Category Archives: Judicial Review

Minister concedes to setback and zoning for wind farms in Donegal

In the end Minister Coveney skulked out of the legal hearings which would have tested his powers under section 31 of the Planning and Development Act to overturn the democratically passed variation no. 2 to Donegal County Development Plan, dealing with wind energy development.

Councillor John Campbell who took the legal challenge announced the end of this, his second successful foray in the courts against a Ministerial direction, on twitter, where he also highlighted the extent of the shameful delaying tactics of the Minister and his Department:

What is notable is that when tested neither the Minister nor his Department were able to open any documents or arguments in support of their position in court, they merely used the section 31 process to delay the effective date of the variation passed by Donegal County Council.  This has meant that for 3 years local residents and the receiving environment have been exposed to unnecessary risk and unwarranted expense in order to defend the peaceful enjoyment and amenity of their homes and to ensure that their (and your) environment is not subjected to unsustainable wind farm development.

As a reminder the primary elements of the variation as passed see:

  • the designation of Areas of Fresh Water Pearl Mussel (FWPM) including the catchments identified in the Sub-Basin Management Plans for Clady Eske, Glaskeelin, Leannan, Owencarrow and Owenea (as listed in S.I. 296 of 2009) as not favoured for wind farm development;
  • the inclusion of an objective to ensure that wind energy developments do not adversely impact upon the existing residential amenities of residential properties, and other centres of human habitation (*‘Centre of Human Habitation’ includes schools, hospitals, churches, residential buildings or buildings used for public assembly’); and
  • the establishment of a set back distance of ten times the tip height of proposed turbines from residential properties and other centres of human habitation.

Councillor Campbell had last year successfully obtained an order of the high court quashing a 2014 Ministerial Direction made by then Minister Alan Kelly.  We have blogged extensively on the background to Variation no. 2 (here, here,here), the subsequent section 31 Direction issued by Minister Kelly (here,here), Cllr Campbell’s successful first court challenge; the subsequent report by the Inspector (Hendrik van der Kamp) appointed by Minister Coveney , and the granting of leave to Councillor Campbell for a second court challenge.

In this regard it is important to note that Inspector van der Kamp found in his report that:

  • Donegal County Council did not ignore or take insufficient account of the submissions made by the Minister in May 2014;
  • Variation no. 2 did not significantly impact on the internal coherence of the County Development Plan; and
  • Variation no. 2 did not make the County Development Plan inconsistent with national and regional policies or targets

Furthermore it is also important to note that the Minister and Department were also in possession of the RPS modelling on wind farm planning and yet decided to push through with a direction which failed to protect the Freshwater Pearl Mussel and blocked safe setbacks from homes.

This seemingly irrational behaviour of supporting wind farm development despite the evidence base to the contrary was also mirrored by Mr. Seamus Neely, Donegal County Manager who shocked observers with his submission on the van der Kamp report (see: Neely to DHPLG – S.31 Draft Direction – 1 Sept 2016).  In contacts with us, many have questioned his judgement and future credibility when it comes to wind farm planning, in particular as Donegal County Council is grant aided under the European Union’s INTERREG IVA Programme to protect the Freshwater Pearl Mussel and have prepared draft guidance on the interaction with wind farm as far back as 2014 (see: fwpm draft windfarm guidance 2014).  Ignoring such strong evidence based guidance to promote the wind industry raises many, many questions.  These are issues we will return to in further blog posts.

For now, congratulations to Councillor Campbell and the many who assisted in the background and foreground, in particular the Glenties Wind Farm Information Group (GWIG) and Mr. Peter Crossan, who together with Councillor Campbell have delivered both evidence based zoning and safe setbacks for the people of Donegal.

For those interested the high court references for the two cases are:

  • Campbell -v- Minister for Housing Planning Community and Local Gov 2016/976 JR; and
  • Campbell -v- Minister for Environment, Community & Local Gov 2014/712 JR.
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Cllr Campbell sends Minister’s s31 windfarm direction back to court

It’s groundhog day for windfarm planning in Donegal.  Cllr John Campbell has once again been granted leave by the high court to challenge a section 31 Ministerial Direction issued to Donegal County Council, by Minister Simon Coveney on 6 October 2016, in relation to Variation no. 2 to the Donegal County Development Plan 2012 – 2018 (as varied).

As a reminder the primary elements of the variation as passed would see:

  • the designation of Areas of Fresh Water Pearl Mussel (FWPM) including the catchments identified in the Sub-Basin Management Plans for Clady Eske, Glaskeelin, Leannan, Owencarrow and Owenea (as listed in S.I. 296 of 2009) as not favoured for wind farm development;
  • the inclusion of an objective to ensure that wind energy developments do not adversely impact upon the existing residential amenities of residential properties, and other centres of human habitation (*‘Centre of Human Habitation’ includes schools, hospitals, churches, residential buildings or buildings used for public assembly’); and
  • the establishment of a set back distance of ten times the tip height of proposed turbines from residential properties and other centres of human habitation.

