High Court partially allows challenge to wind farm board regarding failure to make additional info available for inspection.

[2024] IEHC 570

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000128]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A, AND 50B OF THE

PLANNING AND DEVELOPMENT ACT 2000 AND IN THE MATTER OF AN APPLICATION

BETWEEN

JOHN JOE KENNEDY (BY ORDER) AND THE WIND TURBINE ACTION GROUP SOUTH

ROSCOMMON

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

ENERGIA RENEWABLES ROI LIMITED, IRELAND AND THE ATTORNEY GENERAL (BY

ORDER)

NOTICE PARTIES

JUDGMENT of Humphreys J. delivered on Monday the 7th day of October 2024

1. The first named notice party’s permission for a wind farm development under the strategic

infrastructure development (SID) procedure is challenged in these proceedings. The applicants

primarily complain that particulars of the development were inadequate, that the board’s conduct of

appropriate assessment (AA) and environmental impact assessment (EIA) was defective, and that

the board failed to give proper notice of additional information supplied by the developer. The

primary question underlying the assessment of this challenge is whether the applicants have

surmounted the onus of proof to successfully impugn the actions of the board.

Judgment history

2. In the leading case of Kelly v. An Bord Pleanála & Ors [2014] IEHC 400, [2014] 7 JIC 2503

(Unreported, High Court, Finlay Geoghegan J., 25th July 2014), permission for wind turbines on or

near this site were quashed on the grounds of inadequate AA. On remittal to the board, permission

was refused.

Geographical context

3. The turbines would be situated in two clusters, in the townlands of Turrock, Cronin,

Gortaphuill, Glenrevagh, Tullyneeny, Bredagh, Cuilleenirwan, Cuilleenoolagh, Curry, Milltown,

Tobermacloughlin, Skeavally, Boleyduff, Clooncaltry, Feacle, Cam, Tawnagh, Cornageeha,

Pollalaher, Brideswell, Knocknanool, Ballymullavill, Rooskagh, Bellanamullia, Cloonakille, Monksland

and Commeen, Co. Roscommon.

4. As stated in application documentation prepared by MKO on behalf of the developer,

“The Proposed Development will be located approximately 1.5 kilometres northeast and

southeast of the village of Dysart, and approximately 11 kilometres northwest/west of the

town of Athlone, Co. Roscommon.

... The Proposed Development covers an area of approximately 588 hectares, in total, and

it is divided by the R363 into two wind turbine clusters. ...

The land uses and types within the Proposed Development site are almost entirely

agricultural grasslands used for grazing and pasture farming, with some small areas of scrub.

The Proposed Development site includes areas of the public road corridor and existing built

development also. Other land types within the surrounding area consist of small areas of

non-commercial forestry, scrub, peatcutting, quarrying and low-density residential areas in

nearby villages. There are a number of small lakes, turloughs and seasonal lakes are located

within proximity of the site, which drain into the River Suck, a tributary of the River Shannon,

approximately 3km west of the Proposed Development site.

The operational Skrine Wind Farm is the closest existing wind farm development, located

approximately 8.5km to the north of the proposed Seven Hills Wind farm (northern section)

and comprising of only two turbines.

The nearest existing grid infrastructure is a 110 kV substation located in the townland of

Monksland in Athlone, County Roscommon, approximately 11km to the east/southeast of

the southern cluster. Other existing grid infrastructure in the area includes an existing

110kV overhead line, located approximately 6.5km north of the northern cluster, which runs

from the substation at Monksland to the town of Roscommon to the north of the site.”

Facts

5. In 2013, permission was granted to Galetech Energy Developments Ltd. for both a Phase 1

14-turbine and a Phase 2 19-turbine development at the site. The locations of Phase 1 and Phase

2 broadly correspond to the locations of the Northern Cluster and Southern Cluster respectively of

the proposed development. In 2014, these permissions were quashed and remitted in Kelly on the

basis of an inadequate AA.

6. The matters were reconsidered by the board (ABP Ref. PL20.244346 (Phase 1) and

PL20.244347 (Phase 2)). The board engaged a consultant hydrogeologist/hydrologist to advise on

the likely impacts of the proposed development from the hydrogeology/hydrology perspectives,

having regard to all aspects of the proposed developments including access tracks, foundations and

turbines. The board also engaged an ornithological consultant.

7. An oral hearing was held in June 2016. The associated inspectors’ reports relied on the

expert reports prepared by the consultants and recommended refusal.

8. In February 2017, the board refused permission on AA grounds.

9. The first named notice party opened consultations with the board in respect of the

development in March 2020.

10. On 1st July 2021, the board gave notice of its decision that the application constituted SID

and gave notice that that the pre-application consultation procedure was closed.

11. On 7th June 2022, the first named notice party formally applied for this permission.

12. In July 2022, the second named applicant made a submission.

13. On 25th January 2023, the board notified the first named notice party that it had decided

that an oral hearing was not necessary, and that it had sufficient information to determine the

matter, and requested that the first named notice party provide replies to the third party

observations.

14. The first named notice party replied by way of a submission on 31st March 2023 which

consisted of a set of revised plans/drawings, a substantive document that included, inter alia, replies

to third party observations, and four appendices that included three updated bird surveys. The

submission noted that an observation of the Department’s Development Application Unit (DAU)

referred to bird data that was not considered in the EIAR.

15. On 13th June 2023, the board made a request for further information (RFI) in particular

in respect of the DAU bird data.

16. On 7th July 2023, the first named notice party replied to the request with a second tranche

of information.

17. On 19th July 2023, the board directed the first named notice party to advertise the

additional significant information as received in both March and July.

18. On 1st August 2023, the first named notice party gave public notice of the receipt of

additional information by the board by advertisement in the Irish Times (the cover letter to the board

says the Irish Examiner, but that is an error) and Roscommon Herald. There was also a site notice.

By letter of the same date, the first named notice party gave notice of the consultation to

Roscommon County Council. The letter attached only the July RFI reply and did not attach the full

March submission despite this being the subject of the additional information advertisement.

19. On 3rd September 2023, the second named applicant made a submission in respect of the

consultation.

20. On 29th September 2023, the inspector prepared her report.

21. The board’s direction is dated 20th November 2023.

22. The board’s order is dated 23rd November 2023. The order, bearing reference ABP-

313750-22, grants planning permission under s. 37G of the Planning and Development Act 2000 to

the first named notice party for a proposed strategic infrastructure development comprising, inter

alia, a windfarm consisting of 17 turbines (with an overall ground to blade tip height of 180 metres,

a rotor diameter of 162 metres and hub height of 99 metres), associated foundations, hard-standing

areas, related site works and ancillary development.

Procedural history

23. The matter was opened on 26th January 2024 by the original first named applicant Ms Aoife

Butler in person under the clock-stopping procedures then applicable.

24. On 19th February 2024, I was informed that Ms Butler might be withdrawing. Issues had

arisen between her and the second named applicant regarding inter alia the expenses of the

application. It appeared that Ms Butler had been charged €3,690 (inclusive of VAT) by WP Toolan

Solicitors, which she paid, for assistance with the application, but this assistance did not include the

preparation of a statement of grounds. Ms Butler informed me that she had been furnished with a

statement of grounds in another case with the suggestion that she could adjust it for use here, which

she did. Apparently there had been a number of meetings with counsel giving rise to the charge

but, in the end, it didn’t become necessary for me to look into the matter further.

25. Solicitors for the second named applicant were on record by 26th February 2024, and sought

time for an amended statement of grounds.

26. The amended statement of grounds eventually delivered weighs in at an implausible 24,507

words, longer than Kafka’s Metamorphosis (1915, Kurt Wolff Verlag, Leipzig) but with perhaps a

similar disorienting effect. Within the statement, an equally comprehensive approach was applied

to the selection of core grounds, with the applicants generating 17 such grounds, together with

around 100 sub-grounds that occupied the bulk of the 72 pages of the statement. Commendably,

some these grounds were rationalised as the process moved forward.

27. On 11th March 2024, I substituted the present first named applicant on the basis that Ms

Butler’s expenses in the amount quantified by her would be discharged by the second named

applicant. Leave was granted on the basis of the amended statement of grounds without prejudice

to any point the opposing parties could have made.

28. The substantive motion was returnable for 15th April 2024. The matter was then assigned

a date in the April 2024 list to fix dates. Issues concerning costs protection had not been entirely

resolved but there was liberty to apply on such matters.

29. The board’s opposition was delivered on 18th June 2024. The State’s opposition was

delivered on 20th June 2024, and the first named notice party’s opposition on 28th June 2024.

30. The applicants brought a motion for discovery/particulars on 23rd July 2024.

31. The applicants filed submissions on 26th July 2024, together with an affidavit of Ms Rose

Burke.

32. The first named notice party wrote on 29th July 2024 objecting to the new affidavit, and

objected to the application for discovery and particulars. The board took a similar stance.

33. The case was listed for mention on 31st July 2024 before Holland J. While there was initially

some difference of recollection of what happened on that date, we fortunately have a transcript of

that remote hearing, the relevant part of which is as follows:

“[COUNSEL FOR THE FIRST NAMED NOTICE PARTY]: Judge, there is just one issue, my

Friend [Counsel For The Applicants] filed an affidavit last week, it is an extraordinar[il]y long

affidavit and it quite clearly will need a reply, which I don't think was said by any of the

opposing parties. It is quite clearly inadmissible, it is ex post facto and it is not a response

to anything which has been said. It does strike us and an attempt, an inadmissible attempt

by the Applicant to ...[loss of connection]... their proceedings at this very late stage. It is

clearly inadmissible. I am very happy for that issue to be dealt with at the hearing of the

action. I heard the exchange between the Court and the parties in relation to a similar issue.

A ...[loss of connection]... was to be brought. I don't think we have time to do that. We

have three legal weeks between now and the hearing of the action. I am looking for the

motion to be admitted de bene esse with everybody reserving

...[loss of connections]... as to admissibility to the hearing of the action.

MR. JUSTICE HOLLAND: [To Counsel For the first named notice party] I don't know if your

signal is poor but your picture is poor and your audio is breaking up. As I understand your

position is that you are reserving to trial your objection to the admissibility of the affidavit

just filed, is that correct?

[COUNSEL FOR THE FIRST NAMED NOTICE PARTY]: Correct.

MR. JUSTICE HOLLAND: Okay. You have said your piece and I don't think I need make any

order or direction in that regard. Anything else?

[COUNSEL FOR THE APPLICANTS]: Judge, just to say the Applicant reserves their position

to object. We have to take instructions on to whether we think it is appropriate to have the

matter dealt with, the admissibility of the affidavit to be dealt with at hearing. I don't have

instructions either way on that at this stage. We might reserve our position.

MR. JUSTICE HOLLAND: You can ventilate that on 9th September with Mr. Justice

Humphreys if you wish but I am simply noting the parties' positions, that is all that I am

doing.

MR. HUGHES: Likewise, Judge, our position is the same as the Notice Party but I don't need

to articulate that today, Judge, thank you.

MR. JUSTICE HOLLAND: That is grand. Anybody else?

[COUNSEL FOR THE STATE]: Judge, I appear for the State Respondents, the Court will have

noticed that there is a discovery application in and the Court has given a hearing date for

that for an hour on 9th. The State Respondents are not the subject of any application for

relief, however the issue raised in the application is one that has wider importance beyond

just this particular case and the State may wish to make short oral submissions in relation

to that matter. Indeed insofar as their written submissions have been scheduled we may

well put in written submissions in answer to the Applicants position as well.

MR. JUSTICE HOLLAND: Okay. Again I am not going to give directions, I will just note that

position.”

34. So there was no question of it being envisaged, still less directed, that the opposing parties

would bring a motion to strike out the affidavit.

35. The board delivered its submissions on 6th September 2024.

36. The State respondents delivered their submissions on 9th September 2024.

37. The first named notice party delivered its submissions on 10th September 2024.

38. The matter was listed for hearing commencing on 18th September 2024. At the outset of

the hearing a number of preliminary issues arose.

39. As regards the applicants’ motion for particulars and discovery dated 23rd July 2024,

following discussion of the matter when the motion was first listed, the board provided information

by letter dated 17th September 2024 regarding the board’s expertise on a voluntary basis and not

on foot of an order. The applicants said that the information effectively superseded the motion and

asked for no order on the motion with liberty to apply in relation to costs against the board. That

order was made, with no order as to costs of the motion for or against any other party.

40. As regards the applicants’ amended pleadings, these were objected to. As is normal in

the List, any amendments made to pleadings are generally without prejudice to any later objection.

Such an objection has been made. The statement of case summarises things:

“36. The Notice Party objects to those grounds that were added by the Applicants in the

period between the filing of the original Statement of Grounds on 26 January 2024 and the

date upon which leave to apply for judicial review was granted on 11 March 2024. It is

inappropriate for the Applicants to use the period of time granted to the Applicants for

‘house-keeping’ to seek to introduce additional grounds that did not form part of the

proceedings as instituted.

37. The Applicants submit that they did not introduce additional grounds. Instead, the

Applicants simply added or inserted law into the grounds already contained or raised in a

pleading that was drafted by a lay litigant. That is permissible and benefits the Court and

the parties by defining the issues more clearly. The Notice Party has not identified with

sufficient precision what grounds or pleas are the subject of the objection.”

41. The parties effectively agreed that the applicants could address the amended grounds de

bene esse. If any of the grounds are otherwise made out, we can return to the question of whether

the ground was properly introduced by amendment.

42. As regards the applicants’ late affidavit of Ms Burke, the opposing parties all objected to

this on various grounds, and I deal with this further below.

43. As regards netting down the issues, the applicants withdrew grounds 16 and 17 by letter

of 17th September 2024. At the outset of the hearing on 18th September 2024, the implications of

this were teased out and since the applicants had no subsisting grounds against the State it followed

that the related relief also fell, so the State were changed from being respondents to notice parties

by order, there being no continuing remedy sought against them. The applicants later clarified that

core ground 3 was being withdrawn in consequence.

44. On 19th September 2023, the applicants confirmed withdrawal of core ground 3 and also

withdrew core grounds 4, 7, 9 and 13. They also sought (and were granted without objection)

liberty to correct an erroneous statement in the final paragraph of Ms Burke’s affidavit (where a

paragraph about being joined as an applicant was inadvertently copied and pasted from an earlier

affidavit of the first named applicant). At the conclusion of the hearing on that date, judgment was

reserved.

45. Following that, on 23rd September 2024, the original first named applicant wrote to the

solicitors for the board (copied to the court) as follows:

“It is my understanding that you have queried whether I withdrew my affidavit filed in

January 2024.

To confirm, I did withdraw my affidavit and counsel for the applicant was aware of this

withdrawal and requested an extension of time to prepare a new affidavit.

I also did not and do not give consent for Mr. Kennedy (or Ms. Burke) to rely on my affidavit.

If you have any further questions relating to me please pose them to me directly.

Thank you,

Aoife Butler”

46. However this is something of a misunderstanding. First of all, an affidavit cannot be

unilaterally withdrawn. A party can indicate that they are not relying on it, or can seek leave to

correct it, or apply for an order striking it out, but that isn’t the same thing. Anyway the point made

in the recent email wasn’t the thrust of Ms Butler’s position back when she appeared before the

court, at which stage her main concern was to withdraw from the case altogether if not have it struck

out, rather than do anything more procedurally specific. Insofar as the original first named

applicant’s affidavit was also filed on behalf of the second named applicant, it remains relevant, and

that applicant doesn’t need the deponent’s consent to rely on it. So I don’t see the original first

named applicant’s email as changing anything adverse to the current applicants.

Relief sought

47. The reliefs sought in the amended statement of grounds are as follows:

“1. An Order of Certiorari quashing the Decision of the Respondent An Bord Pleanála to

grant, subject to certain specified conditions, a 10-year Planning Permission to run from

November 23, 2023 and a 30-year operational period to run from the date of the first

commissioning of the wind farm for the development of a 17 Turbine wind farm and related

works in the townlands of Turrock, Cronin, Gortaphuill, Glenrevagh, Tullyneeny, Bredagh,

Cuilleenirwan, Cuilleenoolagh, Curry, Milltown, Tobermacloughlin, Skeavally, Boleyduff,

Clooncaltry, Feacle, Cam, Tawnagh, Cornageeha, Pollalaher, Brideswell, Knocknanool,

Ballymullavill, Rooskagh, Bellanamullia, Cloonakille, Monksland and Commeen, Co.

Roscommon, which Application Planning Register Reference Nos. ABP-313750 and ABP-

313750-22 made under Section 37(E) of the Planning and Development Act 2000 (as

amended) was determined on the 23rd day of November 2023 (‘the Decision’).

A Declaration that the Respondent An Bord Pleanála failed to consider and assess the

proposed wind farm in accordance with the requirements of the Habitats Directive (Council

Directive 92/43/EEC).

A Declaration that the Respondent An Bord Pleanála failed to consider and assess the

proposed wind farm in accordance with the requirements of the Birds Directive (Council

Directive 2009/147/EC).

