O’Grianna and others v. An Bord Pleanala – Part 2

judge “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.”   (Jonathan Swift)

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You will remember the judgment of Peart J. in O’Grianna and others v. An Bord Pleanala [2014] IEHC 632 which was discussed in a previous blog (“Project Splitting”)  where the High Court upheld the application for judicial review by the Applicants of the decision of An Bord Pleanála to approve the planning permission granted by Cork County Council to Framore Limited to build 12 turbines.   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.

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In the second instalment of this saga (O’Grianna and others v. An Bord Pleanala [2015] IEHC 248) An Bord Pleanála (ABP) asked the Court to send (remit) the matter back to them, the ABP, to allow them to carry out an Environmental Impact Assessment (EIA) on the entire project, including the grid connection. This would avoid the necessity of starting the whole planning process from the beginning, which in turn would avoid a lot of delay and extra cost on the part of the developers.

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What is a remittal?  

In ordinary language, to ‘remit’ something is to reverse or send back, and in law it means roughly the same thing. Where a superior court remits a decision it sends it back to the lower court to do it again, properly this time. In this case an administrative tribunal, the ABP, is asking that the High Court send the matter back to them so that they can fix it, rather than ordering the whole process to start again from the beginning.   This makes sense in the context of a judicial review which, as you may remember, is different from an appeal. With an appeal the decision itself is challenged as being wrong. In other words, the substance or ‘merits’ of the decision are challenged – you are claiming that the decision-maker was wrong in their interpretation of the law and/or the evidence, and you ask the appeal court to replace the wrong decision with a correct one of their own. In other words, to use a criminal law example: ‘the jury found me guilty. I am taking my conviction on appeal because I am innocent and therefore they were wrong”.

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A review is a different animal altogether. Rather than challenging the substance of the decision, you are challenging the procedure followed in reaching that decision. Therefore, even where the procedure is found to be wrong, the review court will send it back and say “have another go, but do it right this time”.

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As you have no doubt realised therefore, a review court will remit more often than not.   Order 84, Rule 27(4) deals with the remittal of any matter (back) to the relevant court or administrative tribunal where an Order has been made quashing its decision.

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It was quite surprising that Peart J. did not refer to previous decisions when coming to his own decision, as the situation in the O’Grianna (2) case is certainly not unique, and the law on the topic is settled, although the judge can be quite flexible in trying to find a fair result. This flexibility is called “discretion” and does mean that there might be an element of unpredictability in the whole affair, but usually there are no surprises. I will explain the concept of ‘judicial discretion’ later on.

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In the matter of Usk and District Residents Association v. Environmental Protection Agency [2007] 2 ILRM 378, Kelly J. had to consider a request from the (successful) Applicants that the matter should not be remitted to the ABP, but should rather be thrown out in its entirety. Kelly J. said the following:

“I think the best that can be said is that the exercise of the discretion is a wide one and it would be impossible and unwise to attempt to set out in a comprehensive fashion all the factors which the Court ought to take into consideration. That will have to be developed on a case by case basis. The one thing that can be said is that the discretion must be exercised both judicially and judiciously with the overall object of achieving a just result.” (Page 386 of the judgment).

Kelly J. actually came to the same decision as the High Court in this O’Grianna decision – namely that the inevitable and disproportionate delay that would come about if the matter was not remitted meant that remittal (rather than throwing it out completely) was the fairest decision in the circumstances.   In the decision of Tristor v. Minister for the Environment, Heritage and Local Government [2010] IEHC 454, the court again sent the matter back to the County Council rather than ordering the whole process to start again. Clarke J. said:

“The overriding principle ought to be that the court should do its best to ensure that parties do not inappropriately suffer, or indeed gain, by reason of invalid decision making and that, insofar as it may be possible so to do both on the facts and within the relevant statutory framework, the situation should be returned to where it would have been had the invalid decision not taken place.” (At para 3.10 of the judgment).

What these decisions are saying is that Judge Peart has been given what is called judicial discretion. Discretion is the power or right to make decisions using reason and judgment to choose from among acceptable alternatives. Discretion in decision making is all about being given a flexibility to choose from a range of choices granted to the decision maker based on the decision being made. As long as the judge chooses from the alternatives that are available to him, he is bulletproof as far as an appeal is concerned.

