ABO Wind NI Limited and Energia Renewables Company 1 Limited's Application
| Jurisdiction | Northern Ireland |
| Judge | Humphreys J |
| Judgment Date | 21 October 2021 |
| Neutral Citation | [2021] NIQB 96 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 21 October 2021 |
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Neutral Citation No: [2021] NIQB 96
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: HUM11648
Delivered: 21/10/2021
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY ABO WIND NI LIMITED &
ENERGIA RENEWABLES COMPANY 1 LIMITED FOR JUDICIAL REVIEW
AND IN THE MATTER OF THE CHIEF PLANNER’S UPDATE 7
___________
Stewart Beattie QC and Philip McEvoy (instructed by TLT NI LLP) for the Applicants
Paul McLaughlin QC and Michael Neeson (instructed by the Departmental Solicitor’s
Office) for the Respondent
___________
HUMPHREYS J
Introduction
[1] The applicants for judicial review in these proceedings are two limited
companies which operate in the renewable energy industry in Northern Ireland.
The respondent is the Department for Infrastructure (‘the Department’).
[2] Periodically the Department publishes ‘Chief Planner’s Updates’ which
provide guidance, news and information to the Heads of Planning in each of the 11
councils in Northern Ireland.
[3] On 16 December 2020 the Department published Chief Planner’s Update 7
(‘CPU 7’) which, inter alia, provided advice and guidance in relation to Battery
Energy Storage Systems (‘BESS’).
[4] The applicants contend that the relevant part of CPU7 was wrong in law and
is also vitiated on a variety of other grounds.
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Background
[5] The evidence before the court revealed that the first applicant is a subsidiary
of ABO Wind AG, a world wide developer in the renewables market. It has already
invested significant sums in the Northern Irish market and proposes to bring
forward projects with an estimated value of some £300m. The second applicant is
part of the Energia group which currently provides around 20% of the renewable
electricity in Ireland.
[6] BESS are a recent addition to the technology which is involved in renewable
energy projects. By their very nature, wind and solar energy are produced
intermittently and therefore facilities to store excess energy which is produced at
time where supply outstrips demand represent a valuable addition to the
infrastructure in this field.
[7] In the year to September 2020 some 47.7% of the total electricity consumption
in Northern Ireland was generated from local renewable sources, ahead of the 40%
target which had been set by the Strategic Energy Framework in 2010. The United
Kingdom is now committed to 100% reduction in greenhouse gas emissions by 2050
and this move towards a net zero carbon emission economy also features as a key
theme on an all Ireland basis.
[8] In simple terms, BESS work by absorbing electricity, converting it to chemical
energy and storing it until such times as supply is required by the grid, at which
time it is re-converted to electrical energy. Their use will play an important part in
the progress towards meeting renewable energy targets and ensuring continuity of
supply.
[9] In CPU7, the Chief Planner advised that such development fell within the
meaning of ‘electricity generating station’ and it is this advice which gives rise to the
core application for judicial review.
The Legislative Context
[10] The existing two tier system of planning control in this jurisdiction was
introduced by the Planning Act (NI) 2011 (‘the 2011 Act’). It obliges the Department
to formulate and co-ordinate policy on a regional basis whilst councils create local
development plans and determine local planning applications.
[11] Section 25 of the 2011 Act provides:
“(1) For the purposes of this Act, a development belongs to
one of the following categories—
(a) the first, to be known as “major developments”; and
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