - 1 No

Oliver

Donnellan

21.01.19 43. Submission - 1 No

David

McNamara

21.01.28 44. Submission - 1 No

Paul

O'Driscoll and

Maria

Svensson

21.01.29 (received 45. Submission - 1 No

by board) Cathal Hogan

21.01.26 46. Submission - 1 No

Noel and

Ailish Daly

21.01.29 47. Submission - 1 No

Shannon

Airport

Authority

DAC

21.01.27 48. Submission- 1 No

Darragh and

Deirdre Higan

21.02.03 49. Submission - 1 No

Department

of Culture,

Heritage and

the Gaeltacht

(DAU)

21.02.03 50. Submission - 1 No

Shane Dineen

21.02.03 51. Submission - 1 No

Yvonne Harris

21.01.28 52. Submission - 1 No

Hassett

Leyden and

Associates

Architects

21.01.02 53. Submission - 1 No

Ailish and

Brian

O'Dwyer

21.02.02 (received 54. Submission - 1 No

by Board) Brian Penny

and Sinead

Cooney

21.02.03 55. Submission - 1 No

Irish Aviation

Authority

21.01.28 56. Submission - 1 No

Kathleen

Horgan and

Eamonn

Cregan

21.02.03 (received 57. Submission - 1 No

by Board) Michael

McNamara

21.02.01 58. Submission - 1 No

Oisin Slattery

21.01.29 59. Submission - 1 No

Piotr

Kowalewicz

and Others

21.01.31 60. Submission - 1 No

Susan

McMahon

21.01.19 61. TII - 1 No

Acknowledge

ment Letter

from Board

22.06.14 62. Notification 1 No

Letters

regarding no

Oral Hearing

21.01.26 (Ltr board 63. Submission - 2 No

to DMN) David

McNamara

21.01.29 (ltr board to 64. Submission - 2 No

MC) M.Cooney

21.01.27 65. Submission - 2 No

M.Cassidy

21.01.28 (ltr board to 66. Submission – 2 No

RP) Rita Pearl

21.01.28 67. Submission – 2 No

Sheila

O’Connor

21.01.26 68. Submission – 2 No

M. Tuohy

21.02.03 69. Duplicate 2 No

Marese Tuohy

invalid

submission

20.11.30 70. Statutory 3 No

receipt of

Payment

20.12.04 71. Notice to 3 No

Applicant

(Developer)

that

Application

has been

received

20.12.04 72. Notice to CEO 3 No

of Clare

County

Council

regarding

Application

20.12.11 73. Letter to 3 No

Applicant

requesting

Further

lnformation

20.12.17 74. Letter to 3 No

Applicant

(Developer)

acknowledgin

g additional

info

20.12.23 75. Board letter 3 No

Acknowledgin

g Observation

received from

IAA

22.03.29 76. Letters 3 No

notifying

Applicant and

County

council

regarding

Observations

made

20.12.16 77. Memorandum 4 No

Regarding

Prescribed

Bodies

20.12.15 78. Screening 4 No

Checklist

22.09.27 79. Memorandum 4 No

Pt1

22.06.07 80. Memorandum 4 No

Pt2

22.05.25 81. Memorandum 4 No

Pt3

22.08.31 82. Inspector 4 No

Discharge

Form

22.09.29 83. Submission of 4 No

Draft Order

Cover Sheet

22.09.30 84. Case Cover 4 No

Sheet

98. Items 1 to 22 are not problematic because they are already published.

99. Items 23 to 62 are documents relating to the statutory process and should have been

published.

100. Items 63 to 69 were invalid submissions and don’t need to be published.

101. Items 70 to 76 are administrative correspondence and don’t need to be published.

102. Items 77 to 84 are internal memoranda and don’t need to be published.

103. Finally, as to whether to make a declaration, In Reid (No. 7) v. An Bord Pleanála [2024]

IEHC 27, [2024] 1 JIC 2401 at §134(i) to (ix), I set out relevant circumstances in respect of whether

to grant a declaration, and I have considered those here. I appreciate that as failings go, this is not

the most major, and I do note the various points made by the board in that regard. What stands

out however is that there has been an increasing pattern of cases where relevant documents have

not been properly made available in accordance with statute, either at all or in a timely manner.

There have just been too many examples of publication failures in recent times, which suggests that

further encouragement to improve internal systems in that regard could serve a purpose. Recent

examples include:

(i) Southwood Park Residents Association v. An Bord Pleanála [2019] IEHC 504, [2019]

7 JIC 1003 (Simons J.) – part of the planning application not posted online during

the process – certiorari granted;

(ii) Sweetman v. An Bord Pleanála [2020] IEHC 39, [2020] 1 JIC 3104 [2021] IEHC 662,

[2021] 10 JIC 2601, (McDonald J.) (Sweetman XV) – failure to include notice of the

receipt of the appeal of the decision of the Council in the weekly board list – the

breach was held to be not insubstantial but it was not necessary to decide on whether

to grant certiorari because the decision was quashed on other grounds;

(iii) Sweetman v. An Bord Pleanála [2021] IEHC 259, [2021] 4 JIC 1403 (O’Regan J.)

(Sweetman XIII) – failure to publish the decision on the website within the statutory

timescale – no relief deemed necessary in the particular circumstances;

(iv) Save Cork City v. An Bord Pleanála & Ors [2021] IEHC 509, [2021] 7 JIC 2802 –

failure to make NIS available under s. 177AE of the 2000 Act – declaration granted;

(v) Clifford v. An Bord Pleanála (No. 3) [2022] IEHC 474, [2022] 8 JIC 1502 – breach

of public information requirements of s. 51(4C) and (6C) of the Roads Act 1993 –

declaration granted;

(vi) Keshmore Homes Ltd. v. An Bord Pleanála [2023] IEHC 369, [2023] 6 JIC 2702

(Phelan J.) paras. 39-62 – failure to publish material on the website held sufficient

grounds for an extension of time;

(vii) Corajio v. An Bord Pleanala, [2023] IEHC 373, [2023] 6 JIC 2902 (Phelan J.) §§31,

43-66 – failure to notify a party of a decision held sufficient grounds for an extension

of time;

(viii) Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 – breach of

publication requirements under s. 146 of the 2000 Act – declaration granted; and

(ix) Thompson & Anor v. An Bord Pleanála [2024] IEHC 101, [2024] 2 JIC 2602 §§15-

18, 52 – late notification of the decision, insufficient basis for relief.

104. The present case pushes the established breaches in recent years into double figures, to say

nothing of alleged breaches which did not have to be determined. Against such a background,

declaratory relief serves a salutary public law purpose in upholding the law and fostering compliance.

Otherwise, a continued pattern of non-compliance would be without consequence, an unacceptable

situation and one that would do nothing to bring about future compliance. Hence on balance a

declaration is appropriate, even bearing in mind the arguments in favour of making no order.

105. For the avoidance of doubt, I reiterate that the applicants haven’t shown how they were

sufficiently disadvantaged by these failures so as to preclude their participation in the process.

Indeed that would be difficult in principle because the failures only occurred after the decision was

made. Hence certiorari is not an appropriate remedy. But the applicants have made out a case for

a declaration.

Core ground 2 – allegedly invalid SID determination

106. Core ground 2 is:

“2. The Board failed to make a prior determination to the effect that the Proposed

Development would constitute strategic infrastructure for the purposes of S37A and

Schedule 7 of the 2000 Act, and failed to make a direction as to the plans, particulars or

other information which the Board will require for the purposes of consideration of an

application, as required by A210(2)(a) of the 2001 Regulations.”

107. The parties’ positions as recorded in the statement of case are summarised as follows:

“Ground 2

29. Ground 2 is that the Application is invalid because the Developer did not have a

determination from the Board under S37A and S37B PDA allowing it to apply for an 18

turbine windfarm. It did have a determination allowing it to apply for a windfarm of ‘between

19 and 24’ turbines. The development proposed would have 18 turbines which is outside the

scope of the determination.

30. Board’s position on Ground 2. This ground is denied. It is based on the erroneous

premise that the proposed development for which permission was sought under s.37E was

a different development to the proposed development that the Board determined was SID

under s.37A of the 2000 Act (under ABP-303105-18) to the extent that said preliminary

decision under s.37A could not be relied on in relation to the subject application for

permission. The jurisdictional prerequisites to the Board considering the subject application

for permission were met in this case.

31. Coillte and FEC argue that the Applicant’s reliance on CHASE v ABP [2021] IEHC 203

(to the effect that there is an equivalence between change in identity of an applicant for

permission and a difference in the proposed development from that set out in the notice) is

incorrect. The requirements of section 37A were complied with, and the basis for the Board’s

decision was the power output of the proposed development (windfarm with a generating

capacity of greater than 50MW). Any difference between the development as permitted with

the contents of the notice was very minor and the Applicants’ argument in this regard is

raised as a pure technicality, with no significance attributed to the alleged differences beyond

mere supposition.

32. Further, Article 210(2)(a) of the 2001 Regulations which provides for an indication

of certain information to a prospective applicant for permission was also complied with. The

Board did give such an indication, and the formation of the Board’s opinion that a proposed

development constitutes strategic infrastructure development has the procedural effect of

directing the application down the procedural route under section 37E but does not amount

to a binding decision for any other purpose.

33. The Applicants’ failure to raise this issue in the substantive procedure before the

Board amounts to impermissible gaslighting of the decision-maker.”

108. The relevant sub-grounds are:

“11. Core Ground 2 is that the Impugned Decision is invalid because the Application was

invalid because there was no prior determination by the Board to the effect that the Proposed

Development would constitute strategic infrastructure for the purposes of S37A and

Schedule 7 of the 2000 Act, and no direction by the Board as to the plans, particulars or

other information which the Board will require for the purposes of consideration of an

application, as required by A210(2)(a) of the 2001 Regulations.

12. S37A of the 2000 Act provides that an application for permission for a development

specified in Schedule 7 shall be made to the Board under S37E and not to the planning

authority, provided the Board has made a determination pursuant to S37B that the proposed

development would, if carried out, be strategic infrastructure development because it would

fall within one or more of three headings. The Board made no determination that the

Proposed Development was of a class specified in Schedule 7. Instead, it made a

determination that a different development would be strategic infrastructure development.

It determined, on or about 22 October 2019 under reference 303105, that a proposed

windfarm of 20 to 25 turbines at Carrownagown, County Clare, would constitute strategic

infrastructure development as defined in 52 of the 2000 Act (which includes ‘(a) any

proposed development in respect of which a notice has been served under section

37B(4)(a).’) This was not the windfarm for which permission was eventually sought.

