The High Court has dismissed a challenge to An Bord Pleanála’s 2018 decision that the grid connection for the Ballycumber wind farm was exempted development. Mr Justice Quinn held that the proceedings were an impermissible collateral challenge to a 2015 declaration covering the same works. He refused the relief sought.
The applicant sought to quash the Board’s decision and challenge section 5 of the Planning and Development Act 2000. The Board had decided that the underground connection between the wind farm in Co Wicklow and an existing ESB substation at Kilmagig was development but exempt from planning permission. It screened the connection and concluded that it did not require an environmental impact assessment (EIA).
The court found that the 2015 declaration by Wicklow County Council had already addressed the same grid connection. A later referral to the Board raised substantially the same question, and the court found no material change in the project or its setting. The judge said the applicant knew of the earlier declaration by September 2017 at the latest, but waited for the Board’s decision before bringing proceedings in February 2019. The court concluded that the challenge sought to circumvent the statutory time limits for reviewing the 2015 declaration.
The judge also concluded that the Board should have used its discretion under section 138 to dismiss the later referral. He rejected the challenge to section 5, finding that the absence of formal public consultation at the referral stage did not breach the EIA Directive. The judgment said screening decisions must be made publicly available, and that planning registers and websites provided that access.
Separately, the court considered whether the Board had unlawfully split the wind farm project by assessing the grid connection separately. The wind farm had six turbines and had undergone an EIA, but its 2013 planning permission expressly excluded grid connection works. The Board’s 2018 decision relied on screening that considered the connection’s likely effects, including cumulative effects with the wind farm.
The judge concluded that the wind farm and grid connection formed one project and that screening the connection was not a substitute for an EIA of the entire project. He found that the Board had erred in overruling its inspector on project splitting. However, he said the collateral challenge findings were sufficient to dispose of the case. He refused the reliefs sought and stated that the project-splitting finding did not permit the applicant to undermine the finality of the 2015 declaration.