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This does not mean that Judge Peart can just do as he likes. He must make his decision from a range of acceptable alternatives. All discretionary decisions made are subject to some kind of review and are also subject to reversal or modification if there has been an abuse of discretion.

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An abuse of discretion occurs when a decision is not an acceptable alternative. The decision may be unacceptable because it is illogical, because it is arbitrary and clearly not supported by the facts at hand, or because it is explicitly prohibited by a statute or a rule of law.   In other words, an appeal court can only reverse a decision of a judge in a lower court if he is wrong. They cannot reverse his decision on appeal because they do not agree with his choice from the available alternatives.

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But hang on you say. What about fairness? What about the people of the region who will be far more severely impacted by the wind farm going ahead than the giant Framore Ltd who will just have to wait a little longer for their wind farm or who can just build another wind farm somewhere else? The people slaved and sacrificed to get the legal fees together while Framore pay it out of their considerable budget and get a tax rebate. How is that fair when the relative impact is so disproportionate? I fully agree with you. I do not like Judge Peart’s reasoning any more than you do, but we return to that judicial discretion – Judge Peart is entitled to choose the option that he thinks is the fairest. You cannot take an appeal against him simply because you do not agree with his choice.

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A question that needs to be asked is whether the Court is allowed to let the ABP fix the mistake? In other words, was Framore and then ABP’s mistake a fatal one that means the entire planning application must begin again, or is it one that is capable of cure by the ABP at a further appeal hearing with an amended EIS/EIA?   It has been suggested that Regulation 26(4) of the Planning and Development Regulations makes the original planning application by Framore Limited invalid, which means that the whole thing is fatally defective and cannot be cured. If this argument was correct the whole planning application needs to start again.   I am afraid that I do not agree with this argument. Regulation 26(4) says:

“Where, on inspection of the land to which the application relates, the planning authority considers that the requirements of articles 17(1)(b), 19 or 20 have not been met, or the information submitted in the planning application is substantially incorrect or substantial information has been omitted, the planning application shall, notwithstanding the fact that an acknowledgement has been sent to an applicant in accordance with sub-article (2), be invalid.”

The Regulation only comes into play when the planning authority decides that Regulation 17(1)(b) – erection of site notice and/or Regulation 19 – correct format of site notice, and/or Regulation 20 – time limits of site notice; have not been obeyed, usually on the basis that the land has not been accurately described.

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Now I understand that the argument is that by not including the grid connection in the site description this means that the site notice is invalid. This might be so, I did not see the site notice so I cannot say what it contained, but the point of the matter is that neither Cork City Council nor the APB made a finding to that effect. Regulation 26(4) does not set down an objective test (i.e. what the wider community thinks). It sets down a subjective test carried out by the planning authority (i.e. what the planning authority thinks), and unless and until the Cork County Council or the ABP make a finding that Regulations 17(1)(b), 19 or 20 have not been met , or that the description in the site notice is so inaccurate as to be misleading; Regulation 26(4) is not in play.

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What of the relevant Section of the Planning and Development Act of 2000? Does that set down any compulsory rules that must be obeyed, even by a court? Section 172 (1) says “… that application shall …be accompanied by an environmental impact statement.”

The Section says there must be an EIS, but does not stipulate the form or content of that EIS. More importantly for this discussion, it does not stipulate that the planning application must be refused in its entirety if the EIS is unsatisfactory.

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Section 173 (1) says that “the planning authority, and the Board on appeal, shall have regard to the statement, any supplementary information furnished relating to the statement and any submissions or observations furnished concerning the effects on the environment of the proposed development”. 

This clearly allows the APB, at an appeal, to consider other information besides the EIS, and this might include amendments or additions to that EIS.   The only thing that is not mentioned in the Section but still needs to be obeyed is that there must be a fair appeal hearing – namely, that if the developer supplies additional or new material, the people opposing the application must be given a proper opportunity to deal with it – in other words read it and comment on it and put up their own additional or new material in opposition.   In the O’Grianna (2) judgment this aspect was covered in Paragraph 5:

“The Board has stated also that in so far as the EIS already submitted did not contain necessary information for an EIA in respect of the works necessary for a connection to the national grid, the Board upon remittal can exercise its power under the Regulations to request a further EIS in that regard, and that in the event a notice will have to be published which will give the appropriate notice and opportunity for submissions to any interested third party who may wish to object.”

