“Congratulations to Val Martin, who took on An Bord Pleanala in the High Court and won. This amazing achievement is testimony to the fact that it is possible for a person, with no formal legal training, but with bucketloads of planning knowledge and guts, to take on the State apparatus in the High Court and win.” Republic of Ireland
Here is the story in Val’s own words:
“In 2009, the predecessor to Raragh developments applied for planning permission for a wind farm at Kingscourt. Cavan 09/270, It supplied an Environment Impact Statement (EIS) (of sorts). Despite objection from 38 households the Local Council granted permission and it was appealed to ABP. They carried out a sort of EIA and granted planning permission. As the developer did not know details of the cables at the time, a specific condition was that the planning permission did not include the connecting cables.
In 2015, the developer applied to extend the period of operating time for the wind farm until 2020. He stated that an EIS has been provided with the first application and Cavan Co. granted the application stating that an EIA had been done in 2010. In May 2015, the developer applied for a declaration under Section 2 of the PDA to declare the 5.5 km of underground cables to the ESB sub-station in Kilnalun, Co. Meath to be development and exempted development. Cavan Co. Council referred it to ABP (No.RL . 02. 3369).
On the 3rd May, 2016, the Board stated that it was a “development” and “an exempted development”. This would have allowed the whole work to go ahead.
I took a judicial review No 2016/460/JR acting as a lay litigant (presenting the case myself). I claimed that the underground cabling was not a “development” but a “project” and accordingly it could never be classed as an exempted development. I cited the O’Grainne judgment and its ratio decidendi (binding part of the judgment) where the Judge said “In truth I have already concluded the wind farm and cabling are one project”. I cited a few European cases which proved that a project can be split into phases and that the 2nd or subsequent phases must be assessed under the EIA Directive. In other words, when deciding whether its environmental effects are acceptable, it must be assessed with the cumulative effects of the entire project, and not just the phase currently under consideration.
The Board and the wind farm developer opposed me. They served me with a cart load of documents and I simply wrote in the legal submission that the High Court has no role to play in assessing planning applications, but must confine itself to the law alone. The Board Lawyers, Philip Lee and Co. caved in and the developer’s lawyers did too. The Barrister for the Board arrived in Court No 1 before Judge McGovern and said “this is the man who beat Board Pleanala” in a good humoured way. There was no need for the 2-day trail which had been allocated.
The Judge said he would quash the decision of the Board and award me costs.
Should anyone want copies my case and legal argument, just ask and I will send to you as hard copies. I acknowledge the help of Pat Swords, David Malone, Owen Martin, Francis Clauson, committee chairman Mike Muldoon, Dublin solicitor (and friend) George McGrath , campaigners all over the country and neighbours at Kingscourt for their encouragement.
Essentially the law is:
1) projects cannot be developments.
2) Projects can be split but all information known should be provided at each phase.
3) Projects cannot be processed under the PDA alone.
4) The PDA (part X) is the vehicle for processing an EIA.
5) One major cop, well spotted by David Malone and used by me is that Article 2(4) of the EIA Directive allows for exemption a project from an EIA in exceptional circumstances. If this is done government must inform the EU Commission and comply with a number of conditions which are very strict. I think this would cover situations like where there is some sudden and unforeseen important event where development would have to be done without submissions for the public. An international summit or the like. This is the only way a project can be exempted.
The developer’s lawyers indicated that they did not want to remit the application to the Board. I do not know if they will now apply for an EIA for the cables and planning permission, that is for another day.
Well done Val. Respect!