Can An Bord Pleanála condone a defective application?

no discretion

As a rule it can be said that An Bord Pleanála (ABP) have very little discretion, and this mostly involves their conduct of public / oral hearings, and only if they decide to hold the hearing at all (See sections 134-5 of the Planning and Development Act of 2000). However, the O’Grianna judgments really threw the cat among the pigeons when Peart J. decided that ABP do not have to follow the wind and noise guidelines regarding windfarms (first judgment) and that the ABP had the discretion to redo their Environmental Impact Assessment (EIA) after allowing the applicant, Framore Limited, to amend its Environmental Impact Statement (EIS) and thus avoid restarting the process (second judgment).

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However, the High Court in the O’Grianna judgments did not address the issue of the wind farm’s planning application, concentrating solely on the EIS/EIA requirements of the EU Directive. As the EIS is a necessary attachment to the planning application, it stands to reason that if the planning application is defective the amended EIS still dies a death alongside the defective planning application.

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This raises the question: Can the ABP condone a defective planning application to the extent that they can allow Framore Limited to amend that application, rather than ordering them to start the process afresh?

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“Peremptory” versus “directory” legislation

I can still remember many a stern-faced professor at law school drumming into me the significance between statutes that were peremptory as opposed to statutes that were “merely directory”.

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If a statute is directory, then failing to follow it to the letter is not always fatal. However, if a statute is peremptory, it must be followed exactly, and any failure to get it right means that is the end of it and you must start again.

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This distinction has been criticised over the years as it is sometimes difficult to decide whether a law is peremptory or directory, and also people have pointed out that no law is “optional”, or why would you bother to make it a law in the first place?

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An easier and more understandable way to explain this distinction is not to ask whether a citizen or a company is allowed to bend the rules and get away with it – as a rule you are not and cannot – the question is simply whether the body or organisation (in this case the ABP) that is enforcing that law has the power to dispense with the strict requirements of the law in question. If the law is peremptory, that is, if absolute compliance is required, there can be no dispensing power, but if the law is directory, there can be.

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This approach recognises that laws passed are not optional as such, but some statutes are binding or peremptory, whereas other statutes might leave some “wriggle room” for a body or organisation that is enforcing that law because of its directory nature. Most importantly, this approach recognises that the ABP must have been given this dispensing power by statute.

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Therefore, what we need to do now is look at the statute and regulations dealing with the making of a planning application and decide whether they are peremptory or directory. If we decide that they are merely directory, the question then is whether the ABP have the power to be flexible with its requirements.

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Section 34(1) of the Planning and Development Act of 2000 (“PDA 2000”) says:

(1) Where—
(a) an application is made to a planning authority in accordance with permission regulations for permission for the development of land, and
(b) all requirements of the regulations are complied with,
the authority may decide to grant the permission subject to or without conditions, or to refuse it.”

Although the statute uses the word “may” rather than “shall” or “must”, it would seem that the planning authority only has three choices available to it: grant permission without conditions, or grant permission with conditions, or refuse permission. The statute certainly does not seem to provide for a “send it back until they get it right” option.

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The other phrase that is of interest is “in accordance with permission regulations”.

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The 2001-13 Regulations apply quite a strict approach to non-compliance with certain Regulations, by declaring the application invalid.

Article 26(3)(a) of the Regulations states that where any of the requirements of Articles 18 (newspaper notice); 19(1)(a) (prescribed form of the site notice); or 22 (planning application) and, as may be appropriate, of arts 24 (plans and particulars for outline permission); or 25 (planning application for electricity undertaking) have not been complied with, the application is invalid.

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The courts have provided some clues in helping to decide whether legislation is peremptory or directory and it might be useful to apply those to Article 26(3)(a) to see whether it is peremptory.

