Sweetman v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 10 June 2016
• Neutral Citation: [2016] IEHC 310
• Docket Number: [2015 No. 545 JR]
• Court: High Court
• Date: 10 June 2016

[2016] IEHC 310

THE HIGH COURT

JUDICIAL REVIEW

Hedigan J.

[2015 No. 545 JR]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED

BETWEEN

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

AND

EIRGRIDPLC

NOTICE PARTY

AND

ELECTRICITY SUPPLY BOARD

NOTICE PARTY

Local government – Planning & Development – S. 50 of the Planning and Development Act 2000 – Environment, Transport & Planning – Judicial review – Environmental Impact Assessment (EIA) – Directive 2011/92/EU – Council Directive 92/43/EEC (Habitat Directive) – Project splitting

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for granting planning permission to the first named notice party for up rating the relevant circuit and holding that there had been no project-splitting so as to avoid the EIA. The applicant contended that the severance of the project was meant to evade the EIA. The respondent contended that the despite the fact that Part II of the project did not meet the required threshold to conduct an EIA, the respondent had considered both phases of the project and thus, there was no contravention of the alleged regulations. The respondent also argued that the decision on project splitting was not amenable to judicial review.

Mr. Justice Hedigan refused to grant the desired relief to the applicant. The Court observed that the respondent had adequately addressed the issue of project splitting and whether the split had occurred to bypass EIA. The Court held that it would not interfere in the decisions made by a skilled primary decision maker unless it was proved that such a decision was illogical and irrational. The Court observed that the decision on splitting required an overall evaluation of the project in the wider sense which needed special knowledge and skill of the planning expertise and thus, it was not reasonable for the Court to unnecessarily intervene in the purely technical decisions. The Court found that in the present case, the applicant could not discharge the burden of proof of irrationality on the part of the respondent for warranting an order of certiorari.

JUDGMENT of Mr. Justice Hedigan delivered on the 10th day of June, 2016

1 INTRODUCTION

1.1 In these proceedings, the applicant seeks judicial review of a determination of An Bord Pleanala (‘the Board’) pursuant to s. 50 of the Planning and Development Act 2000, as amended (‘the Act of 2000’). By order of 12th October, 2015, Haughton J. granted leave to the applicant to apply for judicial review for the following reliefs:

‘1. An order of certiorari quashing the decision of the Respondent which was made on the 11th August 2015 to grant permission to the first named Notice Party for the works associated with the uprate of a 19.5 km section of the existing Bellacorick to Castlebar 11OkV overhead line, including alterations to the existing structures and conductor along the line [Ref. No. PL16. 244534].

2. A Declaration that the decision of the Respondent is contrary to and in breach of Council Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (“the consolidated Environmental Impact Assessment (EIA) Directive”).

3. A Declaration that the decision of the Respondent is contrary to and in breach of Council Directive 92/43/EEC of 21 May 1992 of the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”)

…

6. Further or other orders.

7. Liberty to apply.

8. The costs of the within proceedings.’

Reliefs four and five, which relate to the contention that EirGrid failed to provide the consent of various land-owners, are no longer being sought by the applicant. By order of McGovem J. on 6th November, 2015, the proceedings entered the Commercial List pursuant to 0. 63A, r. 4 of the Rules of the Superior Courts, as amended.

2 THE PARTIES

2.1 The applicant is an environmentalist.

2.2 The first respondent is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts 2000 to 2015.

2.3 The first notice party is the independent Electricity Transmission System Operator (‘TSO’) for Ireland under a licence issued by the Commission for Energy Regulation pursuant to s. 14(1)(e) of the Electricity Regulation Act 1999, as inserted by Regulation 32 of European Communities (Internal Market in Electricity) Regulations 2000 ( S.I. No. 445 of 2000).

2.4 The second notice party is a statutory corporation which was incorporated by the Electricity (Supply) Act, 1927, as amended. ESB is the owner of the electricity distribution system and the electricity transmission system in the State. Pursuant to Part 4 of the European Communities (Internal Market in Electricity) Regulations 2000 ( S.I. No. 445 of 2000), as amended, its functions include the maintenance of the electricity transmission system.