In addition Regulation 108 gives the planning authority a lot of flexibility (a wide discretion) in approving the contents of an EIS:

  1. A planning authority shall consider whether an EIS submitted in respect of a planning application complies with article 94 or, where the authority has given a written opinion under article 95(4), it shall consider whether the EIS complies with the said opinion.”

  2. Where a planning authority decides that an EIS does not comply with article 94, or any relevant written opinion given by the authority under article 95(4), as appropriate, the authority shall, require the applicant to submit such further information as may be necessary to comply with article 94 or 95(4), as appropriate.”

Regulation 111 gives the ABP a similar flexibility (discretion) when hearing a matter on appeal:

  1. The Board shall consider whether an EIS received by it in connection with an appeal complies with article 94 or, where a written opinion has been given under article 95(4), the Board shall consider whether the EIS complies with the said opinion.”

  2. Where the Board decides that an EIS does not comply with article 94, or any relevant written opinion under article 95(4), as appropriate, it shall issue a notice under section 132 of the Act requiring the applicant to submit such further information as may be necessary to comply with the relevant article.”

It is for all these reasons that I do not think an appeal against Peart J.’s judgment would be successful. Please note this is my opinion – somebody might disagree with me and prove me wrong. For the sake of the residents opposing Framore, I hope I am wrong. It is good for people to talk about these things in any event.

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The original victory by the residents against Framore Limited and its wind farm was a good news story, but unfortunately they had only won a battle, and not the war. While many readers, like me, do not like the final outcome of this second judgment of Peart J., I think that the judge is correct in law. The unpopularity of the decision in the community it affects is unfortunately not grounds for an appeal.

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The residents must not give up hope. They must remember their first victory, rather than dwell on this temporary setback. They must do all in their power to convince the ABP that the environmental impact on the region is simply too devastating to allow this wind farm to be erected. The war might still be won.

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 EU Renewable Energy 2020 Target, High Court; Judicial Review; Appeal on the merits; judicial discretion and tagged , , , , , . Bookmark the permalink.

14 Responses to O’Grianna and others v. An Bord Pleanala – Part 2

  1. Pat Swords says:

    A good summary of where things are in Ireland and the enormous amount of discretion given to decision makers in An Bord Pleanala. One may question as to whether this is right? A legacy of a State founded by a small number of ‘patriots’ with guns and a cause, who knew best and never considered that they should be held accountable to the general citizenry for their day to day actions? However, times have moved on and allegedly since 1972 we are part of the format of the European Union, which has joint competency in matters environmental, and therefore has a legal framework which impacts on how such planing decisions as the above should be conducted.

    The ratification of the Aarhus Convention by the European Union in 2005 meant that its provisions in relation to Access to Justice on decisions to permit activities, such as those decisions requiring Environmental Impact Assessment or Integrated Pollution Control, became part of European legal order. This can be seen in Article 11 of the codified Environmental Impact Assessment Directive 2011/92/EC, where the citizen has to “have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive”.

    So restricting the citizens rights to challenge An Bord Pleanala to a very narrow Judicial Review, the sole scope being as to whether the legal procedures had been correctly followed, is certainly not in compliance with our rights as European Citizens. The substance of the decision has also to be part of the scope of the legal review. If we consider the EU’s own e-justice portal and the section on ‘Access to Justice in Environmental Matters’, then some short reading of its content quickly demonstrates as to why we are not just being short changed, but downright having our rights abused:

    https://e-justice.europa.eu/content_access_to_justice_in_environmental_matters-300-en.do

    For instance have a read of how it describes the situation in Ireland:

    Such review will, therefore, involve a consideration of whether all statutory requirements were met and fair procedures observed. Under Irish law, there is limited judicial review of the substance or merits of planning and environmental decisions. The Irish courts recognise the technical expertise of decision-makers such as planning authorities, An Bord Pleanála and the Environmental Protection Agency (EPA), as the courts are not experts on planning and environmental matters. Under legislation, Parliament (Oireachtas) has vested the task of making planning and environmental decisions in these expert administrative bodies. Where the substance (merits) of a planning or environmental decision is challenged in judicial review proceedings, the High Court may quash (annul) such a decision where the decision in question is found to be “unreasonable” or “irrational”.