Cllr Campbell had earlier this year successfully obtained an order of the high court quashing a 2014 Ministerial Direction made by then Minister Alan Kelly.  We have blogged extensively on the background to Variation no. 2 (here, here, here), the subsequent section 31 Direction issued by Minister Kelly (here, here), Cllr Campbell’s successful first court challenge and the acceptance by the Inspector (Hendrik van der Kamp) appointed by Minister Coveney that:

  • Donegal County Council did not ignore or take insufficient account of the submissions made by the Minister in May 2014;
  • Variation no. 2 did not significantly impact on the internal coherence of the County Development Plan; and
  • Variation no. 2 did not make the County Development Plan inconsistent with national and regional policies or targets

The other issue to note in relation to this ongoing battle for Donegal’s sovereignty in terms of proper planning and sustainable development of the County is the reliance placed by Minister Coveney, in giving reasons for his direction, on what he accepts is the non-mandatory guidance provided by the s28 wind energy guidelines.  Many planning and legal observers were surprised by Minister Coveney reissuing a section 31 direction to Donegal particularly given that the 2006 Guidelines are accepted by Minister Naughten as being unfit for purpose and that they remain in place without a Strategic Environmental Assessment as required by EU law.

The high court reference for the case is, Campbell -v- Minister for Housing Planning Community and Local 2016/976 JR and it returns for mention on 17 January 2017.


Donegal: Ministerial windfarm direction quashed

Details are beginning to emerge of the settlement reached by Cllr. John Campbell and the Department in relation to the quashing of the s31 Ministerial Direction issued by Minister Alan Kelly in October 2014 (see previous blog posts; here, here & here).  We understand the high court has approved and issued a number of orders including:

An order of certiorari quashing the County Donegal Development Plan 2012 – 2018 Directive 2014 (“the direction”) of 3 October 2014 issued pursuant to section 31 of the Planning and Development Act 2000 (as amended) on the ground pleaded at (e) 5 of the statement of grounds of December 2014, namely that the respondent erred in failing to provide adequate reasons in the final direction of the 3rd October 2014 which would provide interested members of the public with a sufficient justification for the decision and determination.

An order pursuant to Order 84, rule 27(4) of the Rules of the Superior Courts remitting the matter to the Minister with a direction to reconsider it and to reach a decision in accordance with the findings of the High Court.

An order directing the Minister to pay the applicant’s legal costs of the judicial review proceedings, such costs to be taxed in default of agreement.

Cllr. Campbell and the Department have also agreed that, following the quashing of the s31 direction, it is appropriate that the matter should be remitted to the Minister to the stage of the statutory process where the Minister is entitled to appoint an inspector pursuant to section 31(11) of the Planning and Development Act 2000 (as amended).  Under the terms of the settlement the Minister has until 31 July 2016 to appoint an Inspector.  Failure to do so by that date means the Department can no longer prevent Variation no.2 of the County Development Plan as passed by the elected members being enforced.  As a reminder the primary elements of the variation as passed see:

  1. the designation of Areas of Fresh Water Pearl Mussel (FWPM) including the catchments identified in the Sub-Basin Management Plans for Clady Eske, Glaskeelin, Leannan, Owencarrow and Owenea (as listed in S.I. 296 of 2009) as not favoured for wind farm development;
  2. the inclusion of an objective to ensure that wind energy developments do not adversely impact upon the existing residential amenities of residential properties, and other centres of human habitation (*‘Centre of Human Habitation’ includes schools, hospitals, churches, residential buildings or buildings used for public assembly’); and
  3. the establishment of a set back distance of ten times the tip height of proposed turbines from residential properties and other centres of human habitation.

Congratulations to Cllr. Campbell: who originally introduced the Variaiton no.2; who during his time as Cathaoirleach shepherded it through the Council chamber; and despite the risk of significant costs stuck to his principles in taking the case to the high court to uphold the democratic decision taken by our elected County Councillors.

What next?

The issue now returns to the Minister’s desk for review and there is in our eyes little basis to justify the appointment of an inspector following this court reversal.  However given that successive planning (environment) ministers appear to be in the pocket of the wind industry it is always possible that Minister Coveney (like his predecessor Alan Kelly) may bend with the wind!

 


Francis Clauson: Challenging the implementation of a planning permission

Guide-to-planning-enforcement in Ireland

This is a guest post from Francis Clauson.  He has the misfortune of living next door to a multiple wind farms and has many years experience in trying to engage with his local authority to enforce noise conditions related to the wind farm’s planning permission.  You can also follow him on twitter @fclauson.

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The Planning and Development Act 2000 (PDA), as amended, has a number of options where a member of the public can challenge the implementation of a planning permission without necessarily going through the rigours and vast expense of a court case.

