Planning Issues In Energy Projects Relying On Section 5 Declarations

In O'Grianna & Ors. v An Bord Pleanála [2014] 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 [2017] 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?

Section 5

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.

Facts

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The applications to Sligo and Roscommon County Councils were later withdrawn following the decision by Roscommon County Council to refer the questions to An Bord Pleanála for consideration.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...