Sweetman v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Quinn
• Judgment Date: 17 February 2023
• Neutral Citation: [2023] IEHC 89
• Court: High Court
• Docket Number: Record No. 2019/ 98 JR

Between

Peter Sweetman

Applicant

and

An Bord Pleanála

Respondent

and

Ireland and The Attorney General

Second and Third Respondents

And by Order

Ballycumber Wind Farm Limited

Notice Party

[2023] IEHC 89

Record No. 2019/ 98 JR

THE HIGH COURT

COMMERCIAL

Certiorari – Exempted development – Directive 2011/92/EU – Applicant seeking an order of certiorari quashing an order declaring that the construction of a grid connection was exempted development – Whether the declaration was in breach of Directive 2011/92/EU

Facts: The applicant, Mr Sweetman, applied to the High Court seeking an order of certiorari quashing an order made by the first respondent, An Bord Pleanála (the Board), on the 18th of December 2018 pursuant to s. 5 of the Planning and Development Act 2000, as amended, which declared that the construction of a grid connection between a wind farm development located at Ballycumber, Tinahely, Co. Wicklow and an ESB substation at Kilmagig, Avoca, Co. Wicklow was exempted development. The principal ground of the application was that the declaration was in breach of Directive 2011/92/EU on the Assessment of the Effects of Certain Public and Private Projects on the Environment, as amended by Directive 2014/52/EU, and contrary to the jurisprudence of the Court of Justice of the European Union and judgments of the High Court interpreting the Directive and its transposition in the State. In making the declaration the respondent performed a screening exercise and determined that the grid connection works did not require an environmental impact assessment (EIA). The applicant claimed that because the grid connection works were not assessed as part of the EIA of the windfarm itself when it was assessed and granted planning permission by the Board in 2013 (following an appeal from a decision of Wicklow County Council), the screening and the s. 5 declaration of exemption constituted impermissible “project splitting”. The applicant also sought a declaration that s. 5 as amended is contrary to the Constitution, European Law, and the Aarhus Convention. In particular he said that the absence of provision for public participation in s. 5 requests and referrals violates the public participation provisions of the Directive. The notice party, Ballycumber Wind Farm Ltd, submitted that the proceedings were an impermissible collateral attack on a previous s. 5 declaration made by Wicklow County Council in respect of the same grid connection works on 17 April 2015 (the 2015 Declaration). It submitted that the question referred to and decided by the Board was identical to that referred to and decided on by Wicklow County Council on 17 April 2015, and there had been no change in facts or circumstances.

Held by Quinn J that Mr Dunne’s referral was an impermissible collateral challenge to the 2015 Declaration and the Board erred in failing to dismiss it pursuant to s. 138 of the 2000 Act, the proceedings were an impermissible collateral challenge to the 2015 Declaration and a clear attempt to circumvent the statutory framework for review of that Declaration, and s. 5 does not violate the requirements of the Directive. Quinn J held that it was not an absence of procedures for public notification in the s. 5 referral process which had deprived the applicant of a remedy, but his own conduct in standing by from September 2017 to February 2019 to await the outcome of the Dunne referral, while the construction works continued, and opportunistically initiating proceedings on the “back” of the Board’s determination. Quinn J held that the notice party was entitled to rely on the 2015 Declaration, and the original consent to the wind farm development itself, in constructing the wind farm and the grid connection. Quinn J held that the finality of determinations made pursuant to s. 5 and other provisions of the 2000 Act would be undermined, and it would be wholly unjust if the court were to deprive the notice party of the certainty attaching to the original consent and the 2015 Declaration.

Quinn J considered and accepted the submission that the Board erred in rejecting the recommendation of its inspector, and in declining to follow the rule against ‘project splitting’. Quinn J held that his findings that the proceedings were an impermissible collateral challenge to the 2015 Declaration were sufficient to dispose of the matter. Quinn J refused the reliefs sought.

Application refused.

Judgment of Mr. Justice Quinn delivered the 17 ^th day of February 2023

1 . The applicant seeks an order of certiorari quashing an order made by the first named respondent on the 18 ^th day of December 2018 pursuant to s. 5 of the Planning and Development Act 2000, as amended, which declared that the construction of a grid connection between a wind farm development located at Ballycumber, Tinahely, Co. Wicklow and an ESB substation at Kilmagig, Avoca, Co. Wicklow was exempted development.