All planning permissions once decided comes with a set of planning conditions which need to be complied with. In the event that any of the conditions are either breached or not complied with then any member of the public can make a complaint to the appropriate local authority who, under Section 152 of the PDA, must, upon consideration, write a “Warning Letter” and follow this up with appropriate investigation to determine if a development is fully complying with the laid down planning conditions.  This provides an effective method of engaging with the planning process post determination.  Despite my own experiences in this matter where investigations have far exceeded the targeted 12 weeks dead line outlined in the PDA any LA investigation which does not confirm full compliance with a grant of planning and its conditions following a complaint leaves a defect on the planning permission and the associated development until the matter is resolved.  This might have financial or re-sale implication for the development and would be something most developers would want to resolve quickly.

Writing a letter to the Local Authority is a simple but effective way of asking the planning authority to pursue the matter of a potential breach on your behalf.  Importantly it costs nothing.   Obviously vexatious or unsubstantiated complaints will not be tolerated so always stick to facts in your letter and provide as much evidence to back up you argument as possible.  A useful guide can be found here (PDF).

Section 5

A second way of engaging with the planning process is where you believe the planning process has been circumvented.  Specifically where a developer believes an aspect of a development is an “exempt development”.  In this instance you can ask the Local Authority under Section 5 of the PDA to make a determination if a development is an exempt development or not.  Many of the wind farm developments have been built without proper planning for the grid connection.  In the O’Grianna case the judge made it clear that the grid connection forms part of the “development” which needs to be subject to the rigours of the EIA process and there for cannot be an exempt development.  This is picked up in PDA 2000 Part 1(4)(4)

Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.

(emphasis added)

Section 5 determinations cost a small fee of €80.  A useful guide can be found here and Dublin City Section 5 advice (other councils have similar guides) although most of these are written where developers are seeking confirmation that an exemption applies.

As an example, the Kilvinane Wind Farm Limited development asked Cork CC for a determination over the matter of turbine size/output/location.  This was appealed to An Bord Pleanála who determined that such a change in particulars from the original planning application was material and as such the development was a development and it was not exempt.  The An Bord Pleanála determination is here.

This determination effectively made the development an unauthorised development but there is a “get out of jail card” following the European Commission v Ireland Case C‑215/06.  Using Section 177C of the PDA the developer applied for a Substitute Planning Consent.  The first stage is to request permission to apply for substitute planning, to An Bord Pleanála, and the report for this can be found here.  What is useful is the inspector’s report (PDF) which laid out how the test for “exceptional” circumstances might be assessed.  It’s only in such circumstances that 177C can be called upon.  Part X of the planning act which contains 177C was added following CJEU Case C‑215/06.

Kilvinane subsequently applied for substitute consent (here) and the decision is due on 25 February 2016.  What is interesting about this case is that the developer made the decision themselves to apply for substitute consent under 177C because, I assume, they did not want a defect left on the development effecting future re-sell/financing matters.  It is not clear what would have happened if the developer had not as the wording of 177B has not been tested in court (to my knowledge).  It’s my understanding the local authority would have no choice but to pursue under Section 160 of the PDA as an unauthorised development because 177B does not offer a route to enforce a 177B request without a court order to do so.

A note on Section 160 (enforcement):

  • the local authority can only pursue a development under this section for the first 7 years following the commencement of the development.  Once 7 years is up then the local authority is powerless to take action.
  • a member of the public can take a Section 160 at any time but I would suggest you read the Derrybrien Supreme Court judgment to show the level of latitude the court can take in agreeing with a plaintiff.

In terms of Section 5 referrals it’s worth considering and taking a look at 6 wind farm related referrals currently under consideration by An Bord Pleanála:

Investigation by the Commissioner for Energy Regulation (CER)

A separate approach is that any generator who is operating over a grid connection which does not have the benefit of planning would be exposed to investigation by the Commissioner for Energy Regulation (CER) although to date there is little evidence of them taking a rigorous approach to this as they have generally offloaded the onus of invalid or incomplete planning permission to local authorities.

This needs to be addressed as a key tenet of the generation licence is compliance with both European and Irish planning and environmental law.  This obligation for the CER to enforce its licence can be found in the Electrical Regulation Act 1999 (as amended) where it sets out clear requirements for the CER, including under Section 9(5):

(g) to grant, monitor the performance of, modify, revoke and enforce licences and authorisations pursuant to this Act,

Conclusion

Members of the public should ensure the use every avenue possible to insist that any development complies with its laid down planning conditions.  In summary the options open to make a challenge are:

  • Submission at time of planning to local authority;
  • Appeals and submissions to An Bord Pleanála;
  • Judicial Review where there is a belief An Bord Pleanála have failed to be rigorous in their duties;
  • Section 152 complaints to local authorities if any planning conditions are not complied with;
  • Section 5 determinations request where parts of development have circumvented EIA processes; and
  • Letters to CER asking them to confirm that a generation licence is being complied with.

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Last updated: 10 January 2016

We are also aware of the high court cases in relation to the Kilvinane wind farm.  In our wind farms in the Irish courts 2015 blog we advise:

Kilvinane Wind Farm limited v An Bord Pleanála 2012.129 JR, appears to be on hold awaiting outcome of appeal of Bailey -v- Kilvinane wind farm Ltd [2014] IEHC 509, under supreme court reference 491/13.

