We have previously blogged on the O’Grianna judgments here and here. In the second post we raised the possibility that the planning application was invalid and should be declared so by An Bord Pleanála (ABP). In that post we focused upon article 26(4) of the Planning and Development Regulations (as amended), but as we shall outline below there are further planning law regulations which the application fails to satisfy. A fellow blogger and lawyer (Neil van Dokkum) who deals with the topic of wind farm planning has begun to tease out the issue of the validity of the wind farm planning application (here, here and here).
In his second blog post he has raised four interesting questions in relation to the O’Grianna case, but nevertheless argues that An Bord Pleanála has discretion in relation to the question of validity of a planning application. His third blog post on the issue takes a different view and argues that the wind farm planning application , subject of the O’Grianna case, is invalid; a point we would be in agreement with and shall illustrate why below.
By way of background to the O’Grianna case, An Bord Pleanála decided to grant planning permission for a 6 turbine wind farm at Derragh, Ballingeary, Co. Cork, to Framore Ltd on 15 November 2013, following an appeal by members of the local community against an earlier decision of Cork County Council to grant permission. The local community through 11 named individuals appealed to the high court and the court quashed the permission granted by An Bord Pleanála (O’Grianna no.1). Justice Peart concluded that “that in reality the wind farm and its connection in due course to the national grid is one project, neither being independent of the other… .”
The court held that An Bord Pleanála had “failed to carry out an EIA in relation to the overall project of which the construction of the wind turbines is only the first stage, since there is a necessary second phase, namely the works necessary to connect the wind farm to the national grid” and based on this ground the court quashed the 15 November 2013 permission which was granted by An Bord Pleanála.
From our perspective the fundamental question which now faces An Bord Pleanála, Framore Ltd (promoters/developers of the wind farm) and the local community opposed to the development is whether the high court’s second judgment is worthless or not. If as we argue the original application and EIS are joined at the hip then it is our view that the remittal question posed by Framore Ltd in a costly application to the high court is moot.
It is clear that without a valid planning application there is no need for an accompanying EIS/A and unless a developer intends to develop a site (i.e. carry out works or proposes a change of use) there is generally no need to make a planning application. For clarity section 3(1) of the Planning and Development Act (as amended) confirms that:
“development” means, except where the context otherwise requires, the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land.
While section 2(1) of the Planning and Development Act (as amended) provides that:
“works” includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.
It is abundantly clear that on their own the grid connection is works that constitute development under the Planning and Development Acts. The court does not concede that the project can be broken down for planning purposes into discrete elements. As Peart J., clearly describes “[t]he wind turbine development on its own serves no function if it cannot be connected to the national grid. In that way, the connection to the national grid is fundamental to the entire project, … .” The high court judge goes further and describes the application for phase one only (the wind turbines) as premature, in particular “in the seeking of permission for the construction of the wind farm ahead of the detailed proposals for its connection to the national grid.”
Either an overhead or an underground connection to the grid qualifies as works and can not be split from the wind farm development; it requires a planning application and given that the grid connection, in this case, is deemed integral to and must be incorporated into a wind farm application of greater than 5MW it also requires an Environmental Impact Assessment (EIA).
So what does this mean? As pointed out by Neil on his blog there are many formalities required to make a valid planning application these include:
Article 22(2)(b) of the Regulations [which] says that the [planning] application …
“shall be accompanied by:
6 copies of a location map of sufficient size and containing details of features in the vicinity such as to permit the identification of the site to which the application relates, to a scale (which shall be identified thereon) of not less than 1:1000 in built up areas and 1:2500 in all other areas, or such other scale as may be agreed with the planning authority prior to the submission of the application, in any particular case and marked so as to identify clearly:
(i) the land or structure to which the application relates and the boundaries thereof in red,
(ii) any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant or the person who owns the land which is the subject of the application in blue.
(iii) any wayleaves in yellow,” (my emphasis)
Further on, Article 22(g) (sic.) says:
“where the applicant is not the legal owner of the land or structure concerned, the written consent of the owner to make the application,”
Neil goes on to point out that the grid “connection would be over other people’s land and therefore the application would need to attach the written consent of those owners.” As we know the consents of those other landowners along the route of the grid connection were not provided as part of the planning application. It is not only in relation to landowner consents that the formalities of the Planning and Development Act and Regulations were not followed. By omitting the grid connection from the original application the site notices were deficient, the local newspaper advertisements were deficient, the plans/drawings accompanying the application – including red site boundaries – were deficient, the EIS was deficient, we could go on but the point is clear that the planning application was substantially incomplete and inaccurate in describing the proposed development.
Focusing again on the landowner consents and the issue of validity of the planning application. This is not a novel issue for the courts. The objective of article 22(2)(g) has been considered by the Irish high court previously. Herbert J., in dealing with a judicial review in relation to a Donegal wind farm planning application (McCallig v An Bord Pleanála at paragraph 67) states that:
“… the clear object of article 22(2)(g) … is to enable the planning authority to be satisfied before considering an application for planning permission that the applicant is either the legal owner of all the land or has written consent from the owner of every part of the land subject to the application because otherwise the application is invalid and should not be entertained.”
Therefore, An Bord Pleanála are to be satisfied before considering a wind farm application that the applicant for permission is either the legal owner of the land or has the written consent from the owner of every part of the land subject to the application. Herbert J., in his judgment is clear that without the landowner consents the planning application is invalid and should not be entertained.
This leaves Framore Ltd and An Bord Pleanála in an awkward position. While the court decided to allow the decision to be remitted to An Bord Pleanála “so that it can carry out an EIA in a way that reflects the findings and conclusions of this Court in its judgment”, this does not in any way answer the question of the validity of the planning application. The validity of the application was not addressed by the court.
It would be helpful if details of the application for leave to appeal hearing 7 May 2015 – taken by the local community against the second judgment – and the judgment in relation to leave to appeal delivered on 21 May 2015, and a copy of the final order issued by the court on 4 June 2015, were available for review, as a more considered opinion could then be offered. Nevertheless, it would seem to be too risky for Framore Ltd to attempt to fix an invalid application through remittal of an EIS when the option to reapply from the start is more appropriate and would provide greater legal certainty for the investors/funders of the wind farm project.
Should An Bord Pleanála attempt to validate the application, by requesting an updated EIS, we would expect the local community to challenge this through the courts and directly raising the question of the validity of the application. It seems Framore Ltd may only have won a ‘moral’ victory in the second O’Grianna judgment!