13. Schedule 7 of the 2000 Act provides that a windfarm with more than 25 turbines or

generating more than 50MW of electricity will be strategic infrastructure. The Proposed

Development involves a windfarm of 19 turbines. The power output of the Proposed

Development is not stated and the Application does not provide any indication of power

output. The EIAR for the Proposed Development proceeds on an assumption (Chapter 2,

§2.2) that ‘For purpose of the planning application and the analysis conducted in this EIAR,

[it] has considered a wind turbine composed of a tower with a maximum height of 101

meters and a maximum rotor diameter of 136 meters resulting in an overall maximum tip

height (blade in the vertical position) of 169 meters.’ The EIAR for the Proposed

Development does not specify the actual wind turbine for which permission is sought and

there has been no determination that the actual Proposed Development meets the

requirements of S37A and Schedule 7. The Proposed Development is therefore not one in

respect of which the Board has determined what the plans, particulars or other information

it will require.

14. A210(2)(a) of the 2001 Regulations requires the Board to make such a determination

in the course of a pre-application consultation. The Board did not do so. Insofar as the Board

made any determination in respect of a proposed development on the Site under file

reference ABP-303105-19, that determination did not contain a determination for the

purposes of A210(2)(a). Accordingly, the application for permission pursuant to S37E was

invalid.”

109. Hence we need to be clear what the actual pleaded complaint is. In essence it is as follows:

(i) the SID determination did not relate to this development, inter alia because of a

different number of turbines;

(ii) it is not stated how the present application complies with the SID requirement of

generation of 50MW or what the size of the actual turbine will be and hence it has

not been validly determined that the statutory SID criteria are met; and

(iii) the board failed to make a direction as to the plans, particulars or other information

which the Board will require for the purposes of consideration of an application, as

required by A210(2)(a) of the 2001 Regulations.

110. Insofar as the complaint is that the application changed, that in itself is not a problem. As

the board submits:

“The scheme on its face envisages that the application may change. Indeed, as a very basic

proposition it has to be accepted that at the pre-application stage the application does not

have be fully formed nor does an EIAR or NIS have to be prepared. It is beyond obvious

that an EIAR or NIS may reveal environmental constraints that require difference or nuance

in a proposal. It is simply incongruous to suggest that – given the subject matter of the

s.37A tests – that one would have to keep coming back to the Board whenever the requisite

environmental examinations may reveal the need to eliminate or move a turbine.”

111. Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2021] IEHC 203, [2021]

3 JIC 1904(Barniville J.) is irrelevant as that related to a different issue, a change in the identity of

the applicant.

112. The application has not changed in terms of the central fact that it meets the SID criterion.

The Inspector’s Report of 22nd October 2019 states at §5.1.1:

“Having regard to the nature and scale of the proposed facility comprising in the region of

20-25 no. turbines and having a total power output of c.90 MW, it is my opinion that the

proposed development comes within the scope of class 1 of the Seventh Schedule of the

Strategic Infrastructure Act, 2006 (as amended) being a wind farm having a total output

greater than 50 megawatts.”

113. She concludes at §7.1:

“On the basis of the above, it is my opinion that the proposed development would exceed

the threshold set out in the Seventh Schedule of the Strategic Infrastructure Act, 2006, as

amended by the Planning and Development (Amendment) Act, 2010 as, with the

development of 20 no. turbines with a power output of c.90MW it would have a power output

in excess of the 50MW specified.”

114. This was adopted by the board and remains the position – this is a project with a power

output in excess of 50MW and otherwise meets the SID criteria, in the lawful view of the board.

115. Contrary to the wording adopted by the inspector, the seventh schedule concerned appears

in the Planning and Development Act 2000, as inserted by the Planning and Development (Strategic

Infrastructure) Act 2006, not in the 2006 Act (whose short title is given incorrectly in the report),

and as amended by the Planning and Development (Amendment) Act 2010.

116. The seventh schedule to the 2000 Act includes the following:

“An installation for the harnessing of wind power for energy production (a wind farm) with

more than 25 turbines or having a total output greater than 50 megawatts.”

117. The application met that at all material times, as found by the board.

118. There is something seriously non-goal-congruent about the complaint made by the

applicants under this heading. The removal of one of the turbines was designed to increase the

separation distance and provide for better protection for Hen Harrier – one of the professed concerns

of these applicants and a centrepiece of their concerns in the No. 1 judgment. The State in that

module rather wickedly suggested that the applicants weren’t really all that concerned about Hen

Harrier but were using them as a convenient basis to object to the wind farm. For a court to hold

that the developer had condemned its project to invalidity by reason of having made pro-

environmental adjustments would be to undermine the objectives of domestic and European

legislation, and a court should lean against such a conclusion unless the law compels such a result.

The law doesn’t compel such a result here.

119. Insofar as the complaint is that the actual application does not meet the SID definition, or

that it wasn’t clear that it did, exact details are not required as long as it is clear that the development

is SID: Massey v. An Bord Pleanála [2021] IEHC 783, [2021] 12 JIC 2123 at §20-§21. Callaghan v.

An Bord Pleanála [2018] IESC 39, [2021] 1 I.R. 81,[2018] 2 I.L.R.M. 373, [2018] 7 JIC 3103(Clarke

C.J.) at 376 is to the same effect.

120. Here, the details at the s. 37A stage were enough to enable the board to be satisfied that

the SID definition was met. The details required at the s. 37E stage was obviously required to be

greater, but they also made clear that the definition was satisfied. So there is simply nothing in this

point.

121. Insofar as the art. 210 complaint is concerned, this hasn’t been made out on the facts. The

record of the second pre-application consultation with Coillte on 8th August 2019, at section 4.0,

expressly records that the procedures for the making of an application to An Bord Pleanála were

outlined to the prospective applicant, while the records of the first and second pre-planning

applications clearly demonstrate that the board indicated to Coillte what would be required in terms

of information for the purposes of the consideration of an application.

122. The concept that the developer wasn’t duly informed of the requirements is negatived on

the facts by the fact that the actual application made was accompanied by the necessary information.

Article 210 doesn’t mean – indeed can’t mean – that every detail of the plans and particulars have

to be finalised at the pre-application stage. That would contradict the scheme envisaged by primary

legislation which requires far less detail at the pre-application stage. It would also be unworkable.

In any event the applicants concede that some information was provided for the purposes of art.

210(2)(a) (para. 23 of submissions).

123. In oral submissions, the board rather tartly called this “another clever point in a series of

clever points that just presumes its own suppositions” and I’m afraid that is basically what we are

looking at here. The objection has no actual merit or substance and that’s before we even get to

the point that the applicants weren’t actually harmed by any alleged failure by the board to advise

the developer in more detail as to what to submit. Neither was anybody else, and nor was the

process contaminated in any identified tangible way. Nor did the lack of more detailed guidance

harm the environment or any other objective interests. Any shortcoming in documentation is

superseded by the actual application and the power to seek further information, which was exercised.

Beyond sending the case down the SID route, the s. 37A decision isn’t meant to be binding as to

decision-making in later stages of the process: Callaghan v. An Bord Pleanála [2018] IESC 39, §7.12.

124. As the points made by the applicants lack merit, I don’t need to get into the issue of whether

the points can be made at all by reason of not having been raised with the board during the

consenting process (see the judgment of 15th October 2009, Djurgarden, C-263/08,

ECLI:EU:C:2009:631, and the judgment of 14th January 2021, Stichting Varkens en Nood, C-

826/18, ECLI:EU:C:2021:7).

EU law issues

Core ground 4 - expertise

125. Core ground 4 covers both the board’s expertise and allegedly erroneous EIA. We can deal

with expertise now and postpone the ground insofar as it alleges substantive error in the EIA until

we reach core ground 6.

126. Core ground 4 is:

“4. The Impugned Decision is invalid because the Board failed to ensure it had sufficient

expertise to examine the EIAR in order to ensure its completeness and quality and to carry

out an assessment that would be as complete as possible, contrary to S172(1H) of the 2000

Act, and A6 of the EIA Directive and to carry out an assessment that would be as complete

as possible (S171A, S172, A3(6)), and failed to give adequate reasons to establish that it

had access to such expertise (S71A, S172, A8a).”

127. The parties’ positions as recorded in the statement of case are summarised as follows:

“Ground 4

38. The remainder of Ground 4 is that expertise is required to assess these matters, and

the Board did not have, or did not show that it had, sufficient expertise to conduct the EIA

(Ground 4, §27-29).

39. Board’s position on remainder of Ground 4. This ground is denied and is based on

an erroneous premise. The Board is not required to prove it has sufficient expertise to

conduct the EIA that it carried out merely because the Applicants contend by way of non-

expert assertion that the Board lacks sufficient expertise. The non-expert assertions of the

Applicants (who are litigants in this action and are not independent) are not a basis for and

do not establish any lack of expertise on the part of the Board for EIA purposes. Pursuant to

the 2000 Act, the Board is the competent authority for the purposes of examining the

adequacy of the EIAR and carrying out an EIA and is assisted in this regard by its Inspectors

and is deemed to have the necessary expertise. There is no independent or free-standing

duty on the Board to give reasons establishing that it had access to any given level of

expertise of the kind that the Applicants essentially allege exists.

40. Coillte and FEC argue that the cases advanced in support of the alleged requirement

to demonstrate expertise are not authority for the Applicants’ proposition. The Board is

required to have, or have access to sufficient expertise to examine the EIAR. This is the

expertise of a critic, not an author. The case advanced by the Applicants related to no more

than a complaint that the Board have not made an explicit statement regarding its expertise.

Moreover, the Applicants have failed to substantively prove that the qualifications of the

Board were deficient.”

128. The relevant sub-grounds as regards expertise are as follows:

“21. Core Ground 4 is that the Impugned Decision is invalid because the Board failed to

ensure it had sufficient expertise to examine the EIAR in order to ensure its completeness

and quality (S172(1H)) and to carry out an assessment that would be as complete as

possible (S171A, S172, A3(6)), and failed to give adequate reasons to establish that it had

access to such expertise (S171A, S172, A8a).

22. Full particulars of this Ground will be provided when the Board has confirmed the

identity and expertise of all individuals involved in considering the EIAR and carrying out the

EIA on its behalf.

[flaws alleged]

…

26. The Applicants drew these matters to the attention of the Board, but they do not

have any specialist technical expertise, and rely on their right to have the application

determined by an independent expert body carrying out a detailed scrutiny of an application

in the public interest, and at no significant cost to the individual.

27. Expertise in peat slides, groundwater flows, water quality, impacts on birds, fauna

and flora, which appear likely to require expertise and qualifications in geology, hydrology

and or hydrogeology, ornithology, ecology and environmental science, are all likely to be

required in order to carry out an examination and analysis of the information submitted by

the Developer and to verify its robustness.