A Declaration that the Respondent An Bord Pleanála failed to consider and assess the

proposed wind farm in accordance with the requirements of the EIA Directive (Council

Directive 2014/52/EU).

A Declaration that the Respondent An Bord Pleanála was required to carry out an Appropriate

Assessment in respect of the proposed wind farm pursuant to the Habitats Directive (Council

Directive 92/43 EEC) and did not comply with its obligations under that Directive.

A Declaration that the Respondent An Bord Pleanála is obliged under the terms of the

Habitats Directive (Council Directive 92/43 EEC) to consider, in addition to the proposed

wind farm, such other plans and projects as may be relevant, and in that regard failed.

A Declaration that Section 50 of the Planning and Development Act 2000 (as amended)

applies to the above-entitled proceedings.

A Declaration that the Second Named Respondent failed to transpose the requirements of

Council Directive 92/43 EEC in failing to provide for a procedure in respect of the protection

of Karst landscapes so as to protect the Habitats Directive Annex I habitats, and Annex II

and Annex IV species that reside and thrive in Karst environments.

2. Such Declaration(s) of the legal rights and/or the legal position of the Applicant and

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

the legal duties and/or legal position of the Respondent as this Honourable Court considers

appropriate.

3. A Declaration that the Second Named Respondent failed to transpose and/or comply

with the requirements of Council Directive 92/43 EEC and/or Article 3(1) and 4(1) the SEA

Directive 2001/42/EC in not updating and/or withdrawing the Wind Energy Guidelines, 2006

by failing to provide updated policies and procedures and/or where the 2006 Guidelines were

not subject to an SEA to address the increasing size of wind turbines so as to protect the

Habitats Directive Annex I habitats, and Annex II and Annex IV species that reside in or in

proximity to, and/or move through locations that may be subject to wind turbines and/or

acted in breach of Art .

4. If necessary, stay on the implementation of Planning Application Reference Nos.

ABP-313750 and 313750-22 pending the determination of the above-entitled proceedings.

A stay on the Notice Party conducting any work to comply with the Order and Direction

issued by An Bord Pleanála in Planning Application Reference Nos. ABP-313750 and 313750-

22. A stay on the Notice Party conducting any work relating to subject matter of Planning

Application Reference Nos. ABP-313750 and 313750-22.

A stay on the Notice Party conducting any work within 10 kilometres of the townlands that

are the subject of Planning Application Reference Nos. ABP-313750 and 313750-22.

An Order quashing Planning Application Reference Nos. ABP-313750 and 313750-22 and

declaring that in the interest of justice and fairness and so as to give appropriate effect to

the Habitats Directive, the Birds Directive, and the EIA Directive, the Karst Landscape in

South Roscommon and the townlands that are the subject of Planning Application Reference

Nos. ABP-313750 and 313750-22 be designated an area ‘Not Favoured’ for wind turbines,

in accordance with steps Roscommon County Council had already taken and then reversed

without explanation.

Such interim and/or interlocutory relief as this Honourable Court may deem appropriate.

Such further and other relief as this Honourable Court may deem appropriate.

5. A protective costs order pursuant to the Aarhus Convention and Section 50, including

Section 50B, of the Planning and Development Act 2000 and/or s.3 of the Environment

(Miscellaneous Provisions) Act 2011 (as amended) and/or the Aarhus Convention

interpretative obligation in EU law, or otherwise.

6. An Order providing for the cost of these proceedings and related ancillary costs.”

Grounds of challenge as amended de bene esse

48. The core grounds of challenge (all introduced by amendment de bene esse) are as follows:

“(i) Domestic Law Grounds

1. The impugned decision of the Board is invalid and/or unlawful as the planning

application failed to properly particularise and/or provide the requisite information and/or

plans and particulars in relation to the development and breached Art. 22(2)(b), (d) & (g),

23(1), 210 & 214(1) of the Planning and Development Regulations 2001 (as amended) (‘the

2001 Regulations’) as:

(i) The Application fails to include necessary measurements for key structures

that are the subject of the Application.

(ii) The Application fails to include accurate bespoke drawings for key structures

that are the subject of the Application.

(iii) The Application fails to describe in sufficient detail the proposed connectivity

from the wind farm to the national grid.

(iv) The Application fails to establish ownership of or rights to all necessary lands

for the proposed connectivity from the wind farm to the national grid.

2. The impugned decision of the Board is invalid as the Applicants were denied the

opportunity to address and/or make submissions on an approximately 400-page Notice Party

submission to the Board in March 2023 and the Board therefore acted in breach of s.37F(2)

& 131 of the PDA 2000 and/or Article 218(1)(b) of the PD Regulation 20001 as amended

and/or acted in breach of fair procedures and/or natural and constitutional justice.

3. The impugned decision of the Board is invalid as the Inspector and the Board

improperly relies on outdated guidelines (‘the Wind Energy Guidelines, 2006’) and/or draft

guidelines (‘the Draft Wind Energy Guidelines 2019’) which was ultra vires and/or not a

relevant consideration under and/or in breach of section 37N, 143 and/or section 28(2) of

the Planning and Development Act 200 as amended.

European Law Grounds

4. The impugned decision of the Board is invalid as the Application and/or Decision is

invalid because it relies heavily on mitigation measures and the EIAR and/or NIS failed to

provide sufficient information to properly assess the environmental impacts of the

development and/to remove all reasonable scientific doubt and/or to support sufficiently

precise findings in relation to the adverse effects of the development on relevant SACs and

was made in breach of s. 172(1) of the PDA 2000 and/or Art. 1(2)(g)(ii), 2, 4 and 8a (1)of

the EIA Directive as amended and/or s. 177V of the PDA 2000 and/or Art 6(3) of the Habitats

Directive.

5. The impugned decision of the Board is invalid as the site investigation was

inadequate and therefore the Appropriate Assessment was not proper and/or was carried

out in breach of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an

EIA was not validly carried out in breach of Article 2 and 4(5) of EIA and s.172(1) of the PDA

2000 and there was a failure to give adequate reasons in breach of section 37H(2)(a),

171A(a)(iv) of the PDA 2000 and Article 1(2)(g)(iv) and 8a(1) of the EIA Directive.

6. The impugned decision of the Board is invalid as the because the drainage is not

sufficiently described or investigated in the application and/or information before the Board

and accordingly the Appropriate Assessment was not proper and/or was carried out in breach

of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an EIA was not

validly carried out in breach of s.172(1) of the PDA 2000 and Art 2 & 4 of the EIA Directive

and there was a failure to give adequate reasons in breach of section 37H(2)(a), 171A(a)(iv)

of the PDA 2000 and Article 1(2)(g)(iv) and 8a(1) of the EIA Directive

7. The impugned decision of the Board is invalid because the investigation regarding

grasslands was insufficient and accordingly the Appropriate Assessment was improper

and/or was carried out in breach of s.177V of the PDA 2000 and Art 6(3) of the Habitats

Directive and/or an EIA was not validly carried out in breach of s.172(1) of the PDA 2000

and Art 2 & 4 of the EIA Directive and there was a failure to give adequate reasons in breach

of section 37H(2)(a), 171A(a)(iv) of the PDA 2000 and Article 1(2)(g)(iv) and 8a(1) of the

EIA Directive

8. The impugned decision of the Board is invalid as the Board and the Inspector takes

an inconsistent approach in evaluating visual impact and provides no reasoned conclusions

and accordingly the EIA was not validly carried out in breach of s.172(1) of the PDA 2000

and Art 2 & 4 of the EIA Directive and and [sic] there was a failure to give adequate reasons

in breach of section 37H(2)(a), 171A(a)(iv) of the PDA 2000 and Article 1(2)(g)(iv) and

8a(1) of the EIA Directive

9. The impugned decision of the Board is invalid as the Board failed to consider relevant

and nearby SACs and accordingly the Appropriate Assessment does not comply with the

Habitats Directive was carried out in breach of s.177V of the PDA 2000 and Art 6(3) of the

Habitats Directive and/or an EIA was not validly carried out in breach of s.172(1) of the PDA

2000 and Art 2 & 4 of the EIA Directive and there was a failure to give adequate reasons in

breach of section 37H(2)(a), 171A(a)(iv) of the PDA 2000 and Article 1(2)(g)(iv) and 8a(1)

of the EIA Directive

10. The impugned decision of the Board is invalid as the Board abdicated its independent

statutory role and accordingly the Appropriate Assessment was carried out in breach of

s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an EIA was not validly

carried out in breach of s.172(1) of the PDA 2000 and Art 2 & 4 of the EIA Directive and

there was a failure to give adequate reasons in breach of section 37H(2)(a), 171A(a)(iv) of

the PDA 2000 and Article 1(2)(g)(iv) and 8a(1) of the EIA Directive

11. The impugned decision of the Board is invalid as Inspector and the Board acted

inconsistently with regard to turbines creating the same issue within the site without

explanation or reason and accordingly the Appropriate Assessment was carried out in breach

of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an EIA was not

validly carried out in breach of s.172(1) of the PDA 2000 and Art 2 & 4 of the EIA Directive

and there was a failure to give adequate reasons in breach of section 37H(2)(a), 171A(a)(iv)

of the PDA 2000 and Article 1(2)(g)(iv) and 8a(1) of the EIA Directive

12. The impugned decision of the Board is invalid as the Inspector and Board lacks the

expertise/best scientific knowledge in the field to be able to appropriately assess the

Application and the adverse impacts and accordingly the Appropriate Assessment was

carried out in breach of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or

an EIA was not validly carried out in breach of s.172(1) of the PDA 2000 (and without

prejudice s.172(1H) thereof) and Art 2, 4 & 5(3)(b) of the EIA Directive and the

Inspector/Board failed to give any or any adequate reasons.

13. The impugned decision of the Board is invalid as the Inspector did not understand

her duties and accordingly the Appropriate Assessment was carried out in breach of s.177V

of the PDA 2000 and Art 6(3) of the Habitats Directive.

14. The impugned decision of the Board is invalid as the Appropriate Assessment did not

comply with Art 6(3) & 12 of the Habitats Directive or the High Court decisions delivered in

this country by failing to include sufficiently precise findings and by failing to remove all

scientific doubt by failing to consider or properly consider observations that raised scientific

doubt.

15. The impugned decision of the Board is invalid as the Applicants were wrongly denied

the opportunity to address an approximately 400-page Notice Party submission to An Bord

Pleanála in March 2023 and accordingly the Appropriate Assessment was carried out in

breach of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an EIA was

not validly carried out in breach of s.172(1) of the PDA 2000 and Art 2, 4 & 5(3)(b) of the

EIA Directive and the Board acted in breach of s.37F & 131 of the PDA 2000 and/or Article

218(1)(b) of the Planning Regulations 2001 and/or acted in breach of fair procedures and/or

natural and constitutional justice.

16. The impugned decision of the Board is invalid as Inspector and the Board improperly

relies on outdated guidelines (‘the Wind Energy Guidelines, 2006’) in breach of sections

37G(2) and 37H(2)(bc) of the PDA Act 2000 and/or Article 8a(6) of the EIA Directive as

amended and/or draft guidelines (‘the Draft Wind Energy Guidelines 2019’) which is ultra

vires and where neither were subjected to an SEA pursuant to Article 3 and 4 of Directive

2001/42/EC and were not updated notwithstanding changes in technology and relevant

scientific knowledge in respect of the effect of wind turbines on Annex I habitats, and Annex

II and Annex IV species that reside in or in proximity to, and/or move through locations that

may be subject to wind turbines and accordingly the Appropriate Assessment was carried

out in breach of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an

EIA was not validly carried out in breach of s.172(1) of the PDA 2000 and Art 2, 4, 8(6) of

the EIA Directive and/or the Inspector/Board acted in breach of fair procedures and/or failed

to give any or any adequate reasons and/or took into account irrelevant factor.

(iii) Validity Grounds

17. The Second Respondent failed to transpose and/or comply with the requirements of

Article 3(1) and 4(1) of Directive 2001/42/EC in failing to provide updated policies and

procedures and/or by failing to update and/or withdraw the Wind Energy Guidelines, 2006,

to address the failure to carry out an SEA in relation thereto pursuant to and/or the

increasing size of wind turbines and/or changes in technology and relevant scientific

knowledge in respect of the effect of wind turbines so as to protect the Habitats Directive

Annex I habitats, and Annex II and Annex IV species that reside in or in proximity to, and/or

move through locations that may be subject to wind turbines.”

Contested affidavit

49. The contested affidavit of Ms Burke was delivered in tandem with the applicants’ legal

submissions on 26th July 2024.

50. The board’s objection was:

(i) the entire affidavit was inadmissible due to the deponent’s non-independent-expert

status;

(ii) if not disallowed in toto, it should be disallowed insofar as it deposed to matters the

deponent had no personal knowledge of and thus that were hearsay;

(iii) the directions only allowed for a reply so any averments going beyond reply should

be disallowed;

(iv) insofar as the affidavit involved comment and argument it was inadmissible; and

(v) insofar as it included matters not put before the board that should have been put

before the board it was impermissible.

51. The first named notice party’s objection was similar:

(i) the deponent was not an expert and so her opinion is not admissible;

(ii) points related to the original planning documentation should have been put before

the decision-maker;

(iii) points related to documents following the applicants’ submissions to the board could

have been made in the applicant’s statement of grounds and grounding affidavit;

(iv) the affidavit goes beyond the pleadings; and

(v) the scale and length of the affidavit at a late stage creates prejudice.

52. The applicants’ main points seemed to include that:

(i) the opposing parties could have brought a motion to strike out the affidavit but did

not do so;

(ii) while Ms Burke was perhaps not independent that didn’t mean that she wasn’t an

expert; and

(iii) in any event the objections didn’t warrant exclusion of the affidavit in toto.

53. I would address the objection as follows.

54. Firstly, a motion to strike out an affidavit is not necessary. Inadmissible evidence doesn’t

become admissible merely because a motion is not brought. Also in the present case, Holland J.

effectively left this to the trial in any event when the matter was first mentioned, which is equivalent

to saying that a motion is not required.

55. As regards Ms Burke’s expertise I don’t question that she has expertise. That isn’t the issue

though – the issue is whether she technically qualifies as an expert witness in the sense used in the

caselaw, such as to make her opinion evidence admissible.

56. Expert opinion by an expert witness is only admissible if there is sufficient independence on

the part of the deponent: see O’Donnell J. in Emerald Meats Limited v. The Minister for Agriculture,

Ireland & The Attorney General [2012] IESC 48, [2012] 7 JIC 3001 (Unreported, Supreme Court,

30th July 2012), at para. 28, and summary of the law in Environmental Trust Ireland v. An Bord

Pleanála [2022] IEHC 540, [2022] 10 JIC 0305 (Unreported, High Court, Holland J., 3rd October

2022) and caselaw referred to. That doesn’t arise here given that Ms Burke clearly is involved in

opposing the development.

57. Insofar as the affidavit includes comment or submission, this isn’t admissible in any event.

And insofar as it purports to state facts about matters of which the deponent doesn’t have direct

knowledge, such as whether the applicants were prejudiced, that is hearsay and inadmissible.

Insofar as the affidavit includes matters that are not properly matters of reply to the opposing

parties’ affidavits, it was filed without leave of the court and thus is impermissible.

58. As regards the objection, familiar from much previous caselaw, that particular matters

should have been put to the decision-maker rather than being raised in court for the first time, in

one sense it doesn’t matter whether one says that such evidence is inadmissible as irrelevant, or is

merely insufficient and doesn’t get an applicant anywhere. Normally the latter is sufficient but if

absolutely pressed on it I think the former is technically the more correct position. Thus it isn’t

relevant (and thus isn’t admissible) for a deponent to simply give their view that in effect the

application does not remove all scientific risk to European sites or was not prepared with best

scientific knowledge. The issue needs to be primarily looked at through the lens of what was before

the decision-maker or what steps a reasonable expert in that position would have taken – thus a

deponent can say that a reasonable expert in the decision-maker’s position would have seen such a

risk or view on the materials that were actually before her. On that criterion, and even allowing for

defined exceptions – specifically, matters that can be demonstrated to be the subject of an

autonomous obligation of consideration – much of Ms Burke’s affidavit is inadmissible in any event.

59. In general terms it is not the function of the court to trawl through the wreckage of a

substantially inadmissible affidavit to fillet scraps of remaining material and identify fragments that

could have constituted acceptable averments. That is a time-consuming, indeed time-wasting,

exercise, which should not be visited on the court and the opposing parties. It’s on the party

concerned, in this case the applicants, to confine their evidence to admissible matters. It’s one thing

to strike out discrete, net, clearly-identifiable elements of inadmissibility. But once the inadmissible

matters become permeating or overwhelming, the only fair thing to do taking into account the rights

of the other parties is to strike the affidavit out altogether. The oral submissions of the first named

notice party in particular highlighted the great forensic difficulty of how to deal in practical terms

with having potential fragments of this affidavit imposed on them piece-meal and mid-hearing.

