When a planning permission is issued by an Irish planning authority, it is often issued subject to conditions, some of which may be required to be satisfied and signed off by the relevant planning authority prior to the commencement of construction.

An element of the practice that has proven controversial in recent years is the extent to which planning authorities are permitted, in law, to agree points of detail with the developer.

This issue came to a head in the High Court in 2019, and subsequently on appeal to the Court of Appeal in 2021, in the case of Krikke & Ors v Barranafaddock Sustainable Electricity Limited.

In this case, a planning permission for the erection of a wind farm was granted by Waterford County Council in 2005, to the developer, Barranafaddock Sustainable Electricity Limited (Barranafaddock). Condition No. 3 of the planning permission stipulated that “prior to the commencement of development, details of the proposed turbines and associated structures including design, height and colour shall be submitted to and agreed in writing with the Planning Authority…”. A planning compliance submission was then made by Barranafaddock to the council in 2013 with a view to agreeing the final details of the turbine design where the rotor diameter measured 103m. This was contrary to the 90m dimension which had been submitted with the planning application plans and particulars. This was approved by the local authority by way of a planning compliance submission and the decision not challenged by way of judicial review.

Residents living near the windfarm in the townland of Ballyduff, County Waterford, complained of noise and shadow flicker from the windfarm following its commissioning. Investigations found that 9 of the 12 turbines had been built with larger turbine blades and lower hubs than was specified in the plans and particulars submitted with the planning application. In 2018, Waterford County Council made a referral of a section 5 application to An Bord Pleanála (the Board). A Section 5 declaration is a determination of exempted development, and such development does not require planning permission. The application in this case was to determine whether the changes to the turbines “as built”, compared to those specified in the planning permission, constituted “development” or “exempted development” under the Planning and Development Act 2000, as amended (PDA).

On consideration of the Section 5 referral, the Board made a declaration that the alterations to the turbines did not come within the scope of the planning permission. The Board stated that they constituted “development” and not “exempted development” under the PDA.

The High Court decision

The residents applied to the High Court for a planning injunction under Section 160 of the PDA to stop the operations of the windfarm. They argued that the turbines were an “unauthorised development” and relied on the Section 5 decision of the Board. Judge Simons held that as the wind farm was subject to the requirements of the Environmental Impact Assessment Directive (the EIA), the proposed increase in rotor diameter was a “change” or “extension” within the meaning of the EIA Directive. He held that a change to a project that was subject to the EIA could only have been lawfully authorised by an application for planning permission, rather than by way of a subsequent compliance submission.

The Court of Appeal decision

An appeal was brought to the Court of Appeal against the decision of the High Court. A number of arguments were raised, including:

  • Whether the Section 5 decision of the Board could decide whether the “as built” turbines amounted to an “unauthorised development”
  • Whether the applicants were prevented from arguing that the change in rotor diameter of the turbines was an “unauthorised development” in circumstances where the changes had been agreed by the planning authority on foot of the compliance submission submitted by the Developer in 2013, and
  • Depending on the above, whether the change in the rotor diameter of the “as built” turbines constituted a material or immaterial variation from what was permitted by the planning permission.

In the judgment delivered by Ms. Justice Donnelly in July 2021, the Court of Appeal made a number of findings. It firstly held that under Section 5 of the PDA, a declaration from the planning authority can only be made on what “development” and/or “exempted development” is. The Court added that the decision-making authority of the Board or planning authority under Section 5 does not extend to making declarations regarding “unauthorised development”. The Court of Appeal stated that where the development was carried out in accordance with an unchallenged and valid compliance decision, there was no basis to find that there had been “unauthorised development” in section 160 proceedings.

It also held that once a decision had been made by the planning authority or the Board on the conditions imposed in the permission for a development, this may only be challenged by way of judicial review.

The Court of Appeal rejected arguments that judicial review time limits do not apply where there has been an alleged breach of the EIA Directive. It held that there was nothing in the jurisprudence of the Court of Justice of the European Union that prevented a member state from applying its own procedural autonomy in matters concerning the EIA Directive. This is provided the principles of equivalence and effectiveness were complied with.

Thirdly, the Court of Appeal held that where there has been compliance with a planning permission or any condition thereof, there can be no finding of “unauthorised development”. Any challenge to the permission or condition must be taken by way of judicial review. To prove an “unauthorised development”, the Court of Appeal stated that planning injunction proceedings under Section 160 of the PDA would be necessary, and the appropriate test applied. The only way to determine whether “unauthorised development” had taken place would be to remit the matter to the High Court for a fact-finding exercise. However, as the case was decided on other grounds, this was deemed unnecessary.

Conclusion

The Court of Appeal has made it clear that challenges to planning authority decisions on compliance submissions must be made by way of judicially reviewing that decision under Section 50 of the PDA. The Courts have adopted an approach which recognises that a developer should reasonably be able to rely on an unchallenged decision of the planning authority. This recognises the certainty developers require when they proceed with construction on foot of a decision that has not been challenged within the appropriate time limits provided by the judicial review mechanism. They will not have a perpetual “sword of Damocles” hanging over their development.

This recent judgment offers reassuring news for developers, who will be able to securely rely on compliance submission decisions once they pass the normal judicial review time limits, except in the limited circumstances where the Court may extend this period.