The Grid connection in O’Grianna v An Bord Pleanala.

The Judgement in this case is highly significant for anyone with an interest in opposing wind farm developments and in appreciating the scope and level of discretion that the various Acts provide to An Bord Pleanala.

The Community of Derragh appealed the decision of Cork County Council to grant permission to the applicants, Framore Ltd., on the 18th June 2013 subject to 28 conditions, for the erection of 6 turbines at 156m in height in an area of outstanding natural beauty and with a rich cultural heritage.

An Bord Pleanala upheld the decision of Cork County Council to grant permission, with a reduction in the number of conditions attached to the permission to 17, on the 14th November 2013. The Community were granted leave for a Judicial Review seeking a declaration that the Board in making it’s decision failed to carry out a proper Environmental Impact Assessment in accordance with the provisions of Section 172 of the Planning and Development Act 2000 as amended, and as interpreted in accordance with the obligations imposed by Article 3 of Directive 2011/92/EU on the assessment of the affects of certain public and private projects on the environment.

Noise

The Community in their application to the Court sought to establish that the Board had failed to comply with its obligations in relation to Environmental Impact Assessment, that the Board’s assessment was a flawed assessment and was not in accordance with its obligations under the Act. Of particular concern to the Community was the decision by the Board to impose noise limits without carrying out any assessment of the significance of the increase in noise over background noise in a low noise environment and the affect that the development of the turbines would have on the local population by virtue of the noise generated.

It was the Community’s position that the Board did not have proper regard to the 2006 Guidelines and the recommendations on noise levels for a low noise environment and the absolute limit that could be imposed in such an environment.

EIA

The Court found that the Board in its decision had stated that it had carried out an EIA. The Board had relied heavily on the Inspector’s Report and the Inspector’s report had examined the Environmental Impact Statement and supporting documentation provided by Framore Ltd.

The Court found that the onus was on the Community to establish that the Board had not carried out an EIA and to establish that the Board’s contention that it had, was not a correct statement. It was the Court’s view that the Community had failed to establish that fact and that the Board had not erred by generally adopting the Inspector’s Report for the purpose of it’s own EIA.

In respect of the Guidelines, the Court found that that the Board had not failed in its statutory duty in this regard by not slavishly adhering to the Guidelines recommendation in relation to a low noise environment. It was entitled to see the Guidelines as just that i.e. Guidelines. The Board is entitled to take other matters into account in relation to its consideration to the Guidelines, on how to apply them or not as the case may be.

The Community argued that failure to have regard to the 2006 Guidelines was a breach of Section 28 of the Act of 2000. However the Court in its Judgement referred to the findings of McEvoy v. Meath Co Council, 2003. Here the Court found that the phrase “having regard to” did not require it to rigidly follow the Guidelines and it could even depart from them for bona fide reasons, consistent with proper planning and development of its functional area.

The Court also found in the present case that there is no statutory obligation on the Board to give reasons for not following a particular guideline. Even if it was the situation that they had departed from Section 28, there is no requirement imposed to give any such reasons.

To  summarise, the Court upheld the principle that the Inspector’s Report to the Board and the Board’s own consideration of an appeal is, in effect, the equivalent of an EIA. The preparation and consideration of the Inspector’s Report satisfies the requirement that the Board undertake its own EIA.

The second important aspect of this judgement was to establish and reaffirm what the term “having regard” to means in terms of the 2006 Guidelines, and the status given to those Guidelines under Section 28 of the Planning Act 2000.

The court has firmly established that the Board has discretion in respect of these Guidelines and they may or may not impose the Guidelines as they see fit. Also under Section 28, they are not required to give reasons for departing from the stated position of the Guidelines. Effectively this discretion is provided to the Board without the requirement for accountability.

Project Splitting

The community case for judicial review submitted to the Court that the Board had failed to carry out an EIA in relation to the overall project of which the construction of the wind turbines is only the first stage and there is a necessary second phase, namely the works necessary to connect the wind farm to the National Grid.

As this second phase is a fundamental part of the overall development, without which, the wind farm could not operate the argument was brought that the two stages should be considered ads a single project to be assessed as such on a cumulative basis before it can be seen as complying with the EIA Directive.

The Board accepted that so called project splitting must be avoided so as to ensure the objectives of the EIA Directive are not frustrated, but they argued in the present case that the development and the later connection of that development to the National Grid did not constitute one project.

Framore Ltd. quoted the Guidelines at paragraph 4.3, where it states that connection to the Grid due to reasons outside the applicants control may not be finalised at pre-planning or planning application stage and a separate application for grid connection may be necessary.

The Court however found that the second phase of the development in the present case, namely the connection to the National Grid, was an integral part of the overall development of which the construction of the turbines is the first part.

The fact that the developer is at the mercy of ESB Networks, as far as the details of the plans for that connection to the grid is concerned, cannot absolve the developer from compliance with the Directive in every respect. Therefore the Court concluded that in reality the wind farm and its connection in due course to the National Grid is one project neither being independent of the other.

The Court concluded that the failure to include the route connection to the National grid pointed to a prematurity in the seeking of permission for the construction of a wind farm ahead of detailed proposals for its connection to the National grid from ESB Networks.

An Bord Pleanala and Framore Ltd. have made submissions to the Court to have this case referred back to the Board and presumably the intention should they succeed in this argument is for Framore Ltd. to resubmit a revised application that will include the Grid connection. The Court is to give its decision on this application on the 20th February 2015.

In the event that the applicants do not succeed in having it returned to An Bord Pleanala, Framore Ltd. would have to reapply for planning permission and go through the whole process again.

The significance of this part of the judgement means that in future all applications for wind farms must now include the Grid connection and this is a significant development.

By Peter Crossan