2 . The principal ground of the application is that the declaration is in breach of Directive 2011/92/EU on the Assessment of the Effects of Certain Public and Private Projects on the Environment, as amended by Directive 2014/52/EU, together referred to as the “Consolidated Environmental Impact Assessment (EIA) Directive” or “the Directive”, and contrary to the jurisprudence of the Court of Justice of the European Union and judgments of this court interpreting the Directive and its transposition in the State.

3 . In making the declaration the respondent performed a screening exercise and determined that the grid connection works did not require an environmental impact assessment (EIA). The applicant claims that because the grid connection works were not assessed as part of the EIA of the windfarm itself when it was assessed and granted planning permission by the Board in 2013 (following an appeal from a decision of Wicklow County Council), the screening and the s. 5 declaration of exemption constituted impermissible “project splitting”.

4 . The first respondent and the notice party submit that the screening exercise undertaken by the first respondent examined the cumulative effect of the grid connection and existing or permitted development in the vicinity, including the Ballycumber wind farm itself, to determine whether the grid connection works were likely to have significant environmental effects. Its conclusion was that an EIA was not required for the grid connection by reason of its specific characteristics and location and the absence of any likely significant environmental impacts, whether viewed alone or cumulatively with the Ballycumber wind farm.

5 . The notice party supports the first respondent and says that the determination of the first respondent does not amount to impermissible “project splitting”. It submits that the conclusion of the Board that the grid connection works would not be likely to have significant impacts on the environment over and above those already considered and assessed in the EIA of the wind farm itself is compliant with the Directive which does not preclude the completion of an assessment of the entirety of the project in that manner.

6 . The notice party submits also that these proceedings are an impermissible collateral attack on a previous s. 5 declaration made by Wicklow County Council in respect of the same grid connection works on 17 April 2015 (“the 2015 Declaration)”. It says that in reliance on the original planning permission for the wind farm granted on 13 August 2013, and the 2015 Declaration, it commenced works on both, the wind farm and the grid connection, which have been energised. Before these proceedings commenced it expended in excess of €30 million on those works. It submits that the question referred to and decided by the Board was identical to that referred to and decided on by Wicklow County Council on 17 April 2015, and there has been no change in facts or circumstances.

7 . The second and third named respondents support the submission of the notice party that these proceedings are a collateral challenge. They go further and say that the first respondent ought to have dismissed the referral pursuant to its powers under s. 138 of the Act of 2000.

8 . The applicant also seeks a declaration that s. 5 as amended is contrary to the Constitution, European Law, and the Aarhus Convention. In particular he says that the absence of provision for public participation in s. 5 requests and referrals violates the public participation provisions of the Directive.

9 . The second and third respondents oppose the challenge to the validity of s. 5, and submit that as it is not a procedure for the grant of development consent, the absence of provisions regarding public participation in such referrals does not violate the Directive or any other provisions of community law.

The Ballycumber Wind Farm

10 . On 13 August 2013, the Board issued a decision to grant permission for construction of the wind farm. The decision was made following an appeal by Gerard and Lena Dunne of Ballycumber, Tinahely, Arklow, Co. Wicklow and others against a decision of Wicklow County Council made on 15 March 2013 to grant permission.

11 . The wind farm stands at a location described as Ballycumber North and Ballycumber South, Tinahely, Co. Wicklow. As described in the Board's decision, the windfarm consists of the following:-

• • 6 turbines with a hub height of 80 to 85 metres and a maximum blade tip height of up to 131 metres;

• • A borrow pit;

• • Anemometry mast;

• • An upgrade to existing site tracks and access roads;

• • New site tracks and hard standing areas;

• • Electrical control building and compound;

• • Underground cabling and site works.

The grid connection

12 . The grid connection is between the Ballycumber Wind Farm and an existing ESB substation located 23.4 ^km away at Kilmagig, Avoca, Co. Wicklow.

13 . The grid connection line runs in an underground duct...