Opposing Extensions

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Another method of opposing planning permission for wind farms has presented itself: challenging a decision to grant an application for extension of planning permission.

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A planning permission usually has a lifetime of five years from the date of the final grant. If the development that is the subject of the planning permission has not been commenced or completed within that time it is necessary to apply for an “extension of duration” of that permission.

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The question of extensions to planning permission is regulated by Section 42 of the Planning and Development Act 2000 (PDA 2000) which was replaced in its entirety by the PD Amendment Act of 2010.

Section 42(1) of the PDA 2000 reads as follows:

“On application to it in that behalf a planning authority shall, as regards a particular permission, extend the appropriate period by such additional period not exceeding 5 years as the authority considers requisite to enable the development to which the permission relates to be completed provided that each of the following requirements is complied with:
(a) either—
(i) the authority is satisfied that—
(I) the development to which the permission relates was         commenced before the expiration of the appropriate period sought to be extended,
(II) substantial works were carried out pursuant to the permission during that period, and
(III) the development will be completed within a reasonable time,
or

(ii) the authority is satisfied—
(I) that there were considerations of a commercial, economic or technical nature beyond the control of the applicant which substantially militated against either the commencement of development or the carrying out of substantial works pursuant to the planning permission,
(II) that there have been no significant changes in the development objectives in the development plan or in regional development objectives in the regional spatial and economic strategy for the area of the planning authority since the date of the permission such that the development would no longer be consistent with the proper planning and sustainable development of the area,
(III) that the development would not be inconsistent with the proper planning and sustainable development of the area having regard to any guidelines issued by the Minister under section 28, notwithstanding that they were so issued after the date of the grant of permission in relation to which an application is made under this section, and
(IV) where the development has not commenced, that an environmental impact assessment, or an appropriate assessment, or both of those assessments, if required, was or were carried out before the permission was granted.  (my bold)

(b) the application is in accordance with such regulations under this Act as apply to it,
(c) any requirements of, or made under those regulations are complied with as regards the application, and
(d) the application is duly made prior to the end of the appropriate period.

What is important to notice about this provision is that the planning authority (the Council) has no discretion in this matter. The section is written in mandatory language (“shall”) which means that the Council must grant an extension if the requirements are satisfied and similarly cannot grant an extension if the requirements are not satisfied. Of importance also is that Section 42(4) makes it clear that only one extension can be granted to an existent planning permission. The days of endless extensions are over.

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Section 42(1) envisages two scenarios in which an extension can be granted. The first scenario is where the development is well under way and it just needs some more time to complete. The crucial phrase here is “substantial works” (were carried out). In other words, in the context of the entire development, has a substantial portion been completed at the time of the application for the extension?

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The second scenario is the one that interests me more. This is the one where there have been no substantial works carried out, which might mean there has been a little work or no work at all.

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The application to extend must be lodged before the expiry of the original  planning  permission. An extension may be granted where a development has not gone ahead due to “commercial, economic or technical” considerations beyond the control of the applicant, which “substantially militated against the commencement of the development or carrying out of substantial works”.

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In other words, the developer would need to supply evidence, which the Council must objectively consider, that this was not just a question of somebody waiting around and doing nothing instead of getting on with it. The developer must supply objectively verifiable “commercial, economic or technical” reasons why the development did not commence. An opinion or allegation would not be sufficient.

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Would the waiting for a further increase in subsidy payments qualify, I wonder?

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If the Council does not properly consider such evidence (assuming that it exists in the first place) then that would be grounds for review (irrationality: failing to consider evidence that they should have considered, or taking into account evidence that they should not have considered).

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Section 42(1) also says that where there has been a change in the local area development plan or regional planning guidelines such that the development would no longer be granted, then an extension will not be permitted. That is important as a lot can change in an area in five years. In addition, if the proposed development is inconsistent with ministerial guidelines issued since the date of the original grant then an extension will not be permitted. We know this will not be a problem for wind farm developers as the Minister has been falling over himself in his eagerness to support the wind industry.

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Finally, and this is the big one, Section 42(1)(a)(ii)(IV) makes it clear that if the development is one that requires an Environmental Impact Assessment (EIA), or an Appropriate Assessment (AA), or both, the Council must check whether a (valid) EIA and/or AA was carried out prior to the granting of the original planning permission, and if such an EIA was not carried out, it cannot grant an extension as this would be in contravention of the EIA Directive and the Habitats Directive.

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The words “where the development has not commenced” need to be looked at quite carefully. In their ordinary use they could mean that nothing at all must have been done on site to make this provision applicable. I would argue that against the background of what the section is trying to achieve (what lawyers call “the mischief rule”), and in light of the EIA Directive, the same “substantial works” test should be applied here. If there has not been substantial work on the site, for the purposes of the EIA and/or AA requirement, development has not commenced.

