Richborough Solar Farm, UK. © Oast House Archive
In July 2015, two planning appeals were determined by an Bord Pleanála on the first applications in Ireland for the development of solar farms. The reports on both of these appeals provide a useful analysis of the relevant issues relating to this type of development.
What is particularly interesting is how the matter of whether environmental impact assessment (EIA) was needed is considered. While an Bord Pleanála determined that neither project warranted EIA, these appeals do highlight some uncertainty about how this type of development fits into the EIA framework. As it is likely that further planning applications will be made to develop more solar farms in Ireland, it seems highly desirable that the national legislation is clarified to give certainty to planning authorities, developers and third parties about the relevant rules.
The larger of the two proposed solar farms is situated near Tintern in the south of County Wexford. The development is for what would be, at least in UK terms, a medium-sized solar farm of a maximum electricity output of 5 MW, with photovoltaic panels being spread over some 10 hectares. A 1.3 km 20kV overhead line would be needed to connect to the national grid, with a separate application being submitted later to authorise this infrastructure.
The second project is in County Cork and relates to a 0.7 MW solar farm, which is designed to provide power to an adjacent industrial estate. This site is off the N22 at Lissarda, some 10 km from Macroom.
In both cases, the general configuration of the development is similar, with several rows of solar photovoltaic panels being bolted onto ground-mounted steel frames. Besides an electrical control room and site entrance/access roads, the other aspect of the development of significance is the security arrangements. Due to potentially accessible and valuable nature of the cabling and other infrastructure, each entire site is to be surrounded by a 2.4 m steel mesh fence, with lighting and security cameras being provided.
Following grant of planning permission by Wexford County Council, an appeal against the Tintern development was lodged by local residents with an Bord Pleanála on 16th January 2015. Similarly, the appeal against the approval for the County Cork development was lodged on 4th March 2015. Both appeals were determined by the Board on 3rd of July. Copies of the Board’s determinations can be found by clicking on these highlighted links to the County Wexford and Cork decisions.
In neither instance was an environmental impact statement (EIS) submitted, with both planning authorities taking the view that none was required. An Bord Pleanála concurred with this view.
While the Cork development is relatively small, the Wexford solar farm is rather more significant, with the entire envelope of the development covering several hectares. Usefully, the reasoning as to why no EIA was required is expressed more fully by the Board’s inspector’s report on this application.
An immediate problem faced by both planning authorities and an Bord Pleanála is that solar farms do not fit readily into any of the project categories set down either in Schedule 5 to the Planning and Development Regulations or in Annex II to the EIA Directive. As set out in my posting on solar farms earlier this year, the most obvious categories of EIA development listed in Annex II to the EIA Directive are:
- “Industrial installations for the production of electricity, steam and hot water (projects not included in Annex I)”
- “Projects for the restructuring of rural land holdings”.
Along with many of the other categories of EIA development, power generation projects are listed in Schedule 5 to the Planning and Development Regulations. A threshold of 300 MW has been added to the EU category of “industrial installations for the production of electricity, steam and hot water”, meaning that a planning application for any development in excess of this limit always requires an EIS to be submitted. Development below this threshold must be screened to see whether it is associated with significant effects on the environment: if so, EIA must be done. The relevant criteria for determining whether a sub-threshold development is associated with significant effects on the environment are specified in Schedule 7 to the Planning and Development Regulations.
From a consideration of the different power generation categories of EIA development set out in Schedule 5, an Bord Pleanála’s inspector quickly ruled out the applicability of solar farms fitting within the concepts of a “thermal” power plant, hydroelectric station or windfarm. This left the need to consider whether the category of “industrial installations for the production of electricity, steam and hot water not included in Part 1 of this Schedule with a heat output of 300 megawatts or more” might be applicable.
The inspector approached the matter of whether a solar farm fitted within this project category in the following way (see page 57 of the report):
“This matter depends on whether it’s necessary for the installation to be for the production of electricity AND steam AND hot water (Combined Heat and Power – CHP – plant), or any of the above. I interpret the regulations as meaning the former, and as such, this development type does not apply.”
