High Court dismisses judicial review, upholding Board's planning expertise on project splitting under s. 50 Planning Act 2000.

Neutral Citation: [2016] IEHC 310

THE HIGH COURT

JUDICIAL REVIEW

[2015 No. 545 JR]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED

BETWEEN

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

AND

EIRGRIDPLC

NOTICE PARTY

AND

ELECTRICITY SUPPLY BOARD

NOTICE PARTY

JUDGMENT of Mr. Justice Hedigan delivered on the l0th day of June, 2016

1 INTRODUCTION

1.1. In these proceedings, the applicant seeks judicial review of a determination of An Bord Pleanala ("the Board") pursuant to s. 50 of

the Planning and Development Act 2000, as amended ("the Act of2000"). By order of 12th October, 2015, Haughton J. granted leave

to the applicant to apply for judicial review for the following reliefs:

"1. An order of certiorari quashing the decision of the Respondent which was made on the 11th August 2015 to grant

permission to the first named Notice Party for the works associated with the uprate of a 19.5 km section of the existing

Bellacorick to Castlebar 11OkV overhead line, including alterations to the existing structures and conductor along the line

[Ref. No. PL16. 244534].

2. A Declaration that the decision of the Respondent is contrary to and in breach of Council Directive 2011/92/EU of the

European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and

private projects on the environment ('the consolidated Environmental Impact Assessment (EIA) Directive').

3. A Declaration that the decision of the Respondent is contrary to and in breach of Council Directive 92/43/EEC of21 May

1992 of the conservation of natural habitats and of wild fauna and flora ('the Habitats Directive')

…

6. Further or other orders.

7. Liberty to apply.

8. The costs of the within proceedings."

Reliefs four and five, which relate to the contention that EirGrid failed to provide the consent of various land-owners, are no longer

being sought by the applicant. By order of McGovem J. on 6th November, 2015, the proceedings entered the Commercial List pursuant

to 0. 63A, r. 4 of the Rules of the Superior Courts, as amended.

2 THE PARTIES

2.1. The applicant is an environmentalist.

2.2. The first respondent is an independent appellate authority, established pursuant to the Local Government (Planning and

Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts 2000 to

2015.

2.3. The first notice party is the independent Electricity Transmission System Operator ("TSO") for Ireland under a licence issued by

the Commission for Energy Regulation pursuant to s. 14(1)(e) of the Electricity Regulation Act 1999, as inserted by Regulation 32 of

European Communities (Internal Market in Electricity) Regulations 2000 (S.I. No. 445 of 2000).

2.4. The second notice party is a statutory corporation which was incorporated by the Electricity (Supply) Act, 1927, as amended.

ESB is the owner of the electricity distribution system and the electricity transmission system in the State. Pursuant to Part 4 of the

European Communities (Internal Market in Electricity) Regulations 2000 (S.I. No. 445 of 2000), as amended, its functions include the

maintenance of the electricity transmission system.

3 FACTUAL BACKGROUND

3.1. The Bellacorick-Castlebar 11OkV line was originally built and commissioned in 1962 and was developed to transmit power

generated at a peat-fired generating station located at Bellacorick. The overall Bellacorick-Castlebar 11OkV line is 37.235km in length

comprising primarily single circuit wood pole design with steel angle lattice towers. There are 194 structures along the line, 13 of

which are steel angle lattice towers and 181 of which are wooden polesets. The structures carry three conductors (comprising a

single circuit) suspended from electrical insulators. Reinforcements are required to the existing transmission network in order to

accommodate increasing levels of renewable energy (primarily, wind generation) in the North West region. Such reinforcements include

the uprate of the existing Bellacorick-Castlebar 110kV overhead transmission line. The purpose of the uprate is to increase the

capacity of the existing Bellacorick-Castlebar 11OkV line by replacing the existing conductors with a different conductor of similar

dimensions that can carry more electric current. The uprating of the overall Bellacorick-Castlebar 110kV circuit was originally

scheduled for the 2013 outage season. However, prior to this, it was identified in an environmental screening analysis that part of the

line (structures 1-99) fell within the Bellacorick Bog Complex cSAC. Thus, it was determined that an appropriate assessment ("an AA")

would be required. Structures100-193 lie outside of designated sites and did not cross sensitive peatland habitat. The works required

as part of the uprate along this section did not have the potential for significant impacts on any Natura 2000 site.

