Connelly v. An Bord Pleanala: This weeks Supreme Court Decision worth noting for wind farm Developers & Planning Authorities

Author: Elaine Traynor and Emma Marry

July 20, 2018

This week saw an important Supreme Court judgment delivered in the case of Connelly v. An Bord Pleanala. This judgment will be of particular interest to wind farm developers and planning authorities. Below we have set out a brief summary of the facts of the case and the Supreme Court’s judgment.

Summary of the Facts:

A wind farm developer (McMahon Finn Wind Acquisitions Ltd) (“the developer”) had made an application for planning permission to Clare County Council to develop a wind farm comprising six wind turbines. This application was refused by Clare County Council in July 2011. The developer appealed this refusal to An Bord Pleanala (“the Board”). The Board granted the planning permission on the 29th May 2014. A third party, Ms. Connolly, initiated judicial review proceedings challenging the grant of planning by the Board.

The High Court Decision:

The judicial review proceedings began in the High Court and, accordingly, it is necessary to set out the High Court’s findings which ultimately led to the Supreme Court appeal.

In the High Court, Ms Connolly raised four main objections in respect of the Board’s decision. These objections and the High Court’s findings in respect of each may be summarised as follows:

  1. That the Board failed to carry out and/or record any screening assessment for appropriate assessment, contrary to national and European law: In short, An Bord Pleanala contended that the statutory notice issued pursuant to Section 132 of the Planning and Development Act 2000 (“the Planning Act”) to the developer indicating that a Natura Impact Statement is required so that an appropriate assessment could be carried out does not satisfy the Board’s obligations in this regard. The High Court held that the statutory notice must also provide a reason as to why the Board has determined that the appropriate assessment falls to be done;
  2. The Board failed to carry out and/or record any proper appropriate assessment pursuant to national and European law: The Court held that the Board’s Decision did not satisfy the relevant requirements and held that the obligation on the Board as regards recording its findings and conclusions was such that “the findings and conclusions reached in its determination are sufficiently complete, precise and definitive as to enable (i) an interested party meaningfully to assess the lawfulness of that determination and (ii) a court to undertake a ready and comprehensive judicial review of same”;
  3. The Board failed to carry out and/or record any proper environmental impact assessment under national and European law: The Court again agreed with Ms Connolly and held that the Board had failed in its obligations in this regard. The Court held that the Board’s reliance upon “quite generic reasoning and a rather contrary report that relates to a different development.” meant that Ms Connolly was not given a proper understanding of why the Board had reached its decision.
  4. The Board failed to consider or have regard to its obligations under Section 37(2) of the Planning Act: The High Court rejected this objection and this ground had no relevance in the Supreme Court’s decision.

The High Court decided to quash the decision of the Board to grant the planning permission. The High Court concluded that the Board, in reaching its decision, had breached its obligations regarding the recording of the screening assessment for the appropriate assessment, the appropriate assessment itself and the Environmental Impact Assessment and held that the cumulative effect of these breaches gave rise to an order of certiorari (i.e. an order quashing An Bord Pleanala’s decision to grant planning permission).

The Supreme Court’s Findings on Appeal:

The Board then appealed the decision of the High Court to the Supreme Court.

Chief Justice Clarke in the Supreme Court made reference to the fact that it is very difficult to set exacting standards as regards the manner in which the obligation to give reasons must apply in different types of situations because the kind of decisions to which the obligation to give reasons applies can vary enormously. Chief Justice Clarke said that there were three specific areas of law to address in this regard:

  1. The criteria by reference to which a court should assess whether the reasons given are adequate in any particular case;
  2. The identification of the documents or materials which can properly be considered for the purposes of identifying the reasoning of the decision maker as part of the process of determining whether adequate reasons have been given; and
  3. The potentially separate question of whether European Union law requires, either for the purposes of an EIA or, perhaps more clearly, for the purposes of an AA, that reasons require to be given in any particular form or, importantly, whether certain express scientific findings require to be made prior to a sustainable decision occurring.

Chief Justice Clarke concluded that the high Court determination “put the matter too far” and held that whilst it agreed with the High Court’s reasoning that a party cannot be expected to trawl through a vast amount of documentation to attempt to discern the reasons for a decision, the Chief Justice did not find that it was necessary that all of the reasons must be found in the decision itself. The Supreme Court determined that the reasons may be found anywhere provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. If the search required by the observer were to be excessive then the reasons could not be said to be reasonably clear.

The Supreme Court disagreed with the High Court’s finding that the reasons for the Board’s decision could not be sufficiently identified. Chief Justice Clarke held that on the contrary, the reasons for the Board’s decision could in fact be found in the Inspector’s Report to which any interested party will have had access.

The Supreme Court held that the high Court had “imposed too exacting a standard on the Board in respect of the obligation under national law to give reasons”. The Chief Justice held that whilst the law on reasons does not permit a decision maker to engage in a simple box-ticking exercise, it also does not require a level of reasoning which goes beyond that required to afford an interested party reasonable information as to why the decision was made and whether it may be challenged. Chief Justice Clarke held that the reasoning of the Board in this case was adequate and reversed the High Court judgment in this regard.

As regards the appropriate assessment however, Chief Justice Clarke found that different considerations as to reasons apply. He agreed with the High Court’s conclusion that no reasons can be found anywhere in the materials to suggest why the Board decided that a full appropriate assessment was required. The Chief Justice concluded that the Decision could not be shown to “contain the sort of complete, precise and definitive findings which would underpin a conclusion that no reasonable scientific doubt remained as to the absence of any identified potential detrimental effects on a protected site having regard to its conservation objectives”.

The Supreme Court held that such “complete, precise and definitive” findings were a necessary pre-condition to the Board having jurisdiction to grant the permission and it had failed to make such findings. The Supreme Court therefore rejected the Board’s appeal and held that the Decision should be quashed whilst emphasising that its determination in making this order was confined to the grounds relating to the appropriate assessment as set out above.

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