28. The Board has failed to ensure that it had, and/ or failed to consider and determine

whether it had, sufficient expertise to examine the EIAR submitted by the Developer, and it

thereby failed to comply with S172(1H) of the 2000 Act, and/ or with that subsection read

in accordance with A6. It has also failed to ensure that it had sufficient expertise to carry

out an EIA, in particular to carry out an examination and analysis sufficient to identify,

describe and assess the likely significant effects of the Proposed Development on the

environment, and to ensure that such EIA is as complete as possible. Accordingly the Board

failed to comply with S171A and S172 of the 2000 Act, and with those Sections read in

accordance with the EIA Directive, in particular Al to A9 thereof.

29. In addition, or in the alternative, the Board failed to include in its decision reasons

sufficient to establish that it had sufficient expertise to carry out the obligations set out

above, and accordingly the reasoned conclusions in the Impugned Decision are insufficient

to comply with S37H(2) of the 2000 Act, or with S37H(2) read in accordance with A8a(l) of

the EIA Directive.”

129. So again we need to unpack the actual pleaded complaint under the heading of expertise.

It seems to be:

(i) the board did not actually have or have access to the required expertise; and

(ii) the board did not include in the decision reasons sufficient to establish that it had or

had access to such expertise.

130. As regards whether the board lacked the required expertise, that has to be established

evidentially. The applicants certainly haven’t done that.

131. The board submitted that applicants generally sometimes postulate various failings in Irish

law. But the legal system “has given the applicants a suite of weaponry” to pursue this point but

they haven’t pursued that to a conclusion. The reliefs sought in the fourth amended statement of

grounds include a D3 which involves disclosure of the board’s expertise. Nothing was pursued under

that heading. In oral submissions, the board said that this was a case of failing to heed Lady

Macbeth’s advice (act 1 sc. 7):

“But screw your courage to the sticking place,

And we'll not fail.”

132. Had the applicants screwed their courage to the sticking place they might have pursued

discovery to actually enable them to make this point, but while claimed in the fourth amended

statement of grounds that was effectively abandoned because no such application was brought to

fruition.

133. As the board submits:

“30. Respectfully, this point does not get off the ground in circumstances where the

Applicants have pleaded (§26, E(Part 2), Fourth Amended Statement of Grounds) that they

themselves have no specialist technical expertise and they have not advanced or adverted

to any scientific evidence to impugn the rationality of the Board’s conclusions for EIA

purposes. The non-expert assertions of the Applicants (who are litigants in this action and

are not independent: see Environmental Trust Ireland v. An Bord Pleanála [2022] IEHC 540

at §93, §96; Murphy v. An Bord Pleanála [2024] IEHC 59 at §13, §14) are not a basis for

and do not establish any lack of expertise on the part of the Board for EIA purposes.”

134. As regards whether the board failed to give reasons demonstrating the required expertise,

that is a complete misconception. It is up to an applicant to show that the expertise is lacking, not

up to a decision-maker to prove that she has the expertise. There is no legal requirement as

postulated by the applicants here. As the board submits:

“33. The Applicants submissions (§74) contend that ‘in terms of the EIA Directive, the

requirement to show expertise is an explicit legal provision’ but then don’t identify any such

provision that so requires. ...

34. Further, there is no independent or free-standing duty on the Board to give reasons

establishing that it had access to any given level of expertise of the kind that the Applicants

essentially allege exists. Neither Article 8a(1) of the EIA Directive or s.37H(2) or of the 2000

Act is the source of or provides for such a reasons requirement. There is no textual basis in

that sub-article of the EIA Directive or in that section of the 2000 Act that sets out such a

requirement.”

135. Calling that a reasons requirement in domestic law doesn’t add anything. A decision-maker

isn’t required to prove her expertise, barring any specific legal rule in a particular context requiring

her to do so. No such rule exists in this context.

136. There is an analogy between the bogus argument here that the board has to prove its

expertise and the bogus argument that judges have to prove their authority. In his leading overview

of the area of organised pseudolegal commercial argument (OPCA), Meads v. Meads 2012 ABQB

571, Rooke ACJ says as follows:

“[286] In some instances an OPCA litigant may argue that a defect of some kind renders

a court or judge without authority. An OPCA litigant may attempt to identify that defect by

demanding that the court prove its authority is valid and genuine.

a. Oaths

[287] A very common demand is that a judge provide some indication of valid authority.

Commonly that demand is for documentation, such as a certificate of appointment, or a copy

of an oath of office: R. v. Lindsay, 2006 BCSC 188, 68 W.C.B. (2d) 718, affirmed 2007 BCCA

214; Ramjohn v. Rudd, 2007 ABQB 84 at para. 9, 156 A.C.W.S. (3d) 38; Bank of Montreal

v. McCance, 2012 ABQB 537 at para. 7. In Alberta Treasury Branches v. Klassen, 2004 ABQB

463 at para. 25, 364 A.R. 230, an OPCA representative added the following post-script to

his submissions:

If you had jurisdiction on June 7th, even under an Admiralty Court, you must have

taken an Oath. Can you provide me with a copy of your Oath, like other professions

must provide to show copies posted) of their certification, they are legitimate and

not imposters? It would be appreciated since it is demanded in Sec. 9.12,b of the

Provincial Court Act. (‘transmitted forthwith’)

[288] Curiously, these litigants do not appear aware that judicial appointments are

published as an Order-in-Council.

[289] It is well established that a judge or court officer is presumptively authorized to

act as they do, and rather the OPCA litigant who claims some deficiency or bias must prove

that deficiency. In R. v. Crischuk, 2010 BCSC 716 at paras. 36-38, affirmed 2010 BCCA 391,

2010 D.T.C. 5141, Justice Barrows explained that onus in this manner:

37 ... His position appears to be that simply announcing a challenge to the

authority of the judge or the Crown to occupy the positions they occupy is sufficient.

It is not. There must be some evidence that casts into doubt that which otherwise

appears regular on its face. There is no evidence to doubt Judge Hogan's status.

Thus, this ground of the appeal, to the extent it relates to Judge Hogan's failure to

produce a certified copy of his oath of office, has no merit. [Emphasis added.]

See also: R. v. Lemieux, 2007 SKPC 135 at para. 12.

[290] An OPCA litigant sometimes demands that a judge swear various oaths and follows

with an allegation that a failure to do so defeats the court’s authority. That is what appeared

to happen in Kilini Creek/Patricia Hills Area Landowners v. Lac Ste. Anne (County)

Subdivision and Development Appeal Board, 2001 ABCA 92 at para. 2, 104 A.C.W.S. (3d)

1142. Justice McClung’s response was succinct:

Reverend Belanger demands that I take an oath (for his use) that acknowledges the

supremacy of God and the Charter of Rights. I have declined this opportunity.

b. The Court Proves It Has Jurisdiction and Acts Fairly

[291] Other reported demands to demonstrate judicial authority include:

• ‘are you a public servant?’: Dempsey v. Envision Credit Union, 2006 BCSC

1324 at paras. 31, 32, 33, 60 B.C.L.R. (4th) 309;

• that the court ‘state its jurisdiction’: Hajdu v. Ontario (Director, Family

Re[s]ponsibility Office), 2012 ONSC 1835 at para. 20; and

• a court disprove it acts ‘in colour of law’: Hajdu v. Ontario (Director, Family

Re[s]ponsibility Office), 2012 ONSC 1835 at para. 22.

[292] Other OPCA litigants claim judicial bias, influence, or conspiracy. However, a litigant

who advances that kind of claim has an obligation to provide positive evidence to support

the alleged conspiracy: R. v. Sydel, 2010 BCSC 1470 at paras. 27-29, see also R. v. Sydel,

2010 BCSC 1473 at paras. 18-23, 39, [2011] 1 C.T.C. 200, affirmed 2011 BCCA 103, leave

refused [2011] S.C.C.A. No. 191.”

137. Such arguments are obvious nonsense. So is the argument that a respondent in judicial

review has to prove its own expertise, or demonstrate in the proceedings that it has conducted a

proper assessment. Of course the board has certain identifiable and limited autonomous duties in

the decision-making process, but once we come to the judicial review, the onus is on the applicants:

see respectively per Hogan J. in An Taisce v. An Bord Pleanála [2022] IESC 8, [2022] 2 I.R. 173,

[2022] 1 I.L.R.M. 281, [2022] 2 JIC 1602 at para. 121, Sherwin v. An Bord Pleanála [2023] IEHC

26, [2023] 1 JIC 2701.

138. The overarching problem here is that given the choice between trying to book a ticket to

Luxembourg to raise abstract questions of law versus actually coming to grips with the factual

situation, the applicants have chosen the easy option. It simply isn’t correct that the lack of

volunteered reasons as to expertise prevents the applicants from knowing whether the board has

expertise, or prevents recourse to domestic procedures to investigate that issue. Those procedures

were available – the applicants simply didn’t activate them.

Core ground 5 – alleged duty of textual incorporation

139. Core ground 5 is:

“5. The Impugned Decision is invalid because it fails to incorporate environmental

conditions into the decision, and fails to incorporate a description of measures intended to

avoid, prevent, reduce or offset effects contrary to S37H(2A), S172(1H), and S172(11) of

the 2000 Act read in light of A8a of the EIA Directive; or those subsections constitute an

inadequate transposition of A8a.”

140. The parties’ positions as recorded in the statement of case are summarised as follows:

“Ground 5

41. Ground 5 is that the Board failed to comply with A8a of the EIA Directive because it

failed to incorporate its reasoning into its decision, with particular reference to Conditions 1

and 5; and it failed to identify specifically each significant effect, the measures envisaged to

avoid, prevent, reduce or offset each effect, and whether the particular measure would

avoid, or prevent, or reduce, or offset the effect.

42. Board’s position on Ground 5. This ground is based on an erroneous premise, namely

the Applicants mistaken interpretation as to the requirements of Article 8a of the EIA

Directive and of the Board’s Decision and the conditions attached to same. The

misconception that subtends this ground is the Applicants contention that there is a

heretofore unidentified requirement that all the matters referred to in Article 8a(1)(a) and

(b) of the EIA Directive must be embodied and explicitly recited/itemised in a single decision

document and that it is unlawful to incorporate the contents of documents by reference to

same, which is incorrect and not the law. There was no non-compliance with Article 8a as

alleged or at all.

