Ó Gríanna v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 18 January 2017
• Neutral Citation: [2017] IEHC 7
• Docket Number: [2016 No. 643 J.R.]
• Court: High Court
• Date: 18 January 2017

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

PÓL Ó GRÍANNA, GERALDINE UÍ DHUINNÍN, AOIFE NÍ DHUINNÍN, CLIODHNA NÍ DHUINNÍN, BERNADETTE COTTER, TIM O'CONNELL, CAOIMHGHÍN Ó BUACHALLA, PÁDRAIG D. KELLEHER, ALAN KING, XAK AROO, SIMON SWALE

AND

ELIZABETH TWOMEY

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL

AND

FRAMORE LIMITED

NOTICE PARTIES

[2017] IEHC 7

McGovern J.

[2016 No. 643 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Planning & Development – S. 50 of the Planning and Development Act 2000 – Grant of planning permission – Directive 92/43/EEC (‘Habitats Directive’) – Directive 2011/92/EU (‘EIA Directive’)

Facts: Following the quashing of the respondent's decision by the High Court for granting relevant planning permission to the second notice party and the remittal of the matter to the respondent on the condition that revised Environmental Impact Assessment (EIA) should be carried out in the first judicial review proceedings brought by the applicants, the respondent granted planning permission to the second notice party after the compliance of those conditions. The applicants now came to the Court seeking an order for quashing the second decision of the respondent on the ground that the respondent had failed to carry out the E.I.A. in certain aspects and Appropriate Assessment (A.A.) as per Habitats Directive had not been carried out.

Mr. Justice Brian J. McGovern refused to grant the desired relief to the applicants. The Court held that there was sufficient compliance with the first committal order of the Court. The Court opined that the E.I.A. Directive and the Irish Legislation had devised a multi-stage procedure for consent procedure and it was not the function of the judiciary to evaluate as to whether the consent had been rightly or wrongly granted. The Court held that the E.I.A. Directive should be construed purposively and not as a means to punish the decision-making bodies by striking down their consent procedure.

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 18th day of January, 2017.

1 These judicial review proceedings are issued pursuant to s. 50 of the Planning and Development Act 2000 (as amended) (‘the Act of 2000’). The applicants seek to quash the decision of the respondent (‘the board’) made on 15th June, 2016, granting the second named notice party (‘Framore’) planning permission (Ref. No. PL04 245082) for a development comprising a wind farm consisting of six turbines, a substation including one control building and associated internal equipment and other ancillary works including road access and underground cables in the town lands of Derragh, Rathgaskig, Lack Beg, Ballingeary, Co. Cork, as amended by a revised public notice received by the board on 5th November, 2015. The revised notice consisted of the relocation of one of the turbines (T1) at a distance of 50m to the south of its previous position location with consequent minor alterations to the internal access track and associated underground cable and also the provision of approximately 11.5km of 38kV underground cabling and associated underground communication cables between the proposed on-site 38kV substation and the national electricity grid at the permitted Coomataggart 110kV substation at Grousemount, Kilgarvan, Co. Kerry (‘the permission’).

Background

2 In previous proceedings bearing record number [2014 No. 19 J.R.] the applicants challenged the decision of the board on 14th November, 2013, (Ref. No. PL04 242223) to grant permission to Framore for a similar development at the same site (‘the first permission’).

3 In a judgment dated the 12th November, 2014, [2014] IEHC 632 (‘the substantive judgment’) Peart J. held that the connection of the wind farm to the national grid was an integral part of the overall development of which the construction of the turbines is the first part. He concluded that the board had failed to carry out an Environmental Impact Assessment (E.I.A.) in accordance with s. 172 of the Act of 2000 in that no cumulative assessment of the proposed development and the necessary connection to the national grid was carried out. He quashed the decision of the board granting the first permission and remitted the matter to the board with a direction that it reconsider the application and reach a decision in accordance with the findings of the court.

