Planning & Environmental Law: Challenging Wind Farms
13 January 2015
The benefits of renewable energy are obvious, but the High Court in Kelly v An Bord Pleanála made it clear that failure to properly consider the negative environmental impact of a wind farm project could result in a successful challenge to the planning permission granted.
Wind farm projects frequently face challenges and litigation from persons and groups seeking to stop projects entirely. In July 2014, this issue was thrust into the public spotlight when a legal challenge to a wind farm project was successful on the grounds that certain steps required by the European Habitats Directive had not been taken by an Board Pleanála.
The Habitats Directive
The Habitats Directive requires any proposed development likely to have a significant effect on a protected site to undergo an ‘appropriate assessment’ ("AA") prior to planning approval. Approval can generally only be granted if proven that the development will not adversely impact the integrity of the site.
High Court Case – Kelly v An Bord Pleanála
The High Court, in the case of Kelly v An Bord Pleanála (25 July 2014), overturned two planning permissions for a 35 turbine wind farm in Co. Roscommon as the Board had not properly conducted an AA and had failed to furnish adequate reasons for deciding the wind farm would not adversely affect the integrity of the site.
Correct Procedure for Conducting an Appropriate Assessment
For an AA to be valid, the Board must:
· assess, using scientific knowledge, if the development will adversely impact the integrity of the site whether in isolation or in conjunction with other projects;
· ensure all findings are comprehensive and no reasonable scientific doubt remains;
· state the precise findings relied upon and the main rationale/reason for approving the development; and
· when considering an appeal, invite the parties to make a further submission to the Board for consideration.
In a judgment issued in the O’Grianna & Ors v An Bord Pleanala judicial review proceedings on 12 December 2014 the High Court quashed the decision of An Bord Pleanala to grant a planning permission for a 6 turbine wind farm in County Cork finding that the Board failed to ensure the grid connection for the project had been considered as part of the EIA process. The Court held that the grid connection could not be separated from the balance of the project, notwithstanding that its design and specification would be controlled by the system operators, and therefore the cumulative effect of both the wind farm itself and its grid connection must be assessed in order to comply with the EIA Directive.
This decision, if not appealed, is likely to cause difficulties for wind farm developers, and developers of other infrastructure projects, applying for planning permissions in advance of a final connection method to the grid. The written judgment has not been released yet and we will comment further on this important case once it is available.
In summary, the Board must conduct a proper and appropriate assessment of the environmental impact on a proposed site before planning approval is granted. If the Board does not think they have sufficient information to make such a decision, the Board must then make further enquiries. Otherwise the Board’s decision risks being overturned.
Investors in wind farm energy must know the impact of the Habitats Directive and properly assess the impact of their development on the environment, as planning refusal may ground the development before it takes flight.
For more information, please contact our Energy, Utilities and Projects Team.
The content of this article is provided for information purposes only and does not constitute legal or other advice. Mason Hayes & Curran (www.mhc.ie) is a leading business law firm with offices in Dublin, London and New York.