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Under the Planning and Development Regulations 2001, as amended, applications for planning permission relating to energy developments are to be accompanied by an EIA for wind farms with an output over 5MW; or wind-farms of more than five turbines; or wind farms where there will be an impact on the environment; and wind farms to be developed on prescribed sites. In other words, pretty much every industrial wind site requires an EIA.

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Many wind farms received planning permission a while ago, at a time when there was little public awareness about industrial wind turbines and their destructive effects on communities and the environment (or their penchant for bursting into flames). It is doubtful whether the majority of these applicants bothered to conduct a proper EIS or indeed whether many Councils  bothered to conduct a comprehensive EIA as required by the EIA Directive or the Habitats Directive. Accordingly, there are wind companies out there with planning permission who have not commenced the erection of the wind turbines and who will now need to ask for an extension. If a proper EIS/EIA was not carried out prior to the original planning permission, the Council cannot grant the extension, and to do so would be ultra vires (outside the law) and again would be reviewable. Where the Council comes to the conclusion that a proper EIA was carried out, this would need to be justified by objective evidence, rather than opinion, and again would be grounds for review on the grounds of irrationality if the evidence does not support the Council’s conclusion.

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And this is why the latest application by Peter Sweetman is interesting and worthy of following.

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In his application for judicial review (Record No. 2015/359 JR) against the Mayo County Council (MCC) and PWWP Developments Limited (Notice Party), Mr Sweetman alleges that the MCC lacks the power or authority to grant an extension of planning permission to PWWP and therefore acted outside of the law (ultra vires).

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In his affidavit, Mr Sweetman explains that PWWP applied for planning permission on 26 June 2009 for a 12-turbine wind farm at Magheramore, Bekan, Claremorris in County Mayo. Although an EIS was carried out at the time, this EIS did not take into account the ecological objectives of the River Moy SAC as these were not available at the time. However, at the time the extension was sought, these objectives were available but were not considered.

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There is a very real danger that a wind farm will impact on the water quality of the River Moy SAC. A Stage 2 Appropriate Assessment (AA) must be carried out if there is a “likelihood of a significant effect” on the River Moy SAC which is clearly the case here. Accordingly, there needed to be a Stage 2 AA which should have considered, proposed and assessed mitigation measures (i.e. what has the wind company done, if anything, to ensure that there will be no water contamination of the River Moy SAC, and how effective will these measures be?).

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In addition, the EIS failed to consider the impact of the grid connection, which is an obligatory requirement (see my blog on “Project Splitting”).

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Accordingly, Mr Sweetman argues that an extension should never have been granted in the absence of such an assessment. These are his words explaining the sequence of events:

12. The said EIS was considered by the County Council and a planner’s report was prepared on the 6th of April 2010. … This report conducts no EIA or AA. In fact, the report does not mention the River Moy SAC at all. Nevertheless, the report makes a recommendation of a grant of permission.
13. On the 7fh of April 2010, the Council decided to grant permission. … The said decision records no EIA or AA. The said decision also does not record any reasons, considerations or findings in respect of the decision to grant planning permission. Accordingly no such assessment has been undertaken.
14. On the 4th of March 2015, the notice party applied for an extension of duration in respect of the said permission pursuant to section 42 of the Planning and Development Act 2000. … This application recites the fact of an EIA and AA has having been conducted in the initial application for permission. No such assessments were in fact carried out.
15. On the 7th of April 2015 I made a submission to the planning authority raising my concerns in respect of the application for an extension and submitted that no EIA or AA was carried out in respect of the proposed development and that one was required.
16. On the 10th of April 2015, the respondent returned my submission on the grounds that there was no provision under the Planning Acts for the making of a submission.
17. On the 29th of April 2015, the respondent granted an extension of time pursuant to section 42 of the Planning and Development Act. … This decision does not record any BIA, AA or any investigation into whether or not any had been undertaken or whether or not the Council considered same. The decision records no considerations or reasons.
18. I say that the original grant of planning permission in 2010 was granted contrary to the requirements of national and European law. No or no proper EIA was carried out. No EIA at all is recorded. No or no proper screening for an AA was carried out and none is recorded. No AA at all was conducted despite being required. Accordingly, the said decision was illegal and cannot be further extended without the relevant assessments being conducted.”

This application will be one to watch as it raises the important point about the necessity of compliance with Section 42 (and, in turn, the EIA and Habitats Directives). It also raises the question concerning the right of the public to be informed about these applications for extensions and to be allowed to make submissions on the desirability of those extensions. If one considers that in essence these are repeat applications for planning permission five years on from the original application, it must be recognised that many things might have changed in the interim, including new schools, playgrounds, and houses in the area, which must be considered before an extension is granted. The only way to ensure that these issues are properly aired is by allowing the public to make submissions, and therefore there should be a guaranteed right to do so.