 


Wind farms in the Irish courts during 2015

Courts logo

Following on from the very popular post of last year (see here), we have attempted to draw together details in relation to wind farm related cases in the Irish superior courts during 2015.  One notable point is that there have been very few new cases begun in 2015.  This is due to the fact that An Bord Pleanála is in a state of near paralysis when it comes to wind farm applications, with very significant delays the norm (in July 446 turbines were awaiting a decision).  The table below gives you an idea of the dramatic halt placed on wind farm approvals, in particular the number of wind turbine planning approvals by An Bord Pleanála in 2015:

Outcome 2014 2015
Granted 120 10
Refused 76 115
Withdrawn 5 19

*the 2015 figures relate to decisions published by An Bord Pleanála at week 51.

In 2014 almost 75% of the 120 turbines granted permission (89) ended up being challenged in the courts.  In 2015 just 10 turbines have been granted permission and the only wind farm planning high court case commenced is Sweetman -V- Mayo County Council & PWWP Developments Ltd 2015/359 JR, which deals with the extension of permission granted by Mayo County Council.  Nevertheless it is important to recognise that the legal challenges are directly impacting An Bord Pleanála and the legal issues raised have dramatically slowed the wind farm planning process.

Below is a short synopsis of wind farm related cases: (i) awaiting judgment; (ii) awaiting hearing; and (iii) judgments delivered in 2015.  There are further wind farm related cases which were listed/mentioned in the courts in 2015, sadly for these we have no detail, these are listed at the end of the blog post.  If any readers wish to furnish details for publication this may be facilitated.

Awaiting hearing

Supreme Court

People Over Wind & Anor -v- An Bord Pleanala

We understand that People Over Wind have on 22 December 2015 lodged an appeal petition to the Supreme Court following the judgment of the Court of Appeal.  Further details on the Court of Appeal and High Court judgments are contained in the judgment delivered in 2015 section below.  This case relates to Coillte’s proposed 18-turbine Cullenagh wind farm in Co. Laois and is taken by local groups People Over Wind and Environmental Action Alliance.  We have no detail on the point of law questioned and it should also be noted that there is no guarantee that the Supreme Court will accept the appeal and figures for 2015 show that the majority of leave to appeal applications are refused (see also Callaghan below).  We have no date for hearing to report.

Court of Appeal

Callaghan -v- An Bord Pleanala & Ors 2015/500-CoA

This case relates to a current An Bord Pleanála application by North Meath Wind Farm Ltd in relation to a proposal develop the Emlagh 46-turbine wind farm.  Further details on the High Court judgments are contained in the judgment delivered in 2015 section below.  The question certified for appeal:

Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in the light of Sections 50(2) and 143 of the Planning and Development Act 2000 such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to Section 37A of the Planning and Development Act 2000.

In other words: do the public have a right to be heard/participate in SID pre-application consultations?  Mr. Callghan had sought to leapfrog the Court of Appeal and to have this question dealt with by the Supreme Court but this was refused on 15 December 2015, Callaghan -v- An Bord Pleanála & ors [2015] IESCDET 60.  We have no date for the Court of Appeal hearing to report.

High Court

Sweetman -V- Mayo County Council & PWWP Developments Ltd 2015/359 JR

In this case Mr. Peter Sweetman has brought a challenge against Mayo County Council’s decision to extend the duration of planning permission for a 12 turbine wind farm.  It is claimed that the council’s decision to extend the planning permission, granted to PWWP Developments Ltd, in respect of a wind farm at Maheramore Co Mayo should be quashed, on grounds including that no proper Environmental Impact Assessment (EIA) or Appropriate Assessment (AA) were carried out in respect of the proposed development when permission was originally sought in 2010.  The case returns for mention on 12 January 2016.

Ardragh Wind Farm Limited -v- An Bord Pleanala 2014/518 JR

This case is an appeal by the developer Ardragh Wind Farm Limited against An Bord Pleanála’s refusal of the proposed development of 5-turbines near Bantry, Co. Cork under application reference 240461: Ardrah, Kealkil, Bantry, Co. Cork. (11/318).  The case is listed for mention before the high court on 19 January 2016.

Connelly -v- An Bord Pleanala & Ors 2014/488 JR

According to the Clare Champion this case is being taken by a representative of the Coore/Shannaway Residents Group against An Bord Pleanála’s grant of permission for a 4-turbine wind farm under application reference 239378: Coor West, Shanavogh East and Shanavogh West, Co. Clare. (11/360).  The case is listed to begin hearings before the high court on 19 January 2016.