3.2. The division of the uprate of the overall Bellacorick-Castlebar 11OkV overhead line into two separate parts, or transmission

infrastructure projects, arose from the necessity for outage programming and the sequencing of outages. In his affidavit sworn 30th

November, 2015, Mr. Des Cox, Senior Planning Consultant with EirGrid, stated that an

"[o]utage is a carefully programmed process undertaken by EirGrid in its statutory role as Transmission System Operator,

of switching out a transmission circuit and diverting power onto different circuits of the meshed grid for the purposes of

transmission infrastructure development and maintenance. This occurs in an outage season, generally between March and

October each year when demand for electricity is reduced in comparison with winter time loading."

He outlined the circumstances in which the Part 1 works were carried out in 2013:

"Work was already planned on the Bellacorick busbar for 2013. This meant that the Bellacorick-Castlebar llOkV line was going to be

de-energised for a significant period of time in 2013 in any event. With up to eight line uprates and multiple busbar uprates to

complete over the coming years, it was considered important not to waste any outage season. No other project in the area was at a

stage advanced enough that would have allowed it to take the slot that would have been vacated by postponing of the full

Bellacorick​ Castlebar line uprate. In any event, allowing a different outage to take place would have meant cancelling the planned

works on the Bellacorick busbar. The preparation for this complicated busbar project was well advanced. Completing Part 1 of the

Bellacorick-Castlebar 11OkV line uprate in 2013 when the line was in outage would mean that a much shorter outage duration would

be required in a future year to complete part 2, hence decreasing the overall time required for all the works in the area."

3.3. In 2013, EirGrid completed an uprate to roughly 17.5km of the line, extending to the north-west out of the Castlebar substation

("Part 1"). In 2012, prior to carrying out the works, a stage 1 screening was undertaken on Part 1 for the purposes of AA. The

screening report which was prepared by EirGrid's Senior Ecologist, in accordance with the provisions of Regulation 42 of the European

Communities (Birds and Natural Habitats) Regulations 2011, noted that structures 159-161 were identified as having the potential to

impact on Natura 2000 sites due to their location adjacent to the River Moy cSAC. The screening report concluded that there would

be no direct or indirect impacts on the qualifying features of the River Moy cSAC as a result of the proposed works and so a stage 2

AA was not required. A screening matrix was also included in the report which addressed whether individual elements of the plan or

project either alone or in combination with other plans or projects were likely to give rise to impacts on the Natura 2000 site. There

was specific reference in the report to the Bellacorick to Castlebar Part 2 uprate which was considered cumulatively with the Part I

uprate.

3.4. The proposed Part 2 works, which are the subject of the present proceedings, refer to the remaining uprate works on the existing

line between Bellacorick to Castlebar, approximately I9.5km in length and extending from end mast one at Bellacorick substation to the

south east as far as angle mast 100, in the townland of Puglish.

3.5. On 8th August, 2014, EirGrid lodged a planning application in respect of Part 2 of the uprating of the Bellacorick-Castlebar 11OkV

line where the works were described as follows:

"For works associated with an uprate of a section of the existing Bellacorick to Castlebar 11OkV overhead line. The

section of the line to be uprated is approximately 19.5 kilometres long and is located in the townlands of Bellacorick,

Moneynierin, Derry Lower, Derry Upper, Lackalustraun, Corcullin, Stranacally, Keenagh Beg, Letterneevoge, Tawnakeel,

Knockaunbaun, Letterbrick, Coolnabinnia and Boghadoon, County Mayo.

The uprate works comprise of alterations to all of the existing I 00 structures on the line. Works include replacement of 16

wooden polesets and 5 steel angle mast support structures, removal of 1 steel angle mast support structure and

replacement of cross arms, insulators and/or fittings on 78 structures including the existing end mast. Replacement

structures will be constructed at, or immediately adjacent to the structures they will replace and will be of a similar height

and appearance. Works also include stringing of a new conductor along the full length of the line (19.5 kilometres) and

ancillary works including the creation of temporary access routes to construction and all associated site development

works."

3.6. The planning application envisaged no change to the overall alignment of the existing Bellacorick-Castlebar 110 kV line. No

additional polesets are to be constructed and the actual construction activities will be confined to an area of around 15m around

those polesets.

3.7. Following the grant of permission by Mayo County Council by decision dated 23rd February, 2015, the applicant appealed the

decision to the Board by way of appeal dated 3rd March, 2015. The Inspector recommended the grant of permission and, by its

decision dated 11th August, 2015, the Board granted permission for the proposed development. In doing so, the Board concluded that

the proposed development would not be likely to have significant effects on the environment and that an environmental impact

assessment ("an EIA'') would not be required. Furthermore, the Board expressly addressed the applicant's claim of project splitting

stating that:

"...the Board accepted the nature of the project as described by the applicant involving the outage and uprating of

sections of a power line forming part of an overall grid and that no 'project splitting' for the purposes of avoiding the

Environmental Impact Assessment had occurred."