Insofar as the affidavit merely recites the chronology, as submitted on behalf of the applicants, it is

effectively otiose as there is little or nothing identifiable that qualifies as uncontested fact that isn’t

already before the court otherwise. In all the circumstances, striking out the affidavit in full is the

only appropriate course, on the grounds that it exceeded the liberty to reply afforded by the

directions, and was in any event substantially inadmissible, and on the grounds that any fragments

of possibly admissible material are insufficiently identifiable in a ready manner and that allowing

severance of such matters at this stage would give rise to injustice to the opposing parties.

Assessing the grounds

60. While the applicants suggested considering the issues on a theme-by-theme basis, this runs

too much of a risk of departing from what is actually pleaded, either by addition or subtraction. Thus

I think the best – indeed only – way to satisfactorily deal with the matter is on a ground-by-ground

basis.

61. The core grounds are therefore dealt with below in sequence, obviously apart from those

withdrawn (3, 4, 7, 9, 13, 16 and 17), and apart from core ground 2 which is so closely related to

core ground 15 as to be best dealt with under that heading.

Domestic law issues

Core ground 1 – lack of particulars

62. Core ground 1 is:

“1. The impugned decision of the Board is invalid and/or unlawful as the planning

application failed to properly particularise and/or provide the requisite information and/or

plans and particulars in relation to the development and breached Art. 22(2)(b), (d) & (g),

23(1), 210 & 214(1) of the Planning and Development Regulations 2001 (as amended) (‘the

2001 Regulations’) as:

(i) The Application fails to include necessary measurements for key structures

that are the subject of the Application.

(ii) The Application fails to include accurate bespoke drawings for key structures

that are the subject of the Application.

(iii) The Application fails to describe in sufficient detail the proposed connectivity

from the wind farm to the national grid.

(iv) The Application fails to establish ownership of or rights to all necessary lands

for the proposed connectivity from the wind farm to the national grid.”

63. Sub-paragraph (iv) was withdrawn – the statement of case notes:

“38. The Applicants withdraw the landowner consent issue raised in Ground 1 (iv).”

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

“Core Ground 1:

(a) APPLICANT’S SUMMARY OF CORE GROUND 1

1. The Applicants’ submissions address ‘Inadequate Drawings/Particulars’ at issue 6.

2. This issue is raised at:

a. Ground 1 §§ 1-6

b. Ground 6 §§ 40 & 41

c. Ground 14 § 73

d. Ground 15 §§ 110-115

3. The Applicants allege that the drawings and plans submitted were inadequate and

failed to properly set out the nature and extent of the development with the result that it

was not possible to assess certain likely effects of the development. Key measurements

that were not provided include the depth of turbine foundation/formation level and road &

hardstanding excavations depths. The foundation depth is approx. 3.0m , but is it is unclear

whether it is 3.0m below the lowest point of the existing ground or the highest point or

something in between and so the foundation level is undefined. It was not possible to assess

or verify inter alia spoil quantities in the result.

4. This ground is linked to the public participation issue (Core Ground 15). After the

consultation period had expired the Notice Party provided revised drawings as part of a

submission of 31 March 2023. The revised plans addressed some of the deficiencies

identified in submissions in respect of the original drawings (e.g. in relation to spoil storage

areas). The submission further provided, inter alia, minimum figures for the depth of

hardstanding excavation areas. The Applicant was not afforded an opportunity to comment

on the same. The failure to provide adequate measurements in drawings interfered with an

assessment of the effects of the development and an adequate ex post provision could not

(and did not) remedy the breach/effect on participation.

(b) BOARD RESPONSE TO CORE GROUND 1

5. The Board’s Decision is not invalid as alleged at Core Ground 1. There has been no

breach of Articles 22(2)(b), (d) & (g), 23(1), 210 & 214(1) of the 2001 Regulations as alleged

by the Applicants or at all. The Applicants’ complaint in that regard is not properly

particularised contrary to the requirements of Order 84 rule 20(3) of the Rules of the

Superior Courts, with the Applicants failing to particularise adequately or at all how or in

what manner those provisions and Articles have been allegedly breached (it is denied that

same have been breached). The complaints made in Core Ground 1 were not made in

submissions to the Board by the Applicants and cannot now be raised in judicial review

proceedings. This ground of challenge presumes its own incorrect suppositions and is

premised on impermissible merits-based submissions, incorrect interpretation of certain of

the planning application documents submitted by the Notice Party (namely certain drawings

submitted by the Notice Party as part of the application) and on mis-reading the Board’s

Decision and the Inspector’s Report in a way that renders it invalid rather than valid.

Contrary to the Applicants’ assertions, there was sufficient information before the Board in

relation to the turbines, the site, and the grid connection. The reference to foundational

depths is also a purely merits-based complaint.

6. Core Ground 15 is denied and responded to below. The Applicants' subjective

characterisation of the process before the Board is not accurate nor accepted. The

Applicants’ legal submissions and assertions in this Statement of Case do not constitute an

evidential foundation for the propositions they advance. The Applicants were not deprived

of making a submission on the March 2023 Notice Party response document as alleged or at

all. The Applicants’ complaint in that regard is based on an erroneous premise.

(b) NOTICE PARTY RESPONSE TO CORE GROUND 1

7. The planning application submitted to the Board was accompanied by two sets of

detailed drawings which set out, in very considerable details, the structures and layout of

the proposed development including foundations, turbines, the Grid Connection and the

meteorological mast. The allegation about an alleged lack of landowner consent was not

raised before the Board, is not particularised and is unstateable by reference inter alia to

Article 22(2)(g)(ii) of the Planning and Development Regulations 2001.”

65. The applicants’ complaint as developed or expanded in oral submissions was that

(i) the application wasn’t adequately particularised on day one;

(ii) if, which is denied, an inadequately particularised application can be particularised

during the process, that doesn’t extend to what is alleged to be a wholesale

reconstruction of the application as carried out here; and

(iii) in any event even with additional information the application is still in adequately

particularised.

66. But there is simply no route map set out on the pleadings between the alleged acts of the

board, through precise legal provisions, to the claimed relief of certiorari. The board is correct to

plead that “[t]he Applicants’ complaint in that regard is not properly particularised contrary to the

requirements of Order 84 rule 20(3) of the Rules of the Superior Courts, with the Applicants failing

to particularise adequately or at all how or in what manner those provisions and Articles have been

allegedly breached”.

67. The applicants haven’t pleaded any provision that specifically precludes a refinement of the

information provided, and similarly as to the second issue they have not identified provisions in the

Act or regulations that prohibit adjustment to the (in fact limited) extent effected here. The first

named notice party’s evidence is that the primary change of dimension was error correction, not a

size increase in what had been intended, and that hasn’t been effectively displaced.

68. As far as whether the ultimate particularisation of the permission application was inadequate

is concerned, the applicants haven't evidentially demonstrated this, especially given the very

significant level of particularising detail provided. Nor have the applicants demonstrated any legal

infirmity in the first named notice party having identified and corrected an error in the base diameter

prior to the EIA and appropriate assessment process.

69. It is not the law that there are scare terms which in and of themselves doom any application

to invalidity – whether that be approximate, indicative, maximum, typical, or the like. Such terms

do of course imply flexibility, but flexibility is not in itself prohibited. What is problematic is flexibility

that is so wide that it creates the possibility of a real planning issue. Any limited possible uncertainty

in the particulars of the development is massively less than the very considerable uncertainty in the

Sweetman XVII case (Sweetman v. An Bord Pleanála [2021] IEHC 390 (Unreported, High Court,

16th June 2021)). The leave to appeal judgment in that case (Sweetman v. An Bord Pleanála (No.

2) [2021] IEHC 662, [2021] 10 JIC 2601 (Unreported, High Court, 26th October 2021)) expressly

recognised the ongoing relevance of the general concept of limited flexibility that doesn’t create a

genuine planning issue. Here any flexibility is vanishingly limited:

(i) In the original Environmental Impact Assessment Report of June 2022, chapter 4 of

the EIAR, the locational specific co-ordinates are given for all turbines. Table 4-1

sets out “Table 4-1 Proposed Wind Turbine Locations and Elevations”.

(ii) Section 4.3.1.3 Turbine Type notes that:

“Wind turbines use the energy from the wind to generate electricity. A wind

turbine, as shown in Plate 4-1 below, consists of four main components:

Foundation unit

Tower

Nacelle (turbine housing)

Rotor”

(iii) Page 412 states:

“The proposed wind turbines will have a tip height of 180 metres, a rotor

diameter of 162m and a hub height of 99m. The exact make and model of

the turbine will be dictated by a competitive tender process, but it will not

exceed a tip height of 180 metres. Modern wind turbines from the main

turbine manufacturers have evolved to share a common appearance and

other major characteristics, with only minor cosmetic differences

differentiating one from another. The wind turbines that will be installed on

the site will be conventional three-blade turbines, that will be geared to

ensure the rotors of all turbines rotate in the same direction at all times.

The turbines will be grey matte in colour.”

(iv) Insofar as there is also reference to the height not exceeding 180 metres, in the

context of the prior positive statement that it would be 180 metres, the latter

statement should be read as meaning it will be in the region of that height but not

over it.

(v) In diagrams immediately after that text, it is stated that the base diameter of the

turbines would be 29,000 millimetres, or 29 metres (top of p. 414).

(vi) Reinforcing that, section 4.3.1.4 states:

“The horizontal and vertical extent of the turbine’s foundation is shown

above in Figure 4-5.

The proposed turbine foundations measures 29m in diameter.”

(vii) In the March 2023 information, it was noted that contrary to the correct figures in

the EIAR, the turbine layout drawings had erroneously identified a 15,000 mm base

diameter, and that these drawings had been amended as "REV A", and changed to

29,000 mm.

(viii) The wind measurement mast is referred to as having a maximum height of 100 m,

but the drawings submitted are consistent with it being actually built to 100 m.

70. In all of the circumstances, no illegality has been demonstrated.

EU law issues

Core ground 5 – defective EIA/AA – site investigation

71. Core ground 5 is:

“5. The impugned decision of the Board is invalid as the site investigation was

inadequate and therefore the Appropriate Assessment was not proper and/or was carried

out in breach of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an

EIA was not validly carried out in breach of Article 2 and 4(5) of EIA and s.172(1) of the PDA

2000 and there was a failure to give adequate reasons in breach of section 37H(2)(a),

171A(a)(iv) of the PDA 2000 and Article 1(2)(g)(iv) and 8a(1) of the EIA Directive.”

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

“Core Ground 5:

(a) APPLICANT’S SUMMARY OF CORE GROUND 5

20. The Applicants’ submissions address ‘Inadequate assessment of Karst - Karst

Features’ at issue 2 (ii) and ‘Inadequate investigation and assessment of subterranean Karst’

at issue 2(iii).”

21. These two issues are directly raised at:

a. Core Ground 4 §§ 12 & 13

b. Core Ground 5 §§ 15 – 28

c. Core Ground 6 §§ 32 - 38

d. Core Ground 10 §§ 52 - 54

e. Core Ground 12 §§ 58 – 60 & 63

f. Core Ground 13 §§ 68 & 69

22. The Applicant asserts that the Inspector /Board wrongly or unlawfully reached the

conclusion the site investigations were ‘robust’. The Inspector failed to consider, address or

respond to concerns about the site investigations raised in third party submissions. The

Notice Party is incorrect that the matters were not raised in submissions. The Board did not

consider or reply to the DAU submission that ‘further research’ was necessary for Karst

features, that it was aware of several dolines that are present in higher ground in the vicinity

of the proposed turbines that are not present on the Karst feature map, that bat surveys

were inadequate and that ‘further investigative works’ on caves be undertaken, in particular

caves known by the DAU and, further, failed to reply to the GIS submission of potential

damage to karst features such as swallow holes, enclosed depressions and that there may

be further underlying caves and caverns that were not detected in the surveys and risks of

collapse of sinkholes and/or to the Applicants’ submission in respect of features at a cave

near T5 and the Inspector wrongfully relied or misinterpreted the implications of a walk over

survey by HES.

23. The Board’s Inspector in his report at pg. 90/91 stated:

‘The consultant hydrogeologist who advised the Board on the previous windfarm described

the underlying bedrock as extensively karstified (i.e. weathered or fissured)… On the other

hand, the applicant has described the underlying limestone bedrock as not been highly

karstified in both the previous and current windfarm applications. However, unlike the

previous cases, the applicant’s contention has been supported by an extensive range of site

surveys and investigations to support the current application. The site investigations provide

a very detailed, localised, and spatially specific description of the topography, sub-soil

overburden, bedrock conditions and groundwater levels and flow patterns with the site,

which I consider to be thorough and robust following my review of them’.

24. The Applicant asserts that the application did not contain a very detailed, localised,

and spatially specific description of the topography supporting a contention that the

underlying bedrock is not highly karstified. While more investigations were completed in

particular boreholes, the same was subject to clear and express qualifications by the parties

who conducted such investigations and, moreover, the results of the same largely confirmed

the prior assessment but were not assessed or were misinterpreted by the Inspector/Board.

In addition, the information submitted in the EIAR is not consistent with the actual raw data,

presented in the actual investigation results set out in the Appendices to the EIAR. The

inspector and the Board simply accepted the interpretation present in the EIAR and did not

consider the actual underlying data on which it was based in arriving at conclusions.

(b) BOARD RESPONSE TO CORE GROUND 5

25. The Board’s Decision is not invalid as alleged at Core Ground 5. There has been no

breach of sections 37H(2)(a), 171A(a)(iv), 172(1), 177V of the 2000 Act or of Articles

1(2)(g)(iv), 2,4(5) and 8a(1) of the EIA Directive and Article 6(3) of the Habitats Directive

as alleged by the Applicants or at all. The Applicants complaint in that regard is not properly

particularised contrary to the requirements of Order 84 rule 20(3) of the Rules of the

Superior Courts, with the Applicants failing to particularise adequately or at all how or in

what manner those provisions and Articles have been allegedly breached (it is denied that

same have been breached). It is denied that the site investigation was inadequate as alleged

by the Applicants or at all. In this connection, Core Ground 5 is based on an erroneous

premise. This ground of challenge presumes its own incorrect suppositions and is premised

on impermissible merits-based submissions, incorrect interpretation of certain of the

planning application documents submitted by the Notice Party (namely parts of Chapters 8

and Appendix 4-3 of the EIAR) and on mis-reading the Board’s Decision and the Inspector’s

Report in a way that renders it invalid rather than valid. It is, for example, noted that, in

the context of EIA, at §7.7.5 (page 81) of the Inspector’s Report, the Inspector stated that

she was ‘satisfied that the results of the various site investigations and assessments are

robust. Although the excavations would have a permanent direct impact on land, soils and

geology, on balance, the impacts on the environment would not be adverse, subject to the

stringent implementation of EIAR mitigation measures (incl. on-going site inspections &

monitoring) and the recommended conditions which seek to protect the character and

integrity of geological features in the area.’ At page 93 of her Report the Inspector referred

to the ‘extensive range of location specific site investigations and test results, as referenced

above in the Groundwater section’. At pages 90 to 91, in the context of EIA, the Inspector

stated, inter alia, ‘The site investigations provide a very detailed, localised, and spatially

specific description of the topography, sub-soil overburden, bedrock conditions and

groundwater levels and flow patterns with the site, which I consider to be thorough and

robust following my review of them.’ The Inspector was entitled to conclude as aforesaid

based on the materials that were before the Board and was entitled to accept the content

and analysis contained in the documentation submitted by the Notice Party. The Inspector

clearly considered the submissions made by the Geological Survey Ireland (GSI) (see e.g.,

§4.2.2, §4.4.3 and pages 75, 78, 79, 80, 87, 90, 91, 93 of the Inspector’s Report). The

previous planning applications were also properly considered by the Inspector as evident

from the clear text of the Inspector’s Report correctly interpreted (see e.g. pages 7, 8, 46,

56, 65, 77, 87, 90, 91, 102 and 120 of the Inspector’s Report).

26. 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 inadequacy in the EIA or AA

carried out by the Board nor any adequacy in the EIAR or the NIS or any other supporting

documentation submitted to the Board by the Notice Party in the planning application

process. Consideration of the adequacy of information submitted for EIA and AA purposes

is primarily a matter for the discretion of the Board. The Board is entitled to curial deference

to its view of the adequacy of the information before it and, as to such adequacy, is

reviewable only for irrationality. There was material before the Board capable of supporting

its view of the adequacy of the information before it. The Applicants have not advanced or

adverted to anything that impugns the rationality of the Board’s conclusions for EIA or AA

purposes by reference to the material before the Board.

(c) NOTICE PARTY RESPONSE TO CORE GROUND

27. The Notice Party provided, and the Board considered, very significant information

(including 318 hours of sitework, 152 no. site investigation points; and 114 no. laboratory

tests accompanied by 80 no. geophysical surveys) in relation to the geological composition

of the site sufficient to allow the completion of lawful EIA and AA assessments. None of this

information was contradicted by the Applicants and the Applicants, respectfully, have

misunderstood the chronology of the request for Further Information. The Board was clearly

concerned to protect the karst landscape and directed that T9, T10 and T11 should be

omitted.”

