Minister Kelly’s announcement on Sunday 26th July of an organisational review of An Bord Pleanala to ensure that it is appropriately positioned to meet future challenges has had a mixed response.
The Bord was established in 1976 and this will be effectively the first time in its forty year history that it will have been subject to such a review. The terms of reference for the review do not in any way indicate that this review is intended to make the workings of The Bord more transparent or that the review will do anything to dispel public disquiet at how it reaches its decisions.
In subsequent media interviews following his announcement of the planned review, the Minister commented on the number of litigation proceedings taken against decisions of The Bord, but again the terms of reference give no indication as to how this review can address the reasons for that increase in litigation.
While the terms of reference comment on the increase in litigation in the area of The Bord’s work and seek measures required to address these, I cannot see any meaningful possibilities within those terms of reference that will affect change.
The level of discretion afforded to The Bord in making determinations is a serious flaw in its remit. While The Bord has played a very important role in regulating planning in its forty years of existence and it should be acknowledged that it acted as a curtailment for even worse excesses during the Celtic Tiger boom years, its role in determining applications for wind farms and how it fulfills its obligations in undertaking Environmental Impact Assessments is an issue of serious concern to many affected communities around the country.
The make up of the expert review panel gives us some hope in the appointment of Mr. Gregory Jones QC, and Dr. Aine Ryall of UCC.
Perhaps the most significant development that has occurred recently in relation to wind farm planning is the leave to appeal granted on the 20th June last to the Co. Laois Community group “People Over Wind”.
The group had initially lost their Judicial Review proceedings against the decision of An Bord Pleanala to grant permission for a wind farm in County Laois.
In granting leave for appeal Judge Haughton, recognised that the substantive issues in the case warranted a review.
The main issue that I feel is of significance is whether Article 6(3) of The Habitat’s Directive imposes an obligation on An Bord Pleanala in conducting an Appropriate Assessment to ensure that the proposed development would not have an adverse impact on the integrity of a European Site and in this instance the protected habitat and protected species of The Nore Freshwater Pearl Mussel. This species is indigenous to the limestone waters of The River Nore and roughly only 500 of its kind still exist.
The Judge raised the question as to what extent An Bord Pleanala has a duty to ascertain whether it has in its possession the best available scientific evidence on which to base its decision, whether it is permissible under The Habitat’s Directive to leave mitigation measures to be dealt with as post consent conditions in planning applications that are subject to the EIA Directive and in this instance most especially where the planning application was subject to appropriate Assessment under the provisions of The Habitat’s Directive.
He also considered the question of whether the planning Act of 2000 with reference again to Article 6(3) of The Habitat’s Directive placed an obligation in conducting an AA to ensure that the proposed development would not adversely affect the integrity of a European Site or a protected habitat or species outside the confines of the development site.
These are all very pertinent issues and it would be my opinion that the questions raised will almost certainly prompt the Court of Appeal to refer them to the European Court of Justice for consideration.
This is by far the most significant case that we have seen in relation to wind farm applications and the obligations of An Bord Pleanala in how they assess these applications in recent times.
Minister Kelly has raised concerns about the delay in The Bord determining appeals before it and I think that this case by People Over Wind will add further to the Minister’s woes and that of the wind industry in that respect.
The questions which the Court of Appeal have been asked to consider are relevant to many of the wind farm applications that are currently with The Bord and the outcome of this case will influence how the Bord must determine them.
If The Minister is concerned at the increased level of litigation against The Bord, he should consider ensuring that the work of The Bord is more transparent. He should also consider addressing the level of discretion given to The Bord in making its decisions. A level of discretion which excuses The Bord from the requirement of having to explain how those decisions were reached and what level of scientific evidence did it rely on in reaching its decision.
This review is clearly intended to speed up the processing of appeals to The Bord and does not intend to address the other serious flaws that are inherent in how it assesses applications before it and the level of information it provides to the public on how it reached its decision.
By Peter Crossan