The planning status of wind farm grid connections - Certainty at last

• Ireland

• General

02-06-2017

Patrick Daly (the “applicant”) v Kilronan Windfarm and Derrysallagh Windfarm Ltd (the “respondents”)

Executive summary

• Underground grid connection works are not exempted development if they need an EIA.
• A road opening licence is not a consent to carry out work.
• Judgements of the Courts do not make laws, they better explain existing laws.

Background

The Applicant was a farmer and the registered owner of lands on both sides of a public road. The Applicant has sought an order under s 160 of the Planning and Development Act 2000 (the “PDA”) prohibiting the respondents from carrying out works consisting of the construction of a trench and the laying of underground 38 kV cables to provide a grid connection between a wind farm at Derrysallagh Co Sligo to a substation at Garvagh Glebe, Co Leitrim. The first respondent, Kilronan Windfarm Ltd holds the lands on which the windfarm is being developed by way of lease. The leasehold interest was assigned to the second respondent named Derrysallagh Windfarm Ltd.

Exempt development?

S160 of the PDA allows the court to make an order that an unauthorised development is not to be carried out; to restore the land where practicable; and that any development be carried out in conformity with planning permission conditions. S3(1) of the PDA defines development as “the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land”. The High Court observed that the laying underground of cable fits
this definition and therefore is a development.

Class 26 of Part 1 of the second schedule to the Planning and Development Regulations 2001 (the “Regulations”) provides “the carrying out by any undertaking authorised to provide an electricity service of a development consisting of the laying underground of mains, pipes, cables or other apparatus” is exempt from the requirement of planning permission. The second Respondent has the benefit of an Electricity Generation Licence and is therefore an electricity undertaker with an exemption under the meaning of the Regulations. However, s4(4) of the PDA provides that a development shall not be exempted “if an environmental impact assessment or an appropriate assessment of the development is required.”

Project splitting

The judge observed that in O’Grianna & Ors v An Bord Pleanála [2014] IEHC 632 Peart J concluded that the turbine development and the grid connection was “one project, neither being independent of the other… the wind turbine development on its own serves no function if it cannot be connected to the national grid.” The same conclusion was reached in Sweetman v An Bord Pleanála & Ors [2017] IEHC 46.

The judge held that in light of O’Grianna, the grid works must be regarded as an integral part of the project as a whole and the assessment of the grid works is to be made in the context of the entire project, including the associated wind turbines. An EIA would have been required for the overall project, and therefore an EIA would be required for the grid works.

As a result, the grid works could not be considered exempted development.

Relief sought and discretion of the court

In citing McCoy & Anor v Shillelagh Quarries Ltd & Ors [2015] IEHC 838 the judge noted that in exercising the powers under s160 of the PDA, the court has discretion that it must exercise “sparingly”. The High Court set out the following factors taken into consideration in exercising its discretion:

a) Conduct generally and delay.
The Respondents argued that the Applicant had excessively delayed in seeking relief given that the cable has now been laid. The Applicant’s solicitors sent a letter in September 2016 stating that works for laying underground cables had commenced without planning permission. The Applicant’s solicitors then sent a letter in November 2016 threatening to bring an application for a planning injunction under s160 of the PDA. Solicitors for Sligo County Council confirmed that the first Respondent had the benefit of a road opening licence from them to carry out the relevant works on the public road outside the lands of the applicant. Sligo County Council then sent a warning letter under s 152 of the PDA in November 2016.

However, the High Court found that it was reasonable for the Applicant to delay application for an order under s160 for 8 weeks once he knew that the local authority had issued a warning letter as he could have expected a full resolution of his environmental concerns through the Council engagement. Therefore the High Court decide that no significant delay occurred.

b) The road opening licences.
The question of ownership of the road became a matter of dispute in the proceedings. Sligo, Leitrim and Roscommon County Councils granted road opening licences under the Roads Act 1993 (the “1993 Act”) and therefore the Respondents contend that they are authorised to carry out the construction of the said grid connection within the public road. The Applicant’s folio lands lie on either side of the roadway. S 13 of the 1993 Act provides the duty and power of the local authority to maintain and construct public roads.

The High Court noted that in general ownership of folio lands touching the public road includes ownership of the surface of the road up to the midpoint.
The High Court further noted that it is an offence to excavate the road without consent under s13(10)(a) of the 1993 Act. The granting of a road licence displaces this offence. But a road opening licence does not confer a right or interest in the soil.

The High Court applied McKeever v Hay & Ors [2008] IEHC 145 which found that the laying of pipes across the verge of a public road and the entry onto the lands in the absence of consent amounted to a trespass and the placing of water pipes thereon resulted in a continuing trespass. S254 of the PDA provides that nobody shall erect any other appliance, apparatus or structure which may be prescribed as requiring a licence on, under or over a public road; no such permission or licence exists in the present case.

However the High Court accepted that the Respondents are statutory undertakers as defined by s2 of the PDA being a body authorised to provide electricity. In addition the judge accepted the arguments of the respondents that the class of works engaged by them on the roadway is one which s254(2) of the PDA provides an exemption from the requirement of s254(1) to obtain a licence to erect certain structures. S254(2)(c) expressly mentions that the laying of a cable, wire or pipeline by a statutory undertaker are exempted.

The High Court did accept that the Applicant had sufficiently identified a legal basis to make this challenge and that the Respondents had entered these lands without either planning permission, permission from him or a statutory power so enabling them. The High Court concluded that the existence of a statutory licence or authorisation under the relevant statutory scheme cannot displace the requirement to obtain planning permission, but was a factor in favour of the respondent.

c) The public interest.
The interest of the public is in preserving what is recognised as being the significant amenity value of the subject lands in an isolated area of exceptional public beauty. The issue raises questions of environmental protection and the need, in light of the O’Grianna case to have regard to the environmental framework of a wind farm project as a whole; the assessment of the environmental impact being a matter for the planning authority.

The role of courts

An important point raised by the High Court was that the role of judges is not to pronounce new law, but to maintain and expand the old one. The court noted that in H v H [2015] IESC 7, “the court, in declaring the common law when a case comes to trial, is thereby the law as so declared to events which occurred, by definition, before the case came to trial.” In addition, the High Court applied A v Governor of Arbour Hill Prison [2006] IESC 45 where it was stated that judicial decisions do have retrospective effect: “First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought… But the retrospective effect of a judicial decision is excluded from cases already finally determined.”

In other words, court cases do not change the law but rather better explain the law that already exists. The law which is explained in a judgment applies to pending cases or projects that have not even been litigated upon yet.

Conclusion

The following can be taken from this case,

• It will no longer be correct in law for a Local Authority or An Bord Pleanala to grant a Section 5 Declaration in respect of grid connection works where an EIA would be needed for the overall wind farm.
• A Road Opening Licence does not of itself confer a right to carry out works.
• Adjoining landowners are presumed in law to own the land to the centre of a public road. While not the subject of the courts case, a corollary of this would be that a consent from them should be lodged with any planning application in respect of road works that would be on “their” lands.
• Judgements of the courts do not make law but better explain it. Therefore, in practical terms judgements can
  act retrospective to facts and circumstances that have already arisen.

• Stephen Barry
• Partner
• +353 1 6644 284
• +353 1 6644 284

• Mark Varian
• Partner
• +353 1 6644 341
• +353 1 6644 341

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