Evaluating O’Grianna

justice
One of the refreshing aspects of writing a blog is its immediacy. Rather than waiting on a peer-reviewed journal which can take from three months to a year to publish, the blog offers instantaneous publication.

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This immediacy is also damned scary as it can turn around and bite you in the arse. For a journal article you might take six months to research and write your final submission, giving you time to re-check and re-test your arguments. Similarly, ‘peer review’ means that your colleagues can make comments and suggestions ranging from ‘you might want to look at that again’ to ‘what were you thinking?’ (or its academic equivalent).

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A blog does not have that safety net. The immediacy factor means that you have a day or two at the most to research and write the blog. Apart from my lovely wife proof-reading my work and correcting my dodgy grammar (thank you, darling), I am alone out there, publishing my opinions for the world to see and dissect. It is very easy to miss something.

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It is for that reason that I am immensely grateful for my core of regular readers, who offer helpful criticism, ranging from the damning to the enlightening. Thanks, guys, you know who you are.

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And so it was after my previous blog on the second O’Grianna judgment by Peart J. What followed was some extremely interesting and illuminating discussion (see the ‘Comments’ section). These are my random musings on some of the issues that were raised. Again, this is a personal opinion, not a definitive ruling, and you are more than welcome to take a swing at whatever offends you.

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In the end we agreed (to disagree?) that Peart J.’s judgment had raised the following issues:
For certain specified threshold developments, the planning application must be accompanied by an Environmental Impact Statement (EIS) to allow the An Bord Pleanála (APB) to develop an Environmental Impact Assessment (EIA). The questions that arose were these:

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1. Are the original application and the accompanying EIS joined at the hip or are they capable of independent existence?
2. More specifically, can a faulty EIS be remedied without the need for the planning application to begin afresh?
3. Does the APB have the right to allow this repair without a fresh planning application?
4. If the APB does have that discretionary power, what opportunities must be afforded the public to make further representations on the repair job?

I feel weak already, but let us have a look at these questions.

1. Are the original application and the accompanying EIS joined at the hip or are they capable of independent existence?
The original Section 172(1) said:

“Where a planning application is made in respect of a development or class of development referred to in regulations under section 176, that application shall, in addition to meeting the requirements of the permission regulations, be accompanied by an environmental impact statement.” (my emphasis)

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This would seem to suggest that the application and the EIS are separate entities. The application must be valid on its own as it must meet the usual permission regulations and that application must be “accompanied by” the EIS, which suggests they exist separately but should find themselves together.

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The amended Section 172 now contains the following. After saying in 172(1A) that the planning authority or ABP must carry out an EIA, it continues:

“(1B) An applicant for consent to carry out a proposed development referred to in subsection (1)(a) shall furnish an environmental impact statement to the planning authority or the Board, as the case may be, in accordance with the permission regulations.

Section 172 tells us to look at the Regulations, so let’s do that.

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Article 99(1) of the Regulations says that:

“Where a planning application in respect of development of a class prescribed under article 93 is not accompanied by an EIS, it shall be invalid, and the provisions of article 26 shall apply.”

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I argued in my previous blog that Article 26 only comes into play when the planning authority makes a finding to the effect that the requirements of: 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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Again, the application and the EIS are clearly considered separately in Article 99, as again there is talk of an application which is “accompanied by an EIS”, and the application is only invalid where there is no accompanying EIS at all, as opposed to a defective EIS..

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Accordingly, I would argue that the application and the EIS have different and separate substantive requirements. Clearly where the application is itself defective, the validity of the EIS is irrelevant as it does not have an application to accompany. However, where the application is valid but the EIS is faulty, it would seem that the application does not fall with the EIS.

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2. Can a faulty EIS be remedied without the need for the planning application to begin afresh?
Under Articles 108 and 111, the planning authority and the APB respectively must consider the adequacy of the EIS submitted. Article 111 says that the APB “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.”