3.8. The Board concluded, on the basis of the information available, that the proposed development, either individually or in

combination with other plans or projects, would not adversely affect the integrity of the European sites in particular the Bellacorick

Bog cSAC, the River Moy SAC and the Newport River SAC or any other European site, in view of the site's conservation objectives.

4 THELEGALFRAMEWORK

4.1. Article 1(2) of the Directive 2011/92/EU of the European Parliament and of the Council of 13111 December, 2011 on the

Assessment of the Effects of Certain Public and Private Projects on the Environment ("the EIA Directive") sets out the following

definition of"project":

"-the execution of construction works or of other installations or schemes,

- other interventions in the natural surroundings and landscape including those involving the extraction of mineral

resources;"

4.2. Article 2(1) of the EIA Directive states:

"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have

significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a

requirement for development consent and an assessment with regard to their effects. Those projects are defined in

Article 4."

4.3. Article 4 of the EIA Directive provides:

"1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles

5 to 10.

2. Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be

made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination

through: (a) a case-by-case examination; or (b) thresholds or criteria set by the Member State. Member States may

decide to apply both procedures referred to in points (a) and (b)."

4.4. Annex I sets out a list of projects for which an EIA is mandatory, while Annex II sets out projects for which an EIA may be

required and, in this regard, Member States can establish (i) thresholds or criteria or (ii) a case-by-case examination, or both.

Paragraph 20 of Annex I to the EIA Directive sets out that an EIA is mandatory for the "[c]onstruction of overhead electrical power

lines with a voltage of 220 kV or more and a length of more than 15 km." Paragraph 3(b) of Annex II includes developments which

involve "[i]ndustrial installations for carrying gas, steam and hot water; transmission of electrical energy by overhead cables (projects

not included in Annex I)".

4.5. Section 172(1) of the Act of 2000, which implemented the EIA in Ireland, provides:

"(1) An environmental impact assessment shall be carried out by the planning authority or the Board, as the case may be,

in respect of an application for consent for proposed development where either-

(a) the proposed development would be of a class specified in-

(i) Part 1 of Schedule 5 of the Planning and Development

Regulations 2001, and either-

(!) such development would exceed any relevant quantity, area or other limit specified in that Part, or

(II) no quantity, area or other limit is specified in that

Part in respect of the development concerned, or

(ii) Part 2 of Schedule 5 of the Planning and Development

Regulations 2001 and either-

(!) such development would exceed any relevant quantity, area or other limit specified in that Part, or

(II) no quantity, area or other limit is specified in that

Part in respect of the development concerned, or

(b)(i) the proposed development would be of a class specified in Part 2 of Schedule 5 of the Planning and Development

Regulations 2001 but does not exceed the relevant quantity, area or other limit specified in that Part, and

(ii) the planning authority or the Board, as the case may be, determines that the proposed development would be likely to

have significant effects on the environment.".

4.6. Pursuant to s. 176 of the Act of 2000, the Minister has made regulations establishing thresholds and criteria in respect of Annex

II classes of development under the Planning and Development Regulations 2001 ("the 2001 Regulations"). Part 1 of Schedule 5 of the

2001 Regulations repeats the list of Annex I projects set out in the EIA Directive, while Part 2 of Schedule 5 sets out Annex II

projects and includes certain thresholds in respect of same. Paragraph 20 of Part 1 of Schedule 5 of the 2001 Regulations provides

that the following is a mandatory EIA development: "Construction of overhead electrical power lines with a voltage of 220 kilovolts or

more and a length of more than 15 kilometres."

Paragraph 3(6) of Part 2 of Schedule 5 provides that the following developments require an EIA:

"Industrial installations for carrying gas, steam and hot water with a potential heat output of 300 megawatts or more, or

transmission of electrical energy by overhead cables not included in Part 1 of this Schedule, where the voltage would be

200 kilovolts or more."

Paragraph 13 of Part 2 of Schedule 5 refers to works which are classified as a change to existing or executed works:

"(a) Any change or extension of development already authorised, executed or in the process of being executed which

would:-

(i) result in the development being of a class listed in Part 1 or paragraphs 1 to 12 of Part 2 of this Schedule, and

(ii) result in an increase in size greater than-

25 per cent, or

an amount equal to 50 per cent of the appropriate threshold,

whichever is the greater."

