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Justices Frank Clarke and Iseult O’Malley said in their judgement that applicant Edel Grace had “standing” to appeal a 2015 judgement in which the High Court dismissed her claim against the granting of planning permission for a wind farm in Co Tipperary.
Ms Grace, together with co-applicant Peter Sweetman, has been opposing a 2014 decision by An Bord Pleanála to grant planning permission for an 16-turbine wind farm to be developed by ESB Wind Development on Coillte land in the Silvermines mountains. Their successive lawsuits have included arguments on the turbines’ impact on the hen harrier designated habitat.
Ms Grace and Mr Sweetman did not lodge objections at the time of the planning process and lost their previous case in the High Court. “According to their counsel, they were simply unaware of the proposed development until after permission had been granted,” the Supreme Court noted.
She lives less than one kilometre from the special protection area and relatively close to the site of the proposed development
Yet the judges found that Ms Grace had “standing” in the case. “She lives less than one kilometre from the special protection area and relatively close to the site of the proposed development. According to her affidavit, she chose to purchase a house in the area because of its unspoilt nature, rich biodiversity, wildlife and history,” the judges said, adding that she is involved in a number of local voluntary groups concerned with sustainable energy and tourism.
“She expresses a belief that the proposed development will jeopardise the work of these groups. In the context of a protected site and the nature of the development concerned together with its potential effect on the site we are satisfied that Ms Grace, notwithstanding the absence of participation in the permission process, nonetheless has, in all the circumstances of this case, standing.”
Amenity value (...) is not necessarily confined only to those who reside in its immediate proximity
The designation of protected hen harrier habitats in application of European measures “involves the type of amenity value which is not necessarily confined only to those who reside in its immediate proximity,” the judges added.
The Supreme Court judgement examined detailed case law on this issue and explained that establishing such standing was important because, under European law, applicants in cases of environmental law must “have a ‘sufficient interest’ in the matter ‘in accordance with the law of the member state concerned’” while also ensuring a “wide access to justice”.
The judges did not find similar compelling grounds to recognise Mr Sweetman’s standing, but decided that Ms Grace’s case was sufficient to proceed to the next stage. This involves referring the case to the European Court of Justice.
“We are of the view that not all of the issues of European law which are necessary to determine this appeal are clear and we, therefore, propose to refer certain issues of European law to the Court of Justice of the European Union,” the Supreme Court concluded.
The judges requested the European Court to proceed within the minimum time possible, acknowledging “the potential effect of any undue delay on the viability of the project”.
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