Irish court overturns windfarm permission following challenge

Mr Justice Humphreys upheld a challenge taken against An Bord Pleanála’s (the Board) decision to grant planning permission to Bord na Móna PowerGen Ltd, a subsidiary of Bord na Móna, for the proposed development, at a former peat production bog near Lanesborough in County Longford.

The judgment has made a big impression within the energy industry, with particular concerns raised regarding the potential implications of the decision for onshore windfarm developments. The margin of flexibility applied by the Board in planning decisions had been viewed by the industry as a pragmatic recognition of the need to make provision for the rapid pace of technological change. The High Court is now proposing that the Board adopt a much more rigid position, which may not adequately reflect commercial realities on the ground.

In particular, there is a concern that if an inflexible approach is adopted by the planning authorities going forward, this could render wind developments more expensive and so less attractive to companies considering Ireland as a location in which to locate renewable energy developments.

The Board now has the option to seek to have the judgment reviewed by the Court of Appeal. Companies operating in the industry will be closely watching future developments.

Design particulars vs ‘design envelope’

The planning permission was challenged by a prominent environmentalist, Peter Sweetman, with the process being alleged to be deficient in the number of respects. Sweetman argued that the plans and particulars lodged by the applicant in respect of the turbines had no detail in terms of their design relative to their particular siting and were completely inadequate. The proposed turbines are among the largest, if not the largest, series of structures ever to be constructed in Ireland.

The Board, in its submissions to the Court, accepted that:

• ‘typical’ aspects of the development were given, rather than precise details; and
• it was effectively agreed that the application was for a ‘design envelope’ rather than for a construction of specific dimensions.

The critical issue for the judge related to the absence of adequate detail in the planning application submitted to the board. In particular, Sweetman claimed that the Board erred in law by accepting an application without the appropriate level of detail in respect of design contrary to EU law and the domestic Planning and Development Regulations 2001 (the Regulations).

The court referred to article 214 of the Regulations which requires that, when making an application for a strategic infrastructure development, the applicant must send the Board copies of the “plans and particulars of the proposed development”. It concluded that a widely variable design ‘envelope’ could not constitute a “plan” for the purposes of this provision. The court also dismissed the argument that this lack of detail was compensated for by the Board assessing the application on the basis of the ‘worst case scenario’ as this was a “hopelessly subjective” approach.

The court accepted that the law permits “parameters relating to the construction phase” to be determined at a later stage in the planning process, following the Court of Justice of EU’s decision in Holohan v An Bord Pleanála in 2018; and that this, by definition, incorporates “a certain limited degree of flexibility”, as acknowledged by the Irish court in Boland v An Bord Pleanála in 1996. However, this was qualitatively different from the present case, where “no specific dimensions are provided other than a maximum, and no specific designs are provided other than what is typical”.

At the heart of the case was the clear question of whether Irish planning law envisages the outer contours of what the Board described as the “well-known” concept of the ‘Rochdale envelope’ – a term used to describe an application for development consent that is of variable dimensions up to a specified maximum. The concept had not been the subject of previous judicial consideration in Ireland but had been considered, and broadly accepted, by the courts in England earlier this year, in a challenge to the Norfolk Vanguard offshore wind project.

However, the court did not find the Norfolk Vanguard decision to be persuasive precedent. The facts in that case were “a world away” from those before the Irish court for a number of reasons, including: the concept of the design envelope has a written basis in English law, in national guidelines; the design envelope in that case was not simply assessed by reference to a ‘worst case’ scenario alone but by wider parameters and considerations; and the original case from which the principle developed involved an industrial park, and as such the design could only take shape as different businesses moved in and occupied different units.