Paragraph 15 of Part 2 of Schedule 5 provides:

"Any project listed in this Part which does not exceed a quantity, area or other limit specified in this Part in respect of the

relevant class of development but which would be likely to have significant effects on the environment, having regard to

the criteria set out in Schedule 7."

4.7. Article 6(3) of Council Directive 92/43/EEC of 21st May, 1992 on the Conservation of Natural Habitats and of Wild Fauna and

Flora ("the Habitats Directive") provides:

"Any plan or project not directly connected with or necessary to the management of the site but likely to have a

significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate

assessment of its implications for the site in view of the site's conservation objectives."

4.8. Regulation 42(1) of the European Communities (Birds and Natural Habitats) Regulations 2011 ("the 2011 Regulations") states:

"A screening for Appropriate Assessment of a plan or project for which an application for consent is received, or which a

public authority wishes to undertake or adopt, and which is not directly connected with or necessary to the management

of the site as a European Site, shall be carried out by the public authority to assess, in view of best scientific knowledge

and in view of the conservation objectives of the site, if that plan or project, individually or in combination with other

plans or projects is likely to have a significant effect on the European site."

5 SUBMISSIONS OF THE APPLICANT

Project Splitting and Breach of the EIA Directive

5.1. The applicant submitted that having regard to the factual nature of the application and the legal principles that apply the Board

erred in law in concluding that no project splitting occurred. It was contended that the project which was granted permission by the

Board was severed from the totality of the wider project. The applicant argued that the Board should not have considered the

application as the question of whether project splitting has occurred is a matter of law for determination by the High Court.

5.2. The effect of the project splitting was to circumvent and/or avoid the obligations of the EIA Directive and, in particular, the

manner in which screening for EIA is carried out on projects. It was submitted that pursuant to the EIA Directive and the

jurisprudence of the Court of Justice of the European Union, a project should not be considered in isolation if it is an integral part of a

larger project or a single development and the combined effect of individual projects should be considered when deciding whether an

EIA is required. Furthermore, the applicant argued that the Board facilitated the splitting of the project in considering the cumulative

effect of Part 1 with Part 2 as the assessment of environmental effects should take place prior to the commencement of the entire

project.

5.3. It was submitted that as Part 1 was considered to be exempted development, which was not publicly advertised, the applicant

was not in a position to challenge the original decision of the first notice party. The applicant contended that he was deprived of his

right of participation prior to the giving of consent for the project which may have resulted in an EIA of the entire project.

Project Splitting and Breach of the Habitats Directive

5.4. The applicant submitted that the Board considered the project application the subject of these proceedings without considering

the full scope of the uprating project. Thus, the decision was made contrary to article 6 of the Habitats Directive. Furthermore, it was

argued that the decision was contrary to article 6 in circumstances where the proposed development was assessed in order to

determine whether it would have an adverse impact on the relevant European sites but where the entire Bellacorick-Castlebar 37krn

line has not been screened for an AA in its entirety in one single determination.

5.5. The applicant also commented on the "unusual circular situation" that EirGrid as a public authority conducts a screening exercise

for the purposes of an AA in respect of what is potentially an exempted development and if determined that an AA is not required,

then no application for consent is necessary.

6 SUBMISSIONS OF THE RESPONDENT

Project Splitting and Breach of the EIA Directive

6.1. The respondent argued that the present proceedings were, m reality, a complaint about the Part 1 uprate which has already

been completed. No challenge has been brought by the applicant to challenge the validity of the Part 1 project. The respondent

submitted that the Board had no role in Part 1 of the process nor could it have any role. The Board's obligation was to consider its

obligations with regard to the Part 2 development before it. The Board was obliged to, and did, examine Part 2 in combination with

Part 1 in considering the cumulative effects for the purposes of the EIA and the Habitats Directive. It did not do so, as argued by the

applicant, to overcome the failure to assess Part 1 of the project.

6.2. The respondent rejected the applicant's argument to the effect that an automatic circumvention of the EIA Directive occurs

when larger development projects are divided into smaller projects. It was submitted that project splitting does not have a legal

significance independent of the question of whether an EIA is required. The respondent submitted that Part 2 was below the threshold

for EIA, and, even combining Part 1 and Part 2, would not reach the requisite kV to make an EIA mandatory. In any event,

notwithstanding the fact that Part 2 was sub-threshold, the decision-makers (the planning authority and the Board) expressly

considered whether an EIA should be carried out on the basis that it would be likely to have significant effects on the environment.

