Rural Communities under attack from the State

RTSI received a letter from a member of the Ratheniska community which is battling An Bord Pleanala, the Department of Communications, Energy and Natural Resources, and EirGrid in their plan to build a massive substation which is intended to be the connecting hub for the plague of wind farms that are planned for the area.

The contents of the letter are heartrending. In addition, as a lawyer I find the contents deeply disturbing as it shows how far this Government and its lackeys are prepared to go to impose their will on rural communities fighting the madness that is Grid25.

Laws are useless if they are not properly interpreted by the courts and properly enforced by the civil authorities. It is clear that in the headlong rush to build Grid 25 and the associated industrial wind farms, any semblance of respect for the rule of law has long fallen by the wayside.

Article 40.3 of the Irish Constitution, Bunreacht na hÉireann, reads as follows:

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

Is this Government, more particularly the Department of Communications, Resources and Natural Energy, abiding the Constitution or does it regard our Constitution (and the citizens) with contempt?

Read this letter and decide for yourself:

“Dear Neil

Rural Irish Communities under attack by State Authorities
(14th Feb. 2015)

.
Introduction

Our community has already been under significant pressure due to EirGrid’s Laois-Kilkenny reinforcement project and the manner in which it has progressed – our fight is also far from over.

The impact is felt not only by those of us forced to put aside our lives and free time to become quasi-experts in environmental law, engineering, construction, planning, ecology, hydrology, fundraising, detective-work etc. but by our families and friends too as this fight to find out the true extent of the plans for our area and have our EU rights fully implemented becomes all consuming.

We are finding that there is a particularly nasty type of stress that comes from not being allowed to really participate in decisions that are going to fundamentally change where you live forever and even more so, when state bodies are involved.

We were unlucky enough to have a GRID25 strategic infrastructure project planned for our area. The experiences that we have had along the way have made it very difficult for us to believe that any law is on our side. We are told about the EU Environmental Directives and associated case law, the Arhus Convention, the duty of public participation and indeed the Habitats Directives. However, we wonder if these laws actually exist in Ireland, at least in the spirit in which they were intended.

I often wonder that if others were in our position, would they think that Irish People really have access to their rights as European citizens? Our experience says the answer is no.

.
A balanced and fair situation?

In 2014 our small rural community group, based in Ratheniska, Co. Laois took a judicial review against An Bord Pleanala for a massive (and only partially disclosed) substation scheme, as there were serious deficiencies in the planning process for the project proposed in our area.

During the planning oral hearing (Nov. 2013), we demonstrated that the project involved much more than had been divulged, i.e. this was a project which clearly set the framework for significant future development –it was the first stage of a major energy hub.

Despite repeated requests to state bodies for clarification, no information has been forthcoming and no denial has ever been issued that there are further planned ‘phases’ to the project.

At all stages of planning, the process has been fundamentally weighted in favour of EirGrid (as state sponsored developers). i.e. time, financial resources and expertise lies totally and overwhelmingly in favour of the developers and the state authorities. Conversely, our small community had to do what we could in the time left after work and family commitments – effectively sacrificing our free time and often family life in order to investigate and document the arguments as well as fundraising. This drain of local resources has continued over the course of the last five-and-a-half years. It is likely to be the first of many battles given the amount of ‘energy’ developments we have uncovered and identified as planned for our area.

Despite this huge imbalance, we managed to fundraise the €50k necessary to bring a judicial challenge to the High Court. A judicial review is the only mechanism allowed by the state to challenge a strategic infrastructure project such as this – there is no planning appeal mechanism available which would be much more suitable for small communities.

Almost immediately, EirGrid applied to move the case to the commercial court. In our experience, the move to the commercial court further compounded the imbalance in resources and expertise but, in practice, such a move cannot be resisted without risk by communities as this could increase exposure to costs. The fact that we did not resist this move was quoted in the judgement (Section 20) and it certainly seemed as if it was somehow going to count as a mark against us.

.
State authorities using threat of costs to discourage challenges to Public Decisions

On Wednesday 14th January 2015 we received the Judgement in case 2014 / 340 / JR. (http://www.courts.ie/Judgments.nsf/0/1E941D025D53295980257DDB0039E099 ).