73. The alleged inadequacy or impropriety of the site investigation (which on the evidence was

very extensive) has to be established evidentially by a challenger through the primary frame of

reference of what was before the board at the time, together with what can be evidentially

demonstrated as something the board was obligated to consider autonomously. That hasn’t been

successfully achieved. The applicants’ non-expert views do not discharge this burden.

Core ground 6 – defective EIA/AA – drainage

74. Core ground 6 is:

“6. The impugned decision of the Board is invalid as the because the drainage is not

sufficiently described or investigated in the application and/or information before the Board

and accordingly the Appropriate Assessment was not proper and/or was carried out in breach

of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an EIA was not

validly carried out in breach of s.172(1) of the PDA 2000 and Art 2 & 4 of the EIA Directive

and there was a failure to give adequate reasons in breach of section 37H(2)(a), 171A(a)(iv)

of the PDA 2000 and Article 1(2)(g)(iv) and 8a(1) of the EIA Directive”

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

“Core Ground 6:

(a) APPLICANT’S SUMMARY OF CORE GROUND 6

28. The Applicants’ submission address ‘Inadequate Assessment, impact and

investigation of water including groundwater and turloughs’ as issue 3.

29. This issue is raised at:

a. Core Ground 6 at §§ 29 – 42

b. Core Ground 10 at § 50

c. Core Ground 11 at § 57

d. Core Ground 12 at §§ 62-64

e. Core Ground 14 at §§ 81 -83

30. The Applicants assert that the Board failed to properly assess the hydrological

impacts of the development. The Inspector failed to address adequately the hydrological

connectivity between the site and proximate turloughs. In the Prior Refusal, the Board’s

independent expert identified certain matters or tests that would need to be addressed or

carried out before adverse impacts could be ruled out with sufficient certainty. The Notice

Party failed to carry out the same and the Board failed to identify that failure. There was

for example no adequate data on seasonal water level monitoring in groundwater, turloughs

and wells.

31. Further Condition 6, which relates to protection of impact on groundwater, refers to

the ‘winter water table’, which metric is entirely uncertain. The said levels are not specified

and are in any event variable.

(b) BOARD RESPONSE TO CORE GROUND 6

32. The Board’s Decision is not invalid as alleged at Core Ground 6. There has been no

breach of sections 37H(2)(a), 171A(a)(iv), 172(1), 177V of the 2000 Act or of Articles

1(2)(g)(iv), 2,4 and 8a(1) of the EIA Directive and Article 6(3) of the Habitats Directive as

alleged by the Applicants or at all. The Applicants’ complaint in that regard is not properly

particularised contrary to the requirements of Order 84 rule 20(3) of the Rules of the

Superior Courts, with the Applicants failing to particularise adequately or at all how or in

what manner those provisions and Articles have been allegedly breached (it is denied that

same have been breached). Core Ground 6 is based on an erroneous premise, as contrary

to what the Applicants allege, the drainage is sufficiently described and/or investigated in

the application and/or information before the Board. Core Ground 6 presumes its own

incorrect suppositions and is premised on impermissible merits-based submissions, incorrect

interpretation of certain of the planning application documents submitted by the Notice Party

(namely parts of Chapters 4 and 8 and Appendix 4-3 of the EIAR) and on mis-reading the

Board’s Decision and the Inspector’s Report in a way that renders it invalid rather than valid.

33. In the context of EIA and AA, potential impacts in relation to groundwater, drainage,

and karst/karst landscape features were properly considered and assessed by the Inspector.

(In relation to groundwater see e.g., pages 73,74,75, 76, 77, 83, 84, 85, 86, 87-97, 103,

104, 124-125 and 141 of the Inspector’s Report. In relation to drainage see e.g., pages 30,

32, 43, 73, 74-77, 83-88, 93-96, 98, 106, 116, 123-125, 141, 152, 167, and 170 of the

Inspector’s Report. In relation to karst landscape features see e.g., pages 18, 19-21, 23,

25 -31, 43, 45, 47, 48, 51, 73, 74-82, 85-91, 93, 103, 104, 106-108, 109-110, 124, 132

and 152 of the Inspector’s Report). The relevant conclusions reached by the Inspector and

Board in relation to potential impacts on groundwater, drainage, and karst landscape

features were valid and were open to the Board and the Inspector based on the materials

that were before the Board (see e.g., Chapter 4 at §4.6, Chapter 9, Chapter 17, Table17-1,

Appendix 4-2, Appendix 4-3, Appendix 4-4, Appendix 4-6, Appendix 6-5, Appendix 9-4, and

Appendix 9-5 of the EIAR; §3.4.1, §6.1, §6.2.2., §6.2.3, §6.2.2, Table 6-14, §7.1., Table 7-

1, §7.3, Table 7-3, §7.4, Table 7-4, Table 7-5, Table 7-6, Table 7-7, Table 7-8, §8.3, §8.4,

and 9 of the NIS and Appendix 1(AA Screening Report), Appendix 2 (Construction

Environment Management Plan), Appendix 4 to the NIS (Drainage Management Plan and

Site Drainage Drawings); §2.2.2.1, Table 2-1, Table 2-2, and section 4.3 of the Planning

Report; and the March 2023 Notice Party response to observations document). It is also a

condition of the Board Order that the conditions in the Drainage Management Plan must be

adhered to. 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 inadequacy in the EIA or

AA carried out by the Board nor any adequacy in the EIAR or the NIS or any other supporting

documentation submitted to the Board by the Notice Party in the planning application

process. Consideration of the adequacy of information submitted for EIA and AA purposes

is primarily a matter for the discretion of the Board. There was material before the Board

capable of supporting its view of the adequacy of the information before it.

(c) NOTICE PARTY RESPONSE TO CORE GROUND 6

34. The Inspector concluded that she was satisfied that there would be no significant

environmental consequences as a result of the proposed works or changes to the

groundwater levels, groundwater flow paths or recharge rates of the surrounding turlough

network. This was a conclusion which the Inspector was clearly entitled to reach on the

basis of the materials before the Board.

35. Furthermore, the Applicants have misunderstood the design and construction

approach for the internal trackways, drainage and roads and the purported grounds are

advanced on the basis of those misunderstandings bear no relation to the proposed

development or the decision actually made by the Board.”

76. An applicant who wishes to dislodge a decision-maker’s view of the merits, of no impact on

ground-water, for example, has to discharge the onus of proof to establish infirmity in the approach

evidentially – and, as before, to do that through the primary frame of reference of what was before

the board at the time, together with what can be evidentially demonstrated as something the board

was obligated to consider autonomously. The applicants haven’t succeeded in doing that.

Core ground 8 – defective EIA – visual impacts

77. Core ground 8 is:

“8. The impugned decision of the Board is invalid as the Board and the Inspector takes

an inconsistent approach in evaluating visual impact and provides no reasoned conclusions

and accordingly the EIA was not validly carried out in breach of s.172(1) of the PDA 2000

and Art 2 & 4 of the EIA Directive and and [sic] there was a failure to give adequate reasons

in breach of section 37H(2)(a), 171A(a)(iv) of the PDA 2000 and Article 1(2)(g)(iv) and

8a(1) of the EIA Directive”

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

“Core Ground 8:

(a) APPLICANT’S SUMMARY OF CORE GROUND 8

40. The Applicants’ submissions address ‘Karst Landscape and Character’ at issue 2(i).

41. This issue is directly raised at:

a. Core Ground 6 § 39

b. Core Ground 8 §§ 45 & 46

c. Core Ground 11 §§ 55 - 57

d. Core Ground 12 §§ 58 - 60

42. The site is partially located within the Killeglan Karst Landscape, a Geological Site of

National Importance. The Inspector recommended that 5 turbines (T8, T9, T10, T11 & T12)

in the Southern Cluster that were located within, or close to the Mid-Section of the landscape

be omitted given their visual impact but went on to say ‘if the Board did not concur with this

assessment’ that 3 turbines were recommended to be omitted. The Board decided to omit

only the later 3 turbines in Condition 4 (T9, T10 and T12) but gave no reasons as to why it

‘did not concur’.

43. Further, the Inspector considered that the NE section of the Killeglan Karst

Landscape had been ‘modified by agriculture practices in recent years’ and concluded that 3

turbines (T13, T14 and T16) would not adversely affect the landscape. The Inspector gave

no reason as to why it preferred the developer explanation for justifying retaining 3 turbines

(T13, T14 and T16) based on recent agricultural practice and rejected the GIS submissions

which made no distinction between turbine located within the Killeglan Karst Landscape.

The Killeglan Karst Landscape designation is not based simply on visual considerations. The

GIS submission further addressed the impact on the Castlesampson Esker and the Inspector

failed to give reasons for rejecting the same and, further, the recommended condition (15

in Order) does not have the effect that is intended in the report.

(b) BOARD RESPONSE TO CORE GROUND 8

44. The Board’s Decision is not invalid as alleged at Core Ground 8. There has been no

breach of sections 37H(2)(a), 171A(a)(iv) and 172(1) the 2000 Act or of Articles 1(2)(g)(iv),

2,4 and 8a(1) of the EIA Directive as alleged by the Applicants or at all. The Applicants

complaint in that regard is not properly particularised contrary to the requirements of Order

84 rule 20(3) of the Rules of the Superior Courts, with the Applicants failing to particularise

adequately or at all how or in what manner those provisions and Articles have been allegedly

breached (it is denied that same have been breached). Core Ground 8 is based on an

erroneous premise in that the Board and its Inspector did not take an inconsistent approach

in evaluating visual impact (no actual inconsistency is identified or established by the

Applicants and the Applicants’ merits-based, non-expert assertions are incorrect and not a

basis for certiorari of the Board’s Decision or any other relief) and a reasoned conclusion for

EIA purposes relating to visual impacts was in fact provided (see e.g., pages 142 and 177

of the Inspector’s Report, and page 6 of the Board Order where, in the context of EIA, the

Board expressly states that ‘Landscape and visual impacts would arise during the operational

phase from the insertion of the turbines and met mast into a rural setting, the location and

siting of which would assist in assimilating the works into the landscape’).

45. Core Ground 8 presumes its own incorrect suppositions and is premised on

impermissible merits-based submissions and on mis-reading the Board’s Decision and the

Inspector’s Report in a way that renders it invalid rather than valid. The non-expert

assertions of the Applicants in advancing Core Ground 8 are not a basis for and do not

establish any invalidity or deficiency in the EIA that the Board carried out. The Inspector’s

Report records that the Inspector conducted 4 site visits. As part of her site inspections, the

Inspector visited multiple locations at varying distances from the proposed development.

(Pg 46 of 187). The assessment of visual impact, and specifically which turbines should be

omitted, was a matter for the Inspector to determine and such determination was lawfully

carried out. In relation to the giving of reasons, the rule comes down to a requirement to

give ‘the main reasons for the main issues’ and that was complied with by the Board in its

Decision. The Applicants’ pleas alleging to the contrary are denied and are based on an

incorrect interpretation of the Board’s Decision.

(C) NOTICE PARTY RESPONSE TO CORE GROUND 8

46. The Inspector, on the basis of four days of site visits and very comprehensive LVIAs

concluded and was clearly entitled to conclude that there would be no significant impacts on

the environment once the three identified turbines had been removed in order to protect

geological heritage and landscape. The Board agreed and the Applicants have identified

nothing unlawful in the approach adopted.”

79. The allegation of inconsistency arises primarily from the fact that the inspector

recommended omitting a number of turbines. But that was on a reasoned basis: the inspector

considered inter alia that the receiving environment in the area of “the Mid-Section of the Killeglan

Karst Landscape, which is located in the SW section of the S[outh] Cluster” differed from the

receiving environment in other area and, accordingly, recommended the omission of three turbines

entirely located within the mid-section of the Killeglan karst landscape (T9, T10 & T12), “in order to

protect the unique geological heritage and landscape character of this area”. There is nothing to the

applicants’ complaint under this heading. They are not entitled to micro-sub-reasons or reasons for

the reasons.

Core ground 10 – defective EIA/AA – abdication

80. Core ground 10 is:

“10. The impugned decision of the Board is invalid as the Board abdicated its independent

statutory role and accordingly the Appropriate Assessment was carried out in breach of

s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an EIA was not validly

carried out in breach of s.172(1) of the PDA 2000 and Art 2 & 4 of the EIA Directive and

there was a failure to give adequate reasons in breach of section 37H(2)(a), 171A(a)(iv) of

the PDA 2000 and Article 1(2)(g)(iv) and 8a(1) of the EIA Directive”

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

“Core Ground 10:

(A) APPLICANT SUMMARY OF CORE GROUND 10

51. The Applicants address this Ground at Core Ground 5, 6 & 12.

(b) BOARD RESPONSE TO CORE GROUND 10

52. The Board’s Decision is not invalid as alleged at Core Ground 10. There has been no

breach of sections 37H(2)(a), 171A(a)(iv), 172(1), 177V of the 2000 Act or of Articles

1(2)(g)(iv), 2,4 and 8a(1) of the EIA Directive and Article 6(3) of the Habitats Directive as

alleged by the Applicants or at all. The Applicants’ complaint in that regard is not properly

particularised contrary to the requirements of Order 84 rule 20(3) of the Rules of the

Superior Courts, with the Applicants failing to particularise adequately or at all how or in

what manner those provisions and Articles have been allegedly breached (it is denied that

same have been breached). Core Ground 10 is based on an erroneous premise in that the

Board did not abdicate its statutory role as alleged by the Applicants or at all. This ground

of challenge presumes its own incorrect suppositions and is premised on impermissible

merits-based submissions, incorrect interpretation of certain of the planning application

documents submitted by the Notice Party (namely Chapter 8 of the EIAR) and on mis-reading

the Board’s Decision and the Inspector’s Report in a way that renders it invalid rather than

valid.

53. The fallacy that underpins Core Ground 10 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. The Applicants merely assert

(e.g. at §50bi and §51 at E(Part 2)) that the Notice Party developer’s material was accepted

without consideration by the Board. The Applicants have failed to establish that point by

evidence and the ground is without substance and reveals no valid complaint. The non-

expert assertions of the Applicants in advancing Core Ground 10 are not a basis for and do

not establish any invalidity or deficiency in the EIA and AA that the Board carried out, and

the Board’s Decision complies with the relevant legal principles on reasons.

c) NOTICE PARTY RESPONSE TO CORE GROUND 10

54. The Board was entitled to rely upon the information contained in the application

documentation when carrying out the required assessments under the EIA and Habitats

Directive. The Inspector’s reasoning is ascertainable and capable of being readily

determined deriving from her report and from the documents and the context of the decision.

The Board and its Inspector discharged the duty to give reasons for the Board’s decision and

the evidential basis for the Inspector’s conclusion was clearly set out in the materials

submitted by the Notice Party and no evidence to the contrary was offered on behalf of the

Applicants.

55. In relation to the issue of spoil the Notice Party did address and identify the depth

of the foundations in Drawing 21337-MWP-ZZ-00-DR-C-0104 and, therefore, was in a

position to identify the volume of spoil to be removed. In the circumstances, the Applicants

assertions in relation to the Board’s consideration in relation to spoil at §51 have no factual

basis and are denied. The Applicants purported reliance on the ACRES scheme is

unsubstantiated and completely irrelevant – in any event the Inspector correctly concluded

that the proposed development would in fact lead to a net bio-diversity gain arising from the

proposed development, as a result of, inter alia, the creation of species rich grassland.”

82. The gist of this complaint is that the board was excessively deferential in accepting the

developer’s material. But that in itself isn’t abdication. The applicants have come nowhere near

overcoming the onus of proof and evidentially establishing an abdication of the board’s role.

Agreeing with a participant in the process is not abdication. There is no lack of reasons under this

heading.

Core ground 11 – defective EIA/AA – inconsistency

83. Core ground 11 is:

“11. The impugned decision of the Board is invalid as Inspector and the Board acted

inconsistently with regard to turbines creating the same issue within the site without

explanation or reason and accordingly the Appropriate Assessment was carried out in breach

of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an EIA was not

validly carried out in breach of s.172(1) of the PDA 2000 and Art 2 & 4 of the EIA Directive

and there was a failure to give adequate reasons in breach of section 37H(2)(a), 171A(a)(iv)

of the PDA 2000 and Article 1(2)(g)(iv) and 8a(1) of the EIA Directive”

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

“Core Ground 11:

(a) APPLICANT SUMMARY OF CORE GROUND 11

56. The Applicants address this ground at Core Ground 8.

(b) BOARD RESPONSE TO CORE GROUND 11

57. The Board’s Decision is not invalid at alleged at Core Ground 11. There has been no

breach of sections 37H(2)(a), 171A(a)(iv), 172(1), 177V of the 2000 Act or of Articles

1(2)(g)(iv), 2,4 and 8a(1) of the EIA Directive and Article 6(3) of the Habitats Directive as

alleged by the Applicants or at all. The Applicants’ complaint in that regard is not properly

particularised contrary to the requirements of Order 84 rule 20(3) of the Rules of the

Superior Courts, with the Applicants failing to particularise adequately or at all how or in

what manner those provisions and Articles have been allegedly breached (it is denied that

same have been breached). Core Ground 11 is based on an erroneous premise in that the

Board and its Inspector did not act inconsistently in the manner the Applicants allege. Core

Ground 11 presumes its own incorrect suppositions and is premised on impermissible merits-

based submissions and on mis-reading the Board’s Decision and the Inspector’s Report in a

way that renders it invalid rather than valid. Further, the Board’s Decision complied with

the relevant legal principles on reasons, the Applicants assertion to the contrary is based on

a misinterpretation of the Board’s Decision.