43. Coillte and FEC argue that the interpretation placed on Article 8a of the EIA Directive

is incorrect and that the language used does not entail a requirement to identify specifically

each effect in terms of reciting every aspect thereof in the body of the decision. The Board’s

decision included a Reasoned Conclusion and, where appropriate, conditions relating to

environmental conditions. There is no textual basis for the Applicants’ contention features

and measures must be listed separately, and by reference to their envisaged purpose, which

is a requirement invented by the Applicants.”

141. The relevant sub-grounds are:

“30. Core Ground 5 is that the Impugned Decision is invalid because it fails to incorporate

environmental conditions into the decision, and fails to incorporate a description of measures

intended to avoid, prevent, reduce or offset effects contrary to S37H(2A), S172(1H), and

S172(11) of the 2000 Act read in light of A8a of the EIA Directive; or those subsections

constitute an inadequate transposition of A8a and a Decision adopted pursuant to provisions

of an Act that fail to give effect to a Directive, where the Board does not apply the

interpretative obligation in order to correctly apply A8a of the EIA Directive, is invalid, void

and of no legal effect.

31. The Decision fails to incorporate environmental conditions contrary to A8a(l) which

requires that the decision to grant permission shall incorporate any environmental conditions

attached to the decision. The importance of incorporation is that it facilitates understanding

of the Decision by the Developer, the public concerned and the local authority which is

competent to enforce the terms of the Decision. That objective cannot be as easily fulfilled

where the precise conditions are not included within the text of the Decision.

32. Condition 1 of the Impugned Decision requires construction of the Proposed

Development in accordance with the plans and particulars submitted. This is not a condition

for the purposes of A8a(l), but merely a statement of the obvious proposition that the project

authorised is only the project for which permission was sought, and no more.

33. Condition 5 of the Impugned Decision requires the Developer to ensure that all

construction methods and environmental mitigation measures set out in the Environmental

Impact Assessment Report, the Natura Impact Statement and associated documentation are

implemented in full. The Board erred in law in failing to include the requirements to which it

refers within the text of the Impugned Decision.

34. S37H(2A) of the 2000 Act requires that the decision and notification of the decision

adopted on an application made pursuant to S37E must include a summary of the results of

consultations and information gathered in the course of the EIA, but does not require

incorporation of conditions into the decision. S172(1H) of the 2000 Act provides that the

Board may, in carrying out an EIA, have regard to and adopt in whole or in part any reports

prepared by its officials or by consultants, experts or other advisers. It does not provide that

such reports must be incorporated in the decision.

35. The requirement to incorporate under A8a is not satisfied by merely adopting a

document prepared by experts employed by the Developer: it requires incorporation of

specific conditions into the body of the Decision; and adopting documents by reference to

plans or particulars contained generally in the application is not compatible with the principle

of legal certainty which is one of the general principles of European law which, pursuant to

A19(1) of the Treaty on European Union, informs the proper interpretation of the EIA

Directive.

36. The Board is in any event not empowered by S172(1H) of the 2000 Act to adopt a

report prepared by consultants, experts or other advisers of the Developer, only by

consultants, experts or advisers engaged by it.

37. The Board has breached its duty pursuant to A4(3) and 19(1) of the Treaty on

European Union to apply the 2000 Act in accordance with the object and purpose of A8a of

the EIA Directive, by failing to incorporate the precise conditions imposed into the text of its

Decision, and by seeking to include them by reference only.

38. The Decision further failed to incorporate a description of features envisaged to

avoid, prevent, reduce or offset significant effects, and to identify which objective they are

envisaged to achieve. For the reasons set out above, the features envisaged to avoid,

prevent, reduce or offset significant effects must also be incorporated in the Decision.

39. The correct interpretation of A8a requires the decision maker to identify which

objective each measure is envisaged to achieve avoidance, prevention, reduction or

offsetting, and to incorporate same into the text of the Decision. The importance of

incorporation is that it facilitates understanding of the Decision by the Developer, the public

concerned and the local authority which is competent to enforce the terms of the Decision.

That objective cannot be as easily fulfilled where the features envisaged and the function

they perform are not included within the text of the Decision.

40. The Board's Reasoned Conclusion on the Significant Effects of the Proposed

Development concludes, first, that ‘adequate mitigation measures are proposed’ in relation

to negative impacts on human health and population from noise, traffic and dust, but does

not itemise those measures. It concludes, secondly, that negative impacts on biodiversity

will be ‘mitigated by a suite of measures outlined in the Construction and Environmental

Management Plan contained in Appendix 3-1 of the Environmental Impact Assessment

Report’, but does not itemise those measures either. Thirdly, it concludes that negative

impacts on water could arise, but will be ‘mitigated by measures outlined within the

application’; but again it does not itemise those measures.

41. Fourthly, the Board's Reasoned Conclusion concludes that negative impacts of noise

and dust from construction will be ‘mitigated through adherence to best practice construction

measures’; but once again it does not itemise those measures. Fifthly and finally, the Board's

Reasoned Conclusion concludes that negative impacts of noise and dust from construction

will be ‘mitigated through the implementation of a traffic management plan and a

construction management plan’; but does not itemise the measures in those plans.

42. The Board thereby failed to describe the measures proposed within the Decision;

and moreover failed to specify whether each individual measure would have the effect of

avoiding, preventing, reducing or offsetting the impact of the Proposed Development on the

environment.

43. The requirement to incorporate measures intended to avoid, prevent, reduce or

offset the impact of a proposed development on the environment is not satisfied by including

such measures generally without identifying their effect, since an assessment is not as

complete as possible unless it is clearly established whether a measure will avoid the risk of

an impact altogether, merely serve to prevent its occurrence, reduce its impact, or allow it

to happen but take some other action to make up for it.

44. S172(11) of the 2000 Act requires the Board to attach to its decision ‘such

conditions, if any, to the grant as it considers necessary, to avoid, prevent or reduce and, if

possible, offset the significant adverse effects on the environment of the proposed

development,’ but does not require it to incorporate into its decision a description of any

features of the proposed development and/or measures envisaged to avoid, prevent or

reduce and, if possible, offset significant adverse effects as required by A8a(l) of the EIA

Directive.

45. The Board has breached its duty pursuant to A4(3) and 19(1) of the Treaty on

European Union to apply the 2000 Act in accordance with the object and purpose of A8a of

the EIA Directive, by failing to incorporate into its Decision a description of any features of

the proposed development and/or measures envisaged to avoid, prevent or reduce and, if

possible, offset significant adverse effects as required by A8a(l) of the EIA Directive.”

142. While wordy, the whole job-lot is based on the same single false premise, namely that when

art. 8a of the EIA directive refers to a requirement to “incorporate”, this means in the form of textual

narrative in extenso.

143. Article 8a(1) provides:

“1. The decision to grant development consent shall incorporate at least the following

information:

(a) the reasoned conclusion referred to in Article 1(2)(g)(iv);

(b) any environmental conditions attached to the decision, a description of any features of

the project and/or measures envisaged to avoid, prevent or reduce and, if possible, offset

significant adverse effects on the environment as well as, where appropriate, monitoring

measures.”

144. That does not express or imply an obligation to set out the details at length in the decision

itself. It requires only incorporation, not textual incorporation in extenso. The latter would be

unnecessary if not almost pointless and would not serve the required purposive interpretation

applicable to EU law. The applicants’ scenarios as to the alleged benefits of putting everything in

the decision are strained and contrived.

145. As the board submits:

“39. The misconception that subtends this ground is the Applicants contention that there

is a heretofore unidentified requirement that all the matters referred to in Article 8a(1)(a)

and (b) of the EIA Directive must be embodied and explicitly recited/itemised in a single

decision document and that it is unlawful to incorporate the contents of documents by

reference to same, which is incorrect and not the law. No authority whatsoever expressly

supporting the Applicants interpretation has been brought forward. None of the cases

referred to at the relevant section of the Applicants submissions (§84-§100) support the

interpretation proffered by the Applicants.”

146. In any event, this is simply a technical gotcha point. Even if counterfactually the board did

have to set everything out in extenso, the applicants aren’t disadvantaged because what the board

is saying in this particular case is clear from the material. The point is simply without merit on any

analysis.

Core grounds 4 and 6 – peat slides etc. and EIA

147. As noted above, European law requires that assessment of environmental effects of a project

should be “as complete as possible” for EIA (the judgment of 3rd March 2011, Commission v Ireland,

C-50/09, ECLI:EU:C:2011:109) and habitats purposes.

148. The allegedly flawed EIA assessment is primarily pleaded under ground 6 but the applicants

also locate it in core ground 4.

149. Core grounds 4 (in relevant part) and 6 are:

“4. The Impugned Decision is invalid because the Board failed ... to carry out an

assessment that would be as complete as possible (S171A, S172, A3(6)), ...

6. The Impugned Decision is invalid because the Board failed to investigate and analyse

the information submitted by the Developer, and/ or to carry out as complete an assessment

as possible, and therefore its EIA failed to meet the definition of an EIA in S171A when

interpreted in accordance with Articles 1, 2 and 3 of the EIA Directive.”

150. The parties’ positions as recorded in the statement of case are summarised as follows:

Ground 4 and 6

“35. Part of Grounds 4 and 6 is that the Board failed to carry out as complete an EIA as

possible in relation to peat slides and their potential impact on Doon Lough and Lough

O’Grady (Ground 4, §23-26, and Ground 6, §46-51).

36. Board’s position on said parts of Grounds 4 and 6. The said parts of Grounds 4 and

6 are denied, same comprise mere assertions unsupported by evidence. The EIA that the

Board completed in respect of the proposed development was carried out in accordance with

the requirements applicable to that assessment. The issue of peats slides and their potential

impact on Doon Lough and Lough O’Grady was expressly addressed in the materials that

were before the Board and was assessed by the Board and its Inspector. By the said parts

of Grounds 4 and 6, the Applicants in substance attack the EIA on its merits, which is

impermissible in judicial review.

37. Coillte and FEC agree that the EIA was carried out in accordance with the

requirements applicable to that assessment and that this is a merits-based challenge.”

151. The relevant sub-grounds are as follows:

“21. Core Ground 4 is that the Impugned Decision is invalid because the Board failed to

ensure it had sufficient expertise to examine the EIAR in order to ensure its completeness

and quality (S172(1H)) and to carry out an assessment that would be as complete as

possible (S171A, S172, A3(6)), and failed to give adequate reasons to establish that it had

access to such expertise (S171A, S172, A8a).

...

23. Without prejudice to the above, the assessment carried out by the Board was not as

complete as possible. It failed to carry out a complete assessment of the likelihood of peat

slides, the severity of their impacts if they occurred, and the measures that would avoid

them, prevent them, reduce them, or offset their effects. It failed to assess the likely

pressure which road construction material laid on top of peat would have on the stability of

the peat; the adequacy of the berms around the peat deposit areas to prevent a peat slide;

the impact of concrete foundations and the weight of wind turbines on the stability of

surrounding peat; the impact of 24m diameter foundations on the flow of groundwater within

the surrounding peat. It considered that any peat slide that did occur would not impact on

downstream SAC or SPA sites, because any discharged silt would remain in Doon Lough and/

or Lough O'Grady.