Campbell -v- Minister for Enviroment, Community & Local Gov 2014/712 JR

This case relates to a challenge taken by Mayor of Donegal, Cllr. John Campbell against a section 31 direction from the Minister for Environment.  The direction sought to overturn variation no. 2 to the Donegal County Development Plan (2012-2018) (as amended).  The variation had set a 10 times setback distance from wind farms to homes and zoned 6 Freshwater Pearl Mussel catchments as unfavoured for wind energy development.  The Donegal News reported on the initial application to take the judicial review here.  The case is listed for hearing beginning on  22 January 2016.

Awaiting delivery of judgment

Balz v An Bord Pleanála 2013/450 JR

An indicative date of 12 February 2016 for delivery of judgment is listed on courts.ie.  This case relates to permission granted by An Bord Pleanála for an 11-turbine Cleanrath wind farm, in Cork, under application reference 240801: Cleanrath North and South, Derrineanig, Macroom, Co. Cork. (11/5245).  The case was heard, over 5 days during 2014, by Mr. Justice Barton.  The Irish Examiner reported on the initial application for leave to seek a judicial review in June 2013.

Swords -v- Minister for Communications, Energy and Natural Resources & Ors 2013/4122 P

This case is taken by Mr. Pat Swords who is challenging the legality of Ireland’s National Renewable Energy Action Plan (NREAP) which it is claimed was introduced otherwise than in accordance with the requirements of article 7 (public participation) of the Aarhus Convention.  The NREAP is used to underpin REFIT support for wind farm development and by An Bord Pleanála in justifying many planning decisions in relation to wind farm developments.  Mr. Swords is also seeking a declaration from the high court that this funding and related planning permissions for wind farms are unlawful.  The Irish Examiner reported on the case here.  Eva Barret’s article published in the Journal of Energy & Natural Resources Law (Vol.33 Issue 1, 2015) ‘In sowing the wind, how Ireland could reap the whirlwind’ – a case against Irish wind development(s), provides a good overview of the issues raised.

The hearings for this case took place during 2015 but judgment has been deferred on a number of occasions and is now listed for 4 March 2016.

Carroll & Ors -v- An Bord Pleanala 2014/475 JR

This case relates to the proposed 29-turbine Yellow River wind farm near Rhode, Co. Offaly.  The case was taken by members of the Rhode Parish Wind Turbine Action Group and Mr. Peter Sweetman.  RTE News reported on the original application for leave to seek judicial review.  The An Bord Pleanála reference for this strategic infrastructure development application (SID) is –PA0032: Rhode, Co. Offaly. The case was heard over 4 days of hearings beginning on 10 March 2015.  Judgment was reserved and no date is listed for judgment.

Judgments delivered in 2015

Ratheniska Timahoe & Spink [RTS] Substation & Ors -v- An Bord Pleanala 2014/340 JR

This case related to efforts of the small farming community, in Ratheniska, Co. Laois, who were trying to prevent EirGrid, the Irish state owned electricity transmission operator, from constructing a 400/110 kV electrical substation in their area.  An Bord Pleanála had granted permission for the project following an oral hearing.  The Save Ratheniska blog provides great detail on the planning process.

The case was heard in November/December 2014, and judgment delivered 14 January 2015, see Ratheniska Timahoe & Ors -v- An Bord Pleanála [2015] IEHC 18.  The court refused all grounds of appeal, finding no defect in the AA/EIA process.  The Leinster Express reported on the shock in the local community when the case was lost (here).  There has been much commentary on this decision and the ‘vexed’ issue of costs which An Bord Pleanála legitimately used to their advantage to hold off an appeal, this blog post (link here) gives a decent overview of those issues.  We also posted some commentary from Peter Crossan on the judgment here.

Callaghan -v- An Bord Pleanala & Ors 2014/647 JR

This case relates to a current An Bord Pleanála application by North Meath Wind Farm Ltd in relation to a proposal to have a 46-turbine wind farm declared a strategic infrastructure development (SID).  The An Bord Pleanála reference for the subsequent planning application is PA0038: Co. Meath.  Mr. Callaghan claimed that the SID process is fundamentally unfair and prejucdicial as by “bypassing the normal planning process means the developer has plenty of opportunity to meet any concerns of the board while he, a person of limited resources, has just one opportunity to deal with matters within a specified time scale.”  The meathwindinfo blog provides links to some affidavits and other particulars in relation to the case.

The first judgment issued in this case refused Mr. Callaghan a protective costs order and also refused discovery of certain documents, see Callaghan -v- An Bord Pleanála & ors [2015] IEHC 235 (delivered 20 February 2015).  On the substantive issue, that is the nature of the decision taken by An Bord Pleanála on s37 SID applications, the court refused to accept that the EIA directive was engaged, or that such a decision predetermined planning/EIA matters in a determinative manner, or that the s37 SID process engaged rights to fair procedure, including public participation.  The court also refused an application to make a preliminary reference to the Court of Justice of the European Union.  Judgment was delivered on 11 June 2015, see Callaghan -v- An Bord Pleanála & ors [2015] IEHC 357.

