Donegal County Council v Planree Ltd and Another

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 10 April 2024
• Neutral Citation: [2024] IEHC 193
• Court: High Court
• Docket Number: 2023/96 MCA

In the Matter of Section 160 of the Planning and Development Act 2000

Between:

Donegal County Council

Applicant

and

Planree Limited

and

Mid-Cork Electrical Limited

Respondents

[2024] IEHC 193

2023/96 MCA

THE HIGH COURT

PLANNING AND ENVIRONMENT

JUDGMENT OFMr Justice David HollandDELIVERED 10 APRIL 2024.

Contents

INTRODUCTION	3
The Dispute — Essentials	4
The Site And Its Environmental Sensitivity	6
PEAT SLIDES & AFTERMATH	8
THE DEVIATIONS	13
Table — List of Deviations	14
The Red Line Issue	25
SUBSTITUTE CONSENT APPLICATION FOR DEVIATIONS & APPROVAL OF REMEDIATION OF PEAT SLIDE	26
S.160 MOTION, S.160 & THE CONCEPT OF UNAUTHORISED DEVELOPMENT	28
Unauthorised Development — Concept & Significance	30
MATERIALITY & UBIQUITY OF DEVIATIONS	31
IDENTIFICATION OF THE UNAUTHORISED DEVELOPMENT — ANAYSIS & DECISION	37
The Issue	37
Analysis	38
The SID Permission	39
Some Caselaw	40
Are the Material Deviations severable from the Windfarm?	49
In What Would Completion of the Windfarm result?	50
Decision — identification of unauthorised development	50
Alternative Decision — Interpretation of S.160	50
EIA & AA — TIMING, REMEDIAL EIA & AA & SUBSTITUTE CONSENT	51
EU Law	52
Irish law — Substitute Consent	56
Activity Cessation Orders	59
The Board's Decision To Grant Leave To Seek Substitute Consent & Options Open to Planree	62
SCOPE OF S.160 & DISCRETIONARY FACTORS	67
Introduction	67
Possible Orders	68
Onus of proof	69
Discretionary factors	70
General Observations	70
The integrity of the systems of planning and environmental law.	71
Other Factors	76
The presence/absence of a likelihood of adverse environmental effect.	77
Proportionality & the Precautionary Principle	78
THE EXPERT EVIDENCE	78
DISCRETION — ANALYSIS & DECISION	82
Remediation Order	82
What is at stake?	84
The Substitute Consent Application	84
Discretionary Considerations	85
The Nature of the Breaches	85
Planree's Conduct	85
Public Interest — Integrity of the Systems of Planning And Environmental Law.	88
Public Interest — Wind Energy Projects	90
Attitude of the Planning Authority	92
Planree's Circumstances, Hardship and Consequences of the Order — Alleged Prospect of Insolvency & Lesser Financial Detriment	93
Do the Remaining Works Affect or Exacerbate any Environmental Risk Posed by The Deviations?	97
Proportionality & the Precautionary Principle	98
A Limited Order?	100
The Board's exercise of its s.177J Jurisdiction & Liberty to Apply	100
Conclusion — Discretion & Orders	101

INTRODUCTION

1 The Applicant (“Donegal CC”) as planning authority seeks injunctions pursuant to Section 160 of the Planning and Development Act 2000 (“s.160” and “PDA 2000”) restraining the Respondents (“Planree” and “Mid-Cork Electrical”) from further development of a 90mw 1 19-turbine windfarm (the “Windfarm” and “Meenbog Windfarm”) on a site of 990 hectares at the Barnesmore Gap, in the townlands of Meenbog, Croaghonagh and Cashelnavean, County

Donegal 2 (“the Site”) which entire Windfarm, Donegal CC asserts, is by reason of numerous material deviations (the “Material Deviations”) from the applicable planning permission, unauthorised development within the meaning of the PDA 2000

2 Planree's Meenbog Windfarm has been in gestation since at least 2013.3 Mid-Cork Electrical is its contractor for the construction of the Windfarm. They are associated entities – I am unaware of the details but Michael Murnane is a director of both and is a deponent for both. Save where necessary, I will refer to them collectively sub nom “Planree”.

