Sweetman v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

The Applicant seeks an order of certiorari to quash a declaration made by the Respondent on 18 December 2018, which declared that the construction of a grid connection between a wind farm development located in The State and an ESB substation was exempted development under the Planning and Development Act 2000, as amended. The Applicant contends that this declaration breaches the consolidated Environmental Impact Assessment Directive (EIA Directive) and constitutes impermissible project splitting, as the grid connection was not assessed as part of the original EIA for the wind farm granted planning permission in 2013.

The Respondent and the Notice Party argue that the screening exercise properly considered cumulative environmental effects and concluded no full EIA was required for the grid connection. They also contend that the proceedings constitute an impermissible collateral challenge to a prior s. 5 declaration made by the local planning authority in 2015, which had already declared the grid connection works exempted development. The Applicant also challenges the constitutionality and EU law compliance of s. 5, particularly regarding the absence of public participation in the s. 5 referral process.

The wind farm was granted permission in 2013 following an appeal, comprising six turbines and associated infrastructure. The grid connection is a 23.4km underground cable connecting the wind farm to an ESB substation. The 2015 declaration by the local authority declared the grid connection exempted development. Construction of the wind farm and grid connection proceeded, with significant financial investment by the Notice Party. In 2017, a local resident, who had been an appellant in the original planning appeal, made a referral under s. 5 challenging the exempted status of the grid connection, which was determined by the Respondent in 2018 to be exempted development. The Applicant commenced judicial review proceedings in 2019 challenging that decision.

Legal Issues Presented

1. Whether the 2018 declaration by the Respondent constitutes an impermissible collateral challenge to the 2015 declaration by the local planning authority.
2. Whether the Respondent erred in failing to dismiss the 2017 referral pursuant to its discretion under s. 138 of the Planning and Development Act 2000.
3. Whether the declaration that the grid connection works constitute exempted development breaches the EIA Directive by engaging impermissible project splitting.
4. Whether s. 5 of the Planning and Development Act 2000 is contrary to the Constitution, European Union law, and the Aarhus Convention, particularly regarding public participation and notification requirements.

Arguments of the Parties

Applicant's Arguments

• The 2018 declaration constitutes an impermissible collateral challenge to the 2015 declaration, effectively seeking to revisit a settled matter outside statutory time limits.
• The grid connection works were not assessed as part of the original EIA for the wind farm, resulting in impermissible project splitting contrary to EU law and national jurisprudence.
• The absence of public participation and notification in the s. 5 referral process violates the public participation provisions of the EIA Directive and the Aarhus Convention, depriving affected parties of effective remedies.
• The Applicant asserts that the grid connection works have had significant environmental effects requiring a full EIA.

Respondent and Notice Party's Arguments

• The 2018 declaration is not a fresh challenge to the 2015 declaration but a valid determination on the same issue; the proceedings constitute an impermissible collateral attack on the 2015 declaration.
• The screening exercise properly considered cumulative environmental effects and concluded no full EIA was required for the grid connection works.
• The Board had the discretion under s. 138 to dismiss the referral as vexatious or without foundation but chose not to exercise it.
• The s. 5 process is not a development consent procedure and therefore does not require public participation or notification as mandated by the EIA Directive.
• The Notice Party relied on the validity of the 2015 declaration to invest over €30 million in the development, and legal certainty requires upholding that declaration.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first examined whether the 2018 Board declaration was a permissible fresh determination or an impermissible collateral challenge to the 2015 declaration. It found that the substance of the question was identical in both declarations, and no material change in facts or circumstances had occurred. The Court held that the Applicant’s referral and subsequent challenge were opportunistic attempts to circumvent statutory time limits for judicial review and appeal, undermining legal certainty and finality in planning decisions, as established in Sweetman and Narconon.

Regarding the Respondent’s discretion under s. 138 to dismiss vexatious or repetitious referrals, the Court concluded that the Board erred by not exercising this discretion to dismiss the 2017 referral, which duplicated the 2015 declaration question without new facts.

On the substantive environmental law issue, the Court analyzed the doctrine of project splitting, as articulated in O'Grianna and Daly. It confirmed that the wind farm and its grid connection constitute one integrated project for purposes of EIA. The original EIA for the wind farm did not assess the grid connection, and the 2018 declaration relied solely on screening rather than a full EIA for the grid connection. The Court agreed with the Inspector’s conclusion that such screening was insufficient and that the Board erred in overruling the Inspector by declaring the grid connection works exempted development.

However, the Court found that this substantive error was insufficient to grant relief because the Applicant’s challenge was barred as an impermissible collateral attack on the final 2015 declaration, on which the Notice Party had relied to make substantial financial commitments and complete construction.

Finally, the Court addressed the Applicant’s constitutional and EU law challenge to s. 5 concerning public participation and notification. It held that s. 5 referrals are not applications for development consent and therefore are not subject to the full public participation and notification requirements of the EIA Directive. The obligation to publish decisions on planning registers and websites satisfies the Directive’s requirement that screening determinations be made available to the public. The absence of formal public participation at the s. 5 stage does not violate the Directive or Aarhus Convention obligations.

Holding and Implications

The Court REFUSED THE RELIEF SOUGHT and dismissed the application for judicial review.

The direct effect of this decision is to uphold the 2018 declaration of exempted development for the grid connection works and to confirm the finality and legal certainty of the prior 2015 declaration. The Court emphasized that challenges to s. 5 declarations must be brought within prescribed statutory timeframes and that collateral challenges outside those limits are impermissible. Although the Board erred on the substantive environmental law point of project splitting, this did not justify overriding statutory finality.

No new precedent was established beyond reaffirming existing principles on collateral challenges, project splitting, and the scope of public participation in s. 5 referrals under the Planning and Development Act 2000 and EU law.