High Court: Waterford residents lose case against Ecopower Windfarm development

Residents who brought judicial review proceedings in relation to a decision by An Bord Pleanála to grant planning permission for a wind farm development, have had their application for an order quashing this decision refused in the High Court. Criticising the applicants for their overlapping and contradictory submissions, Mr Justice Robert Houghton was satisfied that assessments were made in line with O’Grianna, and that all arguments in relation to the grid connection and haul route were not sustainable due to the fact that planning permission did not include these works.

Background

In July, 2014, Ecopower applied to Waterford County Council for planning permission for a development of a windfarm consisting of twelve wind turbines, one meteorological mast and various associated works in Knocknamona, Co Waterford.

Waterford County Council initially refused permission because:
(i) the Environmental Impact Statement (EIS) submitted with the application was inadequate and
(ii) the development would have an adverse effect on the landscape and visual amenity.

Ecopower revised the application to alleviate these concerns and appealed the decision. An inspector from the Board was appointed, who recommended refusal solely on the basis that the development would result in excessive noise being generated at dwellings in the vicinity. Additionally, in light of the decision in O’Grianna v An Bord Pleanála (No. 1) [2014] IEHC 632, the EIS was deficient and required further detail relating to the proposed grid connection for the development.

The Board requested further information from the Developer pursuant to section 132 of the Planning and Development Act, 2000 (as amended); and required the developer to publish notices informing the public and inviting submissions.

Over one hundred submissions were received after publication of the updated notice, including two on behalf of the applicants herein.

In a further report, the Inspector stated that he had incorrectly interpreted the Ministerial Guidelines relating to the noise factor and concluded that the noise of the proposed development would not be in excess of the threshold allowed for in the Guidelines issued by the then Department of the Environment, Housing and Local Government. Upon conduction an Environmental Impact Assessment (EIA) and screening for Appropriate Assessment (AA), the inspector concluded that the proposed development was not likely to have significant effects on any European sites.

In November 2016, the Board granted planning permission “generally in accordance with the Planning Inspector’s recommendation” and attached seventeen conditions or “mitigation measures” to this permission.

Submissions of the Applicants

The Applicants (Michael Alen-Buckley and Giancarla Alen-Buckley) sought an order of certiorari quashing the decision of the Board as well as several other declaratory reliefs.

The arguments advanced by the applicants were summarised as follows:

i. The Board extended planning permission to include the grid connection and haul route works – indicative of the Board’s decision to grant planning permission to parts of the development which were not part of the application, namely the grid connection and haul route works, and of which the public had no notice. As such, this was fundamentally improper and ultra vires.

ii. The Inspector assessed the development on the basis that the grid connection and haul route works were not part of the application but still went on to recommend that conditions be imposed in respect of same. The Board went on to grant planning permission on the basis of these mitigation measures. These measures relate to land over which Ecopower has no control and which were not included in the planning application.

iii. Ecopower proposed two alternative routes for the grid connection which makes the development void for uncertainty and contrary to the Planning and Development Act Regulations and Council Directive 2011/92/EU.

iv. The site notice erected by the Board in February 2016, did not contain sufficient information relating to the grid connection and haul route works which the applicants contend were now being included in the planning application. This failure contravenes the principles set out in Gormley v ESB [1985] IR 129, the Planning and Development Regulations 2001 (as amended) and the Aarhus convention in relation to public participation in the planning process.

v. As a result of  this deficient site notice, members of the public whose lands were affected by the two possible grid connection routes made any submissions to the Board in relation to the application for planning permission nor was any consent given for grid connection work to be carried out on their land.

The applicants also submitted four further issues arising from the grant of planning permission for the Windfarm development alone, including assertions that the Board acted contrary to the 2000 Act, in contravention of the Planning Acts and Council Directive 2011/92/EU, and that the assessment was carried out contrary to the requirements of the Habitats Directive.

High Court

Justice Haughton stated that it was “abundantly clear that the Board neither extended the planning application to include the grid connection and haul route works, nor granted permission for same”.

Furthermore, the fact that the developer “continued to seek permission for the grid connection” was indicative of the fact that the Board and the Developer proceeded on the basis that planning permission for these works was not granted.

As such, Justice Haughton explained that “the issues relating to the alleged grant of planning permission for the grid connection and haul route works fall away” and it could not be said that the site notice was defective for not including details of the grid connection/haul route works, and no public notification issue arises because these were not included in the planning application.

Rejecting all of the applicants’ submissions, Justice Houghton was satisfied that the inspector had carried out the correct tests and that the appropriate standard was applied in all of the circumstances in line with O’Grianna v An Bord Pleanála. As such, none of the arguments made by the applicants were made out, and the application for judicial review was dismissed.

  • by Seosamh Gráinséir for Irish Legal News