3 Planree has an SID Planning Permission 4 (“the SID Permission”) dated 25 June 2018 for the Windfarm. It was amended in June 2019 by decision of the Board under s.146B PDA 2000, essentially allowing bigger turbines/longer rotor blades. By the SID Permission, the Windfarm is to be constructed within 10 years of 25 June 2018 and may operate for 25 years from its first commissioning. Due to the nature of Windfarm, the particular environmental sensitivity of the Site and their proximity to Natura 2000 sites, including an adjoining SAC, 5 the decision to grant the SID Permission was informed by both EIA 6 and AA.7 Condition 1 to the Permission is in the usual form requiring completion of the project in accordance with the plans and particulars lodged. Condition 7 required full implementation of all construction methods and environmental mitigation measures, including operation monitoring requirements, as set out in the EIAR 8 and the CEMP.9

4 Planree says, variously, that about “90%” and “95%” of the groundworks are complete.10 I lay little store in such percentages as mathematical assertions but accept that the Windfarm is at a very advanced stage of construction. Views differ as to whether the outstanding groundworks 11 are minor or significant. Thereafter, the main remaining element of the works is the installation of the turbines and rotors – which are in storage in nearby Killybegs.

The Dispute – Essentials

5 Donegal CC asserts, in essence, that:

• • By reason of the Material Deviations, the entire Windfarm is unauthorised development as one not in conformity with the SID Permission.

• • As matters stand, as a matter of planning law, and pending any regularisation of that unauthorised status, the Windfarm can no longer be completed in conformity with the SID Permission.

• • As a matter of environmental law, it is concerned as to the environmental effects of building out and operation of the Windfarm – given the Material Deviations have not been subjected to EIA Screening and AA.

• • Accordingly, to permit the building out and operation of the Windfarm would be to undermine the integrity of the planning and environmental law systems and allow Planree to profit from its wrong in effecting the Material Deviations.

• • It seeks, by this s.160 motion, to restrain all further works until, at least, the outcome of the Substitute Consent 12 process.

6 Planree's essential position is that it:

• • Accepts that there are numerous deviations from the applicable planning permission.

• • Now accepts that they are material deviations which constitute unauthorised development – not least as the Board has determined that they require EIA Screening and AA.

• • Will make a Substitute Consent application to the Board to regularise the status of those deviations. That may take some years given backlogs in the Board in processing such applications.

• • Should be allowed to build out the remaining, authorised, elements of the Windfarm and operate it pending the Board's decision on Substitute Consent.

7 Planree's position is argued, in essence, on the following bases:

• • The Material Deviations are unauthorised development but do not render the entire Windfarm unauthorised.

• • The Windfarm can now be built out in conformity with the Planning Permission as all remaining works conform to the relevant SID Permission.13

• • Accordingly, there is no jurisdiction to injunct the completion and operation of the Windfarm.

  • ○ This a “curate's egg” argument: that the Windfarm is authorised “in parts” and that I can injunct only the unauthorised parts.

• • Alternatively, and even if the entire Windfarm is unauthorised development, I should exercise my discretion against an injunction.

8 The parties dispute whether to build out the remaining elements of the Windfarm would represent significant environmental risk unassessed in EIA Screening and AA.

9 As I have said, Planree now agrees that it has materially deviated from the scope of development permitted by the SID Permission. It has obtained leave to seek Substitute Consent for those Material Deviations and will make the Substitute Consent application presently.14 However, it fears delay of perhaps years in the Board's deciding that application and financial losses in that interim. The crux of the case, in reality, is that it wants, meanwhile, to build out and operate its Windfarm, whereas Donegal CC seeks, by this s.160 motion, to restrain all further works until, at least, the outcome of the Substitute Consent process.

10 In consequence, the precise identification of the unauthorised works is disputed – not as to whether the Material Deviations are unauthorised (it is agreed that they are) – but as to whether they, as it were, infect the planning status of the remainder of Windfarm on the basis that the development permitted must be considered as a whole. This is a question on which authority is surprisingly sparse.

11 The foregoing may oversimplify a complex dispute but indicates the main battlelines.

The Site and Its Environmental Sensitivity

12 The Site is in an upland rural area characterised by a mix of mountains, blanket bog, forestry and agricultural fields. The Site itself is mainly in coniferous forestry on upland blanket bog. It includes the hills of Barnsmore (451m), Croaghanagh (433m), Cross Hill (350m) and Carrickaduff Hill (329m) and parts of five valleys, each drained as follows: 15

• • The first valley is drained by Mary Breen's Burn, on to the Mourne Beg River, the River Derg, and the Mourne River which flows into the River Finn SAC and the River Foyle and Tributaries SAC (NI 16).

• • The second valley is drained by the Bunadaowen River, several tributaries, and a network of small forest drains. The Bunadaowen River also joins the Mourne Beg which, as stated above, ultimately flows into the River Finn SAC and the River Foyle and Tributaries SAC (NI).

• • The third valley is drained by the Shruhangarve Stream and a tributary. The Shuhangarve also joins the Mourne Beg which, as stated above, ultimately flows into the River Finn...