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This falls within the administrative powers of the ABP, so much so that the courts will keep their noses out of it. Where an EIS has been carried out, the court will not enter into an investigation as to the quality of the EIS undertaken. See Kenny v An Bord Pleanála (No. 1) [2001] 1 I.R. 565, where McKechnie J. said, “once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the EIS or the debate on it had before the Inspector. These are not matters of concern to this Court”.

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The ABP are clearly eager to oversee the repair of an EIS by the developer and thereafter their own EIA, as opposed to causing the application to begin again.

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Of interest is a related matter, the Shehy More Appeal. ABP has extended the opportunity to the developer to correct his incomplete application rather than dismiss or refuse it, as their letter to the developer makes clear.

Shehy More Letter-1

The Shehy More development is directly opposite the Derragh development (that is the subject of O’Grianna) in the upper Lee Valley. The plot thickens one might say.

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3. Does the APB have the right to allow this repair without a fresh planning application?
When one considers Article 99 read with Article 111 of the Regulations, it would certainly seem that the ABP does have that power, and it is eager to use it.

4. If the APB does have that discretionary power, what opportunities must be afforded the public to make further representations on the repair job?
Article 98 of the Regulations says:

“In addition to the requirements of article 18, where a planning application is to be accompanied by an EIS, a notice under article 17(1)(a) shall state—
(a) that an EIS will be submitted to the planning authority with the application, and
(b) that the EIS will be available for inspection or purchase at a fee not exceeding the reasonable cost of making a copy during office hours at the offices of the relevant planning authority.”

Article 18 sets out the notice that must be published in the approved local newspaper at least two weeks before the application is made; advertising the planning application with all the usual details like the name of the planning authority, the name of the applicant, the location, the address of the land or structure to which the application relates (as may be appropriate), that the application is for permission for development, a brief description of the nature and extent of the development, the site notice, making of copies, and so on.

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I would argue that even if it is only the EIS that is modified (as opposed to the entire application), Article 18 should be enforced so as to ensure that the public have a chance to properly comment on the revised EIS.

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Finally, there was some discussion about Article 11 of the codified Environmental Impact Assessment Directive 2011/92/EC, where the EU 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”. (my emphasis)

Therefore, it can be argued that by restricting the citizens’ rights to challenge ABP to a very narrow Judicial Review where the sole scope of the inquiry is whether the legal procedures had been correctly followed, this Irish law denigrates our rights as European Citizens. The substance of the decision should also to be part of the scope of the legal review.

This raises an interesting question about challenging the substance of a decision before a review court, as opposed to the procedures used in reaching that decision.

It is certainly possible to challenge the substance of an administrative decision before a court of review (known as the “rationality” ground of review).

Generally, the courts are reluctant to interfere with the decisions of TDs, Ministers and County/City Councils because these bodies are elected, and in accordance with the Doctrine of the  Separation of Powers if the citizen does not like the decisions by these individuals or bodies, they can vote them out at the next election. As a judge is appointed, not elected, it would not be proper for the judge to substitute his/her opinion for that of the elected official.

This is why a decision has to be absolutely crazy and devoid of reason before a judge will overrule that elected person or elected body.

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The Irish and English courts impose a very high threshold for overturning an administrative decision of an elected body (“the Wednesbury Test: “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”; or in English – “you must have been insane or on hallucinogenic drugs when you made that decision”). The Irish courts adopted this Wednesbury Test in O’Keefe [1993] 1 IR 39.

The European courts do not impose such a high threshold. The Europeans use the “Manifest Error” test: only where it is clear that the public official has made an obvious mistake can the court intervene to overturn an administrative decision by a public official.

In Sweetman v An Bord Pleanála [2007] 2 ILRM 328 the Court looked at Article 10a of Directive 85/337/EEC, which provides for public participation in respect of the drawing up of certain plans and programmes relating to the environment. Article 10a ordered Member States to put in place a review of the ‘substantial and procedural legality’ of relevant decisions. In a nutshell, the applicant argued that the Wednesbury /O’Keefe test did not scrutinise the decisions of the APB closely enough and was therefore irreconcilable with Article 10a.