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Best of luck, Peter.

About Neil van Dokkum

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

  1. Francis Clauson says:

    Neil
    Commencement has a very specific definition under the Building Control Regulations and hence your term “where the development has not commenced” is I would have thought all the time prior to the submission of a Commencement Notice

  2. In addition, most applications these days are for 10 years and not 5 as is usually the case with most planning applications.

  3. Francis Clauson says:

    WEDG06 (those famous wind farm guidelines) – page 87

    Planning authorities may grant permission for a duration longer
    than 5 years if it is considered appropriate, for example, to ensure
    that the permission does not expire before a grid connection is
    granted. It is, however, the responsibility of the applicants in the
    first instance to request such longer durations in appropriate
    circumstances.

    • Francis Clauson says:

      So WEDG06 provides for specific guidance to circumvent the EIA directive by suggesting a wind farm can receive planning permission prior to a grid connection

      Oh how we wish the O’Grinna case came out 10 years ago – we probably would have about 10% of the windfarms we have today

    • That must mean that the Act does not set a maximum term. I wonder where the default 5 years comes from?

  4. Monica Muller says:

    “It is doubtful whether the majority of these applicants bothered to conduct a proper EIA;;;”
    Hi Neil,
    please bury the misleading fact that the developers are carrying out EIA.
    EIA (Environmental Impact Assessment) under Article 3 of the EIA Directive, Planning and Development Act 2010, case law – it is NOT the developer or applicants who carry out the EIA (which would be amounting to self-assessment). The planning authority is mandated to carry out EIA.
    The applicant is required to submit an EIS, Environmental Impact Statement providing all required information to enable the authority to carry out an EIA for the plan/project.
    Regards,
    Monica

  5. Bob Gunkel says:

    Dear Neil,
    I have to strongly disagree with your assertion that the PA must check whether a valid EIA/AA was carried out prior to the granting of the original permission and that ,if such an assessment was not carried out, the PA would have to refuse the extension of duration application. Having made a number of extension of duration applications under the revised section 42, it is my experience that the reference to an EIA etc only requires a statement that an EIS was submitted at the original planning application stage, nothing more than a box to be ticked off. Note also that the extension of duration application is to a large extent only a paper exercise.
    This is backed up by an analysis of section 42(a)(ii)(iv) of PDA 2000 (as amended). This only requires a statement that an EIA/AA was carried out. Nowhere does it state that a check on the validity of the original assessment is required. I also refer to section 42 of the Regulations which identifies the required content of an extension application. This list does not include a reference to an EIS.
    Lastly, if section 42 was to allow for a revisit/review of the original EIA, this would likely result in the need to revise environmental conditions. However, the grant of an extension specifically forbids any changes to the conditions (apart from the security ones). This would preclude a re-assessment of the original EIA.
    Regards,
    Bob Gunkel

    • Dear Bob

      Thank you for sharing your experience of applying for extensions under the revised Section 42. I think your observation that it is a box-ticking exercise is exactly my point. The application for an extension is made between five to ten years after the original application where environmental circumstances might have changed or where the original EIS no longer complies with the law as it now stands (for example, the grid connection must now form part of the EIS).

      This box-ticking exercise is clearly in contravention of both the EIA and Habitat Directives, which is the point of the blog and the thrust of Mr Sweetman’s application.

      Best wishes
      Neil

      • Peter Sweetman says:

        This only requires a statement that an EIA/AA was carried out. The submission of an EIS/NIS does not mean that an EIA/AA was carried out. That is my argument.

      • Peter, I think you need to get an affidavit from Bob detailing his experiences. How about it Bob?

      • Bob Gunkel says:

        Dear Neil,
        I am only a simple planner and have based my comments solely on the current legislation (and so will the courts I presume). One can disagree with it, but we nevertheless have to live with it. I am satisfied that my statements are correct, but I am always willing to learn. I would therefore appreciate it if you could comment on my conclusions.
        Regards,
        Bob

      • Dear Bob

        Your comments were valuable and very welcome. The court will need to decide whether the Directive has been properly transcribed into our legislation and if so, whether the planning authorities have properly followed that legislation. Your experiences as you have described them would seem to suggest that at least one of those questions must be answered in the negative, which is why your contribution was valuable. I look forward to you sharing more of that valuable experience so that we can all learn from it.

        Best wishes
        Neil

  6. cawtdonegal says:

    Neil, Bob,

    In Donegal a recent wind farm extension of duration, for Garvegort Glebe , included the following request from the planning authority:

    “Applicant to submit a report from a suitably qualified independent ecologist which confirms whether the mitigation measures included in the ‘Method Statement for Design of Siltation Control Measures’ prepared by T.S Mc Laughlin Structural Engineers and submitted in respect of the parent application 09/30155, completely removes the risk of siltation to the river, thereby omitting the potential for the development to impact negatively on the fresh water pearl mussel, which is listed under Annex II of the EU Habitats Directive on the Conservation of natural habitats and of wild flora and fauna.”

