Planning Issues

Sustaibable Development in Planning

The Planning and Development Acts 2000-2006 contained a number of provisions to promote sustainable development and deal with the risks of flooding as required by Directive 2007/60 but they were not specific enough on measures for the concrete implementation of climate change policies. Several local area plans drawn up by local authorities under the Planning and Development Acts 2000-2006 imposed energy conservation requirements on developers of new buildings, although their powers to do this were opaque. Local planning authorities have explicit power to do this under the Planning and Development (Amendment) Act 2010.

Wind Energy

Wind farms had great difficulties initially in getting planning permissions and still have difficulties in Natura areas. These problems have been alleviated by:

• better policy guidelines on wind farms,
• greater knowledge of what was involved and of the place of wind farms in national energy policies in planning authorities,
• the provision of a fast-track planning procedure for planning permissions for wind farms which qualify as strategic development, and
• incentives to persons living near wind farms either by giving the owner of the property a licence fee or a share of the profits and/or providing community gains for local communities in cases where the wind farm qualifies as strategic infrastructure

The Minister for the Environment issued the Guidelines on Wind Energy 2006 to facilitate a consistent approach by planning authorities in identifying suitable areas for wind energy development. Areas considered suitable for wind farms are now identified in some development plans. Supportive policies for alternative energy development were articulated in the National Spatial Strategy.

Wind Turbines

Under the Planning and Development Regulations 2010, EIA is required for wind farms of more than (i) five turbines or (ii) a total output greater than five megawatts. Many potential wind farms will be located in environmentally sensitive areas, which means that EIA is often required for below-threshold wind farm developments.

Wind farms with more than 25 turbines or having a total output greater than 50MW qualify as strategic infrastructure under the Planning and Development (Strategic Infrastructure) Acts 2006-2010, thereby entitling them to avail of a (supposedly) fast-track procedure for getting planning permission although the Planning and Development (Amendment) Act 2010 allows them to go through the ordinary planning process if they wish.

EIA is required for all strategic infrastructure wind farm developments. Although the normal life of a planning permission is five years, developers of wind farms often ask for a longer period to implement permissions to account, inter alia, for difficulties in getting grid connections.

An Bord Pleanála has recently adopted a practice of limiting the lives of some planning permissions for wind farms to 20 years, a practice for which there appears to be no coherent justification and which is liable to complicate the economics of wind farming. The DoEHLG Guidelines PD3/08 advised planning authorities on extending the lives of planning permissions for renewable energy generation due to expire under the terms of s.42 of the Planning and Development Act 2000. This section was amended by the 2010 Act to augment the grounds for extending the lives of expiring planning permissions.

Natural Habitats & Fauna

Greater clarity on the requirements of Directive 90/43 on the conservation of natural habitats and wild flora and fauna has been provided by the 2010 EU Guidance on Wind Energy and Natura 2000. Several planning permissions for wind farms have been refused for habitat reasons, most notably because of the presence of the hen harrier on proposed sites.

The Irish Wind Energy Association also produced Best Practice Guidelines for the Wind Energy Industry in 2008 to encourage responsible and sensitive wind farm development.

Electricity Grid

Progress in improving the national grid has also been beset by planning difficulties. The planning application for the Meath-Tyrone 400kV grid interconnector between the Republic of Ireland and Northern Ireland was withdrawn in June 2010 during the public inquiry, apparently because the heights of some pylons had been misdescribed in the public notices for the project.

A new application was to be submitted in early 2011. Another planning application for a 350MW electricity interconnector between Pentir in Wales and Arklow in Wicklow lodged in 2008 was withdrawn in October 2010. However, planning permission was recently granted for the 500MW East-West Interconnector to the UK.

In referral RL2789, the Planning Appeals Board determined that the laying of an underground electricity cable in a number of townlands passing through a proposed Special Protection Area (SPA) was exempted  development. The Planning Authority had taken the opposite view because it considered that the proposed development would comprise the excavation, alteration or demolition of a place of scientific or ecological interest as provided for in art.9(1)(a)(vii) of the Planning and Development Regulations 2001.

However, an Appropriate Assessment lodged by the developer convinced the Board that, “notwithstanding that the carrying out of the proposed development would entail an element of excavation, the laying of the underground electricity cable would have no significant effect, in terms of disturbance of habitats or species, on the ecology of the proposed Special Protection Area”. The extent of the area to be excavated relative to the wider extent of the SPA was also a determining factor.

EIA

It is arguable that a new EIA might be required when permissions are extended in exceptional circumstances if significant effects which were not anticipated when the first EIA was carried out are likely to occur, e.g. another wind farm is constructed near the site of the one in question or new environmental designations have been made. In the latter case, according to the jurisprudence of the European Court of Justice in Case C-226/08 Stadt Papenburg, there might be an obligation on planning authorities under the Habitats Directive to ensure that the newly designated European site does not deteriorate.

Micro-Renewables

The Planning and Development Regulations 2007 and 2008 exempt some micro-renewable technologies in domestic dwellings and industrial buildings, farms and business premises from planning control. Exemptions (subject to restrictions) are available for small installations of certain renewable energy and biomass technologies, i.e. wind turbines, solar panels, ground heat pump systems in domestic and non-domestic situations and for biomass boilers, small combined heat and power plants in non-domestic situations.