Mr. Callaghan sought leave to appeal (to the Court of Appeal) and this was granted on 24 July 2015, Callaghan -v- An Bord Pleanála & ors [2015] IEHC 493.  The issue of costs for the initial trial was deferred pending the outcome of the appeal, see Callaghan -v- An Bord Pleanála & ors [2015] IEHC 618 (delivered 12 October 2015).  Mr. Callghan had sought to leapfrog the Court of Appeal and to have this appeal question dealt with by the Supreme Court but this was refused on 15 December 2015, Callaghan -v- An Bord Pleanála & ors [2015] IESCDET 60.  We have no date for the Court of Appeal hearing to report.  At the time of writing no decision had been made by An Bord Pleanála on the Emlagh wind farm planning application.

People Over Wind & Anor -v- An Bord Pleanala 2014/487 JR

This case relates to Coillte’s proposed 18-turbine Cullenagh wind farm in Co. Laois and is taken by local groups People Over Wind and Environmental Action Alliance.  An Bord Pleanála reference for the application is – 242626: East of Ballyroan Village/Southwest of Timahoe Village, Co. Laois. (13/268).  The Leinster Express reported on the application for leave to take judicial review proceedings.  On 1 May 2015 the high court refused to quash An Bord Pleanála’s decision to grant permission for the wind farm, see People Over Wind & anor -v- An Bord Pleanála [2015] IEHC 271.  There were numerous grounds challenged and the court refused to entertain new grounds raised at hearing.  On 11 June 2015, the court refused to amend its decision see, People Over Wind & anor -v- An Bord Pleanála & ors [2015] IEHC 356 and on 19 June 2015 the court certified three questions for appeal to the Court of Appeal, see People Over Wind & anor -v- An Bord Pleanála & ors [2015] IEHC 393.

On appeal the court rejected all points raised in relation to; (i) best scientific knowledge (applicants had argued best scientific evidence); (ii) the Sweetman test with respect to having ‘complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned‘, in this case the Nore Freshwater Pearl Mussel; and (iii) regarding the lawfulness of mitigation through post consent agreement between the developer and named authorities.  The appeal court judgment People Over Wind/Environmental Action Alliance Ireland -v- An Bord Pleanála [2015] IECA 272, was delivered 20 November 2015.  It is difficult to see this judgment, in particular the post consent mitigation element, surviving a Supreme Court appeal or a CJEU referral.  As indicated above an application to appeal to the Supreme Court is lodged and awaits determination.

O’Grianna & ors v An Bord Pleanála 2014/19 JR

This case relates to permission granted by An Bord Pleanála for a 6-turbine wind farm near Ballingeary, Co. Cork, under application reference 242223: Derragh, Rathgaskig and Lack Beg Near, Ballingeary, Co. Cork. (12/05270).  The Irish Examiner reported on the initial application to seek judicial review by 12 residents who live and work between 500m and 2km from the proposed wind farm.

Judgment was delivered on 12 December 2014, see O Grianna & ors -v- An Bord Pleanála [2014] IEHC 632 and permission for the wind farm was quashed, see local media report here.  The case returned for hearing, in relation to whether or not the planning application could be remitted back to An Bord Pleanála.  The court permitted the remittal back to An Bord Pleanála in its judgment of 16 April 2015, see O Grianna & ors -v- An Bord Pleanala [2015] IEHC 248.  We have blogged extensively on this case. see here, here & here.

O Grianna is a significant milestone in wind farm planning law in Ireland.  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).

An Bord Pleanála have reactivated the planning appeal in July 2015, see 245082: Derragh, Rathgaskig and Lack Beg Near, Ballingeary, Co. Cork. (12/05270).  As with the majority of wind farm appeals with An Bord Pleanála no date for a decision is available at this time.

Grace & anor -v- An Bord Pleanala 2014/533 JR

This case relates to ESB Wind Development Ltd and Coillte’s proposed 16-turbine wind farm at Keeper Hill, Co. Tipperary, and was taken by Ms. Edel Grace and Mr. Peter Sweetman.  The Irish Independent reported on the initial application seeking leave to review and highlights the potential impact on hen harrier habitat in the Slieve Felim to Silvermine Mountains Special Protection Area between Limerick and Tipperary.  The appellants sought through the court to further an objection initially raised by the Department of Arts, Heritage and an Gaeltacht (DAHG) but later retracted by them.  An Bord Pleanála’s reference for the planning application is 241924: Bunkimalta, Bauraglanna, Lackabrack, Keeper Hill, Co. Tipperary. (13/51/0035).   The case was heard over 7 days during April 2015.

Judgment was delivered on 1 October 2015, see Grace & anor -v- An Bord Pleanála & ors [2015] IEHC 593.  The court refused the reliefs sought by Ms. Grace and Mr. Sweetman.  One important issue addressed by the court deals with the issue of standing (locus standii) to challenge a planning decision of An Bord Pleanála.   Neither Ms. Grace nor Mr. Sweetman had participated in the planning process as observers (or appellants to An Bord Pleanála).  The court held inter alia due to the lack of participation in the decision process and as they had not shown an impairment of any rights personal to them, it would be manifestly unjust to An Bord Pleanála and the wind farm promoters (ESB and Coillte) to allow Ms. Grace and Mr. Sweetman to stand in the shoes of DAHG and further the Department’s retracted objection.