    This points to the fact that the planning authority felt empowered to carry out an assessment of some description on the application for an extension. Leaving aside the fact that no grid connection route was ever included in this application and that there are recorded landslides in this area, see on site file/meetings with ABP/ESB , the planning authority granted the extension, but in my opinion failed to carry out an EIA in accordance with the directives: they did not seek best scientific knowledge, nor did they permit members of the public to comment.

    I also remember another development which had an extension of duration refused in Donegal on environmental grounds! (trying to find reference).

    Hope that helps.

  7. Peter Sweetman says:

    Just because Bob Gunkle and Cork County Council have misrepresented the law does not make it law, which is the basis of Bob’s argument.

    • Bob Gunkel says:

      Dear Peter,
      Your last comment is uncalled for and avoids the central issue of a frank and honest discussion of my arguments. Please note that my experience with extension of duration application covers 3 different counties. Did they all misrepresent the law?
      Regards,
      Bob Gunkel

      • Dear Bob

        You really are doing yourself a disservice describing yourself as a “simple planner”. Your bio is very impressive:

        “Bob Gunkel Planning specialises in providing a professional planning service to the Irish wind energy industry. With a background of more than 13 years in planning for wind farms (and 36 years as a profesional planner), I can provide a wide range of services ranging from an initial pre planning assessment of a project through to due diligence assessments for financial institutions and compliance with conditions. Other activities include EIS consultant selection, Extension of Duration applications and consultations with planners.”

  8. Monica Muller says:

    “This only requires a statement that an EIA/AA was carried out.”
    The relevant authority has to ascertain whether or not EIA was carried out by the authority as part of the primary planning process. If the answer is NO than under the requirements of the EIA Directive an extension can not be granted. The question then arises if the primary planning permission has to be squashed?
    I may be helpful to consider the following.
    Under Article 10 EC [Article 4(3) TEU] the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for in Article 2(1) of the EIA Directive.
    In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project to an assessment of its environmental effects, in accordance with the requirements of the EIA Directive,
    Under the principle of cooperation in good faith laid down in Article 10 EC [Article 4(3) TEU],
    Member States are required to nullify the unlawful consequences of a breach of Community law. The competent authorities are therefore obliged to take the measures necessary to remedy failure to carry out an environmental impact assessment, for example the revocation or suspension of a consent already granted in order to carry out such an assessment, subject to the limits resulting from the procedural autonomy of the Member States.

  9. Pat Swords says:

    On interesting thing to consider is that wind farms fall under the requirements of Article 6 of the Aarhus Convention.

    http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf
    10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.

    Is not an extension to a planning permission a reconsideration / update, especially as the comments above have pointed out, there could be a lot of ‘water under the bridge’ in the meantime and there is no method at all envisaged for having involvement of the public?

  10. cawtdonegal says:

    Bob,

    Donegal County Council: 15/50054 link -> http://www.donegalcdb.ie/eplan/internetenquiry/rpt_ViewApplicDetails.asp?validFileNum=1&app_num_file=1550054

    I find myself having to agree with the thrust of what Peter Sweetman says, in my limited experience all public authorities shall misrepresent/misinterpret the law, as it suits them, until forced to do otherwise through the courts (or sometimes via media/public pressure). One is very aware of this when one lives in Donegal!

    • Bob Gunkel says:

      Dear CAWTDonegal,
      Thanks for the link. I note your comments re public authorities. I am totally satisfied that there is no deliberate attempt by planners to misinterpret the law. Where errors are sometimes made this is often due to an overload of new legislation etc , in particular from the EU, which often takes some time to filter down to the planners.
      Regards,
      Bob

      • cawtdonegal says:

        Bob,

        As public actors and ‘professionals’, you know too well that ignorance of the law affords no excuse. As for the true motivation, of current local authority planners, no more than ourselves you may only speculate

        CAWT

  11. Monica Muller says:

    “Environmental Impact Assessment (EIA) is the process by which the anticipated effects on the environment of a proposed development or project are measured. If the likely effects are unacceptable, design measures or other relevant mitigation measures can be taken to reduce or avoid those effects.
    The document from this process is called an Environmental Impact Statement (EIS)”
    Quote from the EPA website, The EPA Guidelines 2002 on EIS have not been corrected.
    This misunderstanding (so use a polite term) by Irish Authorities of what EIA is and who is tasked to conduct an EIA has been haunting the planning and regulatory system ever since the EIA Directive has been transposed into national legislation. While some progress has been achieved despite persistent stonewalling , the ghost of muddling EIS and EIA is still wandering around, even in the judicial system.