24. It failed to identify, describe and assess the impact of such siltation on Doon Lough

and/ or Lough O'Grady, or on the species of fauna and flora present in them.

25. It failed to identify, describe and assess the impact on these sites having regard in

particular to the fact that the first is designated as a Natural Heritage Area pursuant to S18

of the Wildlife (Amendment) Act 2000 and the Natural Heritage Area (Doon Lough NHA

000337) Order 2005, S.I. No. 571 of 2005, and that the second is a proposed Natural

Heritage Area identified in the Survey and Mapping of Habitats in Mid Clare Survey Findings

Report prepared by RPS Environmental Consultants for Clare County Council in December

2010. ...”

152. As regards the sub-grounds under core ground 6, these provide:

“46. Core Ground 6 is that the impugned Decision is invalid because the Board failed to

investigate and analyse the information submitted by the Developer, and/ or to carry out as

complete an assessment as possible, and therefore its EIA failed to meet the definition of an

EIA in S171A when interpreted in accordance with Articles 1, 2 and 3 of the EIA Directive.

47. Full particulars of this Ground await compliance by the Board with the Directions

sought at D4.

48. In the interim and without prejudice thereto, the matters which the Board failed to

investigate and analyse include the likelihood of peat slides resulting from the addition of

road material on top of existing peatland, the likely quantity of silt deposited into Doon

Lough and/ or Lough O'Grady as a result of any such slide, and the likely impact on the

fauna and flora of those lakes from any such slide.

49. These were matters which the Applicants drew to the attention of the Board in

written submissions, and which the Board and its inspector accepted were a possibility

without interrogation to determine where or whether the Developer had addressed them,

and/ or, if it had, whether the manner in which it did so was adequate.

50. In fact, Apart from noting that Doon Lough and Lough O'Grady would attenuate silt

discharge further down the river (by retaining it within the lakes), the Board's Inspector did

not address these matters and the Board itself failed to consider the impact of such

discharges (which it accepted were possible) on Doon Lough which is a NHA and Lough

O'Grady which is a pNHA.

51. In the circumstances the assessment carried out by the Board was not a complete

assessment for the purposes of S171A and 172 of the 2000 Act.”

153. The basic answer to the applicants’ complaints is that the board considered the question of

peat slides and validly satisfied itself as to the issue of risk in that regard. The inspector’s report

states as follows at para. 7.214 onwards:

“Lands and Soils

7.214. Section 9 of the submitted EIAR assesses and evaluates the potential for significant

impacts on lands and soils and geology. Investigations undertaken by the appellant

comprised desk studies of the windfarm site, the grid connection route and the surrounding

study area, alongside geotechnical investigations during 2019, including 790 peat probes, a

peat stability assessment and the logging of findings.

7.215. According to the baseline assessment, blanket peat is the dominant soils type on the

northern lower lying section of the site and also on the more elevated eastern and western

sections of the site, along with pockets of deep poorly drained mineral soils. Poorly draining

peaty soils are mapped in the central and south-central area of the site (towards the summit

of Slieve Bernagh). Areas of rock outcrop are mapped close to the Coumnagaun River

channel, as well as at the western and northern edge of the site. Peat depth range from 0.05

to 4 metres. 20 no. trial pits have also been completed by MWP between 08th July 2019 –

21st August 2019.

7.216. There are no geological heritage sites locally at the proposed development site. The

closest geological heritage site is located in a small quarry at Ballymalone approximately

c.3.1km northeast of the proposed development site.

7.217. I note that a peat stability assessment was undertaken in relation to the wind farm

site only, and is attached in appendix 9-2 of the EIAR. It is important to note at this juncture

that the applicants have had regard to the Peat Landslide Hazard and Risk Assessments:

Best Practice Guide for Proposed Electricity Generation Developments prepared by the

Scottish Government in 2017, in the assessment examination of peat stability in the

development site.

7.218. The applicant states that the Carrownagowan wind farm was designed from the outset

with a constraints-driven approach to place turbines in low-risk areas. Extensive walkovers

and surveys of the site between May 2018 and November 2019 were carried out, with initial

constrains relating to the set back from housing, watercourse buffering, buffering of

designated areas and areas of high conservation forestry, and buffering of areas of ecological

interest. After analysis which is outlined in section 9.2.7.1 of the EIAR, it was concluded that

at 24 no. infrastructure locations the risk ranged from Negligible through Very Low for the

majority of the site to Low.

7.219. Further investigation was carried out for the entire site which included an Infinite

Slope Stability Analysis (ISSA) using the peat probe data and slope data from the LiDAR

DEM to calculate the Factor of Safety (FoS) against peat slide for each location probed. ISSA

analysis was completed at 790 locations.

7.220 I note that the DAU raised concerns within their submission in relation to peat stability

in the context of changes to the hydrology and flow patterns within the site. Additional

queries were raised in relation to whether the rainfall prediction rating had considered

Climate Change predictions into the Hazard Rating Criteria. Similar issues were also raised

within the third party submissions whereby reference is made to a peat slide in the area in

the 1980’s.

7.221. The applicant specifically addresses these concerns within the further information

response to item no. 2. With regard to the hydrological conditions of the site it is stated that

conditions will remain unchanged, due to the hydrological mitigation measures proposed

within section 8 of the EIAR. The applicant has considered landslides such as that which

occurred in 2020 and states that none of the hydrological conditions that were present in

other slides occur at or in close proximity to the proposed wind farm layout at

Carrownagowan. All existing watercourses, designated areas, areas of high conservation

forestry and areas of ecological interest have been buffered by design. It is stated that MWP

also analysed the historical peatslide at Slieve Bearnagh in 2003 and concluded that the

slide was associated with deep peat coincidental with a break in slope. The proposed

development has been designed to avoid these conditions.

7.222. The applicant states that this was achieved by using the area excluded by buffering

and ecological constraints and excluding areas of high slope from the output of the ground

slope analysis. Significant site investigation works including peat probing, shear vane

measurements, and trial pitting were carried out within the development site. Data from the

peat probing and the slope analysis output from the Lidar DEM was overlaid on these layer

areas allowing flat areas of deeper peat leading to breaks in slope to be identified and thus

avoided for new infrastructure.

7.223. It is reiterated by the applicant within the further information response that the peat

stability risk assessment was undertaken in a two-step fashion with the final conclusion

being that peat landslide presented a Negligible Risk to the infrastructure of the Wind Farm.

7.224. As aforementioned in relation to the hydrological regime, it is stated that there is no

proposal within the wind farm layout to alter or change in any significant manner the existing

hydrology of the site, all existing drainage pathways will be maintained. The wind farm is

designed to utilise the existing Coillte road and drainage network as much as possible. This

will have a reducing effect on the peat stability risk associated with construction risk at new

work faces.

7.225. With regard to climate change considerations in relation to rainfall levels, it is stated

that by adding 20 % it would have the effect of increasing the Negligible risk level of peat

slide areas to Very Low. None of the Low locations would increase to Low-Moderate and

therefore it would not change the output of the existing PSRA.

7.226. With regard to queries relating to the fire break referred to within the EIAR, I note

that Section 2.4 of the further information response to item no. 2 provides a detailed

description of this feature. It is stated within this section that the fire break was inspected

during the EIAR baseline characterisation of the site. The break excavation ranges from 2-

3m deep and 8-10m wide and is a definitive slice into the peat mass, representing a clear

and significant break in the peat mass and its associated hydrology.

7.227. I note that the firebreak separates the SAC from the proposed development site.

South of T1, T2, T3, T4, T8, T12, T13, it is apparent that the SAC occurs on higher ground

above the proposed wind farm site. East of the proposed wind farm site the SAC occurs over

the brow of a hill, and the ground within the SAC slopes away from the proposed wind farm

site. There is no pathway for a peat slide on the proposed wind farm site to travel towards

Slieve Bernagh SAC. It is clear that the SAC is physically separated from the development

site, I am therefore satisfied based on the information submitted within both the EIAR and

the FI response that the applicant has adequately addressed the issues raised within the

DAU submission and other third party submissions in this regard.

7.228. It is stated within section 9.4.1.2 of the EIAR that the total volume of peat to be

excavated is 131,837m3 and the total volume of spoil is 124,899m3. It is proposed to reuse

35% of the excavated materials as site won aggregate and the remainder will be reused as

landscaping, roadside berms and placement in deposition areas at the 3 no. borrow pits.

7.229. Potential construction impacts relate to the mobilisation of soils through peat slippage

or erosion and the potential for contamination to occur in relation to hydrocarbons. Peat

stability has been examined above and I am satisfied that the site does not pose a significant

threat to such an event.

7.230. In terms of the operational phase of the development there may be a requirement

for minor excavations in the event of an infrastructure fault occurring. There is also a

potential for leaks to occur in relation to the transformer equipment within the substation

element of the development.

7.231. Potential effects in relation to the decommissioning of the development will be similar

to that of the construction phase.

7.232. Major accidents are considered in the context of peatslide which as aforementioned

has been examined above.”

154. More generally, there are a number of fundamental misconceptions in the applicants’

submissions under this heading – so much so that it borders on a crash-course in applicants’ fallacies

generally.

155. In the No. 1 judgment we encountered two basic fallacies, the misconception that Europe in

general (and the judgment of 4 December 2018, The Minister for Justice and Equality and The

Commissioner of An Garda Siochana v. Workplace Relations Commission, C-378/17,

ECLI:EU:2018:979 in particular) is always available to elevate a point to the level of certiorari, and

secondly the belief that elaborate legal superstructures rather than facts are of most interest to

judges and will be more likely to determine the outcome of cases. We now meet a few more such

points.

156. The first additional applicant’s fallacy is the proposition that acceptance of a developer’s

material is a breach of the duty to independently decide. But such acceptance does not in itself

constitute a failure to assess the application (see e.g., Balscadden Road SAA Residents Association

Limited v. An Bord Pleanála [2020] IEHC 586, [2020] 11 JIC 2501 at §25; Aherne & Ors v. An Bord

Pleanála & Ors [2015] IEHC 606, [2015] 10 JIC 0605 (Unreported, High Court, Noonan J., 6th

October, 2015), Ratheniska Timahoe and Spink (RTS) Substation Action Group v. An Bord Pleanála

& Anor. [2015] IEHC 18, [2015] 1 JIC 1402 (Unreported, High Court, Haughton J., 14th January,

2015), Dunnes Stores v. An Bord Pleanála [2016] IEHC 226, [2016] 5 JIC 0405 (Unreported, High

Court, Hedigan J., 4th May, 2016), Sweetman v. An Bord Pleanála [2016] IEHC 277, [2016] 5 JIC

0407 (Unreported, High Court, McDermott J., 4th May, 2016), McEntee v. An Bord Pleanála

(Unreported, High Court, Moriarty J., 10th July, 2015), Clifford & Anor. v. An Bord Pleanála & Ors.