In other words, the inspector considered that the EU category of “industrial installations for the production of electricity, steam and hot water” is solely aimed at covering CHP plants, where electricity, steam and hot water all arise together. Accordingly, solar farms were determined as excluded.
In respect of the second EU category of potential EIA development that the might embrace a solar farm – “projects for the restructuring of rural land holdings” – the Board’s inspector appears to have experienced some difficulty. This is due to there being no equivalent category in Schedule 5 to the Planning and Development Regulations. This is because, since September 2011, such projects no longer feature in Schedule 5 at all, as agricultural and forestry EIA development is now considered under an entirely separate regime for development consent. The European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 (SI 456 of 2011) apply, with the requirement to undertake EIA under this legislation being placed upon the Department of Agriculture, Food and the Marine.
Whether the existence of these parallel provisions was recognised by an Bord Pleanála’s inspector is a little unclear. Instead, guidelines on solar farms developed by a UK local authority were considered in this context, with the conclusion being as follows:
“I note that Page 4 of the Cornish guidelines considers EIA screening and advises that solar PV developments could be considered analogous to the development listed in A2 of Annex A to the [UK] EIA Circular 02/99 which states that “Development (such as greenhouses, farm buildings etc.) on previously uncultivated land is unlikely to require EIA unless it covers more than five hectares…”.
“In this case, the subject proposal – at 10ha – would be larger than the 5ha mentioned. It would appear that the EIA requirements in the UK go above and beyond what is required by the EU Directive, and indeed as is currently required in Ireland.”
All of these factors led the inspector to conclude that, as there was no identifiable project category under both national and EU EIA law for a solar farm, no EIA was necessary for the Wexford development. However, the inspector then hedges this matter by adding that, even if the Wexford solar farm did fit within the category of “industrial installations for the production of electricity, steam and hot water not included in Part 1 of this Schedule”, its impacts were considered not so significant as to warrant EIA. In other words, it did not constitute sub-threshold development in respect of this category. The inspector provides the following reasoning:
“As an aside, were the Schedule 7 criteria to be applied to the proposed development, I do not consider that the requirement for EIA would have been triggered due to the nature of the proposed development and its location”.
While no further elaboration is given on this matter by the inspector, the Board itself agreed with the inspector’s opinion in its final decision on the appeal. It concurred with the inspector’s view that no EIA is required and also stated that “the development would not be likely to have a significant impact on the environment.”
While it may be entirely correct to assert that neither the Wexford nor the much smaller Cork solar farm constitutes EIA development, there seems to be a need to clarify this matter in national law. This is because Ireland does actually, and contrary to what might be thought, have a climate that is highly conducive to large-scale photovoltaic power generation. Equivalent UK figures suggest that this latitude receives as much as 60% of the annual sunlight falling on the equator, while our cool climate facilitates the optimal operation of photovoltaic panels.
The result is that it is likely that there will be further solar farm planning applications in the next few years. Some of these may be much larger than the 5 MW development proposed for County Wexford. And it seems inevitable that, at some point, larger scale development will raise EIA related issues. For example, a UK solar farm that is currently subject to the planning process is for 24 MW, being spread over nearly 43 hectares and comprising 90,000 individual solar panels. The largest that has been granted development consent in England has an generation capacity of 45 MW and a land-take of 80 hectares.
What seems clear is that it is untenable to assert that any solar farm of this magnitude in Ireland should not be subject to EIA and the EIA Directive. As set down in Recital 7 of the EIA Directive, the purpose of that Directive is to ensure that EIA is undertaken for all projects in the EU “which are likely to have significant effects on the environment”. Moreover, numerous judgments of the Court of Justice of the European Union (CJEU) have confirmed that this Directive has “a wide scope and a broad purpose”, covering all projects with significant environmental effects (see Kraaijeveld, Case C-72/95, para 31 and, for example, Commission v Spain, Case C-227/01, paras 45-47, Ecologistas, Case C-142/07, para 28).
