Daly v Kilronan Windfarm Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 11 May 2017
• Neutral Citation: [2017] IEHC 308
• Court: High Court
• Docket Number: [2016 No. 372 MCA]
• Date: 11 May 2017

IN THE MATTER OF THE PLANNING AND

DEVELOPMENT ACTS 2000-2015

AND

IN THE MATTER OF AN APPLICATION PURSUANT

TO SECTION 160 OF THE PLANNING AND DEVELOMENT ACT 2000

BETWEEN

PATRICK DALY

APPLICANT

AND

KILRONAN WINDFARM LIMTED

AND,

BY ORDER, DERRYSALLAGH WINDFARM LIMITED

RESPONDENTS

[2017] IEHC 308

Baker J.

[2016 No. 372 MCA]

THE HIGH COURT

Planning & Development – S. 160 of the Planning & Development Act 2000 – Planning and Development Regulations 2001, as amended by the Regulations of 2011 – Project splitting – Refit grant limits

Facts: The applicant sought an order pursuant to s. 160 of the Planning & Development Act ('PDA') 2000 for prohibiting the respondents from carrying out works consisting of construction of a trench and laying down conduit pipes. Since the respondents had already completed 70% of the work of laying down the conduit pipes, the relief sought was restricted to restrain the respondents from carrying out further work. The applicant submitted that the proposed development would cause loss of amenity value, impact on his grazing rights, as well as noise and visual impact. The respondents argued that the proposed development was exempt from the requirement to seek planning permission as it fell under class 26 of Part 1 of the second schedule to the Planning and Development Regulations 2001. The respondents claimed that the present application filed by the applicant was out of the prescribed time limit.

Ms. Justice Baker granted an order of prohibition of continuation of grid construction and laying works. The Court, however, directed that the works already been completed would not be removed and the Court refused to make any order for the restoration of lands. The Court held that the applicant had taken appropriate steps at the proper time and the delay, if any, was due to his engagement with the local council. The Court held that it was necessary to consider the preservation of amenity value of the subject lands and thus, the assessment of the environment impact was essential. The Court found that the grid connection work was a part of the overall project, which had the potential for causing environmental damage. The Court held that it was not appropriate for the respondents to enter private lands without permission and lay down the conduit pipes. The Court held that the existence of statutory authorisation under the PDA 2000 could not displace the requirement to obtain the planning permission.

JUDGMENT of Ms. Justice Baker delivered on the 11 ^th day of May, 2017.

1 By notice of motion dated 24 ^th November, 2016 the applicant has sought an order pursuant to s. 160 of the Planning and Development Act 2000 ('the PDA') prohibiting the respondents from carrying out works consisting of the construction of a trench and the laying of underground 38 kV cables to provide a grid connection between a wind farm at Derrysallagh, Co. Sligo to the 110 kV substation at Garvagh Glebe, Co. Leitrim. As will appear later in this judgment the application that cables already laid be removed has been withdrawn.

2 The applicant is a farmer and the registered owner of the lands in Folio SL 18888 Co. Sligo which comprises land on both sides of the public road. The question of the title is the subject matter of plenary proceedings between the parties and will not be dealt with in this judgment.

3 The first respondent, Kilronan Windfarm Limited ('Kilronan') holds the lands the subject of the wind farm development under an agreement for lease made on 27 ^th July, 2015, and the leasehold interest was assigned to the second respondent Derrysallagh Windfarm Limited ('Derrysallagh') on 29 ^th October, 2015. Derrysallagh is now the occupier of the lands.

4 The respondents are the developers of the wind farm in respect of which the first respondent received a grant of planning permission on 26 ^th April, 2013 from Sligo County Council (PL 12/133), for the construction of twelve wind turbines.

5 The primary planning permission was subsequently amended under planning reference PL 13/357 on 22 ^nd March, 2014 by alteration of the permitted noise limits.

6 Condition 3 in the permission contained the following proviso:

'The permission shall not be construed as any form of consent or agreement to a connection to the national grid or to the routing or nature of any such connection'.

7 The planning application was accompanied by an Environmental Impact Statement ('EIS') and Sligo Co. Council completed an Appropriate Assessment ('AA') and an Environmental Impact Assessment ('EIA') in regard to the wind turbine development, but not with regard to the grid connection.

8 No planning permission exists for the construction of the grid connection and the underground cable, which is to pass through three counties, Roscommon, Leitrim and Sligo. In the application for the primary planning permission, the developer anticipated that the grid connection would be by overhead connection to a different substation at Arigna and advised the planning authority of an offer from ESB Networks of a connection to that substation. However, in the events, a grid connection offer was received from ESB Networks for connection to the Garvagh Glebe substation on 29 ^th April, 2015, almost two years from the date on which the planning permission issued. On 2 ^nd December, 2015, after the ESB offer issued, planning permission was received from Leitrim County Council to construct an extension to the existing Garvagh Glebe 110kV substation and other associated works.

9 The applicant had lodged a submission regarding the proposed development on 29 ^th May, 2012 in which he expressed concerns regarding the loss of amenity value, impact on his grazing rights and concerns regarding noise and visual impact.

Section 160 of the PDA

10 The originating motion seeks declaratory and injunctive relief including an order that the respondents should remove that part of the works already constructed at or near the lands of the applicant.

11 S. 160 of the PDA, as amended, provides as follows:

'160.—(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.

Exempt development?

12 Section 3(1) of the PDA defines development as:

'... 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'.

13 The laying underground of cable is the carrying out of work under and on land and involves a material change of use and is, therefore, development.

14 The respondents argue that the laying of conduit pipes is exempt from the requirement of planning permission as falling within Class 26 of Part 1 of the second schedule to the Planning and Development Regulations 2001, as amended by the Regulations of 2011, ('the Regulations') which provides as follows:

'the carrying out by any undertaker authorised to provide an electricity service of development consisting of the laying underground of mains, pipes, cables or other apparatus for the purpose of the undertaking.'

15 Derrysallagh has the benefit of an Electricity Generation Licence dated 10 ^th February, 2016 for the generation of electricity from Derrysallagh Windfarm, and an Authorisation to construct a generating station issued by the Commission for Energy Regulation on the same date. Derrysallagh therefore is for present purposes a statutory undertaker and an electricity undertaker within the meaning of the Regulations as it is authorised inter alia to transmit and distribute electricity in the State.

16 In general therefore the laying of underground cables is exempt development provided that the development does not come within the category of development which is deemed not to be exempt by virtue of s. 4(4) of the PDA, namely any development in which an EIA or AA is required of the type identified in s. 171A(1) of the Act.

17 Section 4(4) of the PDA (as substituted by the Act of 2011) provides:

'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.'

18 No dispute arises with regard to the characterisation of the grid works as development, and whether the works of development are exempt depends then on the question of whether the works required an EIA/AA.

19 The circumstances in which an EIA or AA is required for a particular development are contained in s. 172 of the PDA, and Article 93 of schedule 5, part 2. para. 3(1) of the Regulations and provision is made for an EIA when a wind farm contains more than five turbines, or in the case of sub-threshold development where the planning authority or the Board determines that the proposed development is likely to have a significant effect on the environment. An underground grid is not an 'installation for the harnessing of wind power', but the treatment of the grid works as exempt must be made in the context of recent jurisprudence.

Project splitting

20 The present case involves a consideration in some detail of the...