(No. 2) [2021] IEHC 642, [2021] 10 JIC 1502).

157. It cannot simply be asserted that the developer’s material was accepted without

consideration. That has to be proved – by evidence - which hasn’t been done.

158. Indeed consideration of the developer’s material is required, not just by domestic law but

also by the EIA directive. Recital 23 to directive 2014/52 says:

“With a view to reaching a complete assessment of the direct and indirect effects of a project

on the environment, the competent authority should undertake an analysis by examining

the substance of the information provided by the developer and received through

consultations, as well as considering any supplementary information, where appropriate.”

159. Recitals 32 and 33 provide:

“(32)

Data and information included by the developer in the environmental impact assessment

report, in accordance with Annex IV to Directive 2011/92/EU, should be complete and of

sufficiently high quality. With a view to avoiding duplication of assessments, the results of

other assessments under Union legislation, such as Directive 2001/42/EC of the European

Parliament and the Council (15) or Directive 2009/71/Euratom, or national legislation

should, where relevant and available, be taken into account.

(33)

Experts involved in the preparation of environmental impact assessment reports should be

qualified and competent. Sufficient expertise, in the relevant field of the project concerned,

is required for the purpose of its examination by the competent authorities in order to ensure

that the information provided by the developer is complete and of a high level of quality.”

160. The effect of this is that an EIAR should be of sufficient quality that it is capable of being

accepted. To show that such acceptance constituted a failure of analysis by the board there would

need to be evidence, normally scientific evidence, demonstrating a flaw in the assessment on its

face or showing that a reasonable and well informed expert would have seen the analysis as flawed.

Then any such disagreement has to be brought home, by cross-examination if necessary. An

applicant can’t simply engage in a merits-based disagreement with the result in the context of

judicial review in the High Court. The applicants fall foul of that principle. That’s the problem that

occurred in Hellfire Massey Residents Association v. An Bord Pleanála & Ors [2021] IEHC 424, [2021]

7 JIC 0201 at 56-57, and Reid v. An Bord Pleanála (No. 2) [2021] IEHC 362, [2021] 5 JIC 2705.

History repeats itself here.

161. There isn’t some sort of legal shortcut to get to that stage. Since 2018, section 171A of the

2000 Act (as substituted by European Union (Planning and Development) (Environmental Impact

Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 16) has required “examination, analysis

and evaluation”. It’s up to an applicant to show a failure in that exercise – that hasn’t been done.

Examination, analysis and evaluation doesn’t preclude acceptance of the position of one of the

process participants. A court can accept the submission of one party – that doesn’t amount to a

failure in examination, analysis and evaluation. A statutory decision-maker can do likewise.

162. Here, the applicant’s complaints about a lack of complete assessment have not been properly

made out on that basis. Peat stability and the risk of peat slides are extensively considered for

example in the inspector’s report (see e.g., §3.5, §3.6, §3.8, §5.1, §7.8, §7.20, §7.214 to 7.232

and §7.236).and the EIAR (see e.g. the Peat Stability Assessment at Appendix 9-2 of the EIAR, and

§§9.2.7.1 and 9.4.1.5 of the EIAR).

163. The applicants submit, for example, that:

“Throughout this part of the report, the Inspector is merely reporting what was said. She is

not analysing it or evaluating it in any other way whatsoever. This is not an assessment,

merely a summary – and a summary, moreover, that addresses only the procedural steps

taken, not the substantive issues.”

164. But this is to commit the further applicant’s fallacy of mis-reading the material in a way that

renders it invalid rather than valid. Where the decision-maker recites the materials and then appears

to rely on them in coming to a conclusion, that amounts a tacit acceptance, at least in the absence

of some special feature rendering that an unavailable interpretation. Here such an interpretation is

totally available and indeed obvious. The inspector says at para. 8.66:

“I have considered additional European sites as listed above, as well as those considered

within the applicants NIS, and consider that the applicant’s approach is reasonable. Based

on my examination of the NIS report and supporting information submitted, the scale of the

development, its likely effects by way of the potential to contaminate or create disturbance

to qualifying interests of the Slieve Aughty Mountains SPA (004168) and Slieve Bernagh Bog

SAC (002312) by way of water pollution and sedimentation and noise disturbance and

vibration during construction, I would conclude that a Stage 2 Appropriate Assessment is

required for these Natura 2000 sites. It is important to note that mitigation measures have

not been considered in the Appropriate Assessment Screening.”

165. That is an exercise of judgement, not an abdication of it, any more than the court abdicates

its function if it agrees with an applicant, or an opposing party, or quotes its submissions. Generally

if a party’s submission says something at least as well if not better (sometimes considerably better)

than the court had otherwise been inclined to put matters, it’s worth quoting. That isn’t an

abdication, and neither is the inspector abdicating here insofar as she references the developer’s

material with express or implied approval.

166. The submissions go on to unleash another canard with the third applicant’s fallacy that lack

of narrative discussion equates to lack of legal consideration:

“56. The same point arises in relation to the consideration of impact on Doon Lough,

where the Inspector does not consider the issue at all in the context of EIA and impact on

Doon Lough. She does consider it indirectly in the context of AA screening, where she recites

at §8.5 and Table 1.0 what the Developer has said in relation to impact on the Danes Hole

/ Poulnalecka SAC, Lower River Shannon SAC, and River Shannon and River Fergus SPA,

that ‘there is no meaningful hydrological connectivity to this site as connectivity is via Doon

Lough c3.5km SW of the site before ultimately draining to this’ SAC / SPA. This, of course,

is not a consideration of impact on Doon Lough itself at all.”

167. What can one say about this except that the inspector says she has considered the issues

and the applicants haven’t proved otherwise. Lack of narrative detail sufficient to satisfy an applicant

(an impossible standard anyway) does not constitute a failure in substantive consideration.

168. The applicants misunderstand Sherwin v. An Bord Pleanála [2024] IESC 13, [2024] 4 JIC

1105, and on the basis of that misunderstanding, argue that failure to mention shows lack of

consideration. That decision doesn’t establish anything of the sort. The situation there was that the

board purported to grant permission in the face of apparently contrary provisions of the development

plan. The board only had jurisdiction to materially contravene the plan on certain conditions. In

the absence of any acknowledgement of the relevant provisions of the plan or any purported

explanation of how the development was compatible with them, or more realistically, of why a

material contravention should have been allowed by reference to the statutory tests, the decision-

making process was flawed. The background essentially is the principle that the plan should be

complied with, save where a basis for material contravention is demonstrated. Furthermore there

wasn’t anything before the board to support a contravention in the situation, because the city

council’s concerns under the critical headings weren’t covered in the developer’s material

contravention statement. It is a complete misconception to ignore the context and to distort Sherwin

to suggest that any given decision-maker has to expressly deal by way of narrative discussion with

anything and everything or else be held to have failed to consider matters.

Core ground 7 – hydrological connection etc. and AA

169. Core ground 7 is:

“7. The impugned Decision is invalid because the Board failed to carry out a proper

screening for appropriate assessment of the Application and further information submitted

by the Developer for the purposes of S177S of the 2000 Act read in light of A6(3) of the

Habitats Directive.”

170. The sub-grounds are:

“52. Core Ground 7 is that the impugned Decision is invalid because the Board failed to

carry out a proper screening for appropriate assessment of the Application and further

information submitted by the Developer for the purposes of S177(5) of the 2000 Act read in

light of A6(3) of the Habitats Directive.

53. Particulars of this Ground are as follows. The Board's inspector erred in finding there

was no hydrological connection between the development Site and the Lough Derg SPA: in

fact when it was accepted in the EIAR (Table 8-15 and §8.6.19) that there was a pathway

along the Annaghmullahaun river to Lough O'Grady, and that Lough O'Grady flows into

Lough Derg, and this establishes a pathway. In addition, whether there will be attenuation

to prevent discharges is a matter for assessment, not for screening.

54. The Appropriate Assessment screening document submitted by the Developer,

asserted that there was no hydrological connection because the development area drains to

the west, to the Owenogarney River (§7.7, p22.) The EIAR, also submitted by the Developer,

contradicts this: it finds a likely connection via surface water because ‘An unnamed stream

flows north from the site entrance, and crosses the TDR, and flows on to enter Lough

O'Grady’. (Table 8-15.) The EIAR found that impacts to Lough O'Grady would be prevented

by ‘construction phase drainage mitigation’. (§8.6.1.9.)

55. The Board's Inspector found that there was no hydrological connection between the

site and Lough Derg. (p103 of her Report.) She also found that an unnamed stream flows

from the north of the Site and enters Lough O'Grady. (‘flows to the north close to the

windfarm site entrance and enters Lough O’Grady’, p67, §7.182.) The Board agreed with

and adopted the Inspector's screening conclusion.

56. There is a conflict between the conclusions reached by the Inspector in the EIA and

the conclusions reached by her in the screening for Appropriate Assessment. The only

information before her was that there was a pathway but that mitigation measures would

avoid an effect.

57. Mitigation measures cannot be relied on as a reason not to carry out an assessment.

58. In those circumstances likely significant effect cannot be excluded on the basis of

objective information, since the information relied on is contradictory, and the conclusion is

based on mitigation measures.

59. There is a hydrological pathway from the Proposed Development to Lough O'Grady

along a stream that flows from the site into the Annaghmullahaun River which in turn flows

into Lough O'Grady, and Lough O'Grady flows into Lough Derg, establishing a hydrological

pathway for which assessment is required.

60. The Board erred in adopting its Inspector's Report and ruling that there would be no

impact on the Lough Derg SPA, and that the NIS was not required to address this impact.”

171. The parties’ positions as recorded in the statement of case are summarised as follows:

“Ground 7

44. Ground 7 is that the Board erred in finding that there was no hydrological connection

between the site and the Lough Derg SPA, when in fact there was, and accordingly the

appropriate assessment under the Habitats Directive was not sufficient to eliminate all

reasonable scientific doubt as to absence of effect.

