Open letter to IWEA (and Messrs White and Coffey)

lobbyist

The practice of lobbying government Ministers and other influential members of a ruling party is regarded by many as an integral part of our process of democracy.

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Those in favour would argue that politicians should look to be educated in specialist areas, and who better to educate them than those in the business? Their staff should prepare comprehensive briefings based on that research. The idealists would argue that they should look to non-politically affiliated experts where those are available.

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Similarly, there is the argument that politicians should be elected based on their policy positions. Citizens should be aware of what their government is working on and should communicate their positions on these issues to their elected representatives. Citizens should receive the kind of education and free flow of information that allow them to effectively argue their interests in our democracy.

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In theory these arguments sound perfectly logical and reasonable. That is because the practice is very different from the theory.

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Firstly, certain parts of society (i.e. money) are privileged in their access to politicians, and are therefore able to flood politicians’ offices with information, usually accomapnied by a campaign ‘sweetener’.  Most ordinary people are too busy trying to earn a living to be able to keep informed on current issues and debates, let alone attempt to influence them.

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Secondly, in this country the elections are essentially populist in nature. Politicians get elected because they seem to be “a good guy to have a pint with”, or because they come from a certain family or have close links with the GAA. Policy be damned.

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Finally, where policy is concerned, most research is conducted by somebody with a vested interest, and politicians and their staffs often have priorities that have nothing to do with anyone’s expertise on a topic. In the end it’s about votes. When a politician is newly elected and so is early in his or her term, they might show their true colours and pursue policies that they believe in, or at least that the chief whip believes in. When the next election looms, it’s every man for himself and it’s all about conning the voter and collecting popular votes – no time for policy.

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'Lobbyist from 'Big Wind' here to see you, Senator.'

‘Lobbyist from ‘Big Wind’ here to see you, Senator.’

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Be that as it may, IWEA is an active lobbyist pushing the interests of the wind industry, which is about maintaining or increasing the subsidies that they receive for generating (or usually for not generating) electricity from wind. They circulated this letter (http://us5.campaign-archive1.com/?u=cb704cdc738babe2fa1004335&id=3f35e0e696&e=6c01c95ced) to their members, urging them to lobby Ministers Alex White and Paudey Coffey. Whether they intended this letter to go out on the internet is a moot point, because it is on the internet, and has been in the public domain for some time now, which is why I can use it in my blog.

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Given the current hostile sentiments towards wind farms from a large proportion of the Irish public, whether that be for aesthetic, environmental or financial reasons, the good Ministers probably want to steer clear of this one, and continue with their original legislative intent. After all, the election is just around the corner.

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And what are IWEA hoping to achieve? This excerpt from their letter is a clue:

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“The Oireachtas led by Minister of State at the Department of the Environment, Paudie Coffey TD today tabled a Statutory Instrument (SI) on the “Planning and Development (Amendment) Regulations 2016”. The Statutory Instrument, while almost entirely focused on Irish Water, contains an amendment (below) which seeks to directly legislate for the O’Grianna Judgement. We believe this change will potentially have serious implications for the grid connection of wind energy projects, which were availing of the exemption set out below.

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IWEA has written urgently to Minister Coffey, Minister White, and contacted their officials to seek urgent direct engagement on the possible consequences of this legislation, which as we understand has not yet been signed into force by the Minister of State. IWEA is also working to clarify the impacts of this legislation on planning requirements for overhead and underground grid connection and its impacts for Exempted Development requirements.”

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Whether this “urgent direct engagement” is a  euphemism for derailing the legislative process or undermining the democratic process is not clear from the letter, but what IWEA is seeking is to minimise the impact of the O’Grianna judgment, where the High Court (Peart J.) was satisfied that the proposed wind farm’s connection to the national grid was an integral part of the overall development of which the construction of the turbines was the first part. The wind farm on its own serves no function if it cannot be connected to the national grid. In that way, the connection to the national grid is fundamental to the entire project, and therefore the cumulative effect of both phases must be assessed by the accompanying EIS in order to comply with the Directive.

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This proposed amendment is effectively confirming that project-splitting is not allowed.