The 70 page judgment was devastating to us. Not least because many elements of our case were simply not dealt with as they were interpreted as being outside of the original grounds (e.g. see section 19 of the judgment). It seems to us that an incredibly narrow interpretation of the grounds was taken and we have the impression that this in some way related to being in the commercial court (see section 20). This resulted from ABP arguing in court that it would be terribly unfair to the ABP to allow our arguments to be raised – a strange argument to make at the last minute since they had been aware of the developing nature of our arguments through the necessary exchange of legal submissions throughout the months of preparation. As a result, many of the issues we brought to court remain unanswered.

We still struggle to understand how the court process works – the rules of engagement remain a mystery to us e.g. an important aspect, such as Strategic Environmental Assessment had been discussed within the judgment but we were not allowed to raise these points in the court (again, see section 19 ruling this out of grounds).

Straight after delivery of the judgment, An Bord Pleanala stated in court that they would not be pursuing us for costs, something reiterated by EirGrid. We had previously received a letter from EirGrid stating that they accepted that section 50B applied in terms of cost protection (our legal arguments were based on environmental law). As such, we considered ourselves on safe ground even though there had been no official protective costs order put in place and which, by all accounts is not that straightforward to achieve at the outset of a case.

The following week, there was to be a hearing to formally close out any costs issues but also to discuss any request to appeal. We had asked for costs to be dealt with first, and then, when that was settled, we would discuss any interest in appealing. Both EirGrid and ABP took issue with this and we were advised that they wanted to deal with everything together and they would not be bound by anything said before. We were given a one week adjournment – during that week we drafted our grounds for appeal.

ABP and EirGrid were issued with a copy of our intended appeal grounds on Tuesday 27th Jan. 2015. They were fully aware that we intended to seek leave to appeal.

.
The threat of costs is delivered

On Wednesday 28th January, just prior to the judge arriving in the court – ABP approached our solicitor and indicated that they would now pursue us for costs back to the beginning of the case if we did not withdraw our request for certificate to appeal. We were advised that EirGrid indicated the same approach.

Our group was not present in the court on that day as we had not anticipated such an ambush. Our group contact was called by phone while at work and literally given 3 minutes to consider whether we should proceed and risk exposure to estimated costs of up to half a million euro or withdraw our intention to seek leave to appeal. Effectively with a gun to our head, we withdrew the request for certificate to appeal for this cost reason alone.

Clearly this type of behaviour is totally contrary to the fundamental principles of access to justice in environmental matters and well beyond ‘not-prohibitively expensive’. This action appears designed to ensure that the public do not even consider trying to participate in or challenge any environmental decision making, thus effectively disabling the public’s ability to access justice on environmental matters.

We believe that the grounds of our appeal are hugely relevant to all the grid / wind projects now in the pipeline and so, we consider that these presented a significant threat both to An Bord Pleanala and EirGrid – fear of costs was the only way they could shut us down and so, these state bodies used their access to public funds against us.

We have a very real concern that if major issues as have been identified in this one project can be successfully glossed over by the state, then what hope is there of the public being able to access environmental justice for smaller but equally valid transgressions?

.
The background to the project:

The Project:
• was euphemistically called the ‘Laois-Kilkenny reinforcement project’ by EirGrid, a project associated with GRID 25 but where the location / route options had already been designed and advised to the council, An Bord Pleanala and Europe before the public who would have to live with it were ever consulted on the ‘study area’ and 2 years before the SEA for the GRID 25 Implementation Plan had even been drafted. (note that this SEA covered only phase 1 of GRID 25 and specifically excluded the cumulative impact of windfarms). Effectively, a fait accomplis. A simplified description supplied to us was that it would consist of a substation to join 2 existing electrical lines (one of 110kV and one of 400kV) to each other and to bring a new one (110kV) from the substation to Ballyragget.

• We then realised that on the 18 acre site, the substation would consist of one acre of buildings in addition to roads, settlement ponds etc. and had the capacity to connect a total of 16-17 powerlines. (far in excess of the 5 connections for which reasons had been given). To this day we have received no official explanation. Perhaps someone could explain to us how you can have effective public participation if the state will not ensure that you are given even the most basic information such as the totality of what is intended to be built and why? Worse again – it is the state that withheld the information (EirGrid as developers) and another state body (ABP) that sanctioned this approach by not requiring this information to be included in the EIS as required by law i.e. cumulative impacts.

