Project Splitting

Wind Swindle

“Planning must be open and communicative, but often it is closed. Planning must be participatory and democratic, but often it is an instrument to dominate and control. Planning must be about rationality, but often it is about power. … This is the “dark side” of planning … .
Forecasting, too, has its dark side. It is here “planners lie with numbers,” as Wachs (1989) has aptly put it. Planners on the dark side are busy, not with getting forecasts right and following the AICP Code of Ethics, but with getting projects funded and built. And accurate forecasts are often not an effective means for achieving this objective. Indeed, accurate forecasts may be counterproductive, whereas biased forecasts may be effective in competing for funds and securing the go-ahead for construction.
“The most effective planner,” says Wachs (1989,477), “is sometimes the one who can cloak advocacy in the guise of scientific or technical rationality.”

(Bent Flyvbjerg, Mette K. Skamris Holm, and Søren L. Buhl. “How (In)accurate Are Demand Forecasts in Public Works Projects? The Case of Transportation” Aalborg University, Denmark)

Introduction
Section 172(1) of the Planning and Development Act of 2000 (PDA 2000) states that where a development is covered by Part 2 of Schedule 5 of the Planning and Development Regulations of 2001, the planning application for that development must be accompanied by an environment impact statement (EIS).

.
Wind farms are specifically mentioned in Part 2 of Schedule 5:

“Installations for the harnessing of wind power for energy production (wind farms) with more than 5 turbines or having a total output greater than 5 megawatts.”

The requirement of submitting environmental impact statements arises from certain European Directives, principally Directive 85/337/EEC (as amended by Directive 97/11/EC) on the assessment of the effects of certain public and private projects on the environment. The Directive 85/337/EEC was chosen to be implemented in Ireland through the PDA 2000, read with the Environmental Protection Act 1992. In the English decision of Berkeley v Secretary for the Environment [2001] 2 A.C. 603 it was held that the Directive had “direct effect”, which means that national courts can be asked to directly enforce the Directive, and indeed they have done so.

.

An environmental impact assessment is required for: (1) An Annex I project set out in the Directive; (2) An Annex II project, where the thresholds set out in Sch.5 of the 2001 Regulations are exceeded; and (3) where the project is sub-threshold of Sch.5, but nevertheless has been determined by the planning authority or An Bord Pleanála to be a development likely to have a “significant effect on the environment” based on the criteria set out in Sch.7 of the Regulations.

.
As previously mentioned, wind farms (5 or more turbines or where the collective output of the turbines in question exceeds 5MW) are listed in Schedule 5, and accordingly wind farm operators applying for planning permission are legally obliged to submit an EIS with their application for planning permission.

“Project Splitting”
The term “project splitting” originally covered instances where individual elements of a larger project requiring an EIS are approved without EIS or EIA, whereas if the project was considered as a sum of these parts, it would be governed by Section 172(1)(a) and Part 2 of Schedule 5 of the Regulations, and accordingly would require an EIS. For example, project splitting would occur if a planned 20 turbine wind farm made planning application for four wind turbines at a time on five separate occasions. As the number of turbines is less than five, no EIS would be required.

.

Ireland was taken to the European Court by the European Commission for allowing this to happen in the past. This skulduggery is hopefully no longer practiced by the givers and takers of small brown envelopes.

.
As wind farms are always very large enterprises (generally a minimum of ten turbines) with considerable environmental impact, it is a given that an EIS must be provided with the planning application, and wind farm operators regard these as a necessary evil. However, they are constantly on the lookout to slither out of, or at least undermine, the impact of this ‘necessary evil’.

.
As a result, in more recent times, the term ‘project splitting’ has evolved to include instances where an EIS is carried out, but only on the first phase of a project, because the applicant will claim that subsequent phases of the project are not yet in the planning stage, and accordingly it is impossible to carry out an EIS on the subsequent phase(s).

.
This is particularly true of planning applications for wind farms. Phase 1 involves the erection of the wind turbines and all related development / construction (including the pouring of enormous quantities of concrete into the ground and the erection of towers taller than the Dublin Spike), and for this phase, planning permission is sought, accompanied by an EIS. However, everyone knows that it is necessary for that wind farm to be connected to the national grid, and this connection is usually Phase 2 of the project.