Clarke J. rejected this argument and said that the O’Keeffe standard was sufficiently flexible to accommodate the requirements of Article 10a and even to accommodate the “manifest error” test. In any event, Clarke J. was certain that Article 10a did not require Member States to go so far as to provide a full review of the merits of a particular decision, as even the EU Courts themselves do not provide such a high level of review when they consider the decisions of EU bodies.

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This reasoning was confirmed by the Supreme Court in SIAC Construction Ltd v Mayo County Council [2002] 3 IR 148, where the Court applied the manifest error test to a public procurement award by Mayo CC.  Fennelly J. held that the ‘word, manifest, should not be equated with any exaggerated description of obviousness’, and decisions should only be annulled where an error has clearly been made. It should be recalled that there is an ‘explicit concession of a wide margin of discretion to awarding authorities’. Although the Supreme Court held that the manifest error test should be applied, it did not change the decision, and the award made by the Mayo CC was upheld.

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However, McMahon J. in Klohn v An Bord Pleanála [2008] IEHC 111, where there was a challenge to planning permission on the primary basis of non-compliance of the Environmental Impact Statement with Article 94 and Schedule 6 of the Planning and Development Regulations 2001, McMahon J observed that in the context of national legislation inspired by an EU directive, in reviewing the exercise of discretion, ‘it would seem more appropriate … to adopt the standard of review adopted by the EU itself in reviewing the decisions of its own officials’, because the O’Keeffe standard was not rigorous enough; and the adoption of the EU standard will help ensure uniformity throughout the EU, of which Ireland is a member.

I am not sure that there is a massive difference between the two tests when it comes to overturning decisions of elected officials. Perhaps it would be better to argue that the test should not apply to decisions of the ABP, as the ABP is appointed, not elected; and they should be treated like anybody else!

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 High Court; Judicial Review; Appeal on the merits; judicial discretion, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers and tagged , , , . Bookmark the permalink.

15 Responses to Evaluating O’Grianna

  1. Pat Swords says:

    Excellent analysis again. To me the key issue for anybody bringing a challenge to the Courts, is if the Wednesbury / O’Keeffe doctrine is taken to its absolutes, then Irish public officials are infallible – even the Pope isn’t recognised as that anymore. Needless to say this is not healthy nor good for a proper functioning democracy, which like it or not needs checks and balances, in particular as the complexity of legislation related to the environment and its impact on the citizen continues to grow.

    One could question the validity of Irish Courts using case law which pre-dated Aarhus and the introduction of what is now Article 11 of the codified Environmental Impact Assessment Directive, as from then on there was a legal obligation in respect to the rights of the citizen to challenge both the procedural and the substantive legality of the decision making. This is an issue which is currently evolving across the water in the UK, which has a legal system, which is not only similar, but originated the Wednesbury test of reasonableness.

    Indeed, UNECE has already found that the UK’s system of review of substantive legality to be inadequate. For instance in the Compliance Committee’s report to the July 2014 Meeting of the Parties, in which the UK’s legal system was once again determined to be inadequate to comply with Aarhus (see Points 25 and 29):

    http://www.unece.org/fileadmin/DAM/env/pp/mop5/Documents/Category_II_documents/ECE.MP.PP.2014.23.E.final.pdf

    However, there is a major on-going ‘battle’ in relation to the excessive costs of access to justice in the UK, both at the levels of UNECE and the European Court, such that the issue of substantive legality has been effectively parked.

    If we turn to the European approach again, then while the UK / Irish system is wedded to the principle of ‘reasonableness’ or as the case may be one proving that the the official is ‘unreasonable’, the European and particularly German tradition has been wedded to the ‘Principle of Proportionality’. This has often been utilised by the European Court where; the principle implies that the testing of a legislative (or administrative) measure or means is appropriate (suitable) and necessary in order to reach or achieve a given goal or objective.

