Donegal County Council v Planree Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 18 December 2024
• Neutral Citation: [2024] IECA 300
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2024/120

Between/

Donegal County Council

Applicant/Respondent

and

Planree Limited

and

Mid-Cork Electrical Limited

Respondents/Appellants

[2024] IECA 300

Butler J.

Meenan J.

Hyland J.

Court of Appeal Record Number: 2024/120

High Court Record Number: 2023/96MCA

THE COURT OF APPEAL

CIVIL

Planning and development – Prohibition – Substitute consent – Appellants appealing against the decision granting an order prohibiting the carrying out of further development – Whether the presence of material deviations from the grant of planning permission rendered the entire development unauthorised

Facts: The appellants, Planree Ltd and Mid-Cork Electrical Ltd, appealed to the Court of Appeal against the decision of the High Court (Holland J, [2024] IEHC 193) granting an order under s. 160 of the Planning and Development Act 2000 prohibiting the carrying out of further development at Meenbog Wind Farm, County Donegal. The appellants were the developers of the Meenbog Wind Farm, the first appellant being the developer and the second appellant the entity responsible for the works on the ground. The respondent, Donegal County Council, the applicant for relief in the High Court, was the planning authority within whose functional area the wind farm was located. The particular issue that the Court of Appeal was asked to determine on the appeal was whether the presence of material deviations from the grant of planning permission on foot of which the development had been constructed, rendered the entire development unauthorised or merely those elements of it which did not conform to the planning permission. In this case the answer would not have a bearing on the jurisdiction of the court to make orders restraining the continuation of the development. However, the appellants were concerned that the characterisation of the entire development as unauthorised could have an impact on the validity of an application which Planree Ltd had submitted to An Bord Pleanála seeking substitute consent in respect of the deviations only.

Held by Butler J that it did not seem to her to be appropriate that the Court should be asked to comment on the validity of the substitute consent application, which did not form part of the s. 160 appeal, and which was pending before the body with jurisdiction to determine both whether it was valid and whether it should be granted. Butler J held that, in general, the presence of unauthorised works in the form of material deviations from a grant of planning permission in the as-built development will render the entire development unauthorised; exceptionally, because of the nature of the development or the possibility of severance of the unauthorised works from the rest of the development, it might not. Butler J held that in that context for severance to be bona fide the residual development must make planning sense in the absence of the severed part, and it must be consistent with the planning rationale underlying the decision to grant permission. Butler J held that this case did not come within that limited and exceptional category. Further, Butler J held that even in the latter cases where there has been an environmental assessment particular care needs to be taken to ensure that treating the development as severable does not undermine the environmental assessment.

Butler J dismissed the appeal on all grounds.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Ms. Justice Butler delivered on the 18 ^th day of December 2024

Introduction

1 . This judgment concerns an appeal taken by the appellants against the decision of the High Court (Holland J. [2024] IEHC 193) granting an order under section 160 of the Planning and Development Act 2000, as amended, prohibiting the carrying out of further development at Meenbog Wind Farm, County Donegal. The appellants are the developers of the Meenbog Wind Farm, the first appellant being, strictly speaking, the developer and the second appellant the entity responsible for the works on the ground. I will refer to them cumulatively as the appellants even though some matters concern only the first appellant. Donegal County Council (“the Council”), the applicant for relief in the High Court, is the planning authority within whose functional area the wind farm is located. In this judgment all statutory references are to the Planning and Development Act 2000, as amended, (also referred to as “the Act” or the “PDA”) unless otherwise stated.

2 . The particular issue that the court is asked to determine on this appeal is whether the presence of material deviations from the grant of planning permission on foot of which the development has been constructed, renders the entire development unauthorised or merely those elements of it which do not conform to the planning permission. As we shall see, in this case the answer would not have a bearing on the jurisdiction of the court to make orders restraining the continuation of the development. However, the appellants are concerned that the characterisation of the entire development as unauthorised could have an impact on the validity of an application which Planree has submitted to An Bord Pleanála seeking substitute consent in respect of the deviations only. For reasons which I will explain in due course, it does not seem to me appropriate that this court should be asked to comment on the validity of the substitute consent application, which does not form part of the section 160 appeal, and which is currently pending before the body with jurisdiction to determine both whether it is valid and whether it should be granted.

3 . It will also become apparent as I describe the interactions between the parties and what occurred at the High Court hearing, that the nature and extent of the defence raised by the appellants to the Council's applications has varied over time. This, in turn, has had an effect on the way some of the evidence presented by the appellants is to be read. Most significantly, at the time the Council first initiated enforcement action (the service of a warning letter in November 2020), through the exchange of affidavits before the High Court hearing until a point shortly before the hearing commenced, the appellants contended that the deviations from the permitted development identified by the Council were not material. Consequently, the appellants disputed the jurisdiction to make any order under section 160. Once it was conceded that the deviations were material, the focus shifted to two different issues both of which remained live on this appeal. The first, identified in the preceding paragraph, is the extent to which that portion of the development which was built in conformity with the planning permission remained authorised notwithstanding the presence of unauthorised elements in the overall development. The second is the precise basis, within the subparagraphs of section 160(1), on which the court has jurisdiction to make any order. Finally, as is the case with any injunctive relief, in the event that this court upholds the High Court decision regarding the jurisdiction to grant section 160 relief, the appellants raise issues regarding the exercise of the court's discretion as to whether such relief should actually be granted. I will return to all of these issues in due course.

4 . In order to address these issues, I propose, initially to outline the circumstances in which the wind farm development came to be built and in which the material deviations that are the subject of the section 160 application came to be identified. In that context, I will look at the relevant provisions of section 160 PDA and the arguments made thereon. I will also address the related application for substitute consent, the relevant portions of Part XA PDA and of the EIA Directive and the Habitats Directive. Rather than examining the High Court judgment in isolation, I will look at the conclusions reached by Holland J. when considering each of these elements of the case. As the arguments made on the central issue, i.e. the extent to which that portion of the development constructed in accordance with the planning permission can be described as unauthorised, ranged over both section 160 and Part XA PDA, I will address this issue having considered both of these provisions. Finally, I will consider the discretionary element of a section 160 order.

The Meenbog Wind Farm Development — Planning Permission

5 . The development in issue on this appeal is a 19-turbine wind farm located in west Donegal in respect of which An Bord Pleanála granted a Strategic Infrastructure Development permission (the “SID permission”) on 26 ^th June 2018. Because the development constitutes strategic infrastructure, the application for planning permission was made directly to An Bord Pleanála. It appears from the inspector's report in respect of that application that, although the elected members of Donegal County Council recommended that planning permission be refused, the reports from the Council as the planning authority were, broadly speaking, supportive of the development. The permitted development must be carried out within 10 years of the date of the permission – i.e. by June 2028.

6 . The process which led to the grant of the SID permission included the carrying out of [both] an environmental impact assessment (“EIA”) and an appropriate assessment (“AA”), both of which were required under EU law. In this judgment I use the term “environmental assessment(s)” to cover both of these. An EIA was required because the project (an installation for the harnessing of wind power for energy production) fell within paragraph 3(i) of Annex II of the EIA Directive (2011/92/EU) and exceeded the threshold set in respect of such a project at national level (five turbines) at paragraph 3(i) at Schedule 5 Part 2 of the Planning and Development Regulations 2001 S.I. No. 600/2001 (the “PDR”). A screening exercise was...