May 13, 2017

Sligo windfarm works halted following High Court ruling

By Ann O'Loughlin | 12/05/2017 |

A farmer has got orders halting works to connect a windfarm in Co Sligo to an electricity substation in Co Leitrim after a High Court judge ruled it was incorrectly decided the works do not require planning permission.

The orders restrain Kilronan WindFarm Ltd and Derrysallagh WindFarm Ltd (DWF) continuing to lay underground cables to connect a planned 12 turbine wind farm at Derrysallagh to an ESB substation at Garvagh Glebe, Co Leitrim. About 70% of the cables are already laid, and those do not have to be removed, Ms Justice Marie Baker said.

She made the orders after upholding arguments on behalf of Patrick Daly the grid connection works could not begin until there is permission for the windfarm development as a whole, including the grid works.

Mr Daly had in May 2012 lodged a submission expressing concerns about noise and visual impact of the turbines, loss of amenity value and impact on his grazing rights.

DWF has an electricity generation licence dated February 2016 and is authorised to distribute electricity within the State, the judge noted. The laying of underground cables was generally exempt development unless that falls within certain provisions of the Planning and Development Act, in which case it requires an Environmental Impact Assessment or Appropriate Assessment.

She said the developers had referred to An Bord Pleanala’s interpretation of the scope of effect of a significant High Court judgment of 2014, the O’Grianna judgment, rejecting “project splitting” – where wind farm developments are treated independently from grid connection works in the planning process.

O’Grianna means the Board, when doing an EIA, must address the cumulative effect of the entire development, including grid connection works and cannot treat wind turbines as a “stand alone” project.

The judge said the Board had incorrectly taken the view in other grid connections cases that, because permissions for the relevant wind turbines were granted before O’Grianna and cannot now be challenged because any such challenges would be out of time, the development of the grid connection could be considered exempt development.

That view does not represent the law, and the O’Grianna judgment has declared what the law actually is, she said.

O’Grianna applies to planning applications where the issue of project splitting is relevant, even if there is a permission which cannot now be challenged in judicial review due to being outside the relevant time limits, she said.

This meant Leitrim County Council’s declaration the grid connections works, in this case, are exempt development is not determinative, she said.

She ruled the Council’s declaration was wrong in law because it decided the question of exemption without a proper consideration of the effect of the O’Grianna decision.

No EIA was carried out of either the grid connection itself or of the entire project including the grid connection, she said.

While she was not saying a separate EIA will always be required for grid works, no part of the project, including grid works, can be exempt from planning, she held. This was clear from the relevant European jurisprudence.

Earlier, she noted a condition of Sligo County Council’s permission for the wind farm stated the permission shall not be construed as any form of consent to a connection to the national grid.

The developer initially anticipated there would be an overhead grid connection to a substation at Arigna but a grid connection offer was later received from ESB Networks for underground connection to the Garvagh Glebe substation, she also noted.

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