Planning Update: Planning Issues in Energy Projects Relying on Section 5 Declarations
11 July 2017
In O’Grianna & Ors. v An Bord Pleanála  IEHC 632 23, the High Court held that a project could not, for planning purposes, lawfully be split into two independent parts – the wind farm and the grid connection. The Kilronan case, Daly v Kilronan Windfarm Ltd  IEHC 308, raised a different question: where permission exists for the wind farm, can the grid connection works be exempt under statute? If so, how does this affect existing projects and those in development without planning permission for their grid connection relying on existing Section 5 declarations?
Any person may request a declaration from a planning authority as to whether any development is or is not exempted development under section 5 of the Planning and Development Act, 2000 (“Section 5”). This is an optional procedure. There is no requirement to seek a declaration, as a matter of law the development is either exempted development, i.e. does not require planning permission, or it is not i.e. does require planning permission.
In February 2016, Kilronan Windfarm Limited requested declarations from Leitrim County Council, Roscommon County Council and Sligo County Council under Section 5 as to whether or not the laying underground of 9.48km of 38kV cable was or was not exempted development.
The applications to Sligo and Roscommon County Councils were later withdrawn following the decision by Roscommon County Council to refer the questions to An Bord Pleanála for consideration. The Respondents cited the length of time which the Board was taking, at that particular time, in considering these applications as the reason for the decision to withdraw. Another application for a Section 5 declaration was lodged with Sligo County Council, in identical terms, but a decision was taken to withdraw that application on the following day "having regard to the advices received".
Leitrim County Council made a Section 5 declaration in relation to the grid works proposed in Co. Leitrim on 24 March 2016 in which the following conclusion is recorded:
“the laying underground of approximately 2.8 km (38 kV) constitutes development and that such development is exempted development."
The High Court considered the Section 5 declaration made by Leitrim County Council. It was held that it could not be regarded as an authoritative determination with regard to the issue before the Court as to whether the construction of the grid connection required planning permission, or whether it is, as a matter of law, correct to describe it as exempt from planning permission. It could be deemed as exempt from planning permission if it fell within Class 26 of the Planning and Development Regulations which provides as follows:
"the carrying out by any undertaker authorised to provide an electricity service of development consisting of the laying underground of mains, pipes, cables or other apparatus for the purpose of the undertaking."
The cable section of the grid connection that was the subject of the decision of the Court was not the subject of a Section 5 declaration.
The Court found that where permission exists for a wind farm which was the subject of an Environmental Impact Assessment (EIA) or Appropriate Assessment (AA) in which the grid connection was not considered as part of that EIA and or AA process, the grid connection cannot be considered exempt as a matter of law. An order was granted in respect of that part of the grid connection which was not the subject of a Section 5 declaration from Leitrim County Council and which had not yet been completed. The order prohibited the continuation of the grid construction and laying works. No order was made that the works already completed be removed or that the lands be restored.
In Daly v Kilronan, the Court held that as the grid works are part of a development that requires an EIA, the local authority must carry out an environmental assessment of the project as a whole of which the grid connection forms part. The carrying out of an EIA is the function of the planning authority. In this case, no EIA of the grid connection had been carried out by the planning authority.
It is important to note that the cable section of the grid connection that was the subject of the Kilronan case was not the subject of a Section 5 declaration. For that section of the grid connection works, the developer was relying on the fact that the cable was exempt as a matter of law under Class 26 of Part 1 of the second schedule to the Planning and Development Regulations 2001, as amended by the Regulations of 2011.
The additional confusion created by the Kilronan decision is the question of how it affects existing Section 5 declarations for similar works. In our view this decision does not affect developers relying on existing Section 5 declarations in relation to grid connection works, provided the period for judicially reviewing such declarations, in accordance with Section 50 of the Planning and Development Act, 2000 has expired.
In Killross Properties Ltd v Electricity Supply Board  IECA 207, the Court of Appeal held that the High Court cannot go behind an otherwise valid Section 5 determination - that the development is exempted development - in the course of a section 160 application. In the order granted in Kilronan, the development in County Leitrim was expressly excluded from the scope of the order made, having regard to the Leitrim County Council declaration and the Court of Appeal decision in Killross. However, the Kilronan decision does bring further scrutiny on any Section 5 declaration issued for grid connection works and, subject to this decision being appealed, it is authority for the case that the Court will not consider a grid connection to a wind farm exempted development, if the wind farm itself was subject to an EIA or AA and the grid connection was not considered by the planning authority as part of that process.
For more information and specialist planning advice, please contact a member of our Construction team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.