3 FACTUAL BACKGROUND

3.1 The Bellacorick-Castlebar 11OkV line was originally built and commissioned in 1962 and was developed to transmit power generated at a peat-fired generating station located at Bellacorick. The overall Bellacorick-Castlebar 11OkV line is 37.235km in length comprising primarily single circuit wood pole design with steel angle lattice towers. There are 194 structures along the line, 13 of which are steel angle lattice towers and 181 of which are wooden polesets. The structures carry three conductors (comprising a single circuit) suspended from electrical insulators. Reinforcements are required to the existing transmission network in order to accommodate increasing levels of renewable energy (primarily, wind generation) in the North West region. Such reinforcements include the uprate of the existing Bellacorick-Castlebar 110kV overhead transmission line. The purpose of the uprate is to increase the capacity of the existing Bellacorick-Castlebar 11OkV line by replacing the existing conductors with a different conductor of similar dimensions that can carry more electric current. The uprating of the overall Bellacorick-Castlebar 110kV circuit was originally scheduled for the 2013 outage season. However, prior to this, it was identified in an environmental screening analysis that part of the line (structures 1-99) fell within the Bellacorick Bog Complex cSAC. Thus, it was determined that an appropriate assessment (‘an AA’) would be required. Structures 100-193 lie outside of designated sites and did not cross sensitive peatland habitat. The works required as part of the uprate along this section did not have the potential for significant impacts on any Natura 2000 site.

3.2 The division of the uprate of the overall Bellacorick-Castlebar 11OkV overhead line into two separate parts, or transmission infrastructure projects, arose from the necessity for outage programming and the sequencing of outages. In his affidavit sworn 30th November, 2015, Mr. Des Cox, Senior Planning Consultant with EirGrid, stated that an

‘[o]utage is a carefully programmed process undertaken by EirGrid in its statutory role as Transmission System Operator, of switching out a transmission circuit and diverting power onto different circuits of the meshed grid for the purposes of transmission infrastructure development and maintenance. This occurs in an outage season, generally between March and October each year when demand for electricity is reduced in comparison with winter time loading.’

He outlined the circumstances in which the Part 1 works were carried out in 2013:

‘Work was already planned on the Bellacorick busbar for 2013. This meant that the Bellacorick-Castlebar llOkV line was going to be de-energised for a significant period of time in 2013 in any event. With up to eight line uprates and multiple busbar uprates to complete over the coming years, it was considered important not to waste any outage season. No other project in the area was at a stage advanced enough that would have allowed it to take the slot that would have been vacated by postponing of the full Bellacorick Castlebar line uprate. In any event, allowing a different outage to take place would have meant cancelling the planned works on the Bellacorick busbar. The preparation for this complicated busbar project was well advanced. Completing Part 1 of the Bellacorick-Castlebar 11OkV line uprate in 2013 when the line was in outage would mean that a much shorter outage duration would be required in a future year to complete part 2, hence decreasing the overall time required for all the works in the area.’

3.3 In 2013, EirGrid completed an uprate to roughly 17.5km of the line, extending to the north-west out of the Castlebar substation (‘Part 1’). In 2012, prior to carrying out the works, a stage 1 screening was undertaken on Part 1 for the purposes of AA. The screening report which was prepared by EirGrid's Senior Ecologist, in accordance with the provisions of Regulation 42 of the European Communities (Birds and Natural Habitats) Regulations 2011, noted that structures 159-161 were identified as having the potential to impact on Natura 2000 sites due to their location adjacent to the River Moy cSAC. The screening report concluded that there would be no direct or indirect impacts on the qualifying features of the River Moy cSAC as a result of the proposed works and so a stage 2 AA was not required. A screening matrix was also included in the report which addressed whether individual elements of the plan or project either alone or in combination with other plans or projects were likely to give rise to impacts on the Natura 2000 site. There was specific reference in the report to the Bellacorick to...