.
Planning permission is not requested for this link up, as the wind farm developer is dependent on the ESB to make this happen in the future, so the EIS submitted with the planning permission for the erection and development of the wind farm does not include the environmental impact of this necessary connection. This is despite the fact that this link-up / connection will consist of either overhead or underground power cables with some form of connection, perhaps even a substation or transformer.

.
When challenged about this inadequacy of their EIS, wind companies always bleated that it was nothing to do with them, it was the fault of the ESB for not providing specific details of the proposed link up.

.

However, it was generally recognised that if they obtained planning permission for Phase 1, and the wind farm was subsequently built, it was highly unlikely that Phase 2 would be refused planning permission, irrespective of the environmental impact of the link up with the Grid.

.

Indeed, An Bord Pleanála have been happy to play this game, with the Board itself arguing that the building of the wind farm and the subsequent connection to the grid are separate projects which must be assessed separately, including their respective environmental impacts which may be assessed at the relevant time.

.
This practice has been nipped in the bud by the High Court (Peart, J.) in a recent judicial review brought by a number of Cork residents who successfully reviewed the decision of An Bord Pleanála to approve the planning permission granted by Cork County Council to Framore Limited to build 12 turbines. The case is currently adjourned and accordingly a written judgment has not been released, but the finding of the Honourable Judge Peart in open Court during December 2014 made it clear that this practice could not be condoned.

.
The learned judge was satisfied that the connection to the national grid was an integral part of the overall development of which the construction of the turbines was the first part. The wind farm on its own serves no function if it cannot be connected to the national grid. In that way, the connection to the national grid is fundamental to the entire project, and therefore the cumulative effect of both phases must be assessed by the accompanying EIS in order to comply with the Directive.

.

Appeal Reference PL93.244006: Appeal by Ecopower Developments Limited against the refusal of Waterford City and County Council of planning permission to build wind turbines
This High Court ruling has important implications for an Appeal due to be heard by An Bord Pleanála in this new year, when Ecopower will appeal the refusal of planning permission to build monster wind turbines overlooking Dungarvan. At the same time, three of the original objectors have also lodged appeals, essentially on the grounds that the Council did not go far enough in its refusal. A similar complaint to the one raised in the previously-mentioned High Court review was raised by one of the objectors (and who is now one of the Appellants currently before An Bord Pleanála) , John McGovern, in his initial objection to the Waterford Town and County Council before that body made its decision to refuse planning permission to Ecopower:

“This proposal will be relying on 6km of overhead cabling to connect it to the Dungarvan substation at Kiladangan for which planning permission has not been submitted. This route will involve dissecting an area including West Waterford Golf Club and the Brickey Rovers and an extremely influential stud farm who have individually opposed this wind farm.”

I can only assume that John has repeated that objection in his appeal to An Bord Pleanála, but even if he has not, as an expert panel, An Bord Pleanála is expected to know the current law, particularly when that law is directly binding on it.

.
If Ecopower has not included this connection to the substation in its EIS, then, on the basis of the ruling of Peart J., which is binding on An Bord Pleanála, the appeal of Ecopower against the denial of planning permission must be refused.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in Uncategorized and tagged , , , , , , . Bookmark the permalink.

6 Responses to Project Splitting

  1. cawtdonegal says:

    FYI: this blog http://www.coakleyoneill.ie/blog/2014/12/19/news-quarter-4-2014 has some quotes from judgment

    In case reference 2014: No. 2014 No. 19 JR; 2014 No. 10 COM, O’Grianna & Ors v An Bord Pleanala and Cork County Council and Framore Ltd, the Court quashed the decision of the Board granting planning permission for a 6 turbine wind farm in County Cork, on ‘project splitting’ grounds.

    The Court held that the Board had failed to ensure that the connection to the grid (phase 2) was considered as part of the EIA process prior to granting permission for the turbines and ancillary infrastructure (phase 1).

    The developer’s EIS stated:

    “it is not possible to determine the line or form (overhead or underground) of the grid connection at this stage as the design will be undertaken by ESB Networks”.

    The Board and its inspector had accepted this position, and had included in the grant of planning permission the following condition:

    4.This permission shall not be construed as any form of consent or agreement to a connection to the National Grid. Reason: in the interests of clarity.