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The clues are these:
• The word ‘shall’ when used in a statute usually indicates that it is peremptory.
• If a provision is written in a negative form it is usually peremptory, particularly where it mentions a sanction.
• If we find that the terms of a law would, if strictly carried out, lead to injustice and even fraud, then the courts will do their best to find it directory.
• The history of the legislation will also afford a clue in some cases.

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Article 26(3) of the Regulations says that:

“Where, following consideration of an application under sub-article (1), a planning authority considers that-
(a) any of the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of article 24 or 25 has not been complied with … the planning application shall be invalid.”

Applying these rules to Article 26(3)(a) we can see that there is a clear use of the word “shall”. There is also a sanction mentioned, namely that the application is invalid. The phrase “has not been complied with” is in the negative. Finally, whilst the developer might say it is unfair that they have to start again, the bigger injustice would be to the communities affected by the wind farm and the connection to the grid, if they were not allowed an opportunity to voice their objections.

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In a previous blog I argued that until the Council or the APB come to the conclusion that any of the requirements have not been met, the application remains valid. This caused some unhappiness and disagreement amongst certain commentators, so for fairness sake I am going to accept, for purposes of this blog, that the ABP must make that finding, if Framore Limited, as a matter of fact, failed to do those things correctly.

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Therefore, it must be argued that Article 26(3) is indeed peremptory and that the ABP has no power to condone non-compliance with it.

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As you may recall, the EIS in O’Grianna was held to be defective in that it did not cover the environmental impact of the connection to the grid. The question now is whether the application is defective for the same reason.

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Let us first of all look at these peremptory regulations, namely Articles 18, 19(1)(a) and 22, and discuss whether the failure to deal with the grid connection makes it invalid.

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Article 18(1)(b) talks of “the location, townland or postal address of the land or structure to which the application relates (as may be appropriate)” but does not give any mandatory specifics. The courts have also been quite forgiving where a description is not wholly accurate. In White v Dublin Corporation, (unreported, High Court, 21/06/ 2002), the drawings submitted omitted to show a conservatory. O’Caoimh J. however, held there was substantial compliance with the Regulations. However, by way of contrast; in Seery v An Bord Pleanála, (unreported, High Court, 02/06/2000), Finnegan J. refused to condone the mistake where the layout plan significantly misrepresented the size and location for the applicant’s residence.

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This clearly comes down to a matter of degree. Substantial compliance means that you got most of it right and your error is not big enough to queer the entire application. I would guess that the size and extent of the connection in each specific case would have to be argued, with the developer arguing that it is just a little bloop whilst the opponents of the application will argue that the connection to the grid is a massive job in itself.

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However, what must also be pointed out is that this discretion was exercised by High Court judges on review. I do not believe that the ABP has such discretion – it is a body created by statute and unless the statute gives it the power to bend the rules, it is not allowed to bend the rules. Therefore, I would argue that a defective map which fails to include the connection to the grid cannot be condoned by the ABP. It must declare the application invalid.

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Article 19(1)(a) of the Regulations deals with the form and location of the site notice, and does not really concern us here.

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Article 22(2)(b) of the Regulations says that the application form

“shall be accompanied by:
6 copies of a location map of sufficient size and containing details of features in the vicinity such as to permit the identification of the site to which the application relates, to a scale (which shall be identified thereon) of not less than 1:1000 in built up areas and 1:2500 in all other areas, or such other scale as may be agreed with the planning authority prior to the submission of the application, in any particular case and marked so as to identify clearly:
(i) the land or structure to which the application relates and the boundaries thereof in red,
(ii) any land which adjoins, abuts or is adjacent to the land to be developed and which is under the control of the applicant or the person who owns the land which is the subject of the application in blue.
(iii) any wayleaves in yellow,”    (my emphasis)

Further on, Article 22(g) says:

“where the applicant is not the legal owner of the land or structure concerned, the written consent of the owner to make the application,”

Clearly these things were not done on the application which did not include a description of the work involved in making the connection to the grid. That connection would be over other people’s land and therefore the application would need to attach the written consent of those owners. If this was not done, the Regulation is clear that the application is invalid. Again, the ABP has not been given the power by the Act to condone these mistakes and omissions by Framore Limited, irrespective of whether there has been substantial compliance or not.

