O’Grianna High Court Judgement

This month, a final judgement has issued in relation to the O’Grianna (/or Peart) judgement. We had last commented on this case in April 2015 (Newsletter Article - http://www.mccarthykos.ie/News/April-2015/Update-in-Relation-to-OGrianna-Wind-Farm-Case ). The case has been ongoing since our last item, but appears to have been resolved in recent weeks. In essence the matter relates to Judicial review proceedings by objectors (Pol O’Grianna and others) to a decision by An Bord Pleanála to grant permission for a six-turbine wind farm development at Derragh (and surrounding townlands), Co. Cork.

The Judicial Review of the Board decision was first carried out in December 2014 (and is referred to as either the Peart or O’Grianna decision). The initial Judicial Review judgement found that permission should not be granted for any project which is subject to Environmental Impact Assessment (EIA) and which requires a connection to the national grid, unless details of the grid connection are provided and included in the EIA process.

Following this Judgement, the High Court sent the matter (ie planning application) back to An Bord Pleanála for further adjudication and assessment, (June 2015). The Board then moved to seek Further Information from the Applicant under Section 132 of the Planning and Development Act 2000, (as amended) in relation to the proposed grid connection for the Derragh Wind Farm. The applicants responded and a further decision to grant permission by the Board issued in May 2016.     

This (second) decision from An Bord Pleanála was once again taken to the High Court under Judicial Review procedures, where the Judge was asked by the applicants (to the Judicial review – i.e. objectors to the proposed wind farm), to consider, among other matters, whether the Board had - failed to carry out an EIA of the proposed grid connection, acted ultra vires in granting a planning permission for an application which was different from that remitted to the Board in the previous order, and whether the Board had failed to carry out an Appropriate Assessment.

The applicants argued that the Developers response to the Board altered the terms of the planning application that had been remitted and they also considered that the mitigation measures that had been put forward may not be binding as they held that the connection to the national grid did not form part of the proposed development. In response to this the Board and Developer argued that the applicants were asking the Court to construe the EIA directive in the most onerous manner possible.

In his decision Mr Justice Brian McGovern clarified that it was “not the function of the court to act in the role of a planning authority” and agreed with the Board and Developer who had argued 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 having identified with precision what those requirements….” Justice McGovern did not agree with the applicants (i.e. objectors to the project) that the Directive should be construed in the most onerous manner possible and found that “The EIA Directive is not about formalism but is concerned with providing effective EIAs for all major projects and ensuring adequate public participation in the decision-making process. This involves the Courts being astute to ensure the objectives of the (EIA) Directive are met but not in an overly pedantic way”.

Justice McGovern went on to state: “The EIA Directive attempts to achieve one of the objections of the EU in the sphere of protection of the environment and the quality of life but not in absolute terms. It involves striking a balance between the requirements of EU law and such discretion is allowed to Member States in this respect.”

In effect, Justice McGovern was satisfied that the applicants in the Judicial review procedures (i.e. the objectors to the proposed development) were not entitled to the reliefs sought in the court proceedings as An Bord Pleanála “did what is was required to do pursuant to the remittal order by Peart J. and did so properly”. The full text of Justice McGovern’s judgement is available to view here:  http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/4531402e2fb661ac802580ad0043feb6?OpenDocument

The Court Judgement was issued on the 18th of January 2017, and should bring to a close the consideration process for the Derragh Wind Farm. It is worth noting that the initial planning application for this wind farm development was lodged with Cork County Council on the 8th of June 2012 and has therefore been undergoing the planning consent process and judicial review procedures for in excess of four and a half years.

While not involved in the Derragh Wind Farm planning application process, McCarthy Keville O’Sullivan has been involved in several other renewable energy projects which have been influenced by the O’Grianna/Peart Judgement and has significant experience in dealing with this issue. For further information on the Environmental Impact Assessment and planning consultancy services that McCarthy Keville O'Sullivan Ltd. can provide for wind farm projects, contact our office on 091 735 611.

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