45. Board’s position on Ground 7. The Board’s Decision is not invalid as alleged at

Ground 7. The appropriate assessment (AA) that the Board completed in respect of the

proposed development was carried out in accordance with the requirements applicable to

that assessment The premise of the Applicants complaint is not accepted. The Board disputes

the interpretation and legal significance of the perceived inconsistency in said documents as

pleaded by the Applicants, in circumstances where such documents are open to being

interpreted a way that makes sense and renders same consistent and valid rather than

invalid. The Applicants have not demonstrated that the evidence and materials that were

before the Board were so flawed on their face that a reasonable expert would have objected

to them - the only expert evidence adduced in these proceedings (namely the uncontested

expert evidence adduced by the Notice Party) is to the opposite effect. Insofar as it can be

said that there is an inconsistency between the AA Screening Report and the EIAR in relation

to there being a hydrological connection between the application site and Lough Derg via

Lough O’Grady, it is not a connection of the kind/nature that the Applicants allege. The

Applicants’ pleaded case contends there is a ‘contradiction’ but only refers to two things

being in contradiction - the AA Screening Report (§7.7, internal page 22) and the EIAR

(Table 8-15 and para. 8.6.1.9). But that is not the contradiction the Applicants say it is, the

Applicants are incorrect in their interpretation of those documents and the Inspector’s

Report. Further, the Inspector and the Board did not rely on mitigation measures (i.e.

measures intended to avoid or reduce the harmful effects of a plan or project on a European

Site) in order to screen out the requirement for stage 2 AA as alleged or at all. It is also

clear from the materials before the Board and the uncontested expert evidence in this case,

that there will be no significant impacts on Lough O’Grady from the proposed development.

Without prejudice to the foregoing, if the Court were to determine that there is an

inconsistency and/or an error as between the AA Screening Report (§7.7, internal page 22)

and the EIAR (Table 8-15 and para. 8.6.1.9) and a corresponding inconsistency and/or error

in the Inspector’s Report in relation to there being a hydrological connection between the

application site and Lough Derg, in taking the Board’s Decision, Inspector’s Report and

supporting material as a whole, same is in the category of harmless error and relief should

therefore be refused.

46. Coillte and FEC argue that the Applicants have not pleaded any issue in relation to

the objectivity of the evidence submitted in the AA and cannot raise this an issue in the

submissions for the first time. The Affidavit of Gerard Hayes provides commentary and

explanation in relation to the hydrological pathway issue and avers to an opinion that no

alteration is necessary to the conclusion reached in the Screening for Appropriate

Assessment that the potential for significant effects on the Lough Derg (Shannon) SPA can

be excluded at screening stage.

47. The Applicants have not advanced the case that there is any likelihood of effects on

qualifying interests of the Lough Derg (Shannon) SPA or adduced any evidence in support

of such a proposition. The Applicants go no further than to raise the fact of a hydrological

link between part of the site and the Lough Derg (Shannon) SPA, which link is some

considerable distance from the limited works proposed within the relevant catchment.

48. The Applicants’ arguments are hypothetical and there was no material before the

Board to create real doubt.”

172. As regards the legal context, art. 6 of the habitats directive provides as follows:

“Article 6

1. For special areas of conservation, Member States shall establish the necessary

conservation measures involving, if need be, appropriate management plans specifically

designed for the sites or integrated into other development plans, and appropriate statutory,

administrative or contractual measures which correspond to the ecological requirements of

the natural habitat types in Annex I and the species in Annex II present on the sites.

2. Member States shall take appropriate steps to avoid, in the special areas of conservation,

the deterioration of natural habitats and the habitats of species as well as disturbance of the

species for which the areas have been designated, in so far as such disturbance could be

significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the

site but likely to have a significant effect thereon, either individually or in combination with

other plans or projects, shall be subject to appropriate assessment of its implications for the

site in view of the site's conservation objectives. In the light of the conclusions of the

assessment of the implications for the site and subject to the provisions of paragraph 4, the

competent national authorities shall agree to the plan or project only after having

ascertained that it will not adversely affect the integrity of the site concerned and, if

appropriate, after having obtained the opinion of the general public.

4. If, in spite of a negative assessment of the implications for the site and in the absence

of alternative solutions, a plan or project must nevertheless be carried out for imperative

reasons of overriding public interest, including those of a social or economic nature, the

Member State shall take all compensatory measures necessary to ensure that the overall

coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory

measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the

only considerations which may be raised are those relating to human health or public safety,

to beneficial consequences of primary importance for the environment or, further to an

opinion from the Commission, to other imperative reasons of overriding public interest.”

173. There are two issues:

(i) is there an error in the AA analysis? and

(ii) if so does this warrant certiorari?

174. On the first issue, §7.7 of the AA screening document which said there was “no hydrological

connection between the development area and the SPA as the development area is drained to the

west”. Table 1.0 in the AA screening finds no impact on the Lough Derg (Shannon) SPA because:

“there is no hydrological connection between the development area and the SPA as the

development area is drained to the west by the Owenogarney (Ratty) River within the

regional Shannon Estuary North catchment, which ultimately drains to this SPA via Doon

Lough, c.20km downstream.”

175. Mr O’Duffy for the applicants has shown that the north eastern portion of the site discharges

towards Lough O’Grady along the Annaghmullaghaun River rather than towards Bunratty and the

west.

176. The Affidavit of Gerard Hayes, Senior Aquatic Ecologist with Malachy Walsh and Partners,

filed on 1st March 2024, effectively accepted the existence of the postulated hydrological connection.

177. The board suggested that the connection had been acknowledged all along, and that one

could see such a connection on maps provided. That is not in isolation entirely implausible but that

does contradict the narrative wording of the AA screening document. The contradiction constitutes

an error however one wants to describe it.

178. The inspector’s report includes the following at p. 100-103:

European Distance Qualifying Source-pathway- Considered

Site Interest receptor further in

Name & Code screening

… … … … …

Lough Derg 4.2km east Cormorant There is no No,

(Shannon) of T13 (Phalacrocorax hydrological The habitats

SPA (004077) 7.6km east carbo) connection to within the

of grid [A017] this site. project are

connection Tufted Duck Site is within unsuitable for

(Aythya foraging the SCIs of this

fuligula) [A061] distance to SPA.

Goldeneye SPA. Furthermore,

(Bucephala there is no

clangula) hydrological

[A067] connection

Common Tern between the

(Sterna development

hirundo) [A193] area and

Wetland and the SPA as the

Waterbirds development

[A999] area is

drained to the

west by

the

Owenogarney

(Ratty)

River within the

regional

Shannon

Estuary North

catchment,

which

ultimately drains

to this

SPA via Doon

Lough, c.

20km

downstream.

179. On its own terms that is simply incorrect. Admittedly the inspector is quoting the developer

there, but that works both ways – a decision-maker can accept a developer’s reasoning but she also

has to accept the developer’s erroneous wording. That implicitly is what happened here.

180. That takes us to the second issue which is whether this warrants certiorari. Mr Hayes stated

as follows, omitting a passage that refers to mitigation, which is not especially relevant at the

screening stage:

“Explanation and commentary

18. While there is a hydrological pathway between the development site (in the sense

of the redline boundary of the overall windfarm site as in the planning application) and the

Lough Derg SPA, this pertains only to that part of the site that falls within the Graney

Anamullaghaun sub-catchment, which ultimately drains towards Lough Derg. No turbines

are proposed to be erected here; no substations will be constructed here; and no borrow

pits will be established here. Only minor works are proposed in this area, specifically the

upgrade and widening of an existing forest road over a length of approximately 1.4km, with

a footprint of approximately 1.15 ha. These works, which have similarities to works already

carried out as part of ongoing forestry management, are located near the site entrance. It

would therefore have been more accurate to say that there is no hydrological connection

between the main development area and the Lough Derg SPA, as that area is drained to the

west by the ... Owenogarney (Ratty) River within the regional Shannon Estuary North

catchment, which ultimately drains to the River Shannon and River Fergus Estuaries SPA via

Doon Lough, c.20km downstream.

19. In relation to the part of the site that ultimately drains towards Lough Derg, there is

a tributary stream within the site, near the site entrance, which flows north and joins the

Anamullaghaun River (also referred to as the Coolreagh Beg Stream) which enters Lough

O’Grady. The flow distance (along natural watercourses) from the site entrance to Lough

O’Grady is 6.23km. Lough O’Grady is a lake comprising c. 46 ha. The Scarriff/Graney River

then flows for approximately 6.37km between Lough O’Grady and Lough Derg.

20. In my professional opinion, for the reasons set out herein, the fact that there will be

limited development within the part of the proposed development site that drains towards

Lough Derg does not alter the conclusion at §7.7 of the Screening for Appropriate

Assessment that the potential for significant habitat loss/alteration effects,

disturbance/displacement effects, habitat or species fragmentation effects or water

quality/resource effects on the Lough Derg (Shannon) SPA can be excluded and the

Inspector and the Board were correct in determining that Lough Derg (Shannon) SPA was

not required to be subject to stage 2 Appropriate Assessment.

21. The red line planning boundary for the proposed development comprises a total land

area of 749.69ha: see §2.3.1.1 and Figure 2-7 of the EIAR; §3.4 and Figure 2 of the NIS;

and Figure 2 of the Screening for Appropriate Assessment. Within that, the development

footprint area for the wind farm infrastructure and the delivery route works areas is 30.47ha

(§2.3.3.1 of the EIAR and §3.4 of the NIS). As addressed in further detail in the Affidavit of

Michael Gill, the footprint of the works within the part of the proposed development site that

drains towards Lough Derg (i.e. within the Graney Anamullaghaun sub-catchment) is less

than 4% of the total development footprint. Accordingly, all turbines, the substation site and

all borrow pits and most of the associated infrastructure – amounting to c.96% – are located

in areas that do not drain ultimately to Lough Derg.

22. In respect of the drainage of part of the proposed development site towards Lough

Derg:

a) There is a tributary stream within the site near the site entrance which flows north

and joins the Anamullaghaun River: Figures 8.1 and 8.5 of the EIAR.

b) The Anamullaghaun River flows into Lough O’Grady. Much of the Anamullaghaun

River is classified as a depositing river due to its low gradient, and will therefore allow

settlement of suspended solids. This is apparent from Figure 8.1 of the EIAR.

c) As appears from the Affidavit of Michael Gill, the combined flow path distance (along

natural watercourses) from the site entrance to Lough O’Grady is 6.23km along the tributary

stream and Anamullaghaun River.

d) The outflow from Lough O’Grady is the Graney/Scariff River, which discharges into

Lough Derg. The distance from the mouth of the Anamullaghaun River to the Graney River

outflow is greater than approximately 910m. This is apparent from Figure 8.1 of the EIAR.

e) Being a lake with a surface area in excess of 46 hectares, Lough O’Grady does not

flow. Accordingly, much of the sediment load from rivers entering the lake settles, and

sediments are not transferred out of the lake due to lack of currents. This is apparent from

Figure 8.1 of the EIAR.