58. As regards the omission of the three turbines (T9, T10 and T12) which would be

located within the Killeglan Karst Landscape in the Southern Turbine Cluster, the Applicants

quote selectively from the Inspector’s Report in their pleaded case. On a correct

interpretation of page 48 of the Inspector’s Report, it is clear that the Board’s Decision is in

fact consistent with the alternative recommendation by the Inspector for the removal of the

three turbines T9, T10 and T12, in relation to which the Inspector provided a clear rationale,

namely ‘in order to protect the unique geological heritage and landscape character of this

area’. Contrary to the Applicants’ incorrect assertions, what is also clear from the relevant

passage from the Inspector’s Report is that in relation to turbines T13, T14 & T16, the

Inspector concurred with the Notice Party ‘that the area within the NE-Section of the Killeglan

Karst Landscape, which is located in the middle of the S Cluster, has been noticeably altered

by land reclamation and boulder removal’ and therefore the Inspector was ‘satisfied that the

3 x turbines located within or close to this section of the Karst Landscape would not have an

adverse visual impact on its character or integrity.’ Further, the Applicants are incorrect in

contending that the Board and its Inspector failed to provide reasons for the omission of the

three turbines T9, T10 and T12. The Inspector, inter alia, recommended (at internal page

178) that three wind turbines (T9, T10 and T12) which would be located within the Killeglan

Karst Landscape in the Southern Turbine Cluster, be omitted from the permitted

development by way of condition, for the stated reason ‘To protect the visual integrity and

geological heritage of the area.’ Consistent with the foregoing, by way of condition no. 4

attached to the Board’s Decision, three wind turbines (T9, T10 and T12), were omitted from

the permitted development by the Board, for the same stated reason ‘To protect the visual

integrity and geological heritage of the area.’ It is also clear from the wording of Condition

4 (which must be read in context of the Inspector’s Report and the evidence that was before

the Board) that the Board was aware of the sensitivity of the Killeglan Karst Landscape.

(c) NOTICE PARTY RESPONSE TO CORE GROUND 11

59. The reasons for the Inspector’s recommendation for the omission of turbines is

clearly set out in her report. The Inspector noted that Turbines T8, T9, T10, T11 & T12 in

the Southern Cluster would be located within, on the periphery, or close to the Mid-Section

of the Killeglan Karst Landscape (p. 48). However, the Inspector did not recommend the

exclusion of all five of those turbines but rather specifically recommended the omission of

the 3 no. turbines that were ‘entirely located within the Mid-Section of the Killeglan Karst

Landscape (T9, T10 & T12)’, which recommendation was accepted by the Board and

omission of turbines is required by Condition 4 of the Board Order. The Inspector clearly

evaluated the degree of visual impact from the proposed development and exercised her

expert judgement in relation to the visual impact of the proposed turbines, which conclusion

can only be impugned on grounds of irrationality, which have not been made out in these

proceedings.”

85. The ground is tendentious. The applicants assert that the differing sites of turbines were

“creating the same issue” but the board disagreed, and the inspector provided a rationale for

potentially differing approaches to differing areas based on the level of impacts on such landscapes

by farming and other practices. The points made above under core ground 8 apply here.

Core ground 12 – defective EIA/AA – expertise

86. Core ground 12 is:

“12. The impugned decision of the Board is invalid as the Inspector and Board lacks the

expertise/best scientific knowledge in the field to be able to appropriately assess the

Application and the adverse impacts and accordingly the Appropriate Assessment was

carried out in breach of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or

an EIA was not validly carried out in breach of s.172(1) of the PDA 2000 (and without

prejudice s.172(1H) thereof) and Art 2, 4 & 5(3)(b) of the EIA Directive and the

Inspector/Board failed to give any or any adequate reasons.”

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

“Core Ground 12:

(a) APPLICANTS SUMMARY OF CORE GROUND 12

60. The Applicants’ submissions address ‘Lack of expertise of the Board’ as issue 7. The

Applicants allege that the Inspector/Board had insufficient expertise to carry out a

fair/lawful/proper assessment and that it was required to have or have recourse to expertise

in geology, geophysics, hydrology, Karst Landscapes and ornithology.

61. This issue is directly raised at:

a. Core Ground 5 §§17 – 28

b. Core Ground 6 §38

c. Core ground 10 §§ 50 - 54

d. Core ground 12 §§ 59-65

e. Core ground 14 §§ 73 & 80-96

62. The Applicants have brought an associated discovery/particulars application wherein

they seek evidence and/or information as to the expertise of the Inspector/Board. The

Applicants’ ability to state the case is prejudiced by the fact that this application has yet to

be determined.

63. Without prejudice, the Applicants rely on, inter alia, the peculiarly complex and

specialised nature of the issues that arise in this application, the prior decision by the Board

to hire external experts (a hydrogeologist and ornithologist) in relation to the prior

application, the Inspector’s conclusion on the expertise which went into the EIAR, and the

general failure to interrogate the EIAR and/or to consider the primary data including the

failure to appreciate the import of the Apex Geophysics Report, the failure to appreciate the

significance of the failure to provide the IGSL interpretative report and further the resultant

impact and/or failures of assessment identified at inter alia §§26, 27 & 31.

B) BOARD RESPONSE TO CORE GROUND 12

64. The Board’s Decision is not invalid as alleged at Core Ground 12. It is denied that

the Board decision is invalid as the Inspector and Board lacks the expertise/best scientific

knowledge in the field to be able to appropriately assess the Application as alleged by the

Applicants or at all. There is no evidence to support this ad hominem complaint and, in the

contrary, it is not evidenced by the content of the Inspector’s Report. Core Ground 12 has

no merit or substance. The reasons for the Board’s Decision complied with the relevant legal

principles on reasons and can be found not only in the Board Order, but also in the Board

Direction, the report of its Inspector and in other documents referred to expressly or by

necessary implication in that Report and in the Decision, as well as in other information

provided to the Board. Insofar as the Applicants contend to the contrary, such contention

is incorrect and is denied. Further, the AA and the EIA that the Board completed in respect

of the proposed development were carried out in accordance with the requirements

applicable to that assessment. [T]he Inspector (§8.2, Inspector’s Report), having reviewed

the NIS submitted by the Notice Party, was satisfied that same ‘provides adequate

information in respect of the baseline conditions, does clearly identify the potential impacts,

and does use best scientific information and knowledge’. The Board Order (page 4) expressly

records that the Board considered ‘that the information before it was sufficient to undertake

a complete assessment of all aspects of the proposed development in relation to the

[European] sites’ Conservation Objectives using the best available scientific knowledge in

the field.’ The non-expert assertions of the Applicants (litigants in this action who are not

independent) are not a basis for and do not establish any lack of expertise or on the part of

the Inspector or the Board for AA or EIA purposes or otherwise.

65. This ground of challenge presumes its own incorrect suppositions and is premised

on impermissible merits-based submissions and on mis-reading the Board’s Decision in a

way that renders it invalid rather than valid. The Applicants’ argument amounts to an

assertion that the Board in judicial review has to prove its own expertise (or that of its

Inspector) or demonstrate in the proceedings that it has conducted a proper assessment,

which is totally misconceived. The Board is not required to prove it has sufficient expertise

to conduct the EIA or the AA that it carried out merely because the Applicants contend by

way of non-expert assertion and without any evidence that the Board lacks sufficient

expertise. The Applicants have pointed to nothing that in any sense raises any issue at all

with the expertise of the members of the Board or the Inspector that determined the subject

application. Article 5(3) of the EIA Directive and s.172(1H) of the 2000 Act requires that

the Board as a designated ‘competent authority’ for the purposes of the EIA Directive shall

ensure that it has, or has access as necessary to, sufficient expertise to examine the EIAR

submitted by the applicant for permission/developer (the Notice Party in this case). The

purpose of such expertise is to check the structure and logic of the EIAR, as well as the

overall quality of data used, judgements and conclusions presented. 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 requirement that the Board must show or

demonstrate such expertise. There is no requirement or independent or free-standing duty

on the Board to give reasons establishing that it had access to any given level of expertise

for EIA purposes. In the present case there is no evidence that Inspector or Board members

involved in the impugned Board Decision lacked such expertise, there is only mere assertion

in that regard from the Applicants and their solicitor who assume their own suppositions.

There is no established fact or proven factual circumstance external to the subject matter of

the Board’s Decision that serves to raise any issue whatsoever as to the expertise of the

Inspector or the Board members involved.

66. The Applicants have identified no basis to impugn the expertise the Board or its

Inspector to consider and determine the planning application, or carry out the required

environmental assessments, in relation to the proposed development. In the absence of

any evidence to support their assertions, the Applicants cannot purport to impugn the

expertise of the Board and its Inspector. Specifically, Condition No. 6 does not impose an

‘unachievable engineering task’. Rather, it is clear that this planning condition was imposed

by the Board in order to ensure the protection of the quantity and quality of water in the

area, including groundwater, public water supplies and turloughs and is entirely consistent

with the approach adopted by the Notice Party in relation to the protection of water resources

in the vicinity of the proposed development, which included locating the turbines so as to

avoid the necessity for excavations into bedrock and or the water table.

d) State Respondents’ Response to CORE GROUND 12.

67. The State Respondents support the objection of the Board to this ground of

challenge. In that regard the State Respondents note that the Applicants have not (a)

identified a factor external to the decision making process that would tend to suggest that

the Inspector did not hold the requisite expertise to report on the planning application at

issue (b) provided any detailed expert evidence to support the allegations that the four

matters pleaded in CORE GROUND 12 were errors that reveal a lack of expertise on the part

of the Inspector.”

88. Article 5(3) of the EIA directive provides:

“3. In order to ensure the completeness and quality of the environmental impact assessment

report:

(a) the developer shall ensure that the environmental impact assessment report is

prepared by competent experts;

(b) the competent authority shall ensure that it has, or has access as necessary to,

sufficient expertise to examine the environmental impact assessment report; and

(c) where necessary, the competent authority shall seek from the developer

supplementary information, in accordance with Annex IV, which is directly relevant

to reaching the reasoned conclusion on the significant effects of the project on the

environment.”

89. Recital 33 to the 2014 EIA directive states:

“(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.”

90. In European Commission: Directorate-General for Environment, McGuinn, J., Lukacova, Z.,

McNeill, A. and Lantieri, A., Environmental impact assessment of projects – Guidance on the

preparation of the environmental impact assessment report (Directive 2011/92/EU as amended by

2014/52/EU), Publications Office, 2017, (https://op.europa.eu/en/publication-detail/-

/publication/2b399830-cb4b-11e7-a5d5-01aa75ed71a1), the Commission states at pp. 69-70:

“Competent Authorities can have expertise in-house or can access this expertise through

external channels. In some Member States, where EIAs have been carried out for decades,

those reviewing EIA Reports, in particular those within the Competent Authorities, have

years of experience and they can, thus, be considered to be experts. In some cases, EU

Cohesion Policy funds, including technical assistance available from the European

Reconstruction Development Fund or training activities under the European Social Fund, may

be available to support training for both authorities and for other stakeholders. Where

expertise is not available in-house, research institutes and professional bodies may be asked

to undertake reviews. In some Member States, a review body may be available to undertake

the review ...

Finding sufficient expertise (Competent Authorities)

Competent Authorities can take various approaches to ensuring that they have access to the

expertise necessary to examine EIA Reports, where this is not available in-house. If

individual experts are contracted on a case-by-case basis, many of the approaches adopted

by Developers in the past, detailed above, can also be used to find competent experts to

carry out a review of the EIA Report on behalf of the Competent Authority. Another possible

option is for Member States to set up a dedicated independent review body, a body which is

always available to provide insight into the evaluation of EIA Reports.

Under Article 5(3)(c), the Competent Authority can request any supplementary information

that it requires from the Developer before reaching its decision, as long as the information

is directly relevant to reaching the Reasoned Conclusion. Competent Authorities need to

ensure that the additional information that they request can be clearly linked to the decision-

making process, and is not merely precautionary in nature.

Several Member States ensure that all authorities have access to sufficient expertise to

review EIA Reports through the establishment of institutions to serve this purpose. These

vary in composition, size, as well as their links to authorities.

In some Member States these can be considered to be independent: in the Netherlands, a

Commission is appointed by the minister whose exclusive role is to maintain a pool of

approximately 300 experts who are then responsible for providing opinions on EIAs. In

France, the review body is made up of nine evaluation specialists, stemming from the

Ministry of the Environment directly, as well as six external qualified experts.

Other Member States opted for mechanisms closer to that of an inter-institutional platform

(which may include members of the civil society). For instance, in Cyprus, ten members

comprise the EIA Committee, including representatives of different ministries, the chamber

of engineers, the federation of environmental organisations, and two qualified experts.”

91. The board accepts that there is a read-across in terms of the same standard of expertise for

AA as well as EIA.

92. The problem for the applicants is that a complaint of lack of expertise or best scientific

knowledge has to be made out evidentially. The applicants have not done this. It’s not something

the court can just infer from the lack of express qualifications about karst landscape or some other

micro-aspect of environmental science. There could be tens of thousands of sub-fields which could

be said to arise in any given application, and could not have been the intention of the European

legislature to create a cottage industry for applicants by requiring expertise at this level of sub-detail

in the absence of discharging an onus that the board has failed to take some step or understand

some point that an expert would have taken or understood. The repeated complaint of lack of

reasons adds nothing – it is for an applicant to demonstrate a lack of expertise on the part of a

decision-maker, not for the latter to prove her own competence to an applicant’s satisfaction (an

impossible standard).

93. In addition, as the Commission points out, experience as opposed to mere qualifications can

qualify someone as an expert. That is only common sense anyway, especially in a changing field

such as environmental assessment. If there is a spectrum of disciplines from the more static, say

Euclidian geometry, Gregorian chant or Latin grammar for the sake of argument, up to the most

dynamic, say generative artificial intelligence, the field of planning and the environment has got to

be in the more dynamic half of the curve. That’s not to suggest that apparently static fields don’t

actually evolve – they do – and nor is it to denigrate more gently moving disciplines at all or

traditionalists in any context – indeed there’s much to be said for comfort zones. But what one

learns in formal qualifications in a dynamic area is going to be out of date in practice fairly quickly,

so going by qualifications alone isn’t going to get us very far.

94. The applicants are correct about two points however.

95. The first point is insofar as they argued that the board has a “positive obligation” to satisfy

themselves that they have the correct expertise, and indeed that whatever expertise the board has,

it has to be sufficient to evaluate the material before it. I would accept that insofar as it relates to

the decision-making process because that follows from the directive. In that context it is only one

of a lot of positive obligations imposed on the board by both domestic and EU law. But what doesn’t

follow is that a positive obligation in the administrative process translates into a positive obligation

in the forensic context merely because somebody challenges a decision. On the contrary, the onus

of proof in judicial review is on an applicant to prove otherwise. There’s a mountain of authority on

the onus of proof (see recently for example discussion in Sherwin v. An Bord Pleanála [2023] IEHC

26, [2023] 1 JIC 2701 (Unreported, High Court, 27th January 2023) at para. 85 and authorities

cited, particularly per Denham J. in Meadows v. Minister for Justice, Equality and Law Reform [2010]

IESC 3, [2010] 2 I.R. 701, [2011] 2 I.L.R.M. 157 at 743).

96. The applicants, understandably, ask “how do I disprove that?” Actually that isn’t at all

impossible. I appreciate it’s hard to answer that without being accused of advising an applicant’s

proofs, but let’s just take it as a hypothetical. Let’s assume that sufficient expertise involves an

awareness of the relevant scientific standards required to evaluate the factual issues. If an applicant

has a qualified witness who says that a board with sufficient expertise in subject X would have been

aware that the national or international scientific standard would be to take investigative or analytical

step Y or to have a particular specified piece of expertise Z, then an applicant can call on the board

to ask if they were aware of or implemented Y or Z, and if the reply is not so, then the applicant can

put its expert up on affidavit to say that the board’s expertise was therefore insufficient. Maybe that

will be contested in which case one might have to get into cross-examination. But these applicants

didn’t do any of that. Such a procedure is valid and necessary because otherwise there would not

be a facility for scrutiny of actually unqualified decision-makers, which could lead to all sorts of

issues. But in that context the question would not be whether the hypothetical applicant’s expert

was more qualified than the decision-maker. It would be the question of fact as to whether the

applicant had shown that the baseline threshold of sufficient expertise had not been met.