It also seems that, unless national law is changed to clarify this matter, larger and inevitably more controversial planning applications for solar farms will end up in the courts. As an Bord Pleanála’s inspector indicates, there is ambiguity as to whether the Annex II development category of “industrial installations for the production of electricity, steam and hot water” should be viewed as only applying to a plant that produces all three of these outputs – electricity, steam and hot water – or any of them. In other words, does the word “and” in this project category in the EIA Directive make these different facets cumulative or does it also imply “or” (or, even, “and/or”)?
In this respect, it is well known that an overly legalistic approach to the exact wording of the project categories of the EIA Directive in inappropriate. Accordingly, in the CJEU judgment of Ecologistas, the Court did not accept that, because the Directive only mentioned motorways, express roads and roads but did not include a reference to an “urban road”, no EIA was required for this type of development. Similarly, just because Annex II to the Directive refers to installations for the “disposal” of non-hazardous waste, that does not exclude waste recovery facilities from the EIA process (see Commission v Italy, Case C-486/04, esp paras 39-44 and Case C-255/05, para 50 et seq).
An alternative approach to considering solar farms as being within the power generation EIA category is to evaluate their impacts in the context of the alternative category of “projects for the restructuring of rural land holdings”. But this approach opens up some very significant problems. As noted, this leads to demarcation issues between the remit of the planning authority and the Department of Agriculture. Secondly, it is clear that solar farms do not fit at all well within the various project categories that Irish national law has considered as constituting “projects for the restructuring of rural land holdings”. In general, these entail the removal of field boundaries and land re-contouring, neither of which activities are normally associated with a development of this type: see the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011.
Adding a new or amended project category for solar farms into Schedule 5 to the Planning and Development Regulations seems an obvious solution and one that does not contravene the Directive. As noted above, CJEU jurisprudence is clear that the scope of the legislation is wide and should cover all major projects associated with significant effects on the environment. Article 4 allows for thresholds or criteria for when EIA is necessary to be developed by individual EU member states. Accordingly, it seems entirely applicable to take Annex II’s category of “industrial installations for the production of electricity, steam and hot water (projects not included in Annex I)” and transpose it via a wording that makes clear that solar farms in excess of a specified electrical output or hectarage are EIA development in Ireland.
In this respect, it is of note that some of the other project categories in the EIA Directive have been altered, clarified or extended when the legislation was transposed into Irish law. For example, very large-scale housing developments have been added into the category of infrastructure project that is described by the Directive as “urban development projects, including the construction of shopping centres and car parks”.
Naturally, the determination of an appropriate threshold which makes EIA compulsory for a solar farm planning application is not easy and is, inescapably, rather arbitrary. But a degree of arbitrariness affects the thresholds for any type of development listed in Schedule 5 to the Planning and Development Regulations. And in this respect, it should be noted that the national EIA thresholds for other comparable renewable energy projects are 5 MW for windfarms and 20 MW for hydroelectric schemes.
Unless provision is made for solar farms in Schedule 5 to the Planning and Development Regulations, it seems inevitable that planning authorities and an Bord Pleanála will be subject to additional expense in defending judicial review applications. Similarly, developers will be subject to uncertainty about this matter, as well as additional cost and delay. All of these problems make the achievement of Ireland’s renewable energy targets more difficult to meet than they should be.
These factors suggest a highly valid justification for Schedule 5 the Planning and Development Regulations to be amended to clarify when EIA is compulsory for solar farms above a particular threshold and for when a planning authority must make a decision in respect of sub-threshold EIA development. No party to this type of development – be they developers, planning authorities or third parties – would be disadvantaged by such a change.
Duncan Laurence Environmental Ltd 
EU jurisprudence is that EIA is not required for any project if it is not listed in the Annexes to the EI A Directive. Consequently EIA would only be required for solar projects if they were listed Apparently BP has concluded that as a matter of interpretation they are not. The Directive does NOT , as many think, require EIA for all projects that have a significant eg get on the environment .
More worrying is that these solar parks are the wrong way to implement solar power. It is far better to have rooftop solar with local consumption. There is a financial argument for building large wind farms on mountains, but the same economies of scale don’t apply to solar. A 50kw system on a factory roof is cheaper to install per KW than a solar park. No grid reinforcement is needed. The utility companies like to see power transmitted over the grid being bought and sold, but that is the WRONG model for solar.