Changes in the planning landscape for wind farm developments continue, with a number of important decisions having been delivered by the High Court, Supreme Court and Court of Justice of the European Union ("CJEU")within the past few months. This note outlines the key takeaways from these decisions.

PRE-PLANNING CONSIDERATIONS

The following recent decisions provide additional guidance to developers on the content of their planning application documents.

Site Notice

The decision of the High Court in Alen-Buckley v An Bord Pleanla1 addressed what is considered to be adequate information to be contained on a site notice. The Applicants in Alen-Buckley argued that the site notice (a) did not contain sufficient information relating to the grid connection and haul route works and (b) it did not state the blade length and rotor diameter of the turbines.

The High Court held that where a grid connection and /or haul route did not form part of the development for which consent was being sought (but were included for the purposes of an O Grianna type cumulative impact assessment) then they did not have to be

included on the site notice. The Court also held that it is the overall height of the turbine (and not the rotor diameter or blade length) that is the important feature to be included on the site notice.

Grid Connection Exempted Development

The case of Daly v Kilronan Windfarm Limited2 held that the grid connection for a wind farm that requires EIA and / or AA to be carried out requires planning permission and cannot be exempted development. Where EIA is required for a windfarm project, an EIA must be carried out which assesses the cumulative impacts of the entire project (which includes the grid connection works). Therefore, EIA is required for the grid connection works, which means they cannot be exempt and planning permission is required.

In Daly, a section 160 planning injunction was brought challenging partially complete grid connection works.

A section 5 declaration had been granted for a portion of the works. This declaration had not been challenged by way of judicial review. While the Court held that "the basis on which the declaration was made was erroneous as a matter of law", it did not `look behind' the declaration to quash it, and only made an order in respect of the works which were not the subject of the declaration.

The High Court did not order that the works that were already carried out (which were approximately 70% in total) should be reversed or that the lands should be restored but did make a limited order prohibiting the continuation of grid connection and laying works.

The Daly decision is currently before the Court of Appeal, awaiting a hearing date.

Grid Connection Alternative Routes

Helpfully, the High Court in Alen-Buckley confirmed once again that a developer does not have to fix upon a single grid connection route for the purposes of its planning application, and is entitled to put forward alternative grid connection (and haul) routes in its technical documentation for the purposes of an EIA. The Applicants argued that (a) as the developer had proposed two alternative routes for the grid connection, the development and grid connection works were void for uncertainty; (b) the Board (in raising a request for further information) extended its permission to include a grid connection and haul route works, which were not part of the application, and of which the public had no notice. Judge Haughton found that further information sought by the Board on grid connection and haul routes was for the purposes of carrying out an EIA of the entire project and did not extend the planning application or purport to grant planning permission for the grid connection in circumstances where the grid and haul routes were not included in the original planning application. It was held that there was no obligation on the developer to decide on a specific grid connection or haul route as permission was not being sought for these aspects, provided that the proposed alterations were included for assessment.

AA Screening

Two recent decisions are of assistance to developers in determining what measures they may or may not include in a Stage 1 AA Screening report, and what standard must be applied before determining whether to proceed to prepare a Stage 2 Natura Impact Statement.

The High Court, in Harten & Anor. v An Bord Pleanla3 once again confirmed mitigation measures may be taken into account in AA screenings. A determination on this very question is awaited from the Court of Justice of the European Union next month in a separate case.

The Alen-Buckley decision looked at the standard to be applied by a decision maker when carrying out an AA Screening. The Court concluded that the test to be applied at the screening stage is whether there is likely to be a significant effect; that the word "likely" should be read as being less than a balance of probabilities standard, and that there need not be any hard and fast evidence that such a significant effect was likely, there merely had to be a possibility that this significant effect was likely. This was in contrast to the argument put forward by the Applicants, which was that the appropriate test is a consideration of whether the development is capable of affecting the integrity of the site.

The applicants also submitted that due to the conditional nature of the permission granted, i.e. the leaving over of certain matters to be decided between the planning authority and the developer (such as plans relating to the drainage systems), it would be impossible to conclude that as a matter of scientific certainty any significant effect on the site could be ruled out. The Court relying on cases including People over Wind v An Bord Pleanla4 held that this was permissible, and that for this argument to succeed the conditions would need to be of such central importance or magnitude as to be an abdication of the Board's statutory duties. Therefore, the question of whether or not technical measurse can be left over for agreement post consent depends on the importance (in the context of the development of a whole) of such matters as the nature, extent of an location where he proposed measures are to be implemented.

PLANNING PROCESS / POST-CONSENT

Recent decisions of the High Court and CJEU look at matters relevant to consenting authorities when considering applications before them.

Guidelines

In the case of Element Power Ireland Ltd. v An Bord Pleanla 5 the Court found that draft guidelines (in this case proposed revisions to the Wind Energy Planning Guidelines 2006 and the draft Strategic Environmental Assessment Scoping Report for Renewable Energy Policy and Development Framework (2016) could not be taken into account by the Board. The Court found that the decision of the Board was unlawful as it refused permission on the grounds of prematurity, pending the publication of the revised guidelines. The draft guidelines did not represent existing policy or objectives of the Government, which is what the Board is obliged to have regard to under the Planning and Development Act 2000, as amended. The Board was obliged to consider an application for planning permission in the context of existing law, policy and guidelines, and not proposals for change.

This case is an interesting and rare example of a refusal of planning permission being quashed even though there were a number of reasons for the refusal. However, the Court considered the prematurity ground to be inextricably linked to the other grounds of refusal.