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One must wonder why IWEA are pushing this so hard, as An Bord Pleanala is bound by the O’Grianna judgment in any event. In addition to that, an earlier amendment to the Planning and Development Act of 2000 has made it clear that any development that requires an EIS cannot be exempted. This point is made by Francis Clauson in his open letter to the IWEA:

Brendan Heneghan
Interim Chief Executive
Irish Wind Energy Association

CC: Ministers Alex White and Paudie Coffey

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Dear Mr Heneghan,

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With reference to the letter that your organisation has circulated to its members; IWEA is somewhat naive if they believe that trying to persuade our government to not codify the O’Grianna judgment will somehow rescue Irish wind farms from their current legal and financial predicament.

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The purpose of “Statutory Instrument (SI) on the “Planning and Development (Amendment) Regulations 2016” is to clarify what is already present in primary legislation.

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The clarification of Class 26 and 27 exemptions is purely to help developers and planners in determining if an exemption is possible.

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The Planning and Development Act (PDA 2000) already provides that any development that requires an Environmental Impact Statement (EIA) cannot be granted exemption from obtaining planning permission.

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S17 of the Environment (Miscellaneous Provisions) Act 2011 amended section 4 of PDA 2000:
“…Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2) , development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.”

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It is also worth noting that roughly thirty years ago the Supreme Court in its judgment of Dillon v. Irish Cement Ltd. (unreported, 26 November 1986) described planning exemption as a “privilege” and that the legal burden rests with the respondent to demonstrate grounds for exemption:
“I am not satisfied that this case comes within Class 34 as an exemption. I am satisfied that in construing the provisions of the Exemption regulations the appropriate approach for a Court is to look upon them as being Regulations which put certain users or proposed development of land into a special and in a sense privileged category. They permit the person who has that in mind to do so without being in the same position as everyone else who seeks to develop land, namely, subject to the opposition or views or interests of adjoining owners or persons concerned with the amenity and general development of the countryside. To that extent I am satisfied that these Regulations should by a court be strictly construed in the sense that for a developer to put himself within them he must be clearly and unambiguously within them in regard to what he proposes to do.”

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Today, the use of these exemptions can be used to circumvent the Aarhus Treaty, the applicable EU Directives and corresponding Irish legislation, and accordingly must continue to be restrictively applied.

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There are multiple instances where wind farm developers have made mistakes (at best) or attempted to circumvent the planning laws (at worst). This letter to your members has at least clarified that IWEA (and accordingly its members) is well aware of the legal provisions in this respect. That will be important evidence should any wind farm seek substitute consent from An Bord Pleanala, as during their deliberations on ‘exceptional circumstances’ as defined in section 177D(2) (b) of the PDA 2000, the Board will have to consider “whether the applicant had or could reasonably have had a belief that the development was not unauthorised”.

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It will be difficult for any of your members, indeed for any wind farm developer, to argue that such a belief can be held.

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ABP are already looking at a number of cases where exemption is being sought. It can be strongly argued, and your letter reinforces this argument, that there are no “exceptional circumstances” to justify substitute planning permission.

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Yours sincerely
Francis Clauson.

Hear Hear Francis. I hope that the Ministers concerned received your message loud and clear, although the word on the street is that they are both soon to be ex-Ministers, so perhaps they don’t give a monkey’s?

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 Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, High Court; Judge Caroline Costello; John Callaghan; Leave to Appeal, High Court; Judicial Review; Appeal on the merits; judicial discretion, Law; High Court; Leave To Appeal; Environment, lobbying; democracy; political process; general election, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Paudie Coffey; series compensation; Fine Gael; Alan Kelly; Alex White, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning Permission; Extension; Planning and Development Act, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector and tagged , , , , , , . Bookmark the permalink.

10 Responses to Open letter to IWEA (and Messrs White and Coffey)

  1. pattikellar says:

    Reblogged this on Patti Kellar and commented:
    Not much different in this part of the world. Transparency is a joke. We are still working on getting the actual data from the Health Canada study so that it can be peer reviewed.

  2. Bob Gunkel says:

    I am somewhat surprised that the Department took the step to amend the Regulations to de-exempt sections 26 and 27 of the so-called Exempted Development Regulations. As Francis correctly points out in his open letter the amended section 4 of PDA 2000 already makes it clear that the exempted regulations do not apply if an EIA or AA is required for the development. The amendment, in my opinion, is a clarification which is normally dealt with by way of a Circular Letter.