    Very briefly, the Court held that grid connection is an integral part of a wind farm project and cannot be considered to be a separate project, despite the fact that it is substantially designed and within the control of a third party, ESB Networks. The Court accepted that grid connection details were not available to the developer at the time the application was made, but held that, ‘in principle at least’, the cumulative effects of phase 1 and 2 must be assessed before consent is given, in order to comply with the EIA Directive.

    “it seems to me that 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”.

    With regard to the difficulty faced by the developer unable to provide grid connection details at the time of the planning application, the Court stated

    “it points to a prematurity in the seeking of permission for the construction of the wind farm ahead of the detailed proposals for its connection to the national grid from ESB Networks”….

    “It may mean that the developer must wait longer before submitting its application for planning permission. But it seems to me likely at least that even if a phase 1 permission is granted with a condition such as Condition 4 contained therein, no sensible developer would complete phase 1 of the development without having been granted permission for the connection to the national grid, or without having been assured that the connection phase is exempted development. In that way, it is difficult to see any real prejudice to the developer by having to wait until the necessary proposals are finalised by ESB Networks so that an EIS for the entire project can be completed and submitted, and so that a cumulative assessment of the likely impact on the environment can be carried out in order to comply with both the letter and spirit of the Directive.”

    One of the issues raised by the objector was that the grid connection will in many cases be deemed exempted development, thereby avoiding the requirement for cumulative EIA; the Board argued that this wouldn’t arise as exempted development loses its exempted status where it is part of a project coming within the scope of the EIA Directive. Ultimately the Court determined the issue on different grounds.

    This case has fairly far reaching implications for all energy projects, and other projects that rely upon ancillary infrastructure.

    (Source: Alice Whittaker, Partner, Phillip Lee)

    • Thanks very much. I actually have the judgment, but it is unapproved and so, out of respect for the judge, I did not quote it. I would rather wait for the final “official” version.

  2. Pat Swords says:

    I had actually been wondering why they had been getting away with this so much and decided to to have a closer look, which actually threw up something which in many ways is symptomatic of the manner in which deviousness rather than transparency is at play in Irish planning, in particular where it involves a sector of planning in which the State sector, rather than private industry, is the active agent.

    First of all if we look at the overriding EU legislation on Environmental Impact Assessment, which goes back to mid-eighties, but is now codified as Directive 2011/92/EC. Annex I projects are mandatory for environmental impact assessment and include overhead power lines of 220 kV or more and a length of 15 km or more. Annex II projects ‘may’ require an Environmental Impact Assessment procedure and include:

    Transmission of electrical energy by overhead cables (projects not included in Annex I);

    So how do we decide the ‘may’? Well Article 4(2) defines that for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment by determination through:
    (a) a case-by-case examination;
    or
    (b) thresholds or criteria set by the Member State

    If we take all these wind farms in Ireland and associated Grid 25, the Grid 25 element is the high voltage system, where high voltage is normally 400 kV, 220 kV and 110 kV. These are big pylon systems; the higher the voltage, such as 400 kV, the higher the pylon to get greater clearance from the ground, but a 110 kV system is still pretty large, say 20 m rather than 30 m, as explained by Eirgrid in question 5 below:

    http://www.eirgridprojects.com/media/Answers%20to%20questions%20from%20Community%20Before%20Pylons%20Group%20May%202011.pdf

    However, while Grid 25 has nearly 1,000 km of 400 and 220 kV lines, there is more than 5,000 km of new medium voltage lines to go in to connect in all these new wind farms to the high voltage grid. These range from 10 kV to 38 kV and are usually carried on a wooden structure of two vertical poles with one horizontal pole on the top or small steel pylons. The 38 kV wooden pylons are quite similar in size to the 110 kV wooden pylons to be seen in the Eirgrid link above.