97. Also, a lack of sufficient expertise isn’t to be confused with merely getting something wrong.

A qualified person can be found to be incorrect, especially in grey areas where there is an evaluative

judgement or no clearly established answer. That’s just the nature of human existence in general

and decision-making in particular. Indeed there are many areas of life where there are no “wrong”

answers, just different answers – matters of art, culture, taste, style and creative expression come

to mind (a point made by writers through the ages, of whom three examples may suffice: Michel de

Montaigne, who made it a central pillar of his Essais (1580), Horatius Montanus, who made a legal

aphorism of it in 1628, and Harry Chapin, who based a poignant 1978 folk song on the concept).

Relatedly, getting something wrong isn’t to be equated with bias, for example. Nonetheless, it’s

important to recognise that the expertise of the board is a jurisdictional fact, not a substantive

judgment on the merits. So if in that event the opposing parties might suggest that the board’s

assertion of their own expertise has to be dislodged on an unreasonableness standard rather than

only on a balance of probabilities basis, that is implausible. Such a demanding test might raise

issues of whether enforcement of EU law would become excessively difficult and conflates the issues

of whether a person has or whether she thinks she has expertise, by analogy with Lord Atkin (diss.)

in Liversidge v. Anderson [1941] UKHL 1, [1942] AC 206.

98. The fact that the applicants raised the board’s alleged lack of expertise in their submission

to the board doesn’t mean that they don’t have the onus of proof in this case. The fact that the

board didn’t bring in an external expert or experts on hydrology or ornithology or anything else this

time even though they did in a previous application on this site doesn’t have that implication either.

99. The applicants on the pleaded case also seem to make the point that the decision is so

flawed that it has the necessary implication that the board lacked expertise. While there is a basic

distinction between lacking expertise and getting things wrong, just as there is between bias and

merely erring, the two are not as absolutely watertight as the State appeared to be contending. At

the extremes there is a rough justice to the applicant’s argument, much as one might, for example,

infer from hearing someone make a comment that misunderstands or confuses legal fundamentals

that the speaker probably doesn’t have a great deal of legal expertise. But ultimately the argument

under this sub-heading doesn’t get the applicants very far, as the State correctly submitted. If the

decision is actually flawed they will win under that heading. It doesn’t particularly matter if the error

is so bad that they also win consequentially under the heading of inferred lack of expertise.

Conversely, if there is no other error in the decision the complaint doesn’t arise under this aspect of

the expertise argument.

100. The second point on which I agree with the applicants is insofar as they made the point that

the determination of expertise should be made on a case-by-case basis rather than on an overall

basis. That is a valid point but it isn’t a pleaded complaint. The complaint is that the board didn’t

have the expertise, not that it didn’t lawfully satisfy itself on a case-specific basis as to its expertise

in relation to the particular environmental report (which is in fairness what art. 5(3) of the directive

does in effect say). The board’s essential reply seemed to be that by not calling in external experts

the board was implicitly satisfied as to its own expertise in the given case. That isn’t totally

implausible as an answer but had the issue been expressly raised on the pleadings the defence could

have been developed evidentially rather than just by implication. That’s not to say that implication

would have necessarily been insufficient – we can leave that debate to a case where the point

properly arises.

101. Ultimately the problem for the applicants is that the rule that an applicant in judicial review

bears the onus of proof complies with EU law in that it satisfies the principle of equivalence as

between national and EU obligations, and it also satisfies the principle of effectiveness in that it

doesn’t make the enforcement of EU law either impossible or excessively difficult.

102. The board also makes the point, I think validly, that not only is there no positive evidence

of insufficient expertise now, but there wasn’t much of an attempt to show that as of the date on

which the proceedings were launched. The applicants didn’t specify the board members’ identities

in the original pleadings which made it implausible for them to complain about the board’s

qualifications at that point. Accordingly they call the complaint “speculative”, and I am afraid that

looks like a fair comment in the circumstances.

Core ground 14 – defective EIA/AA – removal of doubt

103. Core ground 14 is:

“14. The impugned decision of the Board is invalid as the Appropriate Assessment did not

comply with Art 6(3) & 12 of the Habitats Directive or the High Court decisions delivered in

this country by failing to include sufficiently precise findings and by failing to remove all

scientific doubt by failing to consider or properly consider observations that raised scientific

doubt.”

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

“Core Ground 14:

a) APPLICANTS SUMMARY OF CORE GROUND 14

73. The Applicants’ submissions address “Inadequate Assessment of connectivity

between sites” as issue 4.

74. This issue is directly raised at:

a. Core Ground 9 §§ 45 - 47

b. Core Ground 14 §§ 80 - 95.

75. The Board failed to assess properly or adequately the broader connectivity effects of

the development in relation to inter alia ex situ feeding sites and/or failed to give adequate

reasons for a conclusion that there would be no adverse impacts. The Board inadequately

assessed the impact of the development on species in ex-situ locations, i.e. species that use

lands outside of designated areas. Species or habitats that are intrinsically linked to and

support the qualifying interests (Qls) or special conservation interests (SCIs) of a European

site (SAC/SPA) but that occur outside of that specific European site must also be assessed

for potential impacts from a proposed development. The submissions of the DAU and the

Council addressed connectivity between the development and, inter alia, potential ex-situ

impacts to Whooper Swans, the same being a qualifying interest of the River Suck Callows

SPA. The board failed to assess or give reasons for a conclusion of no impact in relation to

the same.

76. The Applicants’ submissions address ‘Inadequate assessment on fauna, flora

including birds as issue 5’.

77. This issue is directly raised at:

a. Core Ground 7 §§ 43 & 44

b. Core Ground 14 §§ 79 -98 & 105.

78. The inspector concluded for the purpose of EIA at pg. 114 that the proposed

development ‘… would not have any significant, adverse, long term residual impacts on any

sensitive sites, habitats, flora or fauna in the area, subject to full implementation of EIAR

mitigation measures, any recommended conditions and adherence to best guidance’ This

conclusion is not supported by the evidence and/or the inspector and the Board failed to

give adequate reasons to explain such conclusion and/or did not take into account a relevant

consideration.

79. The proposed development involves the permanent loss of sensitive land namely

Karst landscape and also involves the loss of 2.7ha of Annex 1 priority grassland habitat.

The Board failed to give adequate reasons for a conclusion that the same was not a

significant long term negative impact and the Board failed to consider the DAU submission

to the effect that the replacement plan would ‘decades or more’ to become equally valuable.

80. The Board further failed to consider the impact that the loss of grassland would have

on botanical species such as orchid and also the Marsh Fritillery Butterfly. The development

involves hedgerow removal, and the Board further failed to assess the impact of the same

on yellowhammer. The Board further failed to assess adequately the impact of the

development on bats. The foregoing issues were raised in the DAU submission.

(b) BOARD RESPONSE TO CORE GROUND 14

81. The Board’s Decision is not invalid as alleged at Core Ground 14. The premises of

the Applicants’ complaints at Core Ground 14 are not accepted. In that connection, the

Board disputes the interpretation and legal significance of the Board’s Decision and the

documents and materials that were before the Board as pleaded by the Applicants, in

circumstances where such documents are open to being interpreted a way that makes sense

and is valid rather than invalid. The Board’s Decision complied with the relevant legal

principles on reasons and the AA and EIA that the Board completed in respect of the

proposed development was carried out in accordance with the requirements applicable to

that assessment. As regards AA (which Core Ground 14 purports to relate to) the Board’s

conclusions for AA purposes were open to it on the basis of the materials that were before

it. As regards AA, 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 legal burden of demonstrating the invalidity of the Board’s Decision,

including as regards grounds of challenge regarding AA, rests with the Applicants and has

not been met here. There is no evidence to support a contention that the proposed

development risks impacting bats in a manner that would breach Article 12 of the Habitats

Directive. Core Ground 14 and the related pleas at §71 to §108 involve a merits-based

disagreement (advanced on the basis of non-expert assertion and supposition) with the

result of the AA in the context of judicial review, which is not permissible nor a basis for

certiorari of the Board’s Decision or any other relief. The Board relies on the relevant pleas

in its Statement of Opposition in response and opposition to Core Ground 14.

(c) NOTICE PARTY RESPONSE TO CORE GROUND 14

82. Core Ground 14 is simultaneously unparticularised and prolix, replete with extensive

quotations from irrelevant documents and inappropriate legal submissions. Whilst Core

Ground 14 is pleaded as an Article 6(3)/Appropriate Assessment challenge, almost none of

the issues raised by the Applicants are in any way relevant to any European site or any

conservation objectives or Qualifying Interests [QIs] of such sites. It is not possible in a

Statement of Case to respond to the broad disparity of issues lobbed indiscriminately by the

Applicants into Core Ground 14. Without prejudice to that contention, the NIS and

supporting documentation was based on the best scientific knowledge in the filed in

circumstances where that documentation was prepared by relevant experts (including in

relation to ornithology, fauna and flora). The Board and the Inspector’s conclusions as to

the adequacy of the NIS and supporting documentation, including as to the use of best

scientific information and knowledge is a matter within the expertise of the Board and

reviewable by the courts on the ground of irrationality alone.”

105. Failure to remove doubt (on any of the bases referred to, including for example in-

combination effects) has to be established evidentially – and, as before, through the primary frame

of reference of what was before the board at the time, together with what can be evidentially

demonstrated as something the board was obligated to consider autonomously. The applicants

haven’t achieved this. They carry the onus of proof in that regard which they haven’t discharged on

this or any of the other merits-based issues.

Core grounds 2 and 15 – making available of additional information

106. Core ground 2 is:

“2. The impugned decision of the Board is invalid as the Applicants were denied the

opportunity to address and/or make submissions on an approximately 400-page Notice

Party submission to the Board in March 2023 and the Board therefore acted in breach of

s.37F(2) & 131 of the PDA 2000 and/or Article 218(1)(b) of the PD Regulation 20001 as

amended and/or acted in breach of fair procedures and/or natural and constitutional justice.”

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

“Core Ground 2:

(a) APPLICANT’S SUMMARY OF CORE GROUND 2

8. See Core Ground 15

(b) BOARD RESPONSE TO CORE GROUND 2

9. The Board’s Decision is not invalid as alleged at Core Ground 2. No particulars are

provided in relation to this ground at §10 at E(Part 2) of the Amended Statement of Grounds.

Insofar as pleas relating to Core Ground 2 are advanced at §§109 - 114 at E(Part 2) of the

Amended Statement of Grounds in relation to Core Ground 15, the Board relies on its pleas

made in opposition and response to Core Ground 15 by way of opposition and response to

Core Ground 2 also.

(c) NOTICE PARTY RESPONSE TO CORE GROUND 2

10. This Core Ground is devoid of substance and there is nothing for the Notice Party to

dispute.”

108. Core ground 15 is:

“15. The impugned decision of the Board is invalid as the Applicants were wrongly denied

the opportunity to address an approximately 400-page Notice Party submission to An Bord

Pleanála in March 2023 and accordingly the Appropriate Assessment was carried out in

breach of s.177V of the PDA 2000 and Art 6(3) of the Habitats Directive and/or an EIA was

not validly carried out in breach of s.172(1) of the PDA 2000 and Art 2, 4 & 5(3)(b) of the

EIA Directive and the Board acted in breach of s.37F & 131 of the PDA 2000 and/or Article

218(1)(b) of the Planning Regulations 2001 and/or acted in breach of fair procedures and/or

natural and constitutional justice.”

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

“Core Ground 15:

(a) APPLICANTS SUMMARY OF CORE GROUND 15

83. The Applicants’ submissions address the issue of ‘Failure to invite submissions on

further information/revised plan/fair procedures’ as issue 1. This issue is directly raised at

Core Ground 15.

84. This issue / ground is involved and cannot easily be reduced to a short explanation

save at a high of abstraction. Put simply, the Applicant asserts that the Board failed to

consult or adequately consult on a post consultation submission/further information that it

received from the Notice Party – ‘the 31 March 2023 Submission’.

85. After the consultation procedure concluded the Board decided that an oral hearing

was not necessary, that it had sufficient information to determine the case, and it invited

the Notice Party to reply to third party observations. The notice party replied by providing

a document, ‘the 30 March 2023 Submission’. The same comprised of a set of revised

plans/drawings, a substantive document that included, inter alia, replies to third party

observations, and four appendices thereto that included three updated birds’ surveys. The

submission noted that it contained significant additional information (the scope of which is

likely contested). It further noted that the DAU observation referred to birds’ data that was

not considered in the EIAR, that the DAU would not provide the same save, to put the matter

neutrally, in the context of a request for further information by the Board, and that it could

not reply to the said observation without the said data. The submission suggested that the

Board facilitate the provision of the said DAU data (and a submission/reply by the Notice

Party thereto), and thereafter make a request for all the relevant further information with a

view to carrying out a single consultation. The Board thereafter made a request for further

information that related solely to the DAU data and a reply thereto. The Notice Party

obtained the said data and submitted a reply to the same to the Board (‘the July 2023 FI

Reply’). The Board then directed publication.

86. There is, inter alia, an issue as to the scope of consultation that the Board was

required to direct, the scope of consultation that the Board in fact directed, the scope of

consultation that was actually carried out by the Notice Party, and an issue as to whether

the Notice Party complied with relevant statutory obligations including an obligation to place

the documents the subject of the consultation on the planning authority’s file. Whether or

not intended by the Board, the public consultation and documents made available to facilitate

such consultation by the developer, only related to the DAU data (July 2023 data) and not

to the full 30 March submission/revised plans. The public notice does not refer to the same

and the documents made available at all required locations did not extend to the 30 March

information. The developer may have misinterpreted the Board’s direction but as a matter

of fact insofar as it was intended by the Board to extend to the 30 March information, this

is [sic] did not happen and the Board failed to ensure compliance. This is indicative of the

fact that no submissions were in fact made on the 30 March information only on the July

2023 data.

(b) BOARD RESPONSE TO CORE GROUND 15

87. The Board’s Decision is not invalid as alleged at Core Ground 15. There has been

no breach of sections 37F(2), 131, 172(1), 177V of the 2000 Act or Article 218(1)(b) of the

2001 Regulations, or of Article 6(3) of the Habitats Directive or Articles 2,4 and 5(3)(b) of

the EIA Directive, and no breach of fair procedures or natural and constitutional justice, as

alleged by the Applicants or at all. The uncontroverted fact (as pleaded and verified in the

Notice Party’s Opposition papers: §148 of the their Statement of Opposition and §9 of the

verifying affidavit of Robert Scott, Chartered Engineer and Head of Development and the

Senior Manager in Energia Renewables ROI Limited) is that the March 2023 Response to

Observations document, and the July 2023 RFI Response, were both made available on the

Notice Party’s project website for a period including 1st August 2023 to 5th September 2023.

It was also clearly stated in the public notices that submissions or observations on the

significant additional information could be made to the Board on or before 5 p.m. on 5th

September 2024. The Applicants were not deprived of making a submission on the March

2023 Notice Party response document as alleged or at all. The Applicants’ subjective

characterisation of the process before the Board is not accurate nor accepted, and their legal

submissions and their above assertions in this Statement of Case do not constitute an

evidential foundation for the propositions they advance in same.

88. Contrary to the incorrect premise of Core Ground 15 and Core Ground 2 at all

material times it was open to the Applicants to make submissions on the aforesaid March

2023 Notice Party response document in the 5-week period commencing on 1st August 2023

and ending at 5.30pm on 5th September 2023. In circumstances where further submissions

were made during that period, including by the second named Applicant, it is denied that

there was any breach of the Board’s statutory obligations. The fact that the Applicants did

not avail of that opportunity to make further or other submissions does not mean that they

were unlawfully deprived from doing so, it simply means they didn’t do so. The factual

response raised by the Board and Notice Party in response to this issue has not been

controverted by the Applicants (who bear the burden of proof). Insofar as there is a dispute

as to fact on this issue, absent cross-examination, it falls to be determined against the

Applicants as the party on whom the onus of proof lay to establish the contested fact.

(c) NOTICE PARTY RESPONSE TO CORE GROUND 15

89. On 31 March 2023, the Notice Party submitted its response to the submissions

received on the application, as requested by the Board. The Board did not invite further

submissions on the Notice Party’s response. It was considered that the information

submitted in the Notice Party’s response to submission documentation did not give rise to

any material changes to the proposed development and that the EIAR and NIS conclusions

were not materially altered. Such a conclusion was open to the Inspector on the basis of

the materials before the Board, having regard to the expertise of the Board and its Inspector

in the exercise of their respective judgement.

