The Daly v Kilronan Windfarm & Ors. High Court decision of 11 May 2017 (Baker J) has effectively increased the planning obligations on developers whose project incorporates a connection to the electrical grid.

The case was a s.160 application seeking to prohibit the Respondents from carrying out grid connection works associated with their permitted windfarm project and this order was granted by the court on the basis that the grid connection works did not have the benefit of planning permission and do not constitute exempt development, notwithstanding a s.5 declaration issued by the relevant planning authority deeming them to be so exempt.

Background

The ruling extends the impact of the O’Grianna & Ors. v. An Bord Pleanála [2014] IEHC 632 decision which had significant implications for the wind industry in ruling that the grid connection was an integral part of any wind farm project and that the likely environmental impacts of the grid connection works must be assessed as part of the project. O’Grianna did not, however, provide that a separate EIA/ AA of the grid was required, nor did it deal with the status of a s.5 for the grid connection.

A s.5 declaration is a declaration by a planning authority that particular development constitutes exempt development and does not require planning permission. It is usually granted on the basis of submission by the developer of a description of the proposed works coupled with relevant and appropriate assessments of the likely environmental impacts of the proposed development. Since the O’Grianna decision, it has been relatively common practice for developers to obtain a s.5 declaration confirming that grid connection works associated with a particular project constitute exempt development.

The validity of providing for grid connection works by way of s.5 declaration from the planning authority, including in respect of EIA projects, was supported by caselaw including, for instance:

  • Kilross Properties Limited and ESB [2016] IECA 207 (Hogan J.) which held that “the High Court cannot go behind an otherwise valid s.5 determination to the effect that the development in question represents exempted development in the course of a s.160 application. … It follows that the High Court cannot grant the relief claimed in the s.160 proceedings.”; and
  • O’Grianna & Ors. v An Bord Pleanála & Ors [2017] IEHC 7 (‘O’Grianna 2’)wherein it was held that the requirement in the substantive case was that a cumulative assessment of both the wind farm project and the grid connection be facilitated. In circumstances where there had been a cumulative assessment of all works carried out and there was no suggestion that the EIA remained deficient in terms of content, it was considered that the EIA Directive should be given a purposive interpretation and should not be used to strike down consents where there has, in reality, been substantial compliance with its requirements even if all of that information was not put before the Board in a single submission.

Decision

Daly v Kilronan which does not reference Kilross or ‘O’Grianna 2’, finds that the grid connection works for a project requiring an EIA must have the benefit of planning permission. This is a significant extension of previous rulings.

The judgment includes the following elements:

Section 5:

  • The s.5 before the court does not constitute ‘an authoritative determination’ as to whether the development in question requires planning permission;
  • The s.5 declaration in this instance was ‘erroneous’ in that it was not based on a proper consideration of the effect of the decision in O’Grianna.

Exempt Development:

  • O’Grianna is authority for the proposition that grid works are ‘an integral part of the project as a whole’;
  • The wording of s.4(4) of the Planning and Development Act 2000 as amended provides that ’…development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required’;
  • Therefore, ‘as the grid works are part of an overall project, and an EIA is required for the overall project, and environment assessment must be carried out of the entire project, … no part of the project … can be exempt from planning.’
  • The approach of Peart J. to “project splitting” (in O’Grianna) was taken within the context of European case law which … supports the proposition … that grid connection works cannot be treated as exempt development.

EIA:

  • The carrying out of an EIA is a function of the planning authority (not the applicant);
  • ‘As the grid works are part of a development that does require an EIA, the local authority must carry out an environmental assessment in the context of the project as a whole of which the grid connection forms part’ and
  • This decision is not affected by whether the environmental assessments prepared by the applicant ‘show no likely environmental impact’ in respect of the grid connection works.

Conclusion

The current position as set out in this judgment has the effect that all grid connection works must have the benefit of planning permission if they form part of an overall project that requires an EIA.

Pending legislation clarifying the position and/or pending any appeal of this decision, has significant implications for all developers seeking to connect their development to the national grid.

It also has significant implications for all developers seeking to rely upon s.5 declarations in that the High Court did not hesitate to look behind a s.5 declaration in this instance.

It is hoped that the Planning and Development (Amendment) Bill 2016, a final draft of which is expected imminently, can incorporate provisions to clarify the law and if necessary on the basis of this clarification, detail urgently required transitional provisions regarding projects that are recently constructed, under construction or due to be constructed imminently.

Ideally, a purposive interpretation of EIA requirements would be endorsed in alignment with the judgments of Kerry Wind Turbine Awareness Group v ABP & Ors, [2017] IEHC 126 and O’Grianna & Ors. v An Bord Pleanála & Ors [2017] IEHC 7 (‘O’Grianna 2’).