We understand that there may be a leave to appeal application made in this case, possible return date 19 January 2016.

Buckley & Anor -v- An Bord Pleanala 2014/579 JR

This case relates to Ecopower’s proposed 22-turbine wind farm at Upperchurch, Co. Tipperary.  RTE News reported on the initial application for leave to seek judicial review and highlighted that one of the issues to be considered relates to the withdrawal of consent by Mr. Buckley for his lands to be used as part of the proposed development.  An Bord Pleanála’s reference for the planning application is 243040: Graniera Shevry, Knockcurraghbola Upperchurch, Co. Tipperary. (13/510003).  The case was heard over six days in May 2015.

Mr. Buckley was unsuccessful in his case with judgment delivered on 29 July 2015, see Buckley & anor -v- An Bord Pleanála [2015] IEHC 572.  The court refused to accept that the Environmental Impact Assessment or Appropriate Assessment undertaken by An Bord Pleanála were deficient.  On the consent issue the court distinguished the case of McCallig v. An Bord Pleanála and Ors [2013] IEHC 60 stating that, the High Court found as a fact that Ms McCallig had not in fact ever granted her consent to the Applicant to make the planning application.  In this case, Mr. Buckley clearly granted a consent to the developer to make the initial planning application to Tipperary County Council.  However, given the timeline for the case clearly indicated that Mr. Buckley withdrew consent prior to the appeal to An Bord Pleanála, it seems to us the court erred on this point.

Nevertheless, Mr. Buckley sought leave to appeal but legal argument appears to have missed the significance of section 37(1)(b) of the Planning and Development Act that ‘the Board shall determine the application as if it had been made to the Board in the first instance … .‘  While Mr. Buckley may not have quashed the entire permission, if this point had been raised, it is possible he may have won some relief by voiding the application/permission over his lands and may have held off some costs in relation to the case.  On 16 September 2015 leave to appeal was refused, see Buckley & Grace -v- An Bord Pleanála [2015] IEHC 590.

Derrybrien Development Society Limited -v- Saorgus Energy Limited & ors

Judgment in this long running s160 planning enforcement case was finally delivered by the Supreme Court on 16 October 2015, see Derrybrien Development Society Limited -v- Saorgus Energy Limited & ors [2015] IESC 77.  The case itself dealt with the deforestation of more than 115,000 trees which formed part of the development of a wind farm on the Derrybrien site.  In essence, was the deforestation of the lands at Derrybrien an unauthorised development?  The appellants were also seeking inter alia an order to restrain, the already completed, deforestation.

Most of you will have heard of the Derrybrien landslide, which began on 16 October 2003 with a massive bog burst/land slide causing significant damage to surrounding areas.  The initial slide stopped on 19 October 2003, after travelling two and a half kilometres down stream approximately but on 28 October 2003 following heavy rain the slide continued causing a significant environmental disaster.  While there were several contributing factors towards the land slide, a report commissioned by the wind farm company identified that the immediate cause was most probably the ongoing wind farm construction works.  It should also be noted that the European Commission took proceedings against Ireland, which resulted in a judgment of the European Court of Justice in Commission v. Ireland Case C- 215/06 [2008] E.C.R. 1-4911, which held that the development of the wind farm had not been preceded by an environmental impact assessment as required by the EIA Directive.

The Supreme Court held that despite the planning permissions not covering or extending fully to the deforestation, the forest has been cleared, and the wind farm company has no responsibility for any inadequacy in any planning permissions which might be held to exist if the issue were to be decided on this appeal – the company had acted at all times in the belief that they were in accordance with planning permissions granted by Galway County Council.   The court using its discretion refused to allow the appeal while stating:

There is an element of futility in seeking an order to restrain the deforestation, in the circumstances.  The Court does not make futile orders.

As pointed out by the excellent Supreme Court of Ireland blogpost in refusing the appeal, ‘the Court affirmed McKechnie J’s High Court decision in Leen v Aer Rianta (here) that “may” in s 160 of the Planning and Development Act 2000 provides a discretion for the courts similar to that held by a court of equity.’

Further wind farm related cases

Anderson v Finavera Wind Farm and Ors 2013/6852 P, (no update).

Kilvinane Wind Farm limited v An Bord Pleanála 2012.129 JR, appears to be on hold awaiting outcome of appeal of Bailey -v- Kilvinane wind farm Ltd [2014] IEHC 509, under supreme court reference 491/13.  It appears to us that the wind farm the subject of these proceedings is being considered by An Bord Pleanála under a substitute consent application, see SU0135: Garranure, Kilvinane and Carrigeen, Ballynacarriga, Dunmanway, Co.Cork which is due to be decided before 25 February 2016.