    • Thanks Monica. I get muddled myself. Am I right in saying that the document which the applicant for planning permission encloses with its application is the EIS, whilst the investigation conducted by the Planning Authority in terms of the Directive is the EIA?

      What would be the methodological distinction between an EIS and an EIA?

    • Bob Gunkel says:

      Dear Monica,
      You are ofcourse correct with your distinction between EIS and EIA. I have mixed these up during the course of my argument. My apologies.
      Regards,

      Bob

  12. Monica Muller says:

    good question, Neil, and no direct answer. EIA Directive Article 3 describes EIA; clarified by ECJ case law.
    Article 5:
    3. The information to be provided by the developer in accordance with paragraph 1 shall include at least:
    (a) a description of the project comprising information on the site, design and size of the project;
    (b) a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant
    adverse effects;
    (c) the data required to identify and assess the main effects which the project is likely to have on the
    environment;
    (d) an outline of the main alternatives studied by the developer and an indication of the main reasons for
    his choice, taking into account the environmental effects;
    (e) a non-technical summary of the information referred to in points (a) to (d).
    – which describes very well what is termed an EIS in Ireland. Keeping in mind that the EPA Guidelines on EIA/EIS 2002 and 2003 define: the EIS is the outcome of the EIA, than the Guidelines are the methodology for EIA. Right? Wrong?
    With other words the Irish definitions/interpretation muddles Article 3 and 5.
    Even though the POD 2010 has official corrected the muddle to a degree, i.e. authority carries out EIA, instead of applicants, the Guidelines haven’t changed (neither have virtually no official website, EPA, Citizen’s advise…) However, we do have: Guidelines for Planning Authorities and An Bord Pleanála on carrying Environmental Impact Assessment, March 2013, which nearly equates the planner’s report with EIA . It is worth to take notice of the Minister’s introduction: “However it is not decision making in itself.” (i.e. EIA) An odd statement to make as the EIA decision has to be made before decision on an application to permit commencement of the plan/project. Or am I wrong?
    This is a bit like Soduko, missing bits everywhere.
    Monica

  13. Oh dear. Thanks Monica. One cannot help thinking that the muddle is actually deliberate developer-driven legislative mismanagement. I know that EU law is often tough to fathom but this has been with our lawmakers for a long time now and they are still cocking it up!

    • Monica Muller says:

      I hoped you would enjoy reading my musings. The 2002 EPA Guidelines list the input of the working group members, the very people (in statutory bodies) who are deciding on EIA even now. No developers listed, which would indicate to me, that the problem is much more serious. Peter’s case or rather outcome will be of particular interest. Essentially it may be the official cover-up of a a primary failure in implementing environmental law. Or – we will have progress.

      • I see what you mean. This is from the Introduction to the guidelines by the EPA:
        “The Guidelines have been prepared following wide consultation with the benefit of a number of years in circulation as ‘Draft Guidelines’. Experience has shown that the quality (sufficiency and relevance) of the information in EISs is closely related to the
        methods and procedures employed by the participants. For this reason additional guidance has been provided to address the process that gives rise to the information contained in an EIS.
        At all times the Agency has attempted to stress that EIA is a practical and dynamic process of environmental protection. The specialist studies and professional evaluations used for EIA should principally aim to anticipate and avoid impacts. The greatest value occurs when the site/route is being selected and while the project is still being designed;
        it is first and foremost a process. Ideally the resultant EIS is a document that records this process – showing how environmental consideration helped the project to achieve the most sustainable and least disruptive integration with the local environment. The Guidelines have been drafted with the primary objective of improving the quality of Environmental Impact Statements in Ireland. Quality improvements will result from better scoping and a closer integration of EIA into both the design and development control processes.
        The Guidelines will help to provide developers, competent authorities and the public at large with a basis for determining the adequacy of Environmental Impact Statements, within the context of established development consent procedures. They will also provide a focus for scoping between the parties concerned. A consensus should provide all parties with the confidence to rely on concise Statements which are focused on the likely significant impacts. This will reduce the time, effort and expense required to prepare and evaluate Environmental Impact Statements and should facilitate public participation in the EIA process” (http://www.epa.ie/pubs/advice/ea/guidelines/epa_guidelines_eis_2002.pdf)

  14. Pat Swords says:

    A lot of people get muddled, particularly in Ireland where the EIA procedure is morphed directly into the planning permit. A Directive sets a goal to be achieved by a Member State, but the how is left to them, e.g. implementing legislation, administrative structures, etc. In some other Member States a regional environmental and economic authority is responsible for conducting the EIA procedure, the conclusion of which is a report with recommendations, i.e. the compliance with Article 3. Only when a developer has this report can he include it in a valid planning application to the planning authorities at municipal level. The two are separate phases and are not ‘morphed’ together as in Ireland.

