The High Court set aside part of Peter Sweetman’s permission to bring judicial review proceedings over the Grousemount wind farm, finding that he had not shown good and sufficient reason for waiting more than a year to challenge two declarations concerning its grid connection.
Mr Justice Robert Haughton ruled on 2 February 2017 that the proceedings could continue against An Bord Pleanála’s 21 July 2016 grant of planning permission. The court’s decision concerned preliminary applications by Cork and Kerry County Councils and the State to set aside leave granted in October 2016. It did not decide the merits of the remaining challenge to the planning permission, which was due to be heard on 7 March 2017.
The two councils had declared in April and May 2015 that parts of the proposed underground cable connection were exempted development. The statutory eight-week period to challenge those decisions expired in May and June 2015. The judge accepted that Mr Sweetman could not reasonably have known of the declarations during that period because the section 5 process did not require public notification.
But once he learned of the declarations in September 2015, the judge said, he needed to act promptly. Mr Sweetman obtained Cork County Council’s file in October, attempted an appeal to An Bord Pleanála that was rejected as out of time, and later sought legal advice. The court found that neither waiting for the Board’s wind farm decision nor the explanations given for further delay justified bringing the judicial review application in September 2016.
The judge also considered evidence from the notice party, ESB Wind Development Limited, that construction of the grid connection began in March 2016. By November, about 6,850 metres of ducting had been installed in Kerry and 800 metres in Cork. The court found that allowing a late challenge to the declarations would cause significant prejudice to the developer.
The ruling set aside leave to challenge the councils’ declarations and to challenge section 5 of the Planning and Development Act 2000 as contrary to European law. The judge found that, without leave to challenge the specific declarations, Mr Sweetman lacked sufficient interest to pursue a free-standing challenge to section 5. He remained permitted to pursue the challenge to the Board’s wind farm approval and other reliefs identified in the order.