This is a guest post from Peter Crossan. It was originally published on the Wind Aware Ireland Blog last month and advertised on their twitter feed (see below) and facebook page but was subsequently deleted.
— @windawareireland (@windaware) February 13, 2015
In the following summary of the role of An Bord Pleanala and how it determines applications for wind farms I propose to rely on the interpretation of the Courts of that role.
The Bord being a statutory body is given its powers and its obligations under the Planning Acts and must have regard to Government Policy. While much criticised, it is my opinion that it has functioned extremely well over the many years of its existence. I have been dealing with planning across many areas for the past seventeen years with a particular interest in wind farms. I would have to say this body has conducted itself to a very high standard over those years and while it is criticised from all sections, it generally tends to get things right. Where it is found wanting as it has been on occasions by the Courts it has acted promptly to correct these deficits.
Where it comes into conflict with those of us who are opposing wind farms generally comes about through the restrictive nature of the Government’s strategic approach to the National Renewable Energy Action Plan. Recent decisions of the High Court in wind related matters include O’Grianna v An Bord Pleanala, Kelly v The Bord, and Ratheniska Judgement. Under Section 143 of the 2000 Planning Act The Bord in carrying out its functions is obliged to have regard to the Policies and Objectives of Government. This includes the Guidelines for wind Farm Development 2006, The Renewable Energy Action Plan and the Directive for the Promotion of Energy from Renewable Resources.
The presumption of the Department of Environment and National Policy is in favour of wind farm development. The Bord is allowed a discretion to approve a development notwithstanding that there may be some adverse environmental impacts if it is allowed to proceed. This however is contrasted by The Bord’s obligations in respect of appropriate assessment where adverse affects of matters conserved under The Habitat’s Directive where a development may impact on the integrity of a European Site and that site is likely to be adversely affected or where such integrity cannot be protected by modifications or attached conditions, The Bord is obliged to refuse, as in the Kelly Judgement where the Court found The Bord had not taken proper account of the AA Assessment and had disregarded the Inspector’s concerns in relation to adverse impacts on this environment.
What we have seen from the Judgement in O’Grianna is the demonstration of The Bord’s entitlement to exercise discretion and this is particularly relevant in reference to noise and noise impacts. The Court went to considerable lengths to give reason as to why The Bord are not entitled or obliged to rigidly follow and apply the Guidelines. And Secondly that there is no statutory obligation on The Bord to give reason for not following a particular Guideline even if it was the situation that they had departed from any Guidelines.
What this effectively means is that no certainty can be placed on the value of the Guidelines which were introduced in 2006 and effectively they are of course only guidelines. So we are left with a continuing situation where members of the public have no protection at all afforded to them from turbine generated noise. That is very significant and is something that can only be addressed by Government.
The Court consistently held to the view that the Planning Acts have firmly placed questions of planning and the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of local planning Authorities and The Bord these are expected to have the expertise, competence and experience to deal with planning questions. The Courts therefore are not vested with that jurisdiction nor are they expected to and therefore cannot exercise discretion with regard to planning matters.
For anyone with an interest in the comprehensive nature of how applications for Judicial Review against decisions of The Bord are reviewed by The Courts, they may find it helpful and informative to read the Judgement in Ratheniska v An Bord Pleanala, where many of the common complaints that arise in relation to planning were brought to the Court by the applicants. It should have been obvious to those taking the case that they had no grounds for taking a Judicial Review as all of their complaints had been previously ruled upon by The Courts in other cases.
The Court refused the application to quash the Bord’s decision.
The Bord is obliged as stated in the introduction to have regard to the Planning Acts and all relevant Government Policy. It must also take account of all submissions made to it and give weight to expert supported evidence. Therefore I always emphasise the necessity when making na appeal of bringing substantiated and qualified opinion to support particular contentions. As the Environmental Impact Assessment to be undertaken by The Bord will rely heavily on the applicant’s EIS. Anyone holding a contrary view must be conscious of the fact that the EIS has been prepared by qualified persons dealing with the various sections.
There is clearly a need for more transparency in how An Bord Pleanala reaches its decisions as much of the discretion enjoyed by the Bord is not subject to accountability. This is not commonly understood and the only people who can change that are the politicians.
by Peter Crossan
The O’Grianna judgment can be found here – O’Grianna & Ors -v- An Bord Pleanála  IEHC 632
The Ratheniska judgment can be found here – Timahoe & Ors -v- An Bord Pleanála  IEHC 18