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On that basis therefore, I would venture the opinion that the ABP does not have the authority or power to allow Framore Limited to repair its application. The ABP, in relation to planning applications, only has the power to grant (with or without conditions), or refuse, permission. As the application is defective, clearly permission cannot be granted, therefore it must be refused.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in Framore Limited, High Court; Judicial Review; Appeal on the merits; judicial discretion, Peremptory law; Directory Law; Planning and Devlopment Act of 2000 and tagged , , , , , , , . Bookmark the permalink.

9 Responses to Can An Bord Pleanála condone a defective application?

  1. Francis Clauson says:

    So this is the catch 22 – the application was for a wind farm but Pert J wanted the EIS to cover the wind farm and the grid connection. There is currently no planning application for the grid connection so the EIS struggles to “identify, describe and assess in an appropriate manner … direct and indirect effect of the project”.

    Your conjecture is that to do this the planning application would need to be enlarged to include the whole grid connection but I ask why not include the substation, the HV lines, the pylons, even the inter connectors to other countries because this wind farm needs to “describe” the “direct and indirect effects” it will have and it could effect all of these items.

    Of course this would be madness so the EIS “boundary” needs to be drawn at a point which make sense and Pert J thinks this is at the point the “plug goes into the wall” for the wind farm – where the wind farm stops and the bulk of the grid infrastructure starts – but is this the same as the planning application “boundary”. Not necessary – ABP might take the view of asking the developer to make a separate grid connection application, in it refer to all of the connection’s and the wind farm’s direct and indirect effects. In parallel they could ask for the developer to update the EIS of the wind farm to include the grid connection effects.

    The planning application is not invalid if the EIS is incomplete providing it has the sections asked for in the PDA. ABP have the option for FI which can include a re-write of the whole EIS.

    This approach could probably meet the requirements of the EIA directive and might be a better way of going than trying to include it all in to a single application. For example a wind farm could be co-joined to two or three grid connection planning applications if there was uncertainty about its routing. Each with intertwined EIS documentations.

    Effectively the EIS boundary and the planning boundary could be different while still meeting the objectives of the EIA directive.

    Its not simple but its another view as to how this issue might be approached by ABP

    • Quite so Francis, I agree. If they do approach it that way it means that in the end Framore will need to do the new application from scratch. It will be interesting to see how the ABP tackle it.

  2. We are in a legal limbo here which might have been resolved had the O’Grainne second judgement been Appealed to a higher court. As it stands, ABP clearly believe they now have the power to correct a deficient Application which was erroneously validated by the Planning Authority, and have already offered this option to the Shehy More developers in a request for Further Information. However, since the O’Grainne Permission was quashed, it can no longer be considered as a live/valid Application capable of remedy in my view, and this option cannot be open to ABP, or the developers.
    This all stems from defective Wind Energy Guidelines 2006 which do not advise or insist on simultaneous Applications for windfarms and their Grid connections, under pressure from IWEA.

  3. Hi Anthony
    Another good point. what was the effect of the quashing? Usually it means go away and do it again from the beginning, but the language used by Peart J (and previous similar decisions) was restricted to ‘go away and do it again’, which begs the question, hence the legal limbo.