    • I agree Bob, it is curious. Perhaps it was an attempt to stop an application for exemption (for the connection) before an application for the wind farm planning permission? Although even in that instance I would argue that O’Grianna would compel you to cover the entire operation when compiling the EIS.

    • cawtdonegal says:

      Perhaps, Bob, it is as IWEA have stated in their cry to action that some wind farm projects were availing of this exemption and the Department are merely ensuring that those local authorities/planning appeals boards are not inadvertently (*coughs) misinterpreting sections 26 and 27.
      On the other hand, the amendment seems to confirm exemption for connections to sub-threshold projects which otherwise have planning permission, although based on O’Grianna the assessment of threshold for EIA at least must be cumulative of the grid connection, and other ancillary matters, in order to avoid project splitting.
      Either way we do not know if clarifying that connection to sub-threshold projects is exempt is the true intention of the Department.

  3. Pingback: Open letter to IWEA (and Messrs White and Coffey) | ajmarciniak

  4. fclauson says:

    Further to my open letter I have now received a full copy of the judgement mentioned from 1986

    the relief sought was

    a permanent injunction under Section 27 of the Planning Act 1976 restraining the Respondent from carrying out an excavation

    Its interesting that the learned judge closed by saying

    It is clearly a development which if not exempted requires planning permission and that there should be an injunction, and in the circumstances of the case it would be my view that the injunction should be in the form claimed in the motion to continue unless planning permission is granted when it should then cease.

    So for all of those grid connections with no planning a court would find it hard not to issue an injunction stopping their usage until such time as a proper and complete EIA has been carried out

  5. fclauson says:

    Following some news over the weekend

    Dear Minister Paudie Coffey,

    The proposed “Statutory Instrument (SI) on the “Planning and Development (Amendment) Regulations 2016” (specifically the changes to Class 26 & 27) needs to be signed by yourself ASAP to stop any further confusion with planning applications from wind farm developers.

    Over the week-end there were two rather disturbing rumours which will, if true, waste local authorities and ABP money, time and resources.

    The first being that you have referred the signing of this to an “inter-departmental committee” for which I read “kick-to-after-the-election-so-its-not-my-problem”.

    The second being a tweet from Jack Horgan-Jones of the Sunday Business where he stated that IBEC are messaging that you have agreed not to sign this Stat Inst.

    Developers already have no choice but to ensure that a Grid connection forms part of a planning application for a wind farm. Pert J (O’Grinna) has already clarified this.

    ABP is already insisting on this – See ABP’s own files for
    • PL93.244006/PA Reg 14/600109 – letter dated 28-July-2015
    The connection to the national grid forms an integral part of the overall development of which the construction of the turbines is the first part;
    The cumulative effects of the construction of the turbines and the connection to the national grid must be assessed in order to comply with the Environmental Impact Assessment Directive.
    • PL19.244053/PA Reg 14/188 – letter dated 18-Sept-2015
    The Board requires a revised Environmental Impact Statement to be submitted, to incorporate sufficient information to enable it to complete an environmental impact assessment in relation to the overall proposal, including the grid connection. The level of detail should be such as to enable the Board to complete its assessment in accordance with the requirements of the EIA Directive, and should, at a minimum, include the following details in respect of a proposed grid connection:………

    ABP are in the process of make some further determinations on this matter

    http://www.pleanala.ie/casenum/RL3411.htm deciding 10-2-2016
    http://www.pleanala.ie/casenum/RL3410.htm deciding 10-2-2016
    http://www.pleanala.ie/casenum/RL3409.htm deciding 10-2-2016
    http://www.pleanala.ie/casenum/RL3408.htm deciding 10-2-2016
    http://www.pleanala.ie/casenum/RL3369.htm date unavailable (keeps being pushed back)
    http://www.pleanala.ie/casenum/RL3375.htm date unavailable (keeps being pushed back)

    Failure to sign this Stat Inst will just continue the confusion amongst developers while ABP and Local Authorities have no choice but to refuse/invalidate any wind farm planning application which is a threshold EIA development if it contains insufficient details of the grid connection.

    Yours sincerely
    Francis Clauson

  6. Reblogged this on The Law is my Oyster and commented:

    See further comment by Francis Clauson regarding developments over the weekend.

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