Shivnen v Enercon and Carrigcannon wind farm 2011/9955 P, wind farm noise case we would be grateful for any update on this case.

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Last updated: 31 December 2015

We are aware that on such a long blogpost we may have made some errors, or inadvertently omitted a case or certain relevant information.  If we have please let us know by emailing: cawt.donegal@gmail.com or via twitter @CAWT_Donegal.


Evaluating O’Grianna: will Framore Ltd risk fixing an invalid application?

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 (herehere 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!


Peter Crossan: An overview of the powers of An Bord Pleanála

This is a guest post from Peter Crossan.  It was originally published on the Wind Aware Ireland Blog last month and advertised on their twitter feed (see below) and facebook page but was subsequently deleted.

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In the following summary of the role of An Bord Pleanala and how it determines applications for wind farms I propose to rely on the interpretation of the Courts of that role.

The Bord being a statutory body is given its powers and its obligations under the Planning Acts and must have regard to Government Policy.  While much criticised, it is my opinion that it has functioned extremely well over the many years of its existence.  I have been dealing with planning across many areas for the past seventeen years with a particular interest in wind farms.  I would have to say this body has conducted itself to a very high standard over those years and while it is criticised from all sections, it generally tends to get things right.  Where it is found wanting as it has been on occasions by the Courts it has acted promptly to correct these deficits.

Where it comes into conflict with those of us who are opposing wind farms generally comes about through the restrictive nature of the Government’s strategic approach to the National Renewable Energy Action Plan.  Recent decisions of the High Court in wind related matters include O’Grianna v An Bord Pleanala, Kelly v The Bord, and Ratheniska Judgement.  Under Section 143 of the 2000 Planning Act The Bord in carrying out its functions is obliged to have regard to the Policies and Objectives of Government. This includes the Guidelines for wind Farm Development 2006, The Renewable Energy Action Plan and the Directive for the Promotion of Energy from Renewable Resources.

The presumption of the Department of Environment and National Policy is in favour of wind farm development.  The Bord is allowed a discretion to approve a development notwithstanding that there may be some adverse environmental impacts if it is allowed to proceed.  This however is contrasted by The Bord’s obligations in respect of appropriate assessment where adverse affects of matters conserved under The Habitat’s Directive where a development may impact on the integrity of a European Site and that site is likely to be adversely affected or where such integrity cannot be protected by modifications or attached conditions, The Bord is obliged to refuse, as in the Kelly Judgement where the Court found The Bord had not taken proper account of the AA Assessment and had disregarded the Inspector’s concerns in relation to adverse impacts on this environment.

What we have seen from the Judgement in O’Grianna is the demonstration of The Bord’s entitlement to exercise discretion and this is particularly relevant in reference to noise and noise impacts. The Court went to considerable lengths to give reason as to why The Bord are not entitled or obliged to rigidly follow and apply the Guidelines.  And Secondly that there is no statutory obligation on The Bord to give reason for not following a particular Guideline even if it was the situation that they had departed from any Guidelines.

What this effectively means is that no certainty can be placed on the value of the Guidelines which were introduced in 2006 and effectively they are of course only guidelines.  So we are left with a continuing situation where members of the public have no protection at all afforded to them from turbine generated noise.  That is very significant and is something that can only be addressed by Government.

The Court consistently held to the view that the Planning Acts have firmly placed questions of planning and the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of local planning Authorities and The Bord these are expected to have the expertise, competence and experience to deal with planning questions.  The Courts therefore are not vested with that jurisdiction nor are they expected to and therefore cannot exercise discretion with regard to planning matters.

For anyone with an interest in the comprehensive nature of how applications for Judicial Review against decisions of The Bord are reviewed by The Courts, they may find it helpful and informative to read the Judgement in Ratheniska v An Bord Pleanala, where many of the common complaints that arise in relation to planning were brought to the Court by the applicants.  It should have been obvious to those taking the case that they had no grounds for taking a Judicial Review as all of their complaints had been previously ruled upon by The Courts in other cases.

The Court refused the application to quash the Bord’s decision.

The Bord is obliged as stated in the introduction to have regard to the Planning Acts and all relevant Government Policy.  It must also take account of all submissions made to it and give weight to expert supported evidence.  Therefore I always emphasise the necessity when making na appeal of bringing substantiated and qualified opinion to support particular contentions.  As the Environmental Impact Assessment to be undertaken by The Bord will rely heavily on the applicant’s EIS.  Anyone holding a contrary view must be conscious of the fact that the EIS has been prepared by qualified persons dealing with the various sections.

There is clearly a need for more transparency in how An Bord Pleanala reaches its decisions as much of the discretion enjoyed by the Bord is not subject to accountability.  This is not commonly understood and the only people who can change that are the politicians.

by Peter Crossan

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The O’Grianna judgment can be found here – O’Grianna & Ors -v- An Bord Pleanála [2014] IEHC 632

The Ratheniska judgment can be found here – Timahoe & Ors -v- An Bord Pleanála [2015] IEHC 18


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