• Ireland

• General

04-10-2017

Element Power Ireland Limited -v- An Bord Pleanála [2016] 920 J.R.

Background

Element Power Ireland Limited (“the Applicant”) sought an Order from the High Court, quashing an October 2016 decision of An Bord Pleanála (“the Board”) to refuse a grant of permission to the Applicant for the development of a wind farm consisting of up to 47 wind turbines and/or a declaration that the Board acted ultra vires in refusing permission on the basis of the absence of any national wind energy strategy with a spatial dimension or of wind energy strategies at local level.

The High Court quashed the decision to refuse planning permission and remitted the refusal back to the Board for reconsideration.

One of the reasons the Board had refused permission for the proposed development was that there was an absence of any wind energy strategies at local level and, therefore, a wind farm spread over an extensive geographical area straddling the boundary between two counties would be premature pending the adoption of such strategies.

The Applicant challenged whether or not the Board could lawfully refuse consent for the proposed development on the basis that it was premature in the absence of national or local strategies effecting the sector in circumstances where there was no provision in the Planning and Development Act, 2000 (as amended) (“the Act”) which permits the Board to reject and/or defer consideration of a planning application for a wind farm development on the basis of alleged absence of national and/or local wind energy strategies.

The High Court closely considered whether or not the Board had unduly fettered its discretion in rejecting the planning application on the basis that it was premature and thereby unduly or disproportionately restricted the constitutionally protected property rights of the Applicant.

In opposing the application, the Board argued that it held a function under the Act to determine what is in accordance with the proper planning and sustainable development of the area but decisions should be “plan-led” and this, it was suggested, permitted the Board to deploy the concept of prematurity as it did.

Judge Haughton reviewed the relevant section of the Act (Section 34(2)(a)) to determine what a planning authority may consider in deciding an application for permission. The Court could not find any provision in the Act which would entitle the Board to refuse permission based on the absence of national or local strategy or policy.

The Court suggested the effect of the cited reason for refusal would be to suspend indefinitely the prospect of obtaining permission for a wind farm in the area in circumstances where the national policy development may take a number of years and there is no guarantee that it will result in a strategy with a special dimension. That, of itself, would lead to a high degree of uncertainty and confusion.

• Stephen Barry
• Partner
• +353 1 6644 284
• +353 1 6644 284

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