4 On 24th July, 2015, the board issued a notice pursuant to s. 132 of the Act of 2000 (‘the s. 132 notice’) requesting that Framore furnish certain information in order to enable it to determine the appeal. The notice required that Framore submit a revised Environmental Impact Statement (‘E.I.S.’) to incorporate sufficient information so to enable the board to conduct an E.I.A. in accordance with the requirements of Directive 2011/92/EU (‘the E.I.A. Directive’) in relation to the overall proposal including the grid connection.

5 The s. 132 notice also required that the revised E.I.S. should take into account any changes in circumstances and in the receiving environment since the submission of the original planning permission and original E.I.S. in May 2012 (including the provisions of the new Cork County Development Plan) and the submission of a revised Directive 92/43/EEC (‘Habitats Directive’) Appropriate Assessment (‘A.A.’) Screening Report, and if necessary, a revised Natura Impact Statement (‘N.I.S.’) in respect of the overall proposal including the grid connection.

6 In response to the s. 132 notice, Framore, on 18th September, 2015, submitted a letter to the board which included a revised E.I.S., and A.A. Screening Report and a N.I.S.. The letter indicated a number of changes proposed to be made to the wind farm project including the following:-

(a) relocation of turbine T1, a distance of 50m to the south, with consequential minor alternations to the internal access track and underground cabling; and,

(b) a consequential change to the red line boundary of the site to accommodate the relocation of the turbine.

Issues

7 In this judicial review, the following issues arise for consideration:-

(i) Whether the board failed to carry out an E.I.A. in respect of the grid connection works and the wind turbine development by reason of the fact that the grid connection works did not form part of the proposed development in respect of which the application for planning permission was made.

(ii) Whether the board acted ultra vires in granting permission for 1km of cable forming part of the grid connection in relation to the adjacent Cleanrath wind farm without carrying out an E.I.A. in respect of the Cleanrath wind farm together with grid connection.

(iii) Whether, in making the decision to grant the permission, the board acted ultra vires in granting planning permission for an application which was substantially different from that remitted to the board pursuant to the remittal order of Peart J..

(iv) Whether the board failed to carry out an A.A. prior to making the decision to grant permission as required by s. 177V of the Act of 2000, as interpreted in accordance with the obligations imposed by the Habitats Directive.

8 Article 2.1 of the E.I.A. Directive states:-

‘Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for a development consent and an assessment with regard to their effects. Those projects are defined in Article 4.’

9 An overriding objective of the Directive is to ensure the protection of the environment and the quality of life; see, the E.I.A. Directive recital (4).

10 The applicants argue that, in carrying out an E.I.A., the board is obliged to have regard to mitigation measures to avoid, reduce and, if possible, remedy significant adverse effects of the project that is the subject of an E.I.A.. They contend that the developer is obliged to furnish information in relation to mitigation measures pursuant to art. 94 and also schedule 6 para. 1(b) of the Planning and Development Regulations 2001 (as amended) (‘the Regulations of 2001’). In order to ensure that these mitigation measures are implemented and are binding upon the developer, the applicants argue that it is necessary that compliance with the mitigation measures as set out in the E.I.S. is conditioned upon the granting of planning permission. As the grid connection works did not form part of the proposed development which is the subject matter of the application, the applicants say that the board did not have any power and did not in fact impose a condition requiring the implementation of mitigation measures relating to the grid connection works. They argue that similarly the board had no power to refuse permission in relation to the grid connection works because they did not form part of the proposed development. Furthermore, the board did not have power to regulate the grid connection works or to modify the route or the manner in which those works were to be carried out and that, therefore, the board did not have power to carry out an E.I.A. in relation to the grid connection works.

11 The applicants also contend that where an E.I.A. is to be carried out there must be full public consultation with regard to the likely significant effects on the environment of that project and that for such a consultation to be meaningful it must be capable of influencing the outcome of the development consent procedures.

12 They say that the connection to the national grid did not form part of the proposed development and, in those circumstances, it was not possible for the board to conduct an E.I.A. (including accumulative assessment of the proposed development and the connection to the national grid) in accordance with...