    See page 165 below:

    http://www.jus.uio.no/ifp/om/aktuelt/arrangementer/2010/vedlegg/harbo.pdf

    If we take any wind farm development, as I have documented elsewhere any connection with an environmental benefit is so completely nebulous, that the competent authority is completely unable to attempt to even define it. Yet at the same time, the cost, both financially and environmentally is huge, in particular to those who have to live nearby it. It can be easily demonstrated that this completely nebulous environmental benefit could have been been achieved at far lesser cost and impact in many other ways. Therefore if we go to page 172 of the above, the decision makers have not chosen the ‘less restrictive alternative’. In fact, there is some good reading to be had in continuing after that page.

    If we come to the renewable energy Directive 2009/28/EC, then proportionality is clear to be seen in its construct.

    Article 13: Administrative procedures, regulations and codes

    1. Member States shall ensure that any national rules concerning the authorisation, certification and licensing procedures that are applied to plants and associated transmission and distribution network infrastructures for the production of electricity, heating or cooling from renewable energy sources, and to the process of transformation of biomass into biofuels or other energy products, are proportionate and necessary.

    Member States shall, in particular, take the appropriate steps to ensure that:

    (a) subject to differences between Member States in their administrative structures and organisation, the respective responsibilities of national, regional and local administrative bodies for authorisation, certification and licensing procedures including spatial planning are clearly coordinated and defined, with transparent timetables for determining planning and building applications;

    (d) rules governing authorisation, certification and licensing are objective, transparent, proportionate, do not discriminate between applicants and take fully into account the particularities of individual renewable energy technologies;

    So what are the rules governing authorisation in Ireland? If one goes to point (a) of the reasons and considerations in a decision on a wind farm by An Bord Pleanala, one gets a ‘justification’, such as the following:

    (a) the national policy with regard to the development of sustainable energy resources,

    (a) the national policy with regard to the development of alternative and indigenous energy sources and the minimisation of emissions of greenhouses gases

    (a) the national policy with regard to the development of alternative and indigenous energy sources and the minimisation of emissions of greenhouses gases,

    (a) the National Policy on the development of renewable energy including the National Renewable Energy Action Plan to deliver 40% of electricity from renewable resources by 2020.

    (a) the national policy in respect of generation of renewable energy,

    etc.

    Even if we look at the NREAP itself as defined in Article 4 of Directive 2009/28/EC:

    Article 4: National renewable energy action plans

    1. Each Member State shall adopt a national renewable energy action plan. The national renewable energy action plans shall set out Member States’ national targets for the share of energy from renewable sources consumed in transport, electricity and heating and cooling in 2020, taking into account the effects of other policy measures relating to energy efficiency on final consumption of energy, and adequate measures to be taken to achieve those national overall targets, including cooperation between local, regional and national authorities, planned statistical transfers or joint projects, national policies to develop existing biomass resources and mobilise new biomass resources for different uses, and the measures to be taken to fulfil the requirements of Articles 13 to 19.

    Note the reference to Article 13, which not only includes proportionality, but planning arrangements. One could also quote recital 44 or the same Directive, while the recitals are the introductory section and not legally binding, they are there to aid in legal interpretation:

    (44) The coherence between the objectives of this Directive and the Community’s other environmental legislation should be ensured. In particular, during the assessment, planning or licensing procedures for renewable energy installations, Member States should take account of all Community environmental legislation and the contribution made by renewable energy sources towards meeting environmental and climate change objectives, in particular when compared to non-renewable energy installations.

    None of this of course ever got done at the overarching plan / programme stage, or more accurately what the Irish authorities refer to as some wonderful renewable policy stage, which as we see above in (a) has multiple descriptions / names. Neither is there any proper consideration of alternatives / proportionality at the approval stage of the wind farm. This was glaringly obvious in the judgement on the People Over Wind case:

    http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/007fabdcaa703c5b80257e44002dd38f?OpenDocument

    80. She considered that there was an EIS summary in non-technical language. With regard to alternatives to the proposed wind farm the inspector considered that there was a “low bar in respect of the consideration of alternatives and the details provided within the EIS would comply in respect of the requirements of outlining the main alternatives.” She was satisfied that the EIS adequately identified the sites considered and set out reasons why the appeal site was more appropriate. She was satisfied that the EIS contained the relevant information specified in schedule 6 of the 2001 Regulations including description of the project and land use requirements; the main characteristics; emissions arising; description of aspects of the environment likely to be significantly affected and of the likely significant effects; and an indication of any difficulties in compiling the information.