6.3. The respondent rejected the applicant's contention that the issue of whether there is project splitting is a question of law, thus

being a matter for determination by the Court rather than a matter to which the 0'Keeffe standard of review applies (see 0'Keeffe v.

An Bard Pleanala & Ors. [1993] 1 I.R. 39). The respondent contended that the applicant failed to adduce any authority for that

proposition. It was submitted that the question of whether a project falls within the categories set out in the EIA Directive is a

question of fact. The respondent further argued that even if project splitting is a question of law, as contended by the applicant, the

applicant failed to discharge the onus of establishing that the Board made a legal error and but for that error, a different decision

would likely have been reached.

6.4. It was submitted that the applicant has not adduced any evidence to suggest that the conclusions reached by the Board were

wrong as a matter of law, or a matter of fact, or were reached without considering all relevant materials. The material in this case

does not suggest that there is not an environmental issue that has not been exhaustively analysed by EirGrid, Mayo County Council

and then by the Board. The applicant has not shown that there was an EIA obligation which was circumvented or avoided by virtue of

separate applications being made for Part 1 and Part 2.

Project Splitting and Breach of the Habitats Directive

6.5. The respondent argued that where no cumulative effect of any type was identified between the two phases of the development,

and where Part 1 is entirely outside the protected sites, there is no basis for asserting that an AA of Part 1 would have reached any

conclusion other than the unchallenged conclusion in the AA screening report for Part 1. In respect of the AA of Pmt 2, it was

submitted that the screening and the AA were carried out correctly and in carrying out both, the Planning Authority and the Board

looked at the combined effects of Part 1with Part 2. There is no evidence that suggests that the combination of Part 1 and Part 2 will

have any impact on the designated sites, other than the effect already identified and considered in the Natura Impact Statement in

relation to Part 2.

6.6. As regards the complaint that EirGrid screened its own development, the respondent submitted that it is a complaint that cannot

be made against the Board, because the actions of EirGrid in screening their own development are consistent with its obligations

under reg. 42 of the 2011 Regulations.

7 SUBMISSIONS OF THE NOTICE PARTIES

Project Splitting and Breach of the EIA Directive

7.1. The notice parties submitted that the scheduling of the uprate works on the overall Bellacorick-Castlebar 11OkV line into two

separate parts, or transmission infrastructure projects, arose from the necessity for outage programming and the sequencing of

outages and was not for the purposes of circumventing the EIA Directive. No evidence was adduced by the applicant that

considerations, namely that the works should have been completed as one project or in respect of the outages' programme, were not

legitimate or appropriate considerations to which EirGrid should have regard.

7.2. In relation to the applicant's argument regarding project splitting, the notice parties submitted that the decision of EirGrid in

relation to Part 1 is outside the scope of the present proceedings. The notice parties contended that there was no challenge by the

applicant to Part 1 at the relevant time and they argued that the applicant is now out of time to challenge Part 1.

7.3. Furthermore, the notice parties submitted that there was clearly material before the Board to support its conclusions that there

was no project splitting.

7.4. The notice parties submitted that the concession by the applicant that an EIA would not be required even if Parts 1 and 2 were

considered together for the purpose of an EIA is significant. It is clear that the EIA Directive only applies to certain types of projects,

the works from Bellacorick-Castlebar 110kV overhead line not coming within these categories of project given that the uprating works

fall below the relevant thresholds.

7.5. In addition, it was not contended by the applicant that there was any effect of the Part 1 works, still less any significant effect

of those works on the environment for the purpose of the EIA Directive. Further, there is no evidence of any such effect of the Part 1

works on the environment or, indeed, evidence of any risk of such effects. The notice parties submitted that the absence of evidence

is fatal to the claim (see An Taisce v. An Bard Pleanala [2015] IEHC 633; Harrington v. An Bard Pleanala & Ors. [2014] IEHC 232).

7.6. The notice parties also contended that the applicant has further failed to adduce evidence of any likely significant effects on the

environment by virtue of the nature, size, or location of the Part 2 works, or the Parts 1 and 2 works combined, for the purposes of

Article 2 of the EIA Directive. In addition, the applicant did not highlight any possible environmental concerns in relation to the

project.

Project Splitting and Breach of the Habitats Directive

7.7. The notice parties submitted that there is no evidence of any likely significant effect of the Part 2 works, or of the Parts 1 and 2

works combined on any European site, either individually or in combination with any other plan or project for the purposes of Article 6

of the Habitats Directive.