23. The only means by which the proposed development could impact the Lough Derg

(Shannon) SPA is by indirect impacts on water quality in Lough Derg.

24. However, as set out in further detail in the Affidavit of Michael Gill, while a

hydrological pathway exists to Lough Derg from a small section of the proposed site at the

site entrance, the actual potential for any impact to occur at Lough Derg is limited (and in

practice approaches zero) by distance, by the nature of the intermediate watercourses

(being depositing rivers), by the scale and nature of the works proposed within the

catchment, by the significant hydraulic and dilution buffer that occurs within Lough O’Grady,

and by the very significant dilution and attenuation potential available from the wider

contributing catchment that also flows to Lough Derg via the Graney/Scarriff River.

25. [omitted as relates to mitigation] … In the highly unlikely event that substances from

the works site did reach the Anamullaghaun River, some would settle out before reaching

Lough O’Grady, a high percentage would settle out in Lough O’Grady and yet more would

settle in the Graney River upstream of Lough Derg. Considering the relatively small

contribution of the Anamullaghaun River to the Graney River system, any water quality

effects would be reduced to negligible due to dilution. In addition, watercourses exhibit

natural recovery with distance downstream of a pollution source, due to dilution/assimilation

uptake of substances by trophic processes.

26. In addition, Surface Water Regulations (SI 272/2009 as amended) define EQSs

(environmental quality standards) which in turn define WFD status. It is important to note

that biological water quality, as measured by the EPA at the lowermost station in the Graney

River (400m d/s Scarriff Bridge, 25G040400) was Q3, equivalent to WFD Poor Status, in

2021.

27. In light of the foregoing, it is not conceivable that the proposed development will

affect water quality in the Graney River or Lough Derg.

28. As appears from the Screening for Appropriate Assessment, included at Appendix 1

to the NIS, (p.14) the qualifying interests of the Lough Derg (Shannon) SPA are ‘wetland

and waterbirds’ and the species Cormorant, Tufted Duck, Goldeneye, and Common Tern.

The conservation objective for the Lough Derg (Shannon) SPA is ‘To maintain or restore the

favourable conservation condition of the wetland habitat at Lough Derg (Shannon) SPA as a

resource for the regularly-occurring migratory waterbirds that utilise it’ (NPWS, 2022).

29. There is no potential for the proposed development to affect water quality in Lough

Derg and therefore there will be no impacts on birds or the habitats they utilise in Lough

Derg. Therefore, the Carrownagowan wind energy site does not present any risk to

maintaining the favourable conservation condition of the Lough Derg (Shannon) SPA.

30. In light of the foregoing, in my professional opinion, the fact that there will be limited

development within the part of the proposed development site that drains towards Lough

Derg does not alter the conclusion at §7.7 of the Screening for Appropriate Assessment that

the potential for significant effects on the Lough Derg (Shannon) SPA can be excluded at

screening stage and the Inspector and the Board were correct in determining that Lough

Derg (Shannon) SPA was not required to be subject to stage 2 AA.”

181. Hence, insofar as there was an error, the evidence is that this was a harmless error:

judgment of 7th November 2013, Altrip, C-72/12, ECLI:EU:C:2013:712 para. 49.

182. The applicants have not challenged Mr Hayes’ affidavit in any way whether by replying

affidavit, cross-examination or otherwise and so can’t be said to have evidentially dislodged the

averments to the effect that any error is harmless and that there is a near-zero prospect of any

effect, let alone significant effect, on European sites.

183. Therefore the applicants’ arguments that mitigation was taken into account at the screening

stage don’t arise. The evidence is clear that even without considering mitigation there are no

significant risks to European sites.

184. The attempt to reframe this as a domestic law point doesn’t add anything. Nothing multiplied

by two is still nothing. Such an insubstantial issue doesn’t trigger a legal obligation for additional

reasons or other domestic legal paraphernalia.

Requested reference to the CJEU

185. The parties’ positions as recorded in the statement of case are summarised as follows:

“Referral

‘h. in the event of any request for a reference to the CJEU, a statement of any proposed

question(s).’

49. It is submitted that the following question should be referred for determination by

the Court of Justice of the European Union:

• Is the following condition –

o ‘The developer shall ensure that all construction methods and environmental

mitigation measures set out in the Environmental Impact Assessment Report, the Natura

Impact Statement and associated documentation are implemented in full, by the developer

in conjunction with the timelines set out therein, except as may otherwise be required in

order to comply with the following conditions.’

- Sufficient to comply with the obligation in A8a of the EIA Directive, that reasons must be

incorporated in the decision, or does A8a require that the consent must itself state precisely

what conditions are imposed?

• Does the requirement in A8a of the EIA Directive, that the decision must incorporate

a description of any features of the project and/or measures envisaged to avoid, prevent or

reduce and, if possible, offset significant adverse effects, require the decision maker to

specifically identify which effect – avoidance, prevention, reduction or offsetting – each

individual measure will have, or is it sufficient for the decision maker to find that the

measures as a whole will collectively have those four effects – without specifically

determining which effect the particular measure will have?

• Is the decision maker required to state, in the decision or elsewhere, what expertise

it applied for the purposes of complying with A5(3) of the EIA Directive, so that a person

seeking to challenge the validity of the decision can take a view as to whether there are

grounds to challenge the adequacy of the expertise applied, or is it presumed until the

contrary is proven that the decision maker had such expertise?

50. Board’s position on proposed CJEU reference. There is no basis for the CJEU

reference sought by the Applicants. No plausible basis has been shown for the extremely

expansive interpretation offered by the Applicants. No authority whatsoever expressly

supporting the Applicants position has been brought forward. The reference procedure isn’t

for any and every possible imaginative question – only for questions on which there can be

a real dispute (Reid v. An Bord Pleanála (No.7) [2024] IEHC 27 at §89; Toole v. Minister for

Housing (No. 3) [2023] IEHC 378 at §§86-87).

51. Coillte and FEC share the Board’s position in relation to the proposed CJEU

reference.”

186. The first and second bullet points essentially go to the same postulated interpretation of art.

8a of the EIA directive. But no plausible basis has been shown for the interpretation favoured by

the applicant. No jurisprudential or other material has been brought forward supporting the view

that the concept of incorporation requires such a formalistic interpretation.

187. A similar problem applies to the third point. No jurisprudence or other relevant material has

been brought forward to support the notion that the board somehow has to prove its expertise.

188. No doubt warranting a reference to Luxembourg has been demonstrated under any of these

headings or indeed under any other heading whatever in the present case.

189. More generally, the questions are totally abstract and do not arise on the facts:

(i) there is no evidence that there is any actual imprecision or doubt as to what

conditions were imposed here;

(ii) there is no evidence that the board failed to identify anything specific the

identification of which was properly called for on the basis of the actual material

before it;

(iii) there is no evidence that the board lacked the necessary expertise to an extent that

warrants it being condemned for failure to specify anything in that regard; and

(iv) the applicants failed to activate normal and available domestic procedures such as

discovery, interrogatories or otherwise so as to investigate the issue of the board’s

expertise, so in such circumstances the complaint is abstract and unnecessary (and

thus falls outside art. 267 TFEU).

Costs

190. My proposed default order as to costs is that the applicants should get the costs that would

have been incurred had they confined their proceedings to the issue on which they prevailed.

Subject to what follows, any issue as to the extent of the costs that would have arisen in that

circumstance can be determined, in default of agreement, in the legal costs adjudication process.

However I would propose as a default order that such costs include one day of the substantive

hearing, and for the avoidance of doubt the order excludes any costs the subject of the no order as

to costs made on foot of the judgment of 27th October 2023.

Summary

191. In outline summary, without taking from the more specific terms of this judgment:

(i) The board failed to publish all of the documents relating to the matter on its website

as required by s. 146(7)(a) of the 2000 Act. That obligation covers documents that

are part of the statutory process, whether created by the board or otherwise. It

does not cover invalid submissions, purely administrative non-statutory documents,

or internal memoranda, or indeed pre-existing documents that were not brought

into being in connection with or for the purposes of the appeal or proposed appeal

(or other application or proposed application to the board).

(ii) A proposed project the subject of a pre-application decision under s. 37A of the 2000

Act may evolve at the formal application stage, as long as the SID criteria continue

to be met and as long as the applicant for permission remains the same. No

impermissible changes have been demonstrated here.

(iii) The board is not obliged to demonstrate its own expertise. It is up to a judicial

review applicant to disprove such expertise, something which has not been achieved

here.

(iv) The duty to incorporate conditions under art. 8a of the EIA directive does not require

textual incorporation in extenso and can be achieved by the incorporation of

reference to other documents.

(v) It is up to a judicial review applicant to show that either EIA or AA were erroneous

or inadequate, a process which (except in the case of error on the face of the

materials that does not require expertise to detect) requires evidence to that effect.

The applicants have not evidentially established an inadequacy here.

(vi) An element of the inspector’s analysis was incorrect, but the evidence establishes

that that is immaterial here. The applicants have not countered that evidence by

replying affidavit or cross-examination.

(vii) No material supportive of the applicants’ extensive interpretation of EU law has been

produced that would take their points out of the category of being acte clair against

them. In any event their proposed questions do not properly arise on the facts.

Order

192. For the foregoing reasons, it is ordered that:

(i) subject to any specific written legal submission, consistent with the judgment, made

by either party as to the precise wording of the declaration, such submission to be

made within 14 days from the date of this judgment, there be a declaration that the

board failed to publish all of the documents relating to the matter on its website as

required by s. 146(7)(a) of the 2000 Act insofar as relates to the documents at nos.

24 to 62 inclusive in the table set out in the judgment;

(ii) the proceedings be otherwise dismissed;

(iii) unless any party applies otherwise by written legal submission within 14 days from

the date of this judgment, the foregoing order be perfected forthwith thereafter on

the basis of an order for costs (including the costs of written submissions) being

awarded to the applicants against the first named respondent, limited to the costs

that would have been incurred had the applicants confined their proceedings to the

issue on which they prevailed, and that any issue as to the extent of the costs that

would have arisen in that circumstance be determined, in default of agreement, in

the legal costs adjudication process provided that such costs include one day of the

substantive hearing, and excluding any costs the subject of the no order as to costs

made on foot of the judgment of 27th October 2023, and there be no order as to

costs in favour of or against any other party; and

(iv) the matter be listed on Monday 10th June 2024 to confirm the foregoing.