    So bottom line there is going to be a lot of the 38 kV pylons to be installed, if not more 110 kV, so how is this treated by the Irish legislator. Well this is where it gets interesting when one sees the thresholds set in the Irish Environmental Impact Assessment Regulations (part 2 of schedule 5), where for Annex II projects, the Irish criteria is:

    Transmission of electrical energy by overhead cables not included in Part 1 of this Schedule, where the voltage would be 200 kilovolts or more.
    http://www.irishstatutebook.ie/2001/en/si/0600.html#sched5

    One needs to think about this carefully. It is mandatory under EU law to complete an Environmental Impact Assessment for big projects in Annex I, which include 220 kV power lines greater than 15 km. Annex II projects, which are smaller, may require an environmental impact assessment criteria and Ireland has set a threshold of 200 kV. But nobody builds 200 kV systems, they are either 220 kV or something close to 110 kV. So effectively the Irish threshold for applicability of power lines in Annex II is the same as those for the big projects in Annex I. This is completely unprecedented in how any Member State has gone about this. After all the Directive states:

    When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2,
    the relevant selection criteria set out in Annex III shall be taken into account.

    Where Annex III essentially provides the criteria to be used in assessing the significance of the impacts of the projects. We can also refer to the Department of the Environment’s website on Environmental Impact Assessment and find that:

    In the case of development which is under the relevant EIA threshold, planning authorities are required under article 103 of the 2001 Regulations to request an EIS where it considers that the proposed development is likely to have significant environmental effects. The decision as to whether a development is likely to have significant effects on the environment must be taken with reference to the criteria set out in Schedule 7 of the Planning and Development Regulations 2001. In order to assist planning and other consent authorities in deciding if significant effects on the environment are likely to arise in the case of development below the national mandatory EIA thresholds, the Minister for the Environment, Heritage and Local Government published a Guidance document in August 2003.
    http://www.environ.ie/en/DevelopmentHousing/PlanningDevelopment/EnvironmentalAssessment/

    OK, so lets have a look at that guidance, which boasts:

    3.4 In the light of the approach adopted by Ireland (i) in setting mandatory thresholds for each of the Annex II project classes and (ii) in setting these thresholds at substantially lower levels than comparable Annex I
    thresholds in the Directive, the need for sub-threshold EIA should be fairly limited in Ireland.
    http://www.environ.ie/en/DevelopmentHousing/PlanningDevelopment/EnvironmentalAssessment/PublicationsDocuments/FileDownLoad,1804,en.pdf

    Sorry, that’s not true for overhead high voltage lines, where the Annex I criteria and Ireland’s Annex II threshold are nearly the same. So a clear ‘porky’ and furthermore guidance written without any reference and guidance to electricity lines.

    Well how do other Member States set the power line threshold for Annex II projects?

    In the UK they developed a separate environmental impact assessment regulation for electricity systems (wonder why) and set quite comprehensive thresholds for Annex II projects. Namely 132 kV lines require an assessment as does lower voltage electric lines installed above ground in a sensitive area, where there are nine definitions, which apply to a sensitive area (no doubt you would find one such sensitive area around you).

    http://www.legislation.gov.uk/uksi/2000/1927/schedule/2/made

    In Austria, the threshold is 110 KV and 20 km in length in areas deemed requiring protection.

    In Germany, 5 km to 15 km of 110 kV lines requires a formal general screening to determine if there are significant environmental impacts. For 110 kV lines of 5 km or less a formal screening exercise is required based on the location specific criteria.

    So does one smell a rat here? Not only has Ireland been effectively been ignoring the impact of grid connections when it comes to assessment of wind power developments, but it has also been trying very hard to keep grid developments out of the whole statutory assessment process in the first place.

    Indeed if we go to the Projects of Common Interest and Gridlink, now part of a legal process at UNECE, if you scroll down through the following questionnaires to the one on Gridlink, you will see that the primary purpose of Gridlink is to facilitate the integration of 1,283 MW of renewable generation in the South of the Country.

    http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2013-96/Communication/Attachment_6_Questionnaires.pdf

    So, guess what? All the wind farms in the South of the Country are intrinsically linked to Gridlink and should be assessed in conjunction with it. You can’t have one without the other, the projects are inherently interlinked and trying to approve them bit by bit, without reference to one another, is classic ‘slamani slicing’ (project splitting). Indeed, there is plenty of case law in the European and National Courts (now here too thanks to Peart J), that you simply can’t do that, for instance:

    http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52003DC0334

    As CAWTDonegal pointed out, this case has fairly far reaching implications.

  3. Pingback: O’Grianna and others v. An Bord Pleanala – Part 2 | The Law is my Oyster

  4. Pingback: Opposing Extensions | The Law is my Oyster

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s