90. The Board is not obliged to provide an opportunity for further submissions on a

response to submissions and observations on a planning application. The Applicants have

failed to demonstrate any particular prejudice arising from the alleged deprivation of an

opportunity to make additional submissions in response to the Notice Party’s response to

the previous submissions and observations. The First Applicant did not make any submission

on observation on the planning application, in his own name or on his own behalf, when he

did have the opportunity to do so. Moreover, the Applicants have not identified any

additional submissions which they would have made, or identified the manner in which such

additional submissions may have altered the assessments carried out by the Board.”

110. Section 37F(1) and (2) provide:

“37F.—(1) Before determining any application for permission under section 37E the Board

may, at its absolute discretion and at any time—

(a) require the applicant for permission to submit further information, including a

revised environmental impact statement,

(b) indicate that it is considering granting permission, subject to the applicant for

permission submitting revised particulars, plans or drawings in relation to the

development,

(c) request further submissions or observations from the applicant for permission,

any person who made submissions or observations, or any other person who may,

in the opinion of the Board, have information which is relevant to the determination

of the application,

(d) without prejudice to subsections (2) and (3), make any information relating to

the application available for inspection, notify any person or the public that the

information is so available and, if it considers appropriate, invite further submissions

or observations to be made to it within such period as it may specify, or

(e) hold meetings with the applicant for permission or any other person—

(i) where it appears to the Board to be expedient for the purpose of

determining the application, or

(ii) where it appears to the Board to be necessary or expedient for the

purpose of resolving any issue with the applicant for permission or any

disagreement between the applicant and any other party, including resolving

any issue or disagreement in advance of an oral hearing.

(2) Where an applicant submits a revised environmental impact statement to the Board in

accordance with subsection (1)(a) or otherwise submits further information or revised

particulars, plans or drawings in accordance with subsection (1), which, in the opinion of the

Board, contain significant additional information on the effect of the proposed development

on the environment to that already submitted, the Board shall—

(a) make the information, particulars, plans or drawings, as appropriate, available

for inspection,

(b) give notice that the information, particulars, plans or drawings are so available,

and

(c) invite further submissions or observations to be made to it within such period as

it may specify.”

111. As noted above, on 25th January 2023, the board requested that the first named notice

party provide replies to the third party observations.

112. The first named notice party replied by way of a submission of 31st March 2023.

113. On 13th June 2023, the board wrote to the developer:

“MKO

Planning & Environmental Consultants Tuam Road

Galway

Co. Galway H91 VW84

Date: 13 June 2023

Re: Wind Farm Development and all associated works.

Cuilleenoolagh and other townlands, Co. Roscommon

Dear Sir/ Madam,

I have been asked by An Bord Pleanala to refer further to the above mentioned proposed

development which is before the Board for consideration.

Please be advised that the Board, in accordance with section 37(F)(1) of the Planning and

Development Act, 2000, as amended, hereby requires you to furnish the following further

information in relation to the effects on the environment of the proposed development:

1. The Applicant shall liaise with the Department of Housing, Local Government and Heritage,

Development Application Unit (DAU) in relation to acquiring copies of the additional data

held by it in relation to Greenland white-fronted goose, Whooper swan and Black-headed

gull, as referred to in the submission received by the Board from the DAU on 2nd August

2022.

Any resultant changes to the EIAR or NIS analysis and conclusions shall be clearly set out in

the response to this request

The further information referred to above should be received by the Board within 4 weeks

from the date of this notice (i.e. no later than 5.30 p.m. on the 10th July, 2023).

In this regard, please submit 2 hard copies and one electronic copy of the above information.

Please note that following its examination of any information lodged in response to this

request for additional information, the Board will then decide whether or not to invoke its

powers under section 37(F)(2) of the Planning and Development Act, 2000, as amended,

requiring you to publish notice of the furnishing of any additional information and to allow

for inspection or purchase of same and the making of further written submissions in relation

to same to the Board.

If you have any queries in relation to the matter please contact the undersigned officer of

the Board. Please quote the above mentioned An Bord Pleanala reference number in any

correspondence or telephone contact with the Board.

Yours faithfully,”

114. The request for further information was copied to interested parties including the second

named applicant:

“Wind Turbine Action Group South Roscommon c/o John Joe Kennedy

[address]

Co. Roscommon

Date: 13 June 2023

Re: Wind Farm Development and all associated works.

Cuilleenoolagh and other townlands, Co. Roscommon

Dear Sir/ Madam,

I have been asked by An Bord Pleanala to refer to the above-mentioned case.

Please find enclosed a copy of a further information request issued by the Board, which is

being forwarded to you for information purposes only.

If you have any queries in relation to the matter please contact the undersigned officer of

the Board.

Please quote the above-mentioned An Bord Pleanala reference number in any

correspondence or telephone contact with the Board.”

115. Following receipt of the second tranche of further information, the board then wrote to the

first named notice party on 19th July 2023 asking the first named notice party to give notice of the

information:

“Date: 19 July 2023

Re: Windfarm development and all associated works.

Cuilleenoolagh and other townlands, Co. Roscommon.

Dear Sir / Madam,

I refer to the additional information received by the Board in relation to the likely effects on

the environment of the above-mentioned proposed development. Please be advised that

the Board considers that this additional information contains significant additional data in

relation to the effects on the environment of the proposed development and it therefore

requires you in accordance with subsection 2(b) of 37F of the Planning and Development Act

2000, as amended, to:

(a) publish in one or more newspapers circulating in the area in which the proposed

development would take place a notice stating that significant additional information in

relation to the said effects has been furnished to the Board, that the additional information

will be available, for inspection or for purchase (upon payment of a specified fee not

exceeding the reasonable cost of making a copy), at a specified place and at specified times

during a specified period, and that submissions or observations in relation to the additional

information may be made in writing to the Board before a specified date, and update the

stand-alone website stating that the additional information can be downloaded, and

(b) send notice of the furnishing to the Board of significant additional information and a copy

of the additional information, to the planning authority and to the prescribed bodies stating

that submissions or observations in relation to the additional information may be made in

writing to the Board before a specified date.

In respect of (a) above the notices should be published in the same newspapers in which

notices of the original application was advertised and the additional information should be

made available for inspection or purchase at the same locations at which the original

application documentation was available. In respect of the time limits for the making of

submissions or observations in relation to the additional information to the Board under (a)

and (b) above please indicate the specified time limit for the receipt of submissions to be

not later than 5 weeks from the date of the newspaper notice. You should submit the

relevant newspaper notices and a copy of any notices issued under (b) above to

the Board as soon as same are available.

Your response to this letter should be received not later than 5.30 p.m. on the 16th August

2023.

If you have any queries in the meantime, please contact the undersigned officer of the Board

or email …@pleanala.ie quoting the above mentioned An Bord Pleanala reference number in

any correspondence with the Board.

Yours faithfully,”

116. Simultaneously the board wrote inter alia to the second named applicant informing them

that this letter had been issued:

“Wind Turbine Action Group South Roscommon c/o John Joe Kennedy

[address]

Co. Roscommon

Date: 19 July 2023

Re: Windfarm development and all associated works.

Cuilleenoolagh and other townlands, Co. Roscommon.

Dear Sir/ Madam,

I refer to the above-mentioned proposed development.

Please be advised that the Board has received specified additional information from the

applicant with regard to this case.

Enclosed for you information is a copy of the letter issued to the applicant by the Board in

accordance with the provisions of section 37(F) of the Planning and Development Act 2000,

as amended. This letter requires the applicant to publish notice of the further information

and to make same available for inspection and/or purchase. It also requires that such

notices will enable written submissions in relation to the further information be made to the

Board before a date to be specified in the notice.

If you have any queries in the meantime, please contact the undersigned officer of the Board

or email ...@pleanala.ie quoting the above mentioned An Bord Pleanala reference number

in any correspondence with the Board.

Yours faithfully,”

117. While phrased in terms of a “require[ment]”, the opposing parties accept that s. 37F(2)(b)

doesn’t given the power to the board to require the first named notice party to do anything. So

legally this purported requirement should be viewed as equivalent to a request, and the opposing

parties didn’t object to that characterisation.

118. The upshot is the board did not, as s. 37F(2) states, itself give notice of additional

information. Rather the board asked the developer to publicise the material.

119. The notice published by the first named notice party in the Roscommon Herald is

representative of the public notice given on 1st August 2023 through other means also:

“PLANNING AND DEVELOPMENT ACTS 2000 TO 2022

THE SUBMISSION OF SIGNIFICANT ADDITIONAL INFORMATION IN RELATION TO A DIRECT

PLANNING APPLICATION TO AN BORD PLEANÁLA IN RESPECT OF A STRATEGIC

INFRASTRUCTURE DEVELOPMENT UNDER REFERENCE NUMBER ABP-313750-22

Roscommon County Council

In accordance with sub-section 2(b) of 37F of the Planning and Development Act, 2000 as

amended, Energia Renewables ROI Ltd, give notice of its furnishing of significant additional

information to An Bord Pleanála for a ten-year planning permission for the following

development in the townlands of Turrock, Cronin, Gortaphuill, Glenrevagh, Tullyneeny,

Bredagh, Cuilleenirwan, Cuilleenoolagh, Curry, Milltown, Tobermacloughlin, Skeavally,

Boleyduff, Clooncaltry, Feacle, Cam, Tawnagh, Cornageeha, Pollalaher, Brideswell,

Knocknanool, Ballymullavill, Rooskagh, Bellanamullia, Cloonakille, Monksland and

Commeen, Co. Roscommon. The development will consist of the following:

I. 20 no. wind turbines with an overall ground to blade tip height of 180 metres, a rotor

diameter of 162m and a hub height of 99m, associated foundations, hardstanding areas

II. 15 no. spoil storage areas at hardstands of turbines no. 1, 2, 3, 4, 5, 6 and 7 (in the

townlands of Turrock, Gortaphuill, Cronin, and Tullyneeny) and turbines no. 8, 10, 11, 13,

14, 17, 19 and 20 (in the townlands of Milltown, Cuilleenoolagh, Cloonacaltry, Feacle and

Tawnagh)

III. Provision of 1 no. permanent meteorological mast with a maximum height of 100 metres

for a period of 30 years from the date of commissioning of the entire wind farm

IV. Provision of 1 no. 110kV onsite substation in the townland of Cam, along with associated

control buildings, MV switchgear building, associated electrical plant, associated security

fencing, and equipment and wastewater holding tank

V. All underground electrical and communication cabling connecting the proposed wind

turbines to the proposed onsite substation and associated control buildings and plant

VI. All works associated with the connection of the proposed wind farm to the national

electricity grid via underground 110kV cabling from the site to the existing Athlone 110kV

substation located in the townland of Monksland. Cabling will be placed within the public

road corridor of the R362, R363 and L2047, or on private land

VII. Upgrade works to the existing 110kVAthlone substation consisting of the construction

of an additional dedicated bay to facilitate connection of the cable

VIII. Provision of 2 no. new site accesses north and south from the R363 and upgrade of 1

no. junction south of the R363

IX. Provision of new access tracks/roads and upgrade of existing access tracks/roads X. 7

no. overburden storage areas

XI. 2 no. temporary construction compounds

XII. Site drainage works

XIII. Operational stage site signage

XIV. All associated site development works, apparatus and signage

This application is seeking a ten-year planning permission and 30-year operational life from

the date of commissioning of the entire wind farm.

An Environmental Impact Assessment Report (EIAR) and Natura Impact Statement (NIS)

have been prepared in relation to the project and accompanies this planning application.

This significant additional information, together with the original planning application

documentation, EIAR and NIS, may be inspected free of charge or purchased (on payment

of a specified fee not exceeding the reasonable cost of making a copy) during public opening

hours for a period of 5 weeks commencing on the 1st of August 2023 at the following

locations:

• The Offices of An Bord Pleanála, 64 Marlborough Street, Dublin 1, D01V902

(9:15am–5:30pm, Monday-Friday)

• The Offices of Roscommon County Council, Aras an Chonate [sic], Roscommon,

County Roscommon, F42VR98 (9:30am–1pm; 2:00pm-4:30pm, Monday-Friday)

The documentation may also be viewed/downloaded on the following website:

www.sevenhillswindfarm.ie

Submissions or observations in relation to the significant additional information may be

made only to An Bord Pleanála (The Board), 64 Marlborough Street, Dublin 1 in writing or

at www.pleanala.ie relating to:

(i) The implications of the proposed development for proper planning and sustainable

development of the area.

(ii) The likely effects on the environment of the proposed development.

(iii) The likely significant effects of the proposed development on a European site, where

applicable.

Any submissions/observations must be accompanied by a fee of €50 (except for certain

prescribed bodies). There is no fee required to make a submission in relation to those

parties/individuals who have already made a valid written submission to the Board regarding

the application. Submissions or observations must be received by the Board no later than

5.30 p.m. on the 5th of September 2023. Submissions/observations must also include the

following information:

(i) The name of the person making the submission or observation, the name of the

person acting on his or her behalf, if any, and the address to which any

correspondence relating to the application should be sent.

(ii) The subject matter of the submission or observation and

(iii) The reasons, considerations and arguments on which the submission or observation

is based in full. (Article 217 of the Planning and Development Regulations 2001, as

amended, refers)

Any submissions or observations which do not comply with the above requirements cannot

be considered by the Board.

Any enquiries relating to the significant additional information should be directed to the

Strategic Infrastructure Section of An Bord Pleanála (Tel: [no. provided]).

A person may question the validity of any such decision by the Board by way of an application

for judicial review, under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986,

as amended by S.I. No. 691 of 2011) in accordance with section 50 of the Planning and

Development Act, 2000, as amended.

Practical information on the review mechanism can be accessed under the heading

information on Legal Notices–Judicial Review Notice section of the Board’s website

(www.pleanala.ie) or on the Citizens Information Service website

www.citizensinformation.ie”

120. The first named notice party wrote to the board in the following terms on 1st August 2023:

“1st August 2023

ABP-313750-22

Re: Section 37E Application to An Bord Pleanála for a Wind Farm Development & Associated

Works, at Cuilleenoolagh and other townlands, County Roscommon, ABP-313750-22 -

Significant Further Information.

Dear Sir/Madam,

I refer to the above-noted case and the letter from the Board requesting the Further

Information lodged be advertised. I can confirm that that the Further Information has been

advertised as follows:

• The Roscommon Herald, dated 1st August 2023.

• The Irish Examiner, dated 1st August 2023.

A copy of the relevant page of each of the above newspapers is enclosed with this letter.

Site notices have also been erected across the site. A copy of this site notice is enclosed

with this letter.

The project website – www.sevenhillswindfarm.ie – has been updated with the Further

Information detail and copies of the relevant notices set out above.

I can confirm that Roscommon County Council and the Prescribed Bodies have been

furnished with a copy of the Further Information and advised of how and where submissions

can be made.

It is noted that the Board experiences significant delays in determination of cases before it,

with no decision on Strategic Infrastructure Development (wind energy) applications

undertaken since September 2022. In the context of the current climate change targets and

recent Climate Action Plan Progress reporting calling for acceleration of climate action, the

proposals offer a significant contribution to the Nation's renewable electricity targets, as fully

detailed within the application documentation.

We reiterate the zoning of the application site for wind energy within the County

Development Plan, the scale and size of the proposed development and its ability to directly

contribute in excess of 100 Megawatts of renewable energy to overall contribution targets.

We request that the Board's resources be deployed for immediate attention to this

application, particularly in the context of upcoming Commission for Regulation of Utilities

Enduring Connection Policy application connection deadlines (ECP2.4) in November 2023 as

an associated delivery mechanism

I trust the information is sufficient for your needs. Should there be anything further please

do not hesitate to get in touch.”

121. Insofar as this refers to the Irish Examiner that was an error. We will come back to that.

122. The first named notice party wrote to the council and presumably to other statutory

consultees enclosing not the notice but a copy of the July 2023 information, but not the March 2023

information. That would have naturally had the effect that the statement that the additional

information (insofar as it related to the March information) would be available in the council’s offices

wasn’t correct either.

123. The first named notice party avers that the March 2023 response to observations document,

and the July 2023 RFI response were both made available on the first named notice party’s project

website for a period including 1st August to 5th September 2023. The applicants haven’t displaced

that evidentially.

124. The first question is the extent to which the complaint is pleaded. The applicants

haven’t pleaded that they themselves were disadvantaged so the point ends there. The plea relates

to “the public” – ground 111:

“111. The Application was made pursuant to Section 37E of the Planning and Development

Act 2000 (as amended) and are required to comply with the obligations contained in Act. In

March 2023 the Notice Party allegedly submitted a 400+ page package to An Bord Pleanála

which, among other things included drawings that revised the size of the foundation of the

turbines from 15 metres to 29 metres, an increase of over 93%, a very significant increase

– an increase that could require 4 times more concrete than the original Application. The

Notice Party allegedly informed An Bord Pleanála it believed the additional information was

significant with regard to the Application; nonetheless, and despite Section 37F(1)(d)

facilitating such, An Bord Pleanála did not make the information, particulars, plans or

drawings available for inspection; did not give notice that the information, particulars, plans

or drawings were available, and did not invite further submission or observations to be made.