• We sought and found our own information – this was a huge task in itself. We demonstrated that EirGrid had in fact plans in progress to add additional lines within the next 5 years which they had never disclosed, this included plans for a massive AC/DC converter station that would dwarf the current proposed substation – we are led to believe it would dwarf Croke park. Based on this, we demonstrated to the Oral Hearing (November 2013) that a relevant SEA had not been carried out. And what was the ABP’s response? They said they had no responsibility for the SEA (see Inspectors report pages 46/ 47 http://www.pleanala.ie/casenum/VA0015.htm ). This alone seems to render the process of SEA as pointless if it is not considered part of the final planning permission.

• We demonstrated that in addition to all this, there seemed to be some connection between this project and huge areas for development by the Element Power / Mainstream Renewable export projects (Massive Industrial windparks) – The inspector referred to their websites to dismiss our concerns (inspector’s report page 112/113). We have since realised that actually, ABP were in pre-consultation with Element Power since mid-2012 (http://www.pleanala.ie/casenum/PC0148.htm – Greenwire project). While the public are excluded from knowing the content of those discussions until everything is finalised, the inspector would presumably have had access, yet he decided to rely on the information on the websites to dismiss our concerns.

Can we believe anything that we are told…?
The Inspector went on to say in his report that “During the oral hearing, there also appeared to be concern that the proposed development would facilitate one of the even larger wind farms designed to export electricity to the United Kingdom. It was clarified towards the end of the oral hearing that this would not be the case and that these projects are standalone and would export electricity via their own power lines rather than through the national grid”.

Once again, afterwards we discovered a feasibility study had actually been carried out by EirGrid in Feb. 2013 i.e. just a few months before the oral hearing referenced above. The following extract refers to this study “National Grid Electricity Transmission and EirGrid, the respective TSOs for the GB and Ireland transmission systems, have jointly investigated the benefits of coordinating the infrastructure associated with these renewable energy projects with network development in and between both islands. In particular, this study examines different connection options to the Irish transmission system”. (http://www.eirgrid.com/mediaExportingRenewableEnergy-JointStudybyEirGridandNationalGrid%28Feb%202013%29.pdf ) We can’t help but wonder how the clarification to the oral hearing missed out on this important point.

These are not small issues – an area adjacent to the substation site has been zoned for wind, this area appears to be greater than the Slieve Bloom mountains, i.e. more than 22,000 ha. We all know that wind farms and grid infrastructure are interdependent on each other. However, no cumulative assessment of this took place.

• Additionally, the site is atop a vulnerable regionally important bedrock aquifer (overlain by a locally important gravel aquifer), adjacent to a pNHA and approx. 400m from a priority Habitat as defined by the Habitats Directive (Tufa Spring), a water receptor habitat which would be very sensitive to groundwater variations (such as caused by massive excavations). There are other Tufa deposits also that may have potential to develop into such a habitat which are directly on the boundary of the site. These were not subject to any AA and indeed, as far as we’re aware, the DAHG have advised that they have no protection status unless within an SAC.

Concerns regarding groundwater variations were mentioned on page 99 of the Inspectors report as follows, “The gravel deposits in the area would also act as an aquifer when sufficiently thick, permeable, saturated and extensive. The substation site is located on the boundary of a Locally Important sand and gravel aquifer.” and “The tufa deposits to the east of the substation are on the boundary of the gravel aquifer and are associated with discharge zones at the aquifer boundary. However, the sand and gravel deposits at this site were not found to be saturated during the earlier site investigation…..” thus dismissing the risks.
We had investigated the timing of the aforementioned site investigations – would you be surprised to hear that both sets of site investigation coincided with the two lowest rainfall periods in the two year period? So were we! It is no wonder the gravels weren’t saturated. We demonstrated this issue at the oral hearing having graphed the rainfall values for the two years and the dates for the site investigations, but amazingly, it seems no reference to this appeared in the inspectors report.

We could keep on providing examples – these are not the only issues with this project but are some of the most significant.

