O'Sullivan v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 30 November 2017 |
| Neutral Citation | [2017] IEHC 716 |
| Docket Number | [2016 No. 977 J.R.] |
| Court | High Court |
| Date | 30 November 2017 |
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED
[2017] IEHC 716
Costello J.
[2016 No. 977 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Environment, Transport and Planning – S.50 of the Planning and Development Act, 2000 – Environment Impact Assessment (EIA) – Art. 3 of Directive 2011/92/EU (‘EIA Directive’) – Conservation objectives – Appropriate Assessment (AA) – Publication notice of AA determination
Facts: The applicants had challenged the decision of the respondent/Board for giving planning permission to the developer in relation to the proposed wind farm development. The applicants objected to the manner in which the Board carried out the EIA and the failure of the Board to assess the cumulative effects of the proposed development with the permitted or the proposed substations. The applicants also alleged that there was legal uncertainty around the substation to which the wind farm was to connect.
Ms. Justice Costello refused to grant the desired relief to the applicants. The Court held that there was no flaw in the EIA conducted by the inspector and the Board took into account the examination, analysis and evaluation undertaken in respect of the EIA. The Court held that since the conservation objectives issued by the National Parks and Wildlife Service did not alter the Board's earlier conclusions, the Board was correct in not considering those objectives in the relevant report. The Court held that legal uncertainty in relation to the replacement substation would not prohibit the Board to conduct an EIA.
In these proceedings the applicants seek judicial review of a decision of An Bord Pleanála (‘the Board’) dated 28th October, 2016 to grant planning permission to Keel Energy Ltd (‘the developer’) for a proposed wind farm development on a site at Carrigarierk Hill (and straddling a number of town lands) nine kilometres north of Dunmanway, County Cork (‘the Carrigarierk Development’). The proposed development comprises the construction of five wind turbines with a maximum ground to blade tip height of 140 metres, the upgrading of existing internal access roads and the provision of new internal access roads, the provision of a wind anemometry mast, two burrow pits, a 38kV substation and an underground electrical grid connection.
On 22nd December, 2015, the developer applied for planning permission for the Carrigarierk Development. The application stated that the connection to the national grid was to occur at one of two un-built substations; either a permitted substation at Barnadivane (the permitted substation) or a larger substation on a larger, different site at Barnadivane (the replacement substation). The site at Barnadivane is 14km from the site of the Carrigarierk Development approximately as the crow flies, and the grid connection from the Carrigarierk Development to either substation would require a 17.74km connection.
The grant of planning permission in respect of the permitted substation is dated 14th February, 2007. On 9th February, 2012, the permission was extended to 13th February, 2017. The planning permission has thus lapsed but was extant when the application for the Carrigarierk development was submitted. Furthermore, the design of the permitted substation has been overtaken by the updated substation standards adopted by EirGrid. Consequently, EirGrid would not take over the operation of the permitted substation if built as it does not currently meet these updated standards. It was in part to meet the new requirements of EirGrid that planning permission for the replacement substation was sought.
At the date of the application for planning permission for the Carrigarierk Development, an application to develop a separate wind farm and the replacement substation at Barnadivane was pending. On 11th July, 2016, the Board granted permission for a six turbine wind farm and the replacement substation at Barnadivane. This replacement substation was intended to provide a grid connection for the wind farm at Barnadivane and two other wind farms, including the Carrigarierk Development.
On 29th July, 2016, leave to apply for judicial review to challenge this decision of the Board was granted Larkin v. An Bord Pleanála [2016 No. 614 J.R.]. In September 2016, the Board decided to consent to an order quashing the grant of permission of 11th July, 2016 for, inter alia, the replacement substation at Barnadivane.
The Carrigarierk Development is situated near a number of European sites, three of which are relevant to this case: the Bandon River Special Area of Conservatiton (SAC), the Gearagh SAC and the Gearagh Special Protection Area (SPA). The developer therefore submitted an Environmental Impact Statement (EIS) and a Natura Impact Study (NIS) with its application for planning permission and the application was submitted to both Environmental Impact Assessment (EIA) and Appropriate Assessment (AA) by both the planning authority and the Board on appeal.
The Board's Inspector finalised his report on the Carrigarierk Development on 13th September, 2016. On 15th September, 2016 the National Parks and Wildlife Service (NPWS) issued site specific conversation objectives for the Gearagh SAC.
On 7th October, 2016, the Board met to consider the Inspector's report and the submissions on the file. The Board decided to grant planning permission for the Carrigarierk Development generally in accordance with the Inspector's recommendation and for the reasons and considerations set out in the Board direction. The presenting Board member became aware of the fact that the NPWS issued conservation objectives for the Gearagh SAC on 15th September, 2016, two days after the Planning Inspector had completed his report and recommendation. As such, the conservation objectives had not been considered by the Inspector in the completion of his report and recommendation. The Board met again on 25th October, 2016 and the submissions on file and the Inspector's report were further considered. The Board revisited the appropriate assessment that it had conducted on 7th October, 2016, in light of the content and specific objectives for the Gearagh SAC contained in the conservation objectives issued by the NPWS on 15th September, 2016. Having considered the specific conservation objectives for the Gearagh SAC, the Board decided that these specific conservation objectives did not alter the Board's earlier conclusions in respect of appropriate assessment and the Board decided to confirm its earlier decision of 7th October, 2016. The Board did not consider it necessary to seek an addendum report from the Planning Inspector in relation to the matter.
The Board decided to grant planning permission for the Carrigarierk Development in accordance with the plans and particulars and based on the reasons and considerations under and subject to the conditions set out in the decision.
Four days later on 1st November, 2016 the planning permission for the replacement substation at Barnadivane was quashed and remitted to the Board for reconsideration. On 19th December, 2016, the applicants were granted leave to seek judicial review in these proceedings.
Environmental Impact Assessment
The applicants say that the Board failed to carry out an EIA in accordance with the requirements of s.172 of the Planning and Development Act 2000 (as Amended) (the 2000 Act), as interpreted in accordance with the obligations imposed by Article 3 of Directive 2011/92/EU (the EIA Directive). They argue that the Carrigarierk Development and Barnadivane substation development formed parts of a single project for EIA purposes and fell to be subjected to an EIA as such in discharge of the obligation to assess the entire project. They contend that the environmental impact of the entire project including the wind farm, grid connection and the replacement substation was never assessed. Alternatively, any EIA of the Carrigarierk Development required an analysis of the cumulative effect of the Carrigarierk Development and the Barnadivane substation. In performing the EIA for the wind farm and grid connection the Board did not assess the direct and indirect effects and/or the cumulative impact of the proposed development (the wind farm and the grid connection) and the substation. They say the assessment could not have been carried out because the requisite information in relation to either the previously permitted substation or the replacement substation was not before the Board.
Secondly, they say that there was legal uncertainty around the substation to which the wind farm was to connect. The planning permission for the previously permitted substation was due to expire on 13th February, 2017 shortly after the Board's decision on 28th October, 2016. As this planning permission had already been extended, it was not possible to extend it further. In addition, EirGrid had indicated that the permitted substation did not meet its revised requirements and it would not assume operational control of the permitted substation, if built. Thus, there was no practical possibility of the Carrigarierk Development connecting to the national grid by means of the permitted substation. In reality the wind turbines could only be connected to the national grid by means of the replacement substation. As of the date of the decision of the Board it knew that the grant of planning permission in respect of the replacement substation was to be...
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