    To me from the beginning this massive role out of wind energy has always been a complete breach of the ‘principle of proportionality’ and as people spend more time investigating the fundamentals behind this sector, they quickly realise what an awful waste of resources it is, plus unacceptable impacts on the environment. So maybe the challenge should not be directed to the reasonableness of An Bord Pleanala’s analysis of noise impacts, visual impacts, biodiversity impacts, etc., but rather to the substance of the decision, i.e. is it remotely proportionate in the first place, when all the impacts are weighed up against a nebulous environmental benefit, which could anyhow have been achieved for a fraction of the costs / impacts by other means.

  2. I accept that ABP have the ability, in an undecided case like Shehy More, to request the developer remedy a defective EIS, as they are effectively re-running the Planning Application that the local Planning Authority failed to comprehensively address. What is more difficult to accept is that a High Court Judge can both quash a defective ABP decision as in Derragh, and also resurrect the determined Application by allowing ABP to inviting the developer to submit a remedied EIS .The ECJ website indicates that for Ireland, such Judicial Review options are an either/or not both. When is a parrot really dead!

    • Agreed. The application itself might be beyond repair. Kearns steered clear of that can of worms.

      • Thanks, Neil. As I understand it, the Derragh Review Judgement was refused leave to be Appealed by the same Judge who initially quashed the ABP decision. Should the Appeal not have been heard by a different Judge? What are the further consequences for other live windfarm Permissions that omitted Grid connection assessment, and what would be the legal status of these defective Permissions?

      • Yep, that’s a tough one to explain to people but the official reasoning is this: the best person to decide whether a matter has a chance of success on appeal is the person who heard the matter in the first place, who co-incidentally is the person who made the decision against you that you want to appeal! Yes, us lawyers are weird. Just to be clear, this is only the leave to appeal that we are talking about. The actual appeal hearing is a separate thing altogether and can only happen once you have succeeded in getting leave to appeal. The appeal hearing will be heard by a superior court and therefore will be a different judge.

        However, the decision to refuse leave to appeal has the status of a judgment so you can actually appeal against the refusal of leave to appeal!

        I know, I know, you couldn’t make this stuff up!

  3. Owen Martin says:

    In the Cluddaun Wind Farm, the Board made reference to the O’Grianna case and that it “may be relevant to the proposed wind farm development”. It appears they accept it is now applicable but they did not refer to it as grounds for refusal “in the light of the substantive reason set out above for refusing permission”. Perhaps that would have opened the door for challenging decisions which have granted existing wind farms ?

  4. Owen, substantively I have no doubt that you are right, but procedurally there might be a problem with that. Due to the tight time period for entering a review (which I cannot remember off the top of my head but I think it is a month), it is more than likely too late, unless you can show cause why a late application should be condoned.

    • Even if a Review of an individual Permitted windfarm decision cannot be taken after the 28 day window, could there be any other basis for a class action against incomplete Permissions, or would it be argued that the developers would still have the need to apply for a Grid connection Permission anyway?

  5. Ireland doesn’t do class actions. The best you can hope for is a test case which would probably need to be taken to the Supreme Court to make it stick – very time consuming and hugely expensive. Maybe that American billionaire would help out (Donald Trump)? Otherwise they will need to be dealt with on a case-by-case basis, also time consuming and hugely expensive. This is why we argue that Ireland is in flagrant violation of the Aarhus Treaty – no speedy and accessible justice on environmental disputes.

  6. The “O Grianna judgement” is going to be a central topic within the Cluddaun & Oweninny windfarms and Grid West which is being built exclusively to bring out the power from these wind farms.