Maybe, one day, you too will be ‘lucky’ enough to have a GRID25 Strategic Infrastructure Project planned for your area. If so, be careful what you believe, investigate everything – especially issues that don’t appear in the reports. Will you be expecting a fair, balanced and transparent process?

And so, again we ask… do you think that Irish People really have access to their environmental rights as European citizens?

 

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.
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15 Responses to Rural Communities under attack from the State

  1. If I understand it correctly, and I’m no legal mind at all, but would such a move change the structure of the case? Is that like moving a family law case into and environmental court?
    Any idea who advised the community to go into Commercial Court?
    How many other Judicial Reviews are coming before the court this year?
    Excellent work you’re doing keeping people informed. Thank you for it.

    • I do not know the answer to that as I do not know why it was moved. The Commercial Court is still the High Court, it is a specialised court but the same law and procedures apply. It might have been for fast-tracking purposes.

    • dave fingleton says:

      Just to clear this point up. You literally have no choice to avoid going into the commercial court if the developers request it. The advice to us was, if you resist a move to the commercial court, the developer / ABP will have grounds to seek costs against your group because you are causing them to be delayed. No matter which way you turn, the system is now streamlined in such a way as to absolutely minimise the impact of any community’s case.

  2. Reblogged this on The Irish Way (blog) and commented:
    The island of Ireland looks set to be the generator for Europe, all over the island communities are raising funds, holding meetings, learning environmental law, giving up YEARS of their time to learn all they can about how European Law works in Ireland. Communities are up against some of the best legal teams that money can buy … tax payers money used to fight tax payers.
    Read the link below and learn of how one such community is being ‘played’ by the energy corporations that are invited into OUR country by our own elected officials.
    Something’s gotta give people … something’s gotta change before we’re left living among the infrastructure that other countries are moving away from.
    We NEED new politics in Ireland before it’s too late.
    G’wan – stick the kettle on and have a read.

  3. An absolutely shocking read – not satisfied by incompetent planning, government departments are hell-bent on destroying the quality and value of family holdings that have been painstakingly built up over generations. The current administration were elected on a promise of reform and accountability. Two qualities that are noticeably absent in the cavalier steamrolling of citizen’s rights.

  4. cawtdonegal says:

    Neil,

    I think it would be helpful for your readers that some comments in relation to the commercial court and section 50B of the Planning and Development Act (costs in environmental cases) are made. The commercial court is just a division of the high court, established in 2004, where certain types of cases – including planning cases for large scale projects > €1m – are given faster hearing dates and have more strict case management timelines. The judge must apply the same substantive laws, including environmental law, when hearing a case. Having a case heard in the commercial court would not undermine a local community fighting a wind farm or substation project. The recent quashing of the 6-turbine wind farm, in Cork, in the O’Grianna case is one example where the case was heard by the commercial court and the local community were successful. See link for judgment http://courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/71409d20df97079280257ddc004f8721?OpenDocument

    In relation to the threat of costs I find this a little difficult to understand. Section 50B of the Planning and Development Act was introduced in 2010 to deal with costs in environmental cases, in order to comply with the rights conferred on the public, from EU law in relation to participation in environmental matters and the Aarhus Convention. In cases dealing with an Environmental Impact Assessment (EIA) the applicant for relief, in this case a group such as Ratheniska, would generally not be liable for the costs of An Bord Pleanála should they lose the case in relation to EIA points. There are exceptions and the Act provides that costs may be awarded against an applicant (i.e. Ratheniska group):
    (a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious,
    (b) because of the manner in which the party has conducted the proceedings, or
    (c) where the party is in contempt of the Court.
    It seems unlikely that the Ratheniska group fell within these categories therefore the ‘threat of costs’ seems to be at odds with the law. Perhaps the Ratheniska group can clarify what provision that An Bord Pleanála sought to rely upon to make them liable for costs.

    • Thanks. As you can see earlier, that was my guess too – that it went through the Commercial Court as a fast track procedure. I don’t understand about the costs either but clearly lay litigants would take such a threat seriously and the simple fact that the threat was made is outrageous.

