Well done, Val!!

val-martin

Congratulations to Val Martin, who took on An Bord Pleanala in the High Court and won.

This amazing achievement is testimony to the fact that it is possible for a person, with no formal legal training, but with bucketloads of planning knowledge and guts, to take on the State apparatus in the High Court and win.

 

Here is the story in Val’s own words:

“In 2009, the predecessor to Raragh developments applied for planning permission for a wind farm at Kingscourt. Cavan 09/270, It supplied an Environment Impact Statement (EIS) (of sorts). Despite objection from 38 households the Local Council granted permission and it was appealed to ABP. They carried out a sort of EIA and granted planning permission.  As the developer did not know details of the cables at the time, a specific condition was that the planning permission did not include the connecting cables.

In 2015, the developer applied to extend the period of operating time for the wind farm until 2020. He stated that an EIS has been provided with the first application and Cavan Co. granted the application stating that an EIA had been done in 2010.  In May 2015, the developer applied for a declaration under Section 2 of the PDA to declare the 5.5 km of underground cables to the ESB sub-station in Kilnalun, Co. Meath to be development and exempted development.     Cavan Co. Council referred it to ABP (No.RL . 02. 3369).

On the 3rd May, 2016, the Board stated that it was a “development”  and “an exempted development”.  This would have allowed the whole work to go ahead.

I took a judicial review No 2016/460/JR acting as a lay litigant (presenting the case myself). I claimed that the underground cabling was not a “development” but a “project” and accordingly it could never be classed as an exempted development.  I cited the O’Grainne judgment and its ratio decidendi (binding part of the judgment) where the Judge said “In truth I have already concluded the wind farm and cabling are one project”.    I cited a few European cases which proved that a project can be split into phases and that the 2nd or subsequent phases must be assessed under the EIA Directive. In other words, when deciding whether its environmental effects are acceptable, it must be assessed with the cumulative effects of the entire project, and not just the phase currently under consideration.

The Board and the wind farm developer opposed me. They served me with a cart load of documents and I simply wrote in the legal submission that the High Court has no role to play in assessing planning applications, but must confine itself to the law alone.    The Board Lawyers, Philip Lee and Co. caved in and the developer’s lawyers did too.    The Barrister for the Board arrived in Court No 1 before Judge McGovern and said “this is the man who beat Board Pleanala” in a good humoured way.  There was no need for the 2-day trail which had been allocated.

The Judge said he would quash the decision of the Board and award me costs.  

 

Should anyone want copies my case and legal argument, just ask and I will send to you as hard copies. I acknowledge the help of Pat Swords, David Malone, Owen Martin, Francis Clauson, committee chairman Mike Muldoon, Dublin solicitor (and friend) George McGrath , campaigners all over the country and neighbours at Kingscourt for their encouragement.

 

Essentially the law is:

1) projects cannot be developments.

2) Projects can be split but all information known should  be provided at each phase.

3)   Projects cannot be processed under the PDA alone.

4) The PDA (part X) is the vehicle for processing an EIA.

5) One major cop,  well spotted by David Malone and used by me is that Article 2(4) of the EIA Directive allows for exemption a project from an EIA in exceptional circumstances.   If this is done government must inform the EU Commission and comply with a number of conditions which are very strict.  I think this would cover situations like where there is some sudden and unforeseen important event where development would have to be done without submissions for the public.   An international summit or the like.  This is the only way a project can be exempted.

The developer’s lawyers indicated that they did not want to remit the application to the Board. I do not know if they will now apply for an EIA for the cables and planning permission, that is for another day.

Regards

Val Martin”

 

Well done Val.  Respect!

 

an-bord

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 An Bord Pleanala; appeal; interested parties, 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, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Law; High Court; Leave To Appeal; Environment, Legal Costs; Access to Justice; Courts, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector, Val Martin and tagged , , , , , , . Bookmark the permalink.

11 Responses to Well done, Val!!

  1. Pat OBrien says:

    Well done to Val

    Kind Regards

    Pat O’Brien

    On 17 October 2016 at 09:14, The Law is my Oyster wrote:

    > Neil van Dokkum posted: ” Congratulations to Val Martin, who took on An > Bord Pleanala in the High Court and won. This amazing achievement is > testimony to the fact that it is possible for a person, with no formal > legal training, but with bucketloads of planning knowledge” >

  2. Pingback: Well done, Val!! | ajmarciniak

  3. Well, that was a refreshing read! Way to go Val!

  4. Pingback: Taking on the law and winning | Mothers Against Wind Turbines Inc.

  5. fclauson says:

    This result has a number of implications, not only for this case but for many others.

    It is important to note that the court did not decide, nor did ABP admit, that the grid connection needed an EIA. However, they obviously felt that Val’s arguments could not be countered in a meaningful way – they may also not have looked forward to having to present in front of Judge Max Barrett who judged against ABP in Connolly v An Bord Pleanala [2016] IEHC 322 for failing to properly qualify or document their findings.

    For those who are looking to ensure Environment Law is complied with you might like to read https://cawtdonegal.wordpress.com/2016/01/10/francis-clauson-challenging-the-implementation-of-a-planning-permission/

  6. Owen Martin says:

    One of the cases used in this JR was An Taisce Vs An Bord Pleanala, which is a case An Taisce shouldn’t really have won because of O’Keefe but the judge ruled that :

    http://courts.ie/Judgments.nsf/0/59901538DB4C321780257EE700362A4C

    71. It is not appropriate for the court to interfere in the determination of the planning application. However, the court has to intervene if the interpretation of the relevant Article is misinterpreted by the appropriate authority.

    So O’Keefe defence wont work anymore where directive has been misinterpreted or applied wrongly by the planning authority.

  7. Owen, I read that to mean exactly the opposite? The court must intervene if the Directive is interpreted wrongly, but they will not intervene purely on the merits because it is a review, not an appeal.

  8. Hooray for Val Martin!
    I spent my adolescence and a few years more, at Tollymore Park, near Newcastle, Co. Down, My father was Head Forester, and it became Tollymore Forest Park. I still adore the very existence of the Mourne Mountains. Imagine my exultation when I learned that there had been a project “defeated by red tape” to plant a godawful armada of offshore wind turbines in the sea off Annalong probably visible from Newcastle and Kilkeel, and certainly a ruination of the sea view from the peak of Slieve Donard.
    I believe these wind turbines are what my Lancashire-born headmaster would jestingly allude to when the homework he set for Junior Algebra turned out too difficult for the class “I know, I know, _*another injustice to Ireland*_”
    The oppressor these days is the European Union, which refuses to recognise that nuclear power is the answer to global oceanic warming.

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