Sweetman v An Bord Pleanala & Ors – does it cast doubt on the use of a design envelope approach?

The recent High Court case of Sweetman v An Bord Pleanála, Ireland and the Attorney General and Bord Na Mona Powergen Limited has the potential to create uncertainty relative to the use of a design envelope approach. This is of particular relevance to the development of offshore wind farms, both in terms of Irish and EU law. The use of a design envelope approach (or "worst case scenario" basis of assessment) is often used by wind farm developers and is particularly important in the development of offshore wind farms given the nature and scale of the developments, as well as the length of time it typically takes between applying for permission and commencing construction. 

This case concerned a challenge to a grant of planning permission by the Board, to Bord na Mona, for a 24 turbine wind farm with an installed capacity of 96 MW. In essence, Mr Justice Humphreys determined that the Planning and Development Regulations 2001 as amended (the 2001 Regulations) require the submission of detailed plans and particulars, and that Irish planning legislation in its current form, does not allow for a design envelope approach where that means that insufficient "particulars" are provided. At paragraph 70 of his judgement he stated: 

"The 2001 Regulations require plans and particulars.  That isn’t compatible with a widely-variable-design application where the designs, dimensions or locations of structures are not specified in the application itself, either by reference to precise terms or to a reasonably limited range that could not in itself raise any reasonable planning objection". 

In delivering his decision he relied on Article 214(1) of the 2001 Regulations and the requirement, when making a Strategic Infrastructure Development application, that the developer "shall send to the Board – (a) 10 copies of the plans and particulars of the proposed development (including any plans, particulars or other information indicated by the Board under article 210(2) and of the EIAR and, where the application is accompanied by an NIS, of the NIS ...”. In that regard, he noted that while there is no definition of "plans and particulars",  it must mean something specific i.e. it must be something specifically measured and capable of being drawn on a plan, such that it can't include a widely variable design envelope. 

He disregarded the Boards contention that the project was assessed on a worst case basis and said that the "worst case scenario" defence is not an answer, and that specifying particulars of the works is the statutory obligation – "not to seek permission for a project that is open-ended at one end of the scale and which could be anything up to a maximum specified". 

Mr Justice Humphreys also noted that the Board's own application form requires that the material submitted with any application shall generally accord with the requirements of the 2001 Regulations. In that regard he referred to Articles 22 to 23, and in particular Article 22(4)(a) which requires "such plans (including a site or layout plan and drawings of floor plans, elevations and sections which comply with the requirements of article 23), and such other particulars, as are necessary to describe the works to which the application relates.” On that basis, he contended that a significantly variable design cannot provide the details said to be required by Board.

He did note that from a technical perspective, it might be feasible for the 2001 Regulations to provide for widely variable design envelope applications if deemed necessary having regard to policy, engineering and economic considerations, but he did not consider such an interpretation to be a matter for the courts. 

Having decided the case by reference to Irish law principles, he did not go on to consider the issue from an EU law perspective. While a certificate to appeal this important decision may well be granted, even with the priority that the Court of Appeal seeks to give to Strategic Infrastructure Planning cases, it would typically take at least six months and perhaps much longer before that process would deliver certainty. With the Maritime Area Planning legislation due to be published soon, to pave the way for offshore wind projects to be able to apply for planning permission, it is important that this issue be clarified as soon as possible. 

For more information please contact Alison Fanagan, Consultant, or Kristen Read, Senior Associate, or any member of the A&L Goodbody Environmental & Planning team.

Date published: 28 June 2021