    As per extensive case law, irrational means that “it is so unreasonable that no reasonable person acting reasonably could have made it”. Contrast this to the ‘Civil Law’ tradition in mainland Europe, where access to justice is not only much more affordable, but matters of substance are very much dealt with by the Courts. For instance the Netherlands:

    In most cases the draft-decision is made public together with the EIA report and anyone is allowed to submit views before a final decision is made. Administrative Courts will review both the procedural legality and the substantive legality of administrative decisions as long as the interested parties have made that specific part of the decision a part of the dispute.

    In general, courts will review the administrative decision and will ascertain whether the competent authority could justifiably base the decision on the material, technical findings and calculations that were used. There are no written rules of evidence other than the formal rules that have to be applied when establishing the facts. The court is for instance competent to appoint an independent expert, like the Foundation for advising Administrative Courts in environmental and zoning cases

    Another example being France:

    The administrative courts review the procedural legality and the substantive legality of all administrative decisions.
    The courts study the material, technical findings and calculations when they are considered belonging to the decision.

    Considering the inquisitorial nature of the proceeding, the administrative judge, who has significant investigative powers, actually contributes significantly in establishing the facts. If need be, he/she may order the disclosure documents or proceed him/herself to certain investigations by directly examining acts or documents, by visiting locations, by attending hearings or expert assessments.

    As has been pointed out above, in Irish law the sole arbitrator on substantive issues, such as to whether the relevant EIS on the wind farm case above, is essentially An Bord Pleanala. Clearly this is not the case elsewhere and is not remotely in compliance with our rights under European Law.

    The O’Grianna case is far more that just some residents in County Cork and an adjacent wind farm. From a legal perspective project splitting occurred, in that the grid connection was not addressed. This is now a matter of legal record. However, we are now moving into a different and far more important argument, namely who is the arbitrator as to whether the substantive requirements of the Environmental Impact Assessment Directive have been complied with? I haven’t read the planning file, clearly it is somewhat logical to conclude that the documentation submitted for the development did not properly assess the impacts of the grid connections, as apparently it was never designed or agreed with the grid company.

    So ask yourself how a judge in the Netherlands or France would address this issue after examining the planning file? What would happen if you brought the same planning file in front of an Irish judge and alleged that it was lacking in substance to properly inform the relevant planning decision?

    Easy to answer isn’t it? This is why the O’Grinna case is far more important than this one off wind farm, after all if Irish judges don’t want to address matters of substance, then that’s their hang-up, but they can’t deny us our right to have such matters of substance assessed. At the very least such matters need to be appealed and sent to the European Court.

  2. Francis Clauson says:

    I think that you analysis is flawed.
    Pert J pointed out a wind farm without its grid connection is useless – so a planning application for a wind farm must include the route from the wind farm to the local ESB grid connection point (typical a number of KM away). For a planning to be valid regulation 22.2.c states “the land or structure to which the application relates and the boundaries thereof in red,”. This boundary therefore must include the full length of the grid connection otherwise it’s outside the planning application and hence not within scope for determination. In actual fact in many instance around the country wind farms have “unauthorised developments” in regard to the grid connection because they were typically built erroneously under exemption class 26. Exemption is not available to these developments because
    • They are threshold EIA developments
    • Regulation 9 specifically excludes exemption where it would contravene a planning condition (many wind farms have a planning condition stating that the grid connection does not form part of this planning approval)
    • In many instance the trench and cable work was carried out by the developer and not the ESB and they are not an “electrical undertaking” as defined in the PDA and hence do not have the benefit of class 26 exemption.

    So in the case of O’Grinna the judge “remitted” the planning back to ABP but they must now mark it as an invalid application because the red line does not include the whole development.

    I’ll leave it the the very learned Pat to cove off Aarhus , NREP and SEA’s.

    • Francis, that is the point I am trying to make. When you say the APB “must” declare the application invalid, I disagree. They can if they want to, but they have not. It is a discretionary power and I do not think they can be forced to do so. If the APB decide the application is capable of repair, then if you wanted to successfully challenge their decision you need to show, as Pat correctly says, that their decision is so crazy it could only have been made by a mad person. That is a very high threshold of proof.