    Even though Cluddaun has been refused planning permission by ABP it has not gone away just yet as Coillte (Developer) has a further 6 weeks to seek a judicial review of decision. We expect that they will seek this if for no other reason than to get Eirgrid out of the hole that is Grid West. How can Eirgrid sell Grid West to the general public when one of central planks for development has disappeared? Seeking a judicial review will keep whole development (2 windfarms and Grid West) alive while everyone thinks of a solution to keep the show on the road. Even if Cluddaun were to ultimately win the Judicial review ABP would then have to ask for additional EIS information re Grid West connection in a new deliberation (they will get this in any event from request given to Oweninny WindFarm).

    Moving to Oweninny Wind Farm they have now been requested to provide additional EIS \ Natura statement to effectively cover Grid West. This additional information will be on a larger project than the Wind Farm in terms of area impacted. This begs the question of where the dividing line is between “additional information” and effectively a whole new EIS \ Natura statement and a whole different level of assessment. ABP is potentailly setting itself up for ridicule with Oweninny development. It is one thing asking for additional info on a grid connection which might entail a couple of miles of a 110kv or a 220kv line as in the O Grianna case. 2 x 400KV substations and 100km of 400KV line is a whole different level of additional information.

    Another can of worms which the request for additional information will open up in Oweninny is that of Public participation and involvement in planning process. Initially the PR machines of Eirgrid, Coillte, Bord na Mona and ESB kept the Wind Farm Developments and Grid West apart as did planning applications. This meant that parties very interested in Grid West took no interest in Cluddaun and Oweninny Wind Farm planning applications and made no submissions. Oweninny and Cluddaun attracted 15 opposing submissions each (some were Group), Grid West will probably attract hundreds when time arrives. Now effectively Grid West EIS \ Natura statement being thrown into Oweninny and interested parties along Grid West line now have no way of getting into the game by means of making submissions. (If I am wrong in this assertion please correct me) or taking part in process.

    Those of us who took part in the Oral Hearing were effectively sold a pup in that we were presented with what was a defective EIS \ Natura ststement and we addressed only that. (We did on numerous occasions point out that Grid West should be part of the planning application but got nowhere with this aguement until the O’Grianna decision). Will there be a second Oral (or can there be) a second Oral Hearing into Oweninny ? If there is no second Oral Hearing again this omission will cause problems for ABP.

    Further can ABP complete an EIA into Grid West without a full planning application which if they Grant permission to Oweninny they will have effectively done?

    Cluddaun, Oweninny and Grid West planning saga has barely begun. There is a long way to go in terms of Judicial Reviews, Oral Hearings, Planning applications etc. The O’Grianna decision will be a central feature and the outcome in these matters will have a major bearing on the others big development coming up behind them.

  7. Pat Swords says:

    Good points raised there by Moy Valley. The EU Commission published this May a new guide on Environmental Impact Assessment and the definition of projects. It will be worth your read, especially Section 2.4 and remembering that wind energy falls into the Annex II list of projects:

    http://ec.europa.eu/environment/eia/pdf/cover_2015.pdf

    As regards public participation, an oral hearing is always discretionary and not a mandatory part of the Aarhus Convention and its implementation in EU law. However, what you raised are complex issues, as the scale of what you have in Mayo between Grid West and the associated two wind farms is really unprecedented. There has to be an element of tiered decision making and not to beat an old drum, but chickens are coming home to roost. These are not and never will be individual projects to be assessed on their own. They are part of an overarching plan / programme, which should have gone through the legally required Strategic Environmental Assessment and compliance with Article 7 of the Convention on plan and programmes related to the environment. In essence ‘tiered decision’ should have applied. When it comes to the public participation issues, then the content in the UNECE’s Maastricht Recommendations adopted in July 2014 is excellent guidance.

    http://www.unece.org/fileadmin/DAM/env/pp/mop5/Documents/Post_session_docs/ece_mp.pp_2014_2_add.2_eng.pdf

    Note: Where the Recommendations quote findings and recommendations of the Compliance Committee, which have been endorsed by the Meeting of the Parties, which occurs regularly in the document, then that content is part of the legal interpretation of the Aarhus Convention.