7.8. Furthermore, the applicant did not argue that there was any effect of the Part 1 works, still less any significant effect of those

works on any European site for the purposes of the Habitats Directive. Further, there is no evidence of any such effect of the Part 1

works on the environment or on any European site or, indeed, evidence of any risk of such effects.

7.9. In relation to the applicant's criticism that EirGrid itself carried out the screening for the AA, the notice parties submitted that

reg. 42 of the 2011 Regulations requires EirGrid to carry out such an assessment in its role as a public authority, as defined in reg

2(1).

8 DECISION

8.1. The issues that arise in this case are as follows:

(i) Is the question of whether project splitting has occurred a matter of law for determination by the High Court or a

matter of expertise within the Board's remit?

(ii) Did the Board err in concluding that project splitting had not occurred?

8.2 The Board in its decision expressly addressed the issue as to whether there had been project splitting for the purposes of avoiding

the obligation to have an EIA. It found there had not been. The first thing I would observe on this question is that there is nothing

wrong per se in project splitting. In any large project, it may well be both inevitable and desirable. The Board, in its decision, makes it

clear that it was considering whether project splitting had occurred for the purpose of avoiding the requirement to have an EIA. This

is the correct approach. The question is not whether there has been project splitting simpliciter, but whether it was done for the

purpose of avoiding the need to have an EIA.

8.3 Is the question of whether there has been inappropriate project splitting one in which the Board may decide in the exercise of its

expertise as a planning body or is it a question of law for the determination of a court? Where the legislature has placed decisions

requiring special knowledge, skill or competence, for example as under the Planning Acts, with a skilled decision-maker, the court

should be slow to intervene in the technical area (see Meadows v. Minister for Justice & Ors. [2010] IESC 3, [2010] 2 I.R. 701 at

para. 143). Is the assessment of whether there has been inappropriate project splitting a decision that requires special knowledge,

skill or planning competence? I find some helpful assistance in the judgment of Sales L.J. in R. (Larlifleet Ltd) v. South Kesteven DC

[2015] EWCA Civ. 887 where he stated at para.40:

"Since an evaluative judgment is required on that issue, the question arises whether the proper legal approach is to say

that the primary decision-maker to make that judgment is the relevant planning authority (which may, depending on the

context, be a local planning authority, an inspector or the Secretary of State), subject to rationality review by the court

on Wednesbury principles, or to say that the court is itself the primary decision-maker on any appeal or judicial review

application before it and should form its own judgment on that question. In relation to the closely related question,

whether a project is 'likely to have significant effects on the environment' (see the definition of 'EIA development' in reg.

2(1) of the EIA Regulations and art. 1(1) of the EIA Directive) there is authority that the former approach is correct: see

Bowen​ West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321, at [39]-[41]; R (Evans) v

Secretary of State for Communities and Local Government [2013] EWCA Civ 114, at [30]-[43]. As regards the evaluative

judgment whether a particular set of works constitutes one distinct 'project' or part of another, wider 'project' containing

another set of works, I think there is a strong argument that, likewise, the former approach is correct."

It seems to me that the decision on project splitting involves an evaluation of the entire project and an assessment as to whether

the reasons for splitting it into stages stand up to scrutiny. That assessment surely requires knowledge and skill of a planning nature.

In his affidavit of 30111 November, 2015, Des Cox, Senior Planning Consultant with EirGrid, explains, at para. 3.2, why the splitting

was justified. In this case an assessment of his reasons, outlined from para. 26 on, involves judging the necessity for outages and

appropriate outage periods which in turn involves an assessment of the power needs of customers, the nature of the works involved

and their susceptibility to delay. He refers to intended project sequences over the period 2013-2020 and the necessity to sequence

different works at different times so as to avoid disconnecting customers. It seems to me that all these considerations classically

involve the application of planning expertise. This evaluation, in my judgment, falls squarely into the category of decisions requiring

special knowledge and skill to which the Chief Justice referred in Meadows. They are therefore decisions which fall to be reviewed on

the basis of 0'Keeffe rationality principles.

8.4 The question for the court, therefore, is as to whether there was any material before the Board capable of capable of supporting

its decision specifically on the project splitting question. The burden of proof of irrationality on the part of the Board rests squarely

upon the applicant. Any reading of the documents in reports before the Board when making its decision herein show a wealth of

material that was available upon which to ground its decision. I do not think it was seriously argued that there was not.

For these reasons the relief sought is refused.