    This just reflects that the EIA procedure only informs the downstream planning decision, see for example on page 11:

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

    “that rule prescribes an assessment of the environmental impact of a public or private project, but does not lay down the substantive rules in relation to the balancing of the environmental effects with other factors or prohibit the completion of projects which are liable to have negative effects on the environment”.

    The planners have a lot of discretion. However, in common law the principle of reasonableness applies, while in European law there is a strong emphasis on proportionality. So what happens if there is a project where the EIA has shown very significant impacts, plus there is a high financial costs and the benefits are insignificant or negligible? Is it reasonable or proportionate to approve such a project?

  15. Owen M says:

    From reading the regulations the requirement for an EIA is only for Annex 1 projects (which does not include wind farms) and depends on certain criteria for Annex 2. It seems that Ireland did not properly transpose the Directive in relation to Annex 2 :

    http://www.teagasc.ie/publications/2011/1050/Bill_Callanan_EIA_Presentation.pdf

    So Im still not clear on whether the EIA does apply to wind farms or not ? There seems to be some discretion given to authorities. However, the public should be able to get access to the decision making process behind the screening for an EIA :

    http://www.environ.ie/en/DevelopmentHousing/PlanningDevelopment/EnvironmentalAssessment/PublicationsDocuments/FileDownLoad,1804,en.pdf

    “Irish implementing legislation addresses the possible need for EIA
    below the Annex II national thresholds. There is a requirement to carry
    out EIA where the competent/consent authority considers that a
    development would be likely to have significant effects on the
    environment.
    3.6 In particular, in the case of sub-threshold development on sites of
    conservation sensitivity, the competent/consent authority must
    formally decide whether or not a project would or would not be likely
    to have significant effects on the environment. Competent/consent
    authorities are reminded of the obligation to record their decision in
    such cases and to retain a copy of the decision on the relevant file. “

  16. Pat Swords says:

    Monica

    The EIA is not a planning decision, i.e. a decision to either grant or refuse and the reasons and considerations used to justify that conclusion. The EIA is only a procedure to assess the environmental impacts of the proposed development to improve the subsequent planning decision. It is important to realise that the conclusions of this assessment procedure only inform the subsequent planning decision and do not dictate it, in particular that there are significant negative environmental impacts identified is not a grounds on its own for a planning refusal. This resultant planning decision can be justified on many grounds, such as economic, public security, delivery of improved infrastructure, etc.

    So the EIA, where required by that particular project classification, is the ‘upstream’ procedure, while the subsequent planning decision is ‘downstream’.

    • Peter Sweetman says:

      ‘(1) Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4.

  17. Francis Clauson says:

    Comes from Article 2 of 2011/92/EU

    and people should note the full list of projects as transcribed into Irish law subject to an EIA can be found in the PDA regulations – Schedule 10

  18. Bob Gunkel says:

    A full list of activities for which an EIS is required can be found in Schedule 5 of the Planning and Development Regulations 2001 (as amended). Part 2(3)(i) of this schedule refers to wind energy projects and states that developments comprising of more than 5 turbines or with a generating capacity of more than 5 MW require an EIS.

    We appear to have drifted away from the original topic of this discussion which was the claim by Neil that it is possible to object to an Extension of Duration application based on Section 42 of PDA 2000 as amended. For the sake of clarity I wish to make it clear that since Neil’s core arguments are based on his interpretation of Section 42 my observations are confined to this section alone.

    Referring to Section 42(1)(a)(ii)(V) he states that “that if the development is one that requires an Environmental Impact Assessment (EIA) or an Appropriate Assessment (AA), or both, the Council must check whether a (valid) EIA and/or AA was carried out prior to the granting of the original planning permission, and if such an EIA was not carried out, it cannot grant an extension as this would be in contravention of the EIA Directive and the Habitats Directive”. He argues that the above subsection requires the Council to ensure that a “proper” and comprehensive EIA was carried out.

    It is appropriate to quote directly from Section 42 as amended: “….a planning authority shall…..extend the appropriate period…… provided that each of the following requirements is complied with [Section 42(1]): ……. the authority is satisfied [section 42(1)(a)(ii)]……that an environmental impact assessment, or an appropriate assessment, or both of those assessments, if required, was or were carried out before the permission was granted [Section 42(1)(a)(ii)(V)]”.

    Please note that official text does not contain the word “valid” which was inserted by Neil and which forms the core of his argument. Instead the Section clearly states that an extension shall be granted if the PA is satisfied that an EIA and/or AA, if required, were carried out before permission was granted. There is nothing in this section to even suggest that a re-assessment of the EIA is required.

    In support of this I like to point out that Section 42 does not provide for third party involvement, nor does it allow for an amendment of conditions (apart from the financial security ones). The latter would be essential if, as Neil argues, a re-assessment of the EIA would be required as it is claimed that many of these EIA’s are defective (are not “proper” in his words) and would thus most likely require revised conditions.