  3. Francis Clauson says:

    Having now taken time to review the planning app (assuming I have selected the right one) the description is :

    a wind farm consisting of 6 turbines (each with a maximum hub height of 100 m. maximum rotor diameter of 100 m. and with total tip height of 160M) sub-station including one control building and associated internal equipment, one borrow pit, new internal access roads, upgrading of existing internal access roads, underground cables and ancillary work. An Environmental Impact Statement accompanies this application.

    So no mention of a grid connection which would extend outside of the development. The townslands mentioned do not include all that would be needed to make the grid connection so this combined with the lack of a red line around the entire development makes impossible for the planners/ABP to properly asses the development. I would have thought it impossible for the EIS to cover the connection without knowing details of its route etc which all fall outside of the red line.

    Again in my view further evidence that the planning application is incomplete and hence invalid. It does seem that the Judge has carefully side-stepped this decision of invalidating by passing it back to ABP. It will be interesting to see if they make it invalid or if they ask for a new EIS via FI.

    • Exactly right. The fact that the ABP took the trouble to go back to court and ask for a remittal would seem to indicate they are desperate to repair the application. That remains to be seen. Peart J harped on about the ABP being disinterested in the whole process – that might be a veiled warning that they will be closely watched.

  4. Francis Clauson says:

    Neil
    a further reason ABP has no choice but to invalidate is 22.(2).(g) – land owner consent. The Grid connection which is not exempt as its threshold EIA development will require land owner consent for its construction. In many instances in rural Ireland portfolios to the left and right of a road way own up to the center of the road way and hence as is the case locally here the grid connection will be crossing multiple portfolios as it makes its way to the local substation each of which will need to give their consent.

    You point out 26(4) requires ABP to mark an application invalid if 22 is not complied with – it reads “the planning application shall be invalid”.

    So I see no way ABP can rectify the planning app as they have to
    a) draw a red line around a much larger piece of land than previously identified
    b) gain land owner consent for each piece of land the grid connection will cross

    Is my summary incorrect?

    • Francis,
      if I ever find myself in a tight spot I want you in my corner – you never give up! 🙂 I welcome your suggestions as I certainly do not have expertise in planning law, it is far out of my comfort zone, and I really hope you are right and the High Court decision can be successfully appealed. I would love Joe Noonan to comment on this but as solicitor of record, he is probably precluded. Come on you planning lawyers, the residents need all the help they can get!

      Let’s consider your arguments:

      “a further reason ABP has no choice but to invalidate is 22.(2).(g) – land owner consent. The Grid connection which is not exempt as its threshold EIA development will require land owner consent for its construction. In many instances in rural Ireland portfolios to the left and right of a road way own up to the center of the road way and hence as is the case locally here the grid connection will be crossing multiple portfolios as it makes its way to the local substation each of which will need to give their consent.

      Regulation 22 says:
      (1) A planning application under section 34 of the Act shall be in the form set out at Form No. 2 of Schedule 3, or a form substantially to the like effect.
      (2) A planning application referred to in sub-article (1) shall be accompanied by –
      (a)-(f) …
      (g) where the applicant is not the legal owner of the land or structure concerned, the written consent of the owner to make the application”

      The question that needs to be asked here (and I don’t know the answer) is whether a distinction can be drawn between the original application (which covers property owned by Framore) and the EIS, which has to look at the impact on the region (as opposed to only the land you own) – in other words, if my EIS correctly considers the impact on the flora and the fauna including the SPAs and SCAs that adjoin or are nearby, clearly my EIS will necessarily include land that I do not own but my planning application will not. So if the EIS has to include the impact of the connection, does that mean for the purposes of the application I need to own the land that the connection will cross? If the applicant knows that the ESB will use its Section 53 powers to establish a wayleave over the adjoining lands to make the connection, does the applicant need to concern itself with that in the application? As I said, I do not know the answers to these questions. Planning lawyers, please jump into this discussion.

      You also argue:

      You point out 26(4) requires ABP to mark an application invalid if 22 is not complied with – it reads “the planning application shall be invalid”.

