Another method of opposing planning permission for wind farms has presented itself: challenging a decision to grant an application for extension of planning permission.
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.
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:
(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,
(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.
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?
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.
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”.
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.
Would the waiting for a further increase in subsidy payments qualify, I wonder?
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).
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.
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.
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.
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.
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.
And this is why the latest application by Peter Sweetman is interesting and worthy of following.
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).
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.
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?).
In addition, the EIS failed to consider the impact of the grid connection, which is an obligatory requirement (see my blog on “Project Splitting”).
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.
Best of luck, Peter.