    It is useful at this juncture to describe briefly the background of Section 42, its amendment in 2010 and what it is trying to achieve. Permitted wind energy projects suffered major delays outside their control caused by major weaknesses in the national grid which prevented these projectsy to connect to the grid. This is evidenced by the imposition of a moratorium on grid connections for all new generators in 2004. The need to implement both deep and shallow grid improvements on a phased basis is still a major factor in delaying the commencement of construction of most wind farm projects. The original Section 42 required as a prerequisite that substantial works were carried prior to the expiry of the appropriate period. This requirement caused major problems for wind farm developers. Not only was there no clear definition of what constituted substantial works, it also become apparent that there was a very wide difference in interpretation among the various planning authorities. Moreover, there were also fundamental financial issues. Any wind farm requires a grid connection to operate and thus generate income. It is not feasible to get finance for a project that will have to wait 5 to 10 years before making any financial return. Consequently it is impossible to carry out the necessary substantial works in order to qualify for an extension of duration.

    This problem was recognised by the Department who amended Section 42 in 2010. This added a further ground for obtaining an extension of duration based on considerations of a commercial, economic or technical nature beyond the control of the applicant. Section 42 is solely intended to allow developers who suffered from connection delays which are outside their control, a means to extend their planning consent. This section does not amount to a fresh application.

    In conclusion, it is my opinion that an extension of the appropriate period application under the current legislation does not require a re-assessment of the EIA previously submitted as is claimed by Neil.

    Best wishes,

    Bob

    • There are two major issues here, and it is important to not confuse them.

      Firstly, I inserted the word ‘valid’ as the Council needs to be objectively satisfied that an EIA or AA was carried out. An invalid EIA is not an EIA as defined and accordingly would not be objective evidence that an EIA or AA was carried out. It is certainly not core to my argument, but rather common sense as the PA cannot find it was carried out if it was invalid, can they?

      Secondly, the issue that I was raising is this: According to what standard will that EIA be assessed at the time of the application for extension? If the PA assesses its validity according to the legal requirements at the time the EIA was originally carried out five to ten years ago, I was arguing that this does not make sense because from a practical point of view there might be a lot of changes which need to be accounted for, and secondly, the law on EIAs has been interpreted by the High Court relatively recently and is now a lot more stringent than it was five (or ten) years ago. This would be a purposive interpretation of the law which is appropriate in this context. In other words, the law should have as its aim the protection of the environment, rather than facilitating its ruin by developers.

      • Bob Gunkel says:

        Your arguments made in your comment dated 22/07/2015 are based entirely on the as yet unproven assertion that the original EIA evaluations have been deficient and substandard. I disagree with this presumption as these EIAs have been the subject of intense scrutiny, first by the relevant PA and then usually by third parties and ABP. Given this level of scrutiny it is most unlikely that any EIA was carried out in a manner that was not strictly compliant with the relevant standards and regulations in force at that time.

        You may have knowledge of invalid EIAs. In that case I would be grateful if you could provide details in order to substantiate your claim.

        I also have to disagree with your second point. Section 42 makes it clear that the EIA referred to is the one carried out before the granting of permission only and nowhere does it state that it requires a new one updated to the current standards. If you were right, would this not necessitate the submission of a fresh EIS? You state yourself that there may be a lot of changes as well as recent interpretations by the High Court which need to be accommodated in the updated EIS and EIA. The need to submit a new EIS and EIA is however not mentioned in the content list required for the extension application as stated in section 42 of the Regulations. In view of the above I have to conclude that section 52 in its current form does not require a review of the original EIA, updated to current standards, indeed it does not even allow for such a review.
        The main difference in opinion between us is due to the fact that I am a planner, not a lawyer like yourself and as such I have to strictly comply with the Irish planning law as it exists. My opinions are thus based on the actual wording of the current section 42. I would welcome your comments, on this basis only, on the following:
        1. Section 42(1)(a)(ii)(V) does not contain the word “valid” in relation to an EIA/AA,
        2. The above section does not state that it requires a re-assessment of the EIA. As this is a fundamental issue, would not the Department have stated this clearly in the text of section 42?
        3. Note that section 42 of the Regulations 2001(as amended) which lists the required content of an application to extend the appropriate period, does not mention an EIS/EIA,
        4. Your demand for a proper and updated EIS and EIA would be tantamount to demanding a new planning application. As this already covered by existing legislation, there is no need for a separate section 42.
        5. As stated in my previous comment, section 42 does not allow for third party involvement, nor does it provide for the amendment of any condition. These are all strong indicators that a review of the EIA is not envisaged.
        6. In view of the background of the amended section 42, it is the sole purpose and intention of this section to overcome the problem of delays caused by circumstances outside the control of the developer.

