Legal Update: Key Environmental And Planning Matters For The Wind Energy Sector

Author:Ms Deborah Spence, Danielle Conaghan, Yvonne Scannell, Laura Rafferty, Jacinta Conway, Maeve Delargy and Eimear O'Hanrahan
Profession:Arthur Cox
 
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Changes in the planning landscape for wind farm developments continue, with a number of important decisions having been delivered by the High Court, Supreme Court and Court of Justice of the European Union ("CJEU")within the past few months. This note outlines the key takeaways from these decisions.

PRE-PLANNING CONSIDERATIONS

The following recent decisions provide additional guidance to developers on the content of their planning application documents.

Site Notice

The decision of the High Court in Alen-Buckley v An Bord Pleanála1 addressed what is considered to be adequate information to be contained on a site notice. The Applicants in Alen-Buckley argued that the site notice (a) did not contain sufficient information relating to the grid connection and haul route works and (b) it did not state the blade length and rotor diameter of the turbines.

The High Court held that where a grid connection and /or haul route did not form part of the development for which consent was being sought (but were included for the purposes of an O Grianna type cumulative impact assessment) then they did not have to be included on the site notice. The Court also held that it is the overall height of the turbine (and not the rotor diameter or blade length) that is the important feature to be included on the site notice.

Grid Connection - Exempted Development

The case of Daly v Kilronan Windfarm Limited2 held that the grid connection for a wind farm that requires EIA and / or AA to be carried out requires planning permission and cannot be exempted development. Where EIA is required for a windfarm project, an EIA must be carried out which assesses the cumulative impacts of the entire project (which includes the grid connection works). Therefore, EIA is required for the grid connection works, which means they cannot be exempt and planning permission is required.

In Daly, a section 160 planning injunction was brought challenging partially complete grid connection works.

A section 5 declaration had been granted for a portion of the works. This declaration had not been challenged by way of judicial review. While the Court held that "the basis on which the declaration was made was erroneous as a matter of law", it did not 'look behind' the declaration to quash it, and only made an order in respect of the works which were not the subject of the declaration. The High Court did not order that the works that were already carried out (which were approximately 70% in total) should be reversed or that the lands should be restored but did make a limited order prohibiting the continuation of grid connection and laying works.

The Daly decision is currently before the Court of Appeal, awaiting a hearing date.

Grid Connection - Alternative Routes

Helpfully, the High Court in Alen- Buckley confirmed once again that a developer does not have to fix upon a single grid connection route for the purposes of its planning application, and is entitled to put forward alternative grid connection (and haul) routes in its technical documentation for the purposes of an EIA. The Applicants argued that (a) as the developer had proposed two alternative routes for the grid connection, the development and grid connection works were void for uncertainty; (b) the Board (in raising a request for further information) extended its permission to include a grid...

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