Remedial EIA

On 22 February 2018, in Comune di Castelbellino6 the CJEU confirmed that a "regularising EIA" may be carried out by national authorities. This case involved a previously consented biogas plant, which had not been subject to EIA at the time consent was granted (because national law did not require it) but the developer now wished to increase capacity. This national law had subsequently been declared incompatible with the EIA Directive.

The Court held that where a project has not been subject to a preliminary assessment of the need for an EIA following incorrect national law, EU law does not preclude competent authorities from carrying out an assessment of the project after its completion for the purpose of establishing whether or not it should undergo an EIA under new national legislation, once this legislation is compatible with the Directive. Any assessment carried out for regularisation purposes must not be conducted solely in respect of the plant's future environmental impact, but also take into account its environmental impact from the time of its completion. National authorities required to make a decision in this context, must therefore take into account impacts on the environment caused by the plant since the completion of the works but following this, there is nothing to prevent them concluding that an EIA is not required.

Therefore, a regularising EIA may be required if an EIA was not required at the time a project was first consented, but would be required for that type of project at the point in time where a change is being proposed to a project which requires a further consent.

HIGH COURT JUDICIAL REVIEW

Recent developments in respect of High Court Judicial Review applications will impact on how proceedings are commenced and conducted before the Courts.

New Practice Direction

The High Court has published a new Practice Direction for judicial review challenges of Strategic Infrastructure Development ("SID") decisions. High Court Practice Direction 74 came into effect on 26 February 2018 and provides that:

» Mr Justice Barniville has been assigned to hear all SID judicial review leave applications. This should assist in providing consistency in decision making;

» all papers in support of the application are to be lodged the Monday before the leave application (which will be heard on a Thursday). This will allow full consideration of the applications in advance;

» if a leave application is successful, directions will be given by to ensure a "fair and expedient hearing of the matter". It is hoped that this will allow such cases to progress to hearing more quickly, similar to the case management of SID judicial reviews granted entry into the Commercial List.

Extending time for judicial review challenges

The decision of the High Court in SC SYM Fotovoltaic Energy Srl v Mayo County Council7 is a helpful restatement of the decision in Sweetman v An Bord Pleanla ("Grousemount"8). In this case, some 17 weeks passed between a section 5 declaration being made approving a grid connection and an application seeking leave to bring judicial review of that declaration. The Applicant had learned of the section 5 declaration less than a week after it had been made, and wrote to the developer approximately a further week later threatening judicial review proceedings. However, it took a further 7 weeks before an application was made. The Court rejected arguments that awaiting a response to a Freedom of Information request before the application could be made was a `good and sufficient' reason to extend time. It also took into account the prejudice that would be suffered by the developer, whose grid connection works were almost complete when the application was made.

Interestingly, the Applicant in Fotovoltaic Energy was a landowner of recently purchased lands over which a small portion of the grid connection would pass. No planning search had been carried out prior to completing the sale. The Court accepted evidence from a conveyancing expert that such a search should have been carried out, and attached weight to its absence. This emphasises the importance of carrying out thorough and up to date planning searches immediately prior to completion, when purchasing lands.

We understand that the Applicant in Fotovoltaic Energy intends to appeal this decision to the Court of Appeal.

Costs

The CJEU delivered its much anticipated judgment on costs in environmental cases in North East Pylon Pressure Campaign Ltd v An Bord Pleanla9 (the "NECCP Costs Case"). In North East Pylon Pressure Campaign Ltd. v. An Bord Pleanla (No. 1), Humphreys J. refused to grant the applicants leave to apply for judicial review in respect of an oral hearing into the North-South electricity interconnector. He did so on the basis that the application for leave was premature. The respondents and the notice party then sought their costs against the applicants. Seven questions were referred to the CJEU on costs. The CJEU set down 4 main principles as to how costs must be addressed in environmental cases. The `special costs rules':

» apply to judicial review leave applications (and not just the substantive hearing);

» apply to any alleged breaches of the EIA Directive;

» apply to any alleged breaches of national law which give effect to EU environmental law other than the EIA Directive. It remains to be seen how this will be applied by the Irish Courts, but it may have the effect of extending the `special costs rules' to cases involving AA;

» do not apply to arguments with no EU environmental law dimension, in which case costs will follow the event, i.e. the losing party will pay the winning party's costs.

WHAT'S NEXT?

A number of decisions are eagerly anticipated from both the Irish and European Courts that have the potential to impact how project planning should be addressed in the future.

AA Mitigation or Compensation?

The Advocate General's Opinion in Grace & Sweetman v An Bord Pleanla10 is due to be delivered on 19 April 2018, with the judgment of the CJEU to follow. The CJEU had to consider whether active management of a designated site which provides habitat for a protected species i.e. an SPA (rather than a site that is protected for its inherent characteristics i.e. an SAC) and which results in habitat being displaced and replaced should be considered a mitigatory measure or a compensatory measure for the purposes of the Habitats Directive.

Costs

A decision from the CJEU is also awaited in Klohn v An Bord Pleanla11 on the question of whether the `not prohibitively expensive' requirement should apply where: (a) the development consent challenged in the proceedings was granted; and (b) proceedings challenging the consent were taken prior to the transposition of the Public Participation Directive. The questions referred to the CJEU also relate to the role of the Taxing Master in awarding costs against parties and whether the Taxing Master is required to take into account the `not prohibitively expensive' requirement.

Content of An Bord Pleanla decisions

The Supreme Court heard an appeal directly from the High Court in the case of Connelly v An Bord Pleanla12 on 5 March 2018. This appeal was brought by the Board, on the grounds that the High Court judge set an unreasonably high threshold as regards the reasons to be given where a decision involves either an EIA or an AA, and that the judge went further than was required or allowed under existing case law. Part of the Board's submission was that this left the law in an uncertain state, which could lead to more litigation.