The second judgment from the high court in O’Grianna & ors -v- An Bord Pleanala  IEHC 248 delivered on 16 April 2015 raises many interesting questions in relation to Irish planning law, in particular in relation to the validity of substantially incomplete planning applications and issues of fairness and justice in applying planning law.
As regular readers of this blog will note the first judgment in the O’Grianna case (O’Grianna & Ors -v- An Bord Pleanála  IEHC 632) quashed the decision of An Bord Pleanála to grant planning permission for a 6 turbine wind farm at Derragh, Ballingeary, Co. Cork. The reason for the quashing of An Bord Pleanála’s decision was that the planning application and the subsequent Environmental Impact Assessment (EIA) undertaken by An Bord Pleanála related only to the construction of the wind turbines, and did not include the necessary second phase, namely the works necessary to connect the wind farm to the national grid. Therefore an impermissible “project-splitting” had occurred thereby invalidating the decision-making process. The first judgment also confirmed that the 2006 wind energy guidelines, in particular the aspects in relation to noise limits are only guidelines and do not need to be slavishly followed by An Bord Pleanála, nor do the Board even need to give reasons for failing to follow those guidelines (discussed in previous blog post here).
This second judgment relates to an application from An Bord Pleanála to remit the wind farm planning application together with the missing grid connection element, to it for reassessment, rather than forcing the applicant for permission to recommence the planning process from the beginning. Rather surprisingly the court in a very short judgment permitted the remittal, although it has been reported by the Irish Examiner that the second court judgment shall be appealed and returns to court on 5 May 2015.
It would appear however that the court and An Bord Pleanála have significantly erred in law, by presuming that a substantially incomplete application can be kept alive in this manner, and the reversal of this judgment should be a straight forward matter on appeal.
Why is this so? Irish planning law provides that where a planning application has been validated, but on inspection of the land to which the application relates, the planning authority considers that the information submitted in the planning application is substantially incorrect or incomplete, Article 26(4) of the Planning and Development Regulations, as amended, requires the planning authority to invalidate the planning application notwithstanding the fact that it had been previously acknowledged.
It is very difficult to understand when the court, in it’s first judgment at paragraph 27, is “satisfied that the second phase of the development in the present case, namely the connection to the national grid, is an integral part of the overall development … [and] … the connection to the national grid is fundamental to the entire project“, that it can conclude that the omission of those details and the Environmental Impact Statement (EIS) related to such an integral and fundamental element of the project that the application can be considered as anything other than substantially incorrect or incomplete. Given this fundamental issue it is difficult to see that the invalid planning application can be successfully remitted to An Bord Pleanála. The Board would be required to immediately invalidate the application rather than progress it any further.
It seems that the planning authority, in this instance An Bord Pleanála, have erred in believing that they have a right to validate a substantially incorrect or incomplete application in a manner which is otherwise than in accordance with Article 26(4) of the Planning and Development Regulations.
A further point is of importance in relation to this second judgment. In the penultimate paragraph the court states that it “should decide whether or not to remit on the basis of fairness and justice.” The court goes on to consider what it believes is fair for the developer by stating that not remitting “has the potential to be wasteful in terns (sic.) of delay and cost, and this Court ought not to adopt a course which is unnecessarily onerous upon the developer.” Fairness for the local community or those who objected to the development is considered within a much narrower framework with the court merely stating that if they are dissatisfied “no doubt they will be entitled to again seek leave to challenge it, as they did before.” This of course fails to consider the time, effort and cost borne by a local community in challenging an incomplete, flawed and invalid planning application through the planning process and ultimately to the high court. It would appear that not being onerous upon a developer outweighs the heavy costs that community’s, faced with proposed wind farm developments, must bear.
This is why in this case, justice and fairness, would it seems dictate that the court apply the law as enacted and invalidate the application rather than permit remittal. Invalidating the wind farm application in this instance would also ensure that those who objected to Cork County Council initially and those who subsequently made appeals or submissions to An Bord Pleanála would have the cost of those submissions returned to them. Such a move would, to use the words of Justice Peart, put all sides back to “square one” rather than leaving a wind farm developer at an advanced stage in the planning process despite submitting an invalid planning application. The application for leave to appeal will be heard on 5 May 2015.