A number of recent cases in the Irish and European Courts have potentially major implications for developers of wind farm projects. This legal update provides a brief summary of these decisions, highlights tripwires arising from them that developers should be aware of at both the pre- and post-planning application stages, and recommends actions to avoid them.
Pre-Planning Application Stage
The pre-planning application stage of a project is the crucial point in time when a developer can ensure that the documentation and information it places before the relevant planning authority is legally and technically complete and accurate. This will minimise the risk of delay to a project through requests for further information, appeals to An Bord Pleanála (the “Board”) and the, now almost inevitable, High Court judicial review challenge to a planning permission, when granted. For example, the time spent on ensuring the correct habitat surveys have been undertaken (including carrying out the correct number of surveys during the appropriate seasonal timeframe) will reduce the risk of a successful judicial review challenge. Judicial review challenges, even if successfully defended, can significantly delay a project. Judicial review challenges which cannot be successfully defended mean that the relevant planning permission is quashed. At best, the quashed decision may be remitted to the Board for reconsideration. However this adds at least another 18 weeks to the process before a fresh decision is made.
Recently, three particular topics have given rise to litigation in the wind energy sector:
- cumulative impacts/project splitting;
- the Habitats Directive and mitigation measures v compensatory measures; and
- ownership/land take.
We elaborate on each one, in this briefing.