Factual and Procedural Background
The Applicant, a farmer and registered owner of certain lands in The City, sought an order under section 160 of the Planning and Development Act 2000 ("the PDA") to prohibit the Respondents, developers of a wind farm project, from carrying out works consisting of the construction of a trench and laying of underground 38 kV cables for a grid connection between a wind farm in The State and a 110 kV substation in another part of The State. The Respondents hold the lands under lease agreements and have planning permission for the wind turbines but not for the grid connection works.
The primary planning permission for the wind farm was granted in 2013 and amended in 2014, with a condition expressly stating that the permission did not include consent for the grid connection. The grid connection involves underground cables passing through multiple counties, with no planning permission obtained for these works. The Applicant had previously lodged concerns regarding amenity, grazing rights, noise, and visual impact.
The Respondents submitted applications under section 5 of the PDA for declarations that the grid works constituted exempt development, but some applications were withdrawn. Leitrim County Council issued a declaration that the grid works were exempt development, a decision challenged in this proceeding. The Applicant no longer seeks removal of works already completed but seeks to prohibit further construction.
Legal Issues Presented
- Whether the laying of underground cables for the grid connection constitutes development requiring planning permission or is exempt development under the PDA and associated regulations.
- Whether the grid connection works can be lawfully separated from the primary wind farm development for the purposes of environmental impact assessment ("EIA") and appropriate assessment ("AA"), or whether impermissible "project splitting" has occurred.
- The extent to which European law and jurisprudence on project splitting and environmental assessment apply to the grid connection works.
- The proper exercise of the court's discretion under section 160 of the PDA in granting injunctive relief given the facts and public interest considerations.
Arguments of the Parties
Applicant's Arguments
- The grid connection works constitute development requiring planning permission and are not exempt.
- The grid connection is an integral part of the overall wind farm project and cannot be treated separately for EIA or AA purposes.
- The decision of Peart J. in O’Grianna & Ors. v. An Bord Pleanla establishes that project splitting is impermissible and requires cumulative environmental assessment.
- The declaration by Leitrim County Council that the grid works are exempt development is legally erroneous as it failed to properly consider the effect of the O’Grianna decision.
- The Respondents commenced works without planning permission for the grid connection, and the Applicant seeks an order to prohibit further unauthorised works.
- The Applicant did not unreasonably delay in seeking relief and acted reasonably in awaiting local authority engagement.
Respondents' Arguments
- The laying of underground cables by a statutory undertaker is exempt development under Class 26 of Part 1 of the second schedule to the Planning and Development Regulations.
- The Respondents hold an Electricity Generation Licence and are authorised statutory undertakers.
- The grid connection works fall within the exemption for undertakers carrying out works for electricity services.
- The Applicant delayed unreasonably in seeking relief, diminishing entitlement to injunctive relief.
- The road opening licences granted by local authorities authorise the works on public roads and mitigate claims of trespass.
- The Applicant's challenge is an impermissible collateral attack on the unchallengeable primary planning permission for the wind farm.
