The Proper Approach to 'Have Regard To' Guidance

Departing from Guidelines “to a greater or lesser extent”

A recent judgment, and another to which it refers, are instructive as to the correct approach by planning decision-makers to 'have regard to' guidance. I consider that the approach outlined will survive the commencement of the Planning and Development Act 2024.

The Court Decisions in Nagle and Balz

Nagle View Turbine Aware Group v An Bord Pleanála [2024] IEHC 603 (Judgment 1 November 2024) was a challenge to the Board's SID permission (308885 9 November 2023) for a 22 turbine wind farm approximately 12km south-east of Mallow and 10km south-west of Fermoy (about 20km north of Cork City Centre). The gravamen of the challenge was that the Board had slavishly adhered to the Wind Energy Development Guidelines 2006 (“the WEDG”) which, although still in force, are widely seen as outdated and which 'slavish' approach led to the quashing of a wind farm permission in Balz and Heubach v An Bord Pleanála [2019] IESC 90.

Balz was a challenge to the Board's permission (308244) for an 11 turbine wind farm in west Co Cork on a joint Third/First Party appeal from a Cork County Council permission for six turbines. The application for Judicial Review was dismissed by the High Court and leave to appeal was refused. The Supreme Court granted leave to appeal on one issue, namely the correct approach by decision-makers to the WEDG (para 3). The Supreme Court held that the Board had considered itself bound by the WEDG and failed to consider the Applicants' argument that they were not so bound.

Analysis of Balz

The WEDG were issued under s28(1) of the Planning and Development Act 2000 (“PDA 2000”). Nothing in this post relates to 'guidance' – specific planning policy requirements (SPPRs) - issued under s28(1C) PDA 2000 with which planning authorities and the Board “shall” comply and in respect of which the position is entirely different from that described here.

In Balz, before the Board, the Applicants made what the Supreme Court described as a “comprehensive challenge to the approach of the Board in respect of wind turbines” (paras 11/14). In short, it was said that the WEDG were outdated.

It was common case in Balz that the Board was obliged to “have regard” to the WEDG 2006 (para 4). The question in Balz was not whether or not the Board should have regard to the Guidelines (that's clear from s28(1) PDA 2000) but whether such “regard” includes the possibilities of;

• following the WEDG with more or less rigour, or not at all, and/or

• having regard in addition to other (more recent) scientific evidence

The Supreme Court held that 's28 regard' does include such possibilities.

In Nagle the question was whether the Board had discharged the obligation established in Balz (see Nagle, end of para 1).

Analysis of Nagle

In Nagle, the circumstances were said by the Applicant for Judicial Review to be similar to those in Balz. Indeed, Humphreys J colourfully characterised the Applicant's description of Nagle as “Balz II: The Groundhog Rises” (para 1).