    I wouldn’t agree more with your last paragraph. However, exactly the same applies to Gridlink and the North South Interconnector (but nobody official is letting on yet). It took a huge amount of effort to obtain the documentation below from the EU as to their Projects of Common Interest:

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

    But read carefully the content of the two questionnaires on Gridlink and North South Interconnector.

    Gridlink: This investment is planned primarily to facilitate the integration of 1,283 MW of wind generation in the south of the country. Connection offers have been made to 1,280 MW of renewable generation in the south.

    North South Interconnector: The governments of Ireland and Northern Ireland have both set targets of meeting
    40% of electricity consumption from renewable sources by 2020. This is expected to be achieved mainly by significant amount of new wind generation capacity in both jurisdictions. The RIDP project is required to facilitate the connection of wind generation in Donegal in Ireland and in the west and north of Northern Ireland, where the renewable resources are largely located. The additional grid transfer capacity provided by this North South 400 kV interconnection project is essential to allow access to a larger market for the new renewable generation, particularly for Northern Ireland wind generation in times of high wind conditions and low local demand. This project therefore indirectly allows the connection of 600 MW in Northern Ireland, i.e. the equivalent of the additional grid transfer capacity initially provided by the link.

    So one can’t legally assess that wind generation without assessing those two big grid roll outs and visa versa. Furthermore, in the context of Gridlink where legal agreements have been entered into with respect to grid connection offers, if one goes back to the Maastricht Recommendations above and one’s legal right to participate when all options are open, then point 80(d) is pretty dam clear as it should be:

    80. “When all options are open” may be read as a time when any option could still be chosen as the preferred option. Some examples of situations when all options might no longer be considered open could include:
    (a) When a public announcement of a preferred option has been made even though the plan or programme has not yet been adopted;
    (b) When a formal decision on the issue has been taken by a public body (including representative bodies like local, regional or national parliaments);
    (c) When a decision maker has promised to constituents that they will pursue or avoid particular options;
    (d) When a public authority has concluded contracts or agreements with private parties related to a decision subject to the Convention which would have the effect of foreclosing options prior to meaningful input from the public.

  8. To my knowledge, a Planning request for ‘substantial further information’ in the form of a new or enlarged EIS requires a developer to provide new public notification in the press and onsite with a period for public response.We had a case in West Cork a few years ago where a pumped-hydro scheme developer was so requested, and the public response to this new EIS was not accepted by the Planning Department.Our complaint to the Director of Planning Services in Cork resulted in the developer being advised that the Council had made a procedural error by not re-advertising the substantial FI they requested or allowing for comment – which would render any subsequent decision unsafe, and to withdraw the Application – which duly occurred.
    In the current Shehy More Windfarm Appeal, where ABP have requested a revised EIS with sufficient information on the grid connection for ABP to conduct its own EIA in accordance with the Directive, they are looking for cumulative effects of proposed windfarm and proposed grid connection. In the case of alternative route corridors being proposed, details of each of these and the cumulative effects of the windfarm and each of the alternatives are required, together with revised Habitats Directive screening, and revised Natura Impact Statement. On receipt of these the Bord ‘will consider the question of revised public notices’. They will have to give sufficient opportunity for public comment or risk yet another High Court outing.
    As regards a second Oral hearing on the Oweninny windfarm, this is unlikely and ABP will probably wait until GridWest application arrives. And what type of Application will this be? Is it essential infrastructure which can bend many consultation/ participation rules, or simply an Eirgrid speculative investment opportunity which will have to go through the normal Planning process?

  9. I would argue that ‘substantial new information’ should be the trigger to treat the application as if it has been made afresh, with the consequent requirements that go with a new application. ‘Substantial compliance’ means just that, so there is a contradiction if ‘substantial compliance’ and ‘substantial new information’ are allowed to co-exist as that is just a nonsense. As far as GridWest is concerned, it will invariably be a Strategic Infrastructure application which will by-pass the local planning authority stage. The one area that the ABP most certainly have discretion is whether to hold a public meeting, and they seem to be avoiding those as much as possible.

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

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