        I am looking forwards to your comments on the above issues,

        Bob

      • Bob,

        These arguments are going around and around. I am arguing for a purposive interpretation of the section given recent pronouncements, whilst you are arguing for a strictly literal interpretation of the section.

        Let’s agree to disagree and leave it there – it has been an excellent discussion. Many thanks for your well reasoned arguments.

      • Bob Gunkel says:

        Dear Neil,
        I agree to agree to disagree. I have enjoyed the discussion.
        Hartelijk bedankt en tot siens.
        Bob

  19. Pat Swords says:

    Bob

    To burst your bubble of group think, there is not a single wind farm approved in this country where there was a proper EIA completed. There is a Communication on-going at UNECE ACCC/C/2014/12, you can find it at the link below.

    http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/pre-admissibilitycommunications/ireland-european-platform.html

    If you care to go to page 25 of the Communication and the Section dealing with Article 6(9) you will see that the justification for approving these wind farms, the so called climate change benefit, is a complete farce and could be best described by the yaw yaw one has to listen to from the ‘know alls’ down the pub. This is not how a professionally legal compliant organisation behaves, in particular when it is making decisions, and documenting the same, which have huge financial and environmental impact on others.

    Indeed, UNECE even came back for clarifications on this carbon dioxide / greenhouse gas issue, which lead to a further response, see the reply to Question 3 below:

    http://www.unece.org/fileadmin/DAM/env/pp/compliance/Pre-admissibility_communications/Ireland_European_Platform/frComm_response_to_Committee_s_questions_01.12.2014.pdf

    It is also painfully obvious, when one reads the developer’s documentation prepared for such planning applications, how pathetic it actually is, in actually quantifying any benefit with these developments. Admittedly the ‘bar’ is set ridiculously low by an administration, which has completely lost the run of itself and has bypassed all the checks and balances in the system, which it is legally bound to observe. But that doesn’t excuse the quality of this rubbish, which is put forward, and there is no doubt that in times to come when this silly bubble has burst and people have returned to their senses, they will go back and read some of this documentation in utter amazement, at how it was justified to spend billions and cover the countryside with junk.

  20. Francis Clauson says:

    Bob/Neil

    There are some other circumstances under 42 where the planning authority could refuse to extend
    1 – Where the CDP has changed for example no longer allowing wind farms in the area or perhaps setting different noise criteria or set back distances which would make the development no longer comply. A number of LA’s have had amendments to their plans which might well mean no extension is possible.

    2 – The minister issues a section 28 directions – the much awaited new WEDG06 replacement may well ensure that extensions cannot be granted

    Of course once an extension has been granted or refused it can still be subject to a JR if grounds can be found which are relevant.

    • Thanks Francis. I would be interested in your comments on Ben’s remarks about “FACT: Wind Turbines Make You Sick.”

    • Bob Gunkel says:

      Dear Francis,

      Section 42 is quite clear that an extension can only be granted if there all the 4 requirements of section 42(a)(ii) are satisfied.

      As you point out it may be possible that changes in the development may trigger an extension refusal but this may be difficult to prove as the deciding criteria is whether or not the development would no longer be consistent with the proper planning and sustainable development of the area. This is a rather vague
      concept which is open to a wide range of interpretations and it may not be easy to demonstrate a non-consistency.

      It may be easier in your second example relating to the WEDG2006 revision, but all depends on the actual wording of the amendment.

      Regards,

      Bob

      • fclauson says:

        I have a example of extension refusal – Coonogue wind farm Carlow – planning app 1455

        Developer wanted to extend application 0910 which was granted in 13-8-09 and was due to expire 12-8-14

        The planners refused it as follows:

        The Planning Authority considers that the proposed development for permission to erect four wind turbines and a 60M monitoring mast and ancillary buildings and incidental site works, including site roads, in the townlands of Coonogue and Rathgeran, Ballymurpy, Co. Carlow (the tower heights will not exceed 85m and the rotor diameters will not exceed 82m. The anticipated output from the four turbines will be approx. 9.2mw) would not comply with the Wind Energy Strategy policy or the policy the preservation and protection of Views, Prospects and Scenic Routes in the Carlow County Development Plan 2009-2015. As such, the proposed development would no longer be consistent with the proper planning and sustainable development of the area and would be contrary to the requirements of Section Development Acts 2000 -2014.

        A second application in Wexford PL 26.211725 & Wexford/20044702 of a wind farm which is already built was refused variation to the planning conditions set down by ABP which gave the wind farm a 20 year life from date of the order and not from the date of completion. This ask was because the wind farm will only get around 13 years operational life unless it can obtain planning permission to extend beyond the dead line set by ABP.

  21. fclauson says:

    Can any one of the learned readers answer the following :

    Can an extension be granted by an LA if there is an open enforcement file for the development?

    Is there and implicit or explicit piece of legislation or a judgment which could guide on this ?

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