      So I see no way ABP can rectify the planning app as they have to
      a) draw a red line around a much larger piece of land than previously identified
      b) gain land owner consent for each piece of land the grid connection will cross”

      As I said in my blog, my read of Reg.26(4) is that the Council or the ABP have to make the finding of invalidity before 26(4) comes into play. As that is a discretionary power, they cannot be forced to make that finding. Again, I would love to be wrong on that. Perhaps their failure to make that finding could be so mad that they can be successfully reviewed as failing to consider stuff that they should have considered, or perhaps that their failure to find the application faulty beggars belief to such an extent that it could ony have been made by a mad person.

      Keep ’em coming Francis – you’re smokin’!!

  5. cawtdonegal says:

    Neil, Francis,
    There appears to be a conflation of the EIS/A process and the planning application process (i.e. validation) in some of the analysis of this case and in the position taken by An Bord Pleanála. In this regard it must be noted that both judgments of Peart J., did not address the validity of the planning application, at all, they only addressed project splitting from the perspective of an ‘incomplete’ or ‘insufficient’ EIS/A. Our blog post (https://cawtdonegal.wordpress.com/2015/04/26/ogrianna-no-2-the-curious-case-of-the-invalid-planning-application/) may not have helped in this regard either. In any event it is clear that Peart J., in dealing with the remittal question only addressed the EIS/A question, paragraph 5 (O’Grianna no.2) as quoted, in full, by Neil above clarifies that.
    In relation to a planning application and validity, all lands upon which works are to be carried out must be identified, within the red site boundary, and the consent of the landowners provided, otherwise the application is invalid.
    We suspect that there are both procedural and tactical considerations which may explain why the question on validity was not raised by O’Grianna (& others), at either hearing (we presume it was not raised as it is not addressed at all by either of Peart J’s., judgments).
    We may get a chance to blog on this in more detail in the days to come.

  6. Francis Clauson says:

    CAWT-Donegal
    Thanks for your comments and re-reading Pert.J I see how you came to this being about the EIS/A.

    The remittal seems to have created a chicken & egg situation.

    We have a wind farm which does not as yet have planning and to get planning it needs a grid connection.

    On the one had the grid connection could be classed as non-exempt as its part of a threshold EIA development and on the other its just a grid connection to a site which might one day be a wind farm but which currently has no planning permission so in that case its just part of the overall grid infrastructure.

    Q1: Is the grid connection exempt or does it require and EIS/A as it forms part of an threshold development?

    If the grid connection is a threshold development then it needs to consider the direct and indirect environmental impacts which will include the impact the wind farm – which might or might not receive planning permission.

    Very confusing and all I see is legal fees to resolve.

    Turning to Neil’s Section 53 wayleave comments. The CJEU Case C‑215/06 Para 57 states

    … that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.

    Q2: (I have not read the Electrical Act in detail) but if a wayleave can be granted on a threshold EIS/A development then as per the findings in C-215-06 Ireland would be in breach of the EIA directive. (Are we surprised?)

    The remittal seems in my mind given ABP a real headache and its going to be fun to see how they resolve.

  7. cawtdonegal says:

    Francis,
    I have briefly respondend to your queries see A1 and A2 below.
    Justice Peart has already answered most of your queries in his first judgment (O’Grianna no.1 – http://courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/71409d20df97079280257ddc004f8721?OpenDocument). At para 32 – Peart J., states “I have already 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 … .”
    At para 21 he confirms the position in law as placed before him by An Bord Pleanála: “that no development requiring an EIA can be exempted development by virtue of the amendment (by substitution) of section 4 of the Act of 2000 which now provides: (4) Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.”
    A1: As is clear the Grid Connection and the wind farm are one project and therefore as it requires an EIS/A it cannot be an exempted development.

    In relation to the wayleave, A2: this is a red herring, a moot point, it is irrelevant. Under the planning and development regulations there is a requirement to include inside the red line (site boundary) any land upon which works are to take place, this must be accompanied by the written landowner consent – if not under the regulations the planning application shall be invalid. Framore have failed to do so for this project – An Bord Pleanála must invalidate. Hope those responses help.

  8. SJ says:

    My 2 and a half year old inquired “Is the man on the picture trying to fix the roof?”
    Wisdom beyond his years!

  9. Pingback: Can An Bord Pleanála condone a defective application? | The Law is my Oyster

  10. Pingback: Evaluating O’Grianna: will Framore Ltd risk fixing an invalid application? | Concerned About Wind Turbines - Donegal

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