Wednesday, February 5, 2020
The Supreme Court decision in Balz v An Bord Pleanála 1 highlights the importance for all public body decision makers to give sufficient reasons for their decisions.
The facts of the case relate to a planning permission by An Bord Pleanála (“the Board”) for the erection of 11 Wind Turbines. However, the principle of the judgment, concerning the obligations on public body decision makers to give reasons for their decisions, is applicable to all sectors.
The Supreme Court held that an evidence-based submission by an objector that statutory guidelines (which remain in force) are out of date is not an “irrelevant planning consideration” and that this submission should have been addressed by the Board and reasons given for not accepting it.
During the planning appeal, which primarily concerned noise issues, submissions were made by the objector appellants that the Wind Energy Development Guidelines 2006 (“WEDG 2006”) were outdated and no longer applicable due to developments in the fields of technology and science. They submitted a research paper supporting this and urged the Board to consider a 2013 Consultation Document of the Department of Environment, Community and Local Government for a Proposed Revision and targeted review of the 2006 Guidelines. The Consultation document and the research if adopted would have resulted in a lower maximum noise threshold.
The WEDG 2006 were promulgated under Section 28 of the Planning and Development Act 2000 as amended, which obliges the planning authority and the Board to “have regard to” certain guidelines made under it as distinct from Section 29 Policy Guidelines which must be followed by the planning authority.
The expression “have regard to” has been defined by the High Court as meaning to give reasonable consideration to such guidelines with a view to accommodating the objectives and policies contained therein. 2 A planning authority is not bound to comply with the guidelines and may depart from them for bona fide reasons consistent with proper planning and development. In Balz, it was argued that the Board had refused to exercise its discretion to depart from the Guidelines.
The Inspector’s report (adopted by the Board) noted the Objectors reservations regarding the WEDG 2006 but recorded that those Guidelines remain in force and that the proposed revisions set out in the 2013 Consultation Document have not yet been adopted.
The Supreme Court decided that neither the Board nor Inspector could exclude as irrelevant the argument that the WEDG 2006 were outdated, particularly when the assertion had substantial independent support from official sources.
O’Donnell J concluded the judgment with these cautionary words:
“It is a basic element of any decision-making affecting the public that relevant submissions should be addressed and an explanation given as to why they are not accepted, if indeed that is the case. This is fundamental not just to the law, but also to the trust which members of the public are required to have in decision making institutions if the individuals concerned and the public more generally, are to be expected to accept decisions with which in some cases they may profoundly disagree and with whose consequences they may have to live.”
The judgment was delivered on 12th December 2019 and is available here.
1 Balz and Heubach-v- An Bord Pleanála and Cork County Council, Cleanrath Windfarms Ltd.  IESC 90 Balz
2 Quirke J in McEvoy and Smith -v- Meath County Council 2003 IEHC 31