- The breaches are technical or trivial and the public interest favours allowing the works to continue.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| O’Grianna & Ors. v. An Bord Pleanla [2014] IEHC 632 |
Impermissibility of project splitting; cumulative assessment of wind farm and grid connection required under EIA Directive. |
Held that grid connection works are integral to the overall project and cannot be treated as exempt development; foundational authority for rejecting exemption. |
| Sweetman v. An Bord Pleanla & Ors. [2017] IEHC 46 |
Clarification on application of O’Grianna regarding timing and scope of EIA and judicial review. |
Supported the view that separate EIA of grid connection may not always be required but cumulative assessment is necessary. |
| Wicklow County Council v. Fortune (No. 1) [2012] IEHC 406 |
Onus on party claiming exemption from planning permission. |
Affirmed that Respondents must prove grid works are exempt development; Respondents failed to do so. |
| South Dublin City Council & Anor. v. Fallowvale Limited [2005] IEHC 408 |
Burden of proof regarding exemption from planning permission. |
Supported principle that exemption must be clearly established by Respondents. |
| Derrybrien Development Society Limited v. Saorgus Energy Limited & Ors. [2015] IESC 7 |
Factors relevant to exercise of discretion in granting injunction under s. 160 PDA. |
Guided the court’s discretionary balancing of prejudice, conduct, public interest, and technical nature of breach. |
| Cork County Council v. Slattery Precast Concrete Ltd. [2008] IEHC 291 |
Discretion in granting injunctions for unauthorised development; approach to tacit acceptance of breaches. |
Supported sparing exercise of discretion and starting point that unauthorised development is unlawful. |
| McKeever v. Hay & Ors. [2008] IEHC 145 |
Trespass and unauthorised entry onto private land despite statutory authority. |
Confirmed that statutory authority to carry out works does not negate trespass claims on private land. |
European Cases including:
Bund Naturschutz in Bayern v. Freistaat Bayern C-396/92 [1994] ECR 1-13717
Commission v. Spain C-227/01 [2005] Env LR 20
Umweltanwalt von Krnten v. Krntner Landesregierung C-205/08 [2010] Env LR 15 |
Principles against project splitting; requirement for cumulative environmental impact assessment under EIA Directive. |
Applied to interpret national law in light of European obligations; reinforced that grid connection works cannot be exempted when part of a larger project requiring EIA. |
| H. v. H. [2015] IESC 7 |
Retrospective effect of judicial decisions in common law. |
Explained that judicial declarations apply retrospectively to pending and similar cases; relevant to application of O’Grianna. |
| A. v. Governor of Arbour Hill Prison [2006] IESC 45 |
Judicial development of law and retrospective effect of precedent. |
Supported declaratory nature of judicial decisions; assisted in rejecting Respondents’ argument on retrospective effect of O’Grianna. |
Court's Reasoning and Analysis
The court began by affirming that the laying of underground cables constitutes development under the PDA and that exemption depends on whether an environmental impact assessment or appropriate assessment is required. The Respondents, as statutory undertakers with relevant licences, argued that the works fell under an exemption for electricity undertakers.
However, the court relied heavily on the precedent set by Peart J. in O’Grianna & Ors. v. An Bord Pleanla, which held that the wind farm and grid connection are parts of a single project, and environmental assessment must consider the cumulative impact. The court rejected the Respondents’ reliance on a section 5 declaration by Leitrim County Council that the grid works were exempt, finding that decision legally erroneous for failing to consider the O’Grianna judgment.
European case law reinforced the principle that project splitting to avoid environmental assessment is impermissible. The court concluded that, as the grid connection is part of a project requiring EIA, no portion of it can be treated as exempt development.
Regarding discretion under section 160, the court considered delay, conduct, public interest, and the nature of the breach. It found the Applicant’s delay reasonable given ongoing local authority engagement and rejected claims of ulterior motive or trivial breach. The court acknowledged the Respondents’ statutory licences and road opening licences but held these did not displace the requirement for planning permission.
Balancing the factors, the court determined that prohibiting continuation of the grid connection works was appropriate, while not ordering removal of completed works or land restoration given the circumstances.
Holding and Implications
The court’s final decision was to grant a limited injunction prohibiting the Respondents from carrying out any further grid connection construction works pending proper planning authority determination. The court declined to order removal of works already completed or restoration of lands.
This ruling clarifies that grid connection works integral to wind farm projects cannot be treated as exempt development where an EIA is required for the overall project, reinforcing the principle against project splitting. While the primary wind farm planning permission remains unchallenged, the decision establishes that environmental assessment obligations extend to associated grid works. The decision does not create new precedent beyond applying established principles but confirms their application in this context. The direct effect is to restrain the Respondents’ ongoing works until appropriate environmental assessments and permissions are secured.