An Bord Pleanála denied the public the opportunity to comment on a very significant change

to the Application, in addition to denying the public the opportunity to address for the first

time other new information submitted by the Notice Party.”

125. They also say that “the community” should have had the opportunity to comment:

“110. The community was not notified of the request from An Bord Pleanála to the Notice

Party allegedly in January 2023, indeed even today the community has not seen that letter

despite searching the website of An Bord Pleanála and also visiting in-person the offices of

the Roscommon County Council. The submission raises even more questions and highlights

the need for concern as to adverse impacts to the townlands that are the subject of Planning

Application Reference Nos. ABP-313750 and 313750-22. For example, the document

purporting to be submission, available on the website www.sevenhillswindfarm.com states:

a 15 m foundation would give rise to 179,095 tonnes of CO2, and 29 m foundation will only

increase the CO2 by 107 tonnes, i.e., a 0.06% increase. While no foundation depth is

provided in the Application, and indeed cannot be because the actual turbine has not yet

been identified, assuming as an example for calculation purpose the depth of the foundation

is 12 metres, then the volume of concrete foundation with 15 m diameter and 12 m height

= 2120.58m3; volume of foundation with 29 metres diameter and 12 metre height

(assuming no additional depth for wider foundation) = 7926.24m3. Notwithstanding the

cement industry is one of the main producers of CO2, according to the Notice Party,

increasing the volume of concrete at least almost 4-fold will only increase the development’s

CO2 by 0.06%. The Notice Party fails to explain this highly questionable lack of increase

and the Inspector also fails to address it or provide reasoned conclusions as to why it is

acceptable. The community should have had an opportunity to respond to the Notice Party’s

second bite at the apple.”

126. There is also a general assertion (not a roadmap from breach to certiorari) that “prior

observers” weren’t consulted, but that is quite different to a claim of prejudice to the applicants

themselves:

“113. Furthermore, the Notice Party stated on page 3 of the submission that drawings

revising the diameter of the foundation were being submitted in response to an observation;

however, the 15-metre diameter foundation was not raised in an observation. The Notice

Party also stated in the submission on page 3 that it ‘considers the additional information on

the effect of the Proposed Development on the environment contained in this submission to

be significant and, as such, requests that the Board hold a further period of consultation in

respect of same in accordance with section 37F(2) of the Planning and Development Act

2000 (as amended).’ Despite this statement, An Bord Pleanála did not engage the

community or even prior observers with regard to the voluminous new materials.”

127. In any event insofar as the applicants were prior observers they were “engage[d] ... with”

in general terms which were intended to apply to both sets of additional material.

128. The distinction between impact on the public and impact on the specific applicant is

reinforced in numerous decisions where that difference has been pointed out and especially where

non-compliance that is pleaded to affect the public rather than the named applicants has been the

basis of declaratory relief rather than certiorari.

129. Insofar as the pleading objection is relevant here, this complaint was set out in the original

statement of grounds as issued within time, in an un-numbered sub-paragraph under ground 17:

“The Application was made pursuant to Section 37E of the Planning and Development Act

2000 (as amended) and are required to comply with the obligations contained in Act. In

March 2023 the Notice Party allegedly submitted a 400+ page package to An Bord Pleanála

which, among other things included drawings that revised the size of the foundation of the

turbines from 15 metres to 29 metres, an increase of over 93%, a very significant increase

– an increase that could require 4 times more concrete than the original Application. The

Notice Party allegedly informed An Bord Pleanála it believed the additional information was

significant with regard to the Application; nonetheless, and despite Section 37F(1)(d)

facilitating such, An Bord Pleanála did not make the information, particulars, plans or

drawings available for inspection; did not give notice that the information, particulars, plans

or drawings were available, and did not invite further submission or observations to be made.

An Bord Pleanála denied the public the opportunity to comment on a very significant change

to the Application, in addition to denying the public the opportunity to address for the first

time other new information submitted by the Notice Party.”

130. So to the extent if any that the pleading objection applied to this particular ground (and I

don’t think in fact it did), such an objection couldn’t in any event succeed because the point was in

the case all along.

131. While the applicants made a brave attempt in subsequent argument to fit themselves under

the heading of “the public”, there is a foundational distinction between a general claim of that nature

and a specific claim that one’s own rights were affected. A plaintiff in a negligence action arising

from a road traffic incident can’t rest on a general plea that a defendant’s actions caused injury to

the public; she has to plead that she was injured, how exactly she was injured, and how such injury

arose from the defendant’s wrongs. The applicants simply haven’t pleaded that they themselves

were harmed by the non-compliance by the board with the wording of s. 37F(2).

132. The board cavilled with the applicant’s pleaded ground on the technical basis that the content

of s. 37F(2) is recited in ground 111 rather than the sub-section being expressly referred to. That

is not the board’s best point. It’s acceptably clear that, by reciting the content of the section, the

section itself is being contemplated by the applicants. Acceptable clarity is the standard, not express

recital of specific statutory provisions (the same point arose, with the same conclusion, in Eco

Advocacy v. An Bord Pleanála (No. 4) [2023] IEHC 713 (Unreported, High Court, 18th December

2023) para. 39).

133. As to whether the non-compliance in any event precluded the applicants from

making submissions, the applicants’ complaint in essence that the notice should have expressly

covered both tranches of additional information and that a reasonable reader could have

misunderstood the notice as referring to only the second tranche of information.

134. But the applicants were made aware of the March 2023 information because it is expressly

referred to in the July 2023 information. Indeed, the submission made by the first named applicant

on behalf of the second named applicant of 3rd September 2023 quoted from s. 2.1.2.1 of the July

RFI response. Section 2.1.2.1 referred back to the March information, stating, inter alia:

“The results of the 2021–22 surveys were submitted with the applicant’s Response to

Observations Received in March 2023.”

135. Ms Burke attempted to comment on the applicants’ alleged unawareness of the submission

at para. 94 of the contested affidavit, but even if the affidavit had not been struck out in toto, this

particular averment is hearsay in any event.

136. Six submissions were made on foot of the notice, one of which, from Transport Infrastructure

Ireland (TII), expressly refers to the March 2023 information:

“TII notes that the Significant Additional Information comprises a report entitled ‘Response

to Observations Received’ [i.e., the March 2023 information] and applicants response to

TII’s observations on the initial application dated 6 July, 2022, as set out in Section 2.1.2 of

the Report.”

137. So both at the level of principle and in practice interested parties had the opportunity to

comment on both sets of additional information.

138. Ultimately, while the terms of the notice are sub-optimally unspecific as to the date or nature

of the additional information (a consequence of the board’s failure to decide itself on the wording of

the public notice, leaving all of that to the developer), they are sufficient to put a reasonably diligent

person on inquiry. So even if hypothetically the applicants were disadvantaged, they were not

unfairly disadvantaged.

139. We then come to the merits question as to whether there was non-compliance with

s. 37F, or in other words, is the board lawfully allowed by s. 37F to simply pass on its statutory

obligations to a private law actor by requesting them to give notice? Not only is this not what the

section says, but permissively re-writing the section to allow such a transfer of functions involves a

significant loss of public law accountability which is inherent in the section. For good measure, the

board is in a quasi-judicial position required to act even-handedly in relation to the various

stakeholders with their necessarily varying points of view. Any given developer is one interested

party, so requesting such a participant in the process to carry out statutory functions of the board

is capable of creating understandable apprehensions on the part of other participants, such as the

applicants here – apprehensions which they were diligent to articulate in oral submissions. For the

avoidance of doubt we are talking here about the optics of the situation, not actual bias.

140. While the board did ask the first named notice party to use the newspapers in which the

original application was advertised, they didn’t specify the wording of the notice or all of the details

of publication, but left the actual decisions on that – not just execution of the board’s decisions – to

a private law entity. Nor did they visibly exercise a whole lot of scrutiny over the detail. As an

example of that in the present case, the first named notice party inadvertently gave the board

incorrect information as to which newspaper it had advertised in. There isn’t any evidence that the

board even noticed the contradiction between the cover letter referring to the Irish Examiner and

the enclosure from the Irish Times until the substantive hearing of the present proceedings. Even

if someone in the board did notice this, they didn’t do anything about it. All of this illustrates that

the wording, purpose and principle of s. 37F(2) are consistent to the effect that the steps set out

are ones that the board needs to take itself, not to pass on to other actors.

141. Saying that s. 37F(2) means the board has to make the information available doesn’t mean

it has to do so on its own website, although one might say that that is probably the best way to do

so. The means aren’t specified in the section, so that is up to the board to some extent, but the

section does envisage this being something to be done by the board itself and thus being something

over which the board has control and in respect of which the board makes the decisions. The lack

of control by the board over the first named notice party’s endeavours is illustrated in a number of

respects, outlined at para. 147 below.

142. Insofar as the board informed the second named applicant that it had issued the request to

the developer, that may go to neutralising any prejudice argument but it doesn’t in itself constitute

compliance.

143. For all of these reasons I conclude that there was non-compliance with s. 37F as in effect

pleaded in ground 111. That doesn’t automatically determine the question of what relief should be

granted.

144. As to whether the non-compliance warrants certiorari, it would normally (absent an

egregious breach of law, which hasn’t been demonstrated here) be an improvident exercise of the

court’s power of certiorari to quash a decision merely because some unidentified person could

potentially have been misled as to public participation requirements.

145. There’s a significant difference between trying to quash something on the basis of breach of

objective standards – a decision contravened a development plan or a binding ministerial instrument

for example – on the one hand, and on the basis of a breach of rights on the other hand, particularly

rights of participation in the process, on the other hand. Rights generally have to be asserted by

the rights-holder, at least if the remedy is one with imperative effects such as certiorari. Merely

declaratory relief in the interest of rule of law considerations is not quite so constrained. But if the

applicants want to quash the decision on the basis of a lack of compliance with public participation

requirements, they have to firstly plead, and then evidentially show, that they themselves were

unfairly disadvantaged. It would be an improvident exercise of the power of judicial review to allow

a decision to be quashed on the basis of what would amount to an infringement of the rights of some

other party who has not moved the court for relief.

146. On that basis I think certiorari would be inappropriate.

147. As regards whether the non-compliance is one that warrants any other relief, it

seems to me that there is a clear public benefit in clarification of this issue, and formally marking it

with a declaration, especially where there isn’t anything about the situation here that provides

sufficient comfort that the problem would be rectified going forward without being marked in some

appropriate way. As noted above, I agree with the opposing parties that in the absence of prejudice

it would be inappropriate to grant certiorari on the basis of a non-compliance that didn’t affect the

particular applicants. But in all the circumstances, a declaration is a proportionate and reasonable

relief without any undue or indeed any particular impact at all on the first named notice party’s

rights, something which the first named notice party didn’t disagree with. The case for a declaration

isn’t lessened by the existence of cases in the double figures now where the board in recent years

hasn’t complied with notification requirements. Maybe the fact that this issue isn’t some sort of

meaningless side-note is best illustrated by listing the various problems here:

(i) the board didn’t itself carry out the statutory functions entrusted to it;

(ii) it purported to issue what it called a requirement under s. 37F to the first named

notice party to take various steps, but the section confers no power to issue a

requirement to an applicant for permission;

(iii) the published notice mis-spelled the council’s address;

(iv) when the first named notice party wrote back to the board as to the steps taken, it

incorrectly stated in a covering letter that notice had been published in the Irish

Examiner;

(v) the board had asked that the notice be published in the newspapers in which the

original application was advertised, so should have picked up the inconsistency

between the request and the cover letter referring to the Irish Examiner, but didn’t;

(vi) nor did the board pick up the inconsistency between the cover letter and the actual

enclosure which on its face was from the Irish Times;

(vii) when the first named notice party wrote to consultees such as the council it only

enclosed a copy of the July 2023 information, but not the March 2023 information,

contrary to the wording of the letter;

(viii) the board did not appear to pick this problem up either; and

(ix) that omission would have naturally had the effect of rendering incorrect the

statement in the public notices to the effect that the additional information (insofar

as it related to the March information) would be available in the council’s offices –

even if all other “delegation” to the developer was permissible, the one thing that

can’t be gainsaid is that the sort of making available of information that the board

has envisaged did not in fact happen due to the failure to include both sets of

enclosures with the notifications to the council and others – and such a failure to

implement the board’s decision regarding notification can’t constitute compliance

with the section on any view.

148. In the circumstances, such a cascade of problems more than warrants the non-compliance

being formally marked with a declaration. In terms of relating this to the pleadings, the basic

problem is point no. (i), which is the overarching issue pleaded. The other problems, not specifically

referred to in the pleadings, are consequences of that. So it is sufficient to focus a declaration on

the issue expressly pleaded, but one can take into account the consequential irregularities as part

of the overall circumstances and context in deciding whether relief should be granted in relation to

the pleaded headline irregularity.

149. The conclusion under this heading is that:

(i) as to irregularities falling outside the pleaded grounds, no relief should be granted;

(ii) as regards irregularities within the pleaded grounds, specifically the failure by the

board to carry out its statutory functions as pleaded at ground 111, while there was

non-compliance with s. 37F(2), no order of certiorari should be granted as the error

didn’t on the evidence and pleadings give rise to harm to the applicants such as to

warrant certiorari; and

(iii) however, the pleaded non-compliance does, in the circumstances, warrant being

marked with declaratory relief.

150. It seems to me that the appropriate declaration is as follows:

A declaration that insofar as the first named notice party had submitted further information

to the board on 31st March 2023 and 7th July 2023, the board failed to comply with its

obligation under s. 37F(2) of the Planning and Development Act 2000 to:

(i) make the information available for inspection;

(ii) give notice that the information was so available; and

(iii) invite further submissions or observations to be made to it within such period as it

may specify.

Contested amendments

151. In the light of the foregoing, I don’t need to make any actual decision on the contested

amendments to the statement of grounds because with one exception they don’t succeed anyway.

152. The only exception to that is the ground which I am upholding, namely ground 111. In that

regard, the complaint was contained in the original statement of grounds, so any pleading objection

insofar as there was one (which wasn’t very far) can’t be regarded as valid in respect of the limited

point actually being upheld.

Provisional view on costs

153. As regards my provisional view on costs, had the applicants confined themselves to the issue

on which they succeeded, the case would have taken one day rather than two days, so the

appropriate provisional order would be an order against the board for costs confined to the issue on

which they succeeded, and in particular on the basis of a one-day hearing. The costs order can

properly be between the applicants and the board alone given that the statutory obligation is the

board’s.

154. As regards the costs of the discovery and particulars motion, as noted above, the parties

seemed to prefer liberty to apply rather than having me give a provisional view.

Summary

155. In outline summary, without taking from the more specific terms of this judgment:

(i) the last-minute affidavit of Ms Burke on behalf of the applicants, in a context where

directions permitted only a reply, is so permeated with non-replying and/or

inadmissible material that it should be excluded in toto, because allowing the

applicants to comb through it mid-hearing for admissible fragments would be unfair

to the opposing parties;

(ii) in the absence of patent error on the face of the material, applicants bear the onus

of proof to demonstrate, on the basis of admissible evidence within the pleaded

grounds, that there was a flaw in the decision-making process, generally by

reference to what was before the decision-maker or breach of an autonomous

obligation;

(iii) the applicants have failed to discharge this onus generally;

(iv) in particular as regards defects in the assessments, or the alleged lack of expertise

of the board, that has to be demonstrated evidentially to the appropriate standard,

which has not been done here;

(v) the complaint of lack of particulars of the application is misconceived because any

flexibility in the design parameters of this project was not excessive, and in any

event because the change in base dimensions was an error correction, not an

expansion of the application;

(vi) insofar as concerns giving notice of and making available additional information, the

board failed to comply with s. 37F(2) in that rather than carry out the functions

thereby imposed, it purported to require the first named notice party to deal with

these statutory functions assigned to the board; and

(vii) that failure did not give rise to any duly pleaded and evidenced harm to the

applicants’ participation in the process, and in the circumstances the non-compliance

is best marked with declaratory relief rather than certiorari.

Order

156. For the foregoing reasons, it is ordered that:

(i) there be a declaration that insofar as the first named notice party had submitted

further information to the board on 31st March 2023 and 7th July 2023, the board

failed to comply with its obligation under s. 37F(2) of the Planning and Development

Act 2000 to:

(a) make the information available for inspection;

(b) give notice that the information was so available; and

(c) invite further submissions or observations to be made to it within such

period as it may specify;

(ii) the application for the remaining substantive relief sought be 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 that there be an order for costs (including the costs of written submissions

and certifying for two counsel in respect of all relevant court applications not

including the motion for discovery and particulars) to the applicants against the first

named respondent in respect of the proceedings, limited to the costs that would

have been incurred had the applicants confined their proceedings to the issue on

which they prevailed, but including in particular the costs of a one-day hearing, 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, and that there be no order as to costs for or against any other party;

(iv) as regards the motion for discovery and particulars, the parties have liberty to

provide any submissions in relation to costs within 14 days; and

(v) the matter be listed on Monday 21st October 2024 to confirm the foregoing.