  4. Pat Swords says:

    The issue as to ‘how far does one go’ in relation to the scope of the EIA, when there are interconnected projects with cumulative effects, will have some court space to come in relation to the State’s insatiable desire to keep rolling out more wind energy structure. IMPEL is the European network for public authorities engaged in environmental enforcement and control, such as our own Environmental Protection Agency. The below is a useful guidance document of theirs on EIA dealing with such issues as cumulative impacts of projects, a.k.a ‘salami slicing’, see page 31.

    http://impel.eu/wp-content/uploads/2013/01/IMPEL-EIA-Report-final.pdf

    Some sensible approaches: “Poland explains that projects which are connected technologically shall be qualified as one project, also where they are implemented by different entities. Denmark reports a similar approach treating the projects in question as a single project”

    The EU Commission has a guidance document going back to 1999 on the subject:

    http://ec.europa.eu/environment/archives/eia/eia-studies-and-reports/pdf/guidel.pdf

    While the recent judgement of European Court in C-531/13 just supports the position in Points 43 to 45:

    http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d56cc6b44aebdf4bf4a221fc1b677ff9f3.e34KaxiLc3eQc40LaxqMbN4ObhuOe0?text=&docid=162221&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=593449

    .43 It follows from Annex III, No 1, that the characteristics of a project must be assessed, inter alia, in relation to its cumulative effects with other projects. Failure to take account of the cumulative effect of one project with other projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment (see, to that effect, judgment in Brussels Hoofdstedelijk Gewest and Others, EU:C:2011:154, paragraph 36).

    44 That requirement must be construed in the light of Annex III, No 3, to Directive 85/337, under which the potential significant effects of a project must be considered in relation to criteria set out under Nos 1 and 2 of that annex, having regard in particular to the probability, magnitude, duration and reversibility of the impact.

    45 It follows that a national authority, in ascertaining whether a project must be made subject to an environmental impact assessment, must examine its potential impact jointly with other projects. Moreover, where nothing is specified, that obligation is not restricted only to projects of the same kind. As observed by the Advocate General in point 71 of her Opinion, the preliminary assessment must also consider whether, on account of the effects of other projects, the environmental effects of the exploratory drillings may be greater than they would be in their absence.

    It is interesting to see the Advocate General’s ‘take’ on this case related to exploratory drilling, which would suggest a wide interpretation of associated projects:

    70. The same applies, in the main proceedings here, to natural gas pipelines, natural gas storage facilities and other facilities. The competent court or competent authority must examine whether those facilities are to be regarded as forming part of the same project as the exploratory drilling operations. The fact that the exploratory drilling is not to be connected to the pipeline or storage facility suggests that they are not. It is not inconceivable, however, that at least one of the reasons for the exploratory drilling is that, if the exploration is successful, the gas reserve can easily be exploited by recourse to the existing infrastructure.

    71. The preliminary assessment must also consider whether, on account of the effects of other projects at the site or in the surrounding area, such as natural gas pipelines and storage facilities, the environmental effects of the exploratory drillings may be greater than they would be in the absence of such other projects.

    http://curia.europa.eu/juris/document/document.jsf?text=&docid=158499&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=671105

    It’s not just the defective 2006 wind guidelines, when this matter was raised with ABP on some appeals before the O’Grianna case, they just recorded in their inspector’s report that it wasn’t relevant.

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

  6. cawtdonegal says:

    Neil,

    Objective of Article 22(2)(g) was previously addressed by Irish high court see our recent blog post here https://cawtdonegal.wordpress.com/2015/06/21/evaluating-ogrianna-will-framore-ltd-risk-fixing-an-invalid-application/.

  7. Tony Miller says:

    As an update to the action over the proposed Shehy More wind farm (ABP Case PL04 243486), the appellants received notification that ABP had required the developer to provide a revised EIS showing the grid connection.
    Since the original application is flawed by project splitting and lack of transmission consents, the appellants wrote to ABP proposing that it should be abandoned. ABP replied that ‘the Board’s letter dated 12th May, 2015, (i.e. to the developers) was issued for information purposes only. Accordingly, your submission is herewith returned to you’ From this it can be seen that our objection has not been recognised and can only be raised again when the revised EIS has been supplied.
    Could it be that ABP is now in the position to approve a grid connection without any planning application being lodged in the first place?.

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