    • dave fingleton says:

      My understanding is that it is at the discretion of the judge. We just couldn’t take the chance of being found liable for costs estimated at anything upwards of 750,000. “You seek a license to appeal, we go for our costs dating back to the beginning of the whole case”. The threat was made on the steps, before the court sat, and our solicitor had a few minutes to contact the group before proceedings begun. One member of our group literally had 3 minutes to respond on behalf of the group. The implications for us were huge. We are now in limbo because we had to withdraw. No way to appeal, no appeal in Europe. Shut down.

  5. cawtdonegal says:

    Sorry to hear that you were played into that corner Dave. Your group needs to seek clarity on the law in relation to costs and also query the procedural steps taken – including the scope of the grounds raised on appeal – in making your initial application for leave to take the judicial review. I think the Ratheniska case highlights the need to ensure that local communities have more time at planning application stage to present a comprehensive strategic opposition position in order to set adequate foundations for success in the courts.

    The current planning system is skewed in favour of development. Local communities must be empowered within the planning legislative frameworks with some provision for access to the necessary resources, including the adequate time and experitse, to ensure that public/community engagement is meaningful and that issues such as environmental impacts are robustly and fully explored before such projects can proceed. Our laws in this regard need to be amended.

    On a practical level, local community groups are faced with significant hurdles when a large scale project arrives on their door-steps. If one further lesson can be learned in this instance it is that An Bord Pleanála is a planning tribunal who must be presented in a professional manner with the necessary planning issues to refuse permission. It is very often the lack of such substantive planning issues that leads to An Bord Pleanála granting permission. Raising emotive issues, problems with national energy policy and Aarhus compliance while in many cases is necessary these issues will on their own rarely lead to a successful outcome for opposing communities.

  6. This is a classic demonstration of how ESB Eirgrid consults with the people; listens to the people; considers the people. Invariably they apply for planning permission under the guise of bringing much needed power to an area. The opposite is usually true as we all now know, the purpose of the Grid projects being to to facilitate the transmission of power to UK and Europe. We were of the opinion in our area (North Roscommon south Sligo) that planning permission could not be granted if the purpose was to take power out of the area, hence the fudge about bringing in power to an area. We too spent years trying to get a reasonable solution i.e. lines underground, but to no avail. The outright lies and spin defied belief but they progressed anyway, building pylons in close proximity to homes; flagrant disregard for historic places and needless to say, total disregard for the people affected. We sympathise with you all in the RTS group and encourage you not to lose hope. And as to whether you can believe what they say…definitely not. The bigger concern for all of us and what became obvious to us as time went on, was the deep involvement of our government with the project. Without this involvement and the bending and disregard for the constitution the projects could not go ahead in their present form. I see Mugabe is splashing out for his birthday, an individual I thought to be an example of corruption…..he doesn’t hold a candle to our lot.

  7. Pam Brennan says:

    Thank you so much to the person who went to the great trouble to write this excellent and quite shocking letter. It comes as a wake up call to people like me who actually thought we all had rights which were protected under the constitution. I now realise that these rights are only protected so long as they do not clash with the interests of the rich and powerful.

    • Dave Fingleton says:

      Pam, I think your observation is absolutely correct. I think most of us erroneously believe(d) that there is an inherent fairness in the system, and that once a community presented their case in a legally coherent and professional manner that it would be received and decided upon on in a legally coherent sand professional manner. That didn’t happen. On a multitude of levels. The person who wrote this brought her 3 week old baby to a meeting, such Was her dedication and commitment, her “professionalism”.. The kind not shown by the state…

  8. “On a practical level, local community groups are faced with significant hurdles when a large scale project arrives on their door-steps. If one further lesson can be learned in this instance it is that An Bord Pleanála is a planning tribunal who must be presented in a professional manner with the necessary planning issues to refuse permission. It is very often the lack of such substantive planning issues that leads to An Bord Pleanála granting permission ”

    There is nothing practical about this strategy. There is no proof of ABP approving a project because of a missing planing issue. Planing acts and issues are not legally binding and the Bord enjoys full discretion on such issues.
    Donegal has a total of 32 wind farms. This is what most of us are trying to avoid. The lesson from Ratheniska is to hire Barristers and Solicitors who have an indepth understanding of EU Directives, law and the concept of strategy.

  9. Pingback: RTS & Ors -v- An Bord Pleanála [2015] IEHC 18 – lessons learned | The Law is my Oyster

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