‘THE HIGH COURT COMMERCIAL Record No. 2014/6475R IN THE MATTER OF SECTION 50 OF THE PLANNING AND. DEVELOPMENT ACT, 2000 (AS AMENDED) Between: JOHN CALLAGHAN Applicant -and- AN BORD PLEANALA First Named Respondent -and- IRELAND AND THE ATTORNEY GENERAL Second Named Respondent ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND AND NORTH MEATH WINDFARM LIMITED Notice Parties ARFIDAVIT OF JOHN CALLAGHAN 1, JOHN CALLAGHAN, of 10 The Cloisters, Kells. County Meath, gentleman, aged 18 years and upwards MAKE OATH and say as follows: 1. Lam the Applicant in the above entitled proceedings and I make this Affidavit ‘on my own behalf from facts within my own knowledge save where otherwise appears and wiereso appearing I believe same to be true and accurate, 2, I say that I make this Affidavit supplemental to my previous Affidavit sworn, herein on the 10" day of December 2014 and I beg to refer to a copy of that Affidavit when produced. 3. say that that Affidavit grounded the statement which was filed in respect of the above entitled proceedings and where the reliefs were set out at paragraph D and the grounds set out at paragraph E of the statement.In those proceedings I sought an Order of certiorari quashing the decision of the first named Respondent made on the 11" and on the 12" September 2014 in respect of a proposed development con: ing of 46 turbines near Kells, ‘County Meath and I did soon the grounds which were set out at paragraph B. In addition I sought a number of declaratory reliefs in respect of the mannet in which the application had been dealt with, in particular the extent of which it had been carried out in conflict with the provisions of Council directive 2001/92/EC. In essence the proceedings relate to the manner in which the Board determined the application under Section 37A but even more fundamentally its relationship to the Environmental Impact Assessment Directive. I say that it is in this context that the application for discovery has been made and I beG (o refer to these proceedings when produced. I say that in the grounds I raised a number of issues and I say that one of the issues that is central to these proceedings is that contained at paragraph 27 of the grounds. I say that this relates to a much larger project to develop wind farms across the Meath, Westmeath, Offaly, Kildare and Laois area and is known as the Greenwire Project. I say that this involves in essence the same development which is a matter of the board’s decision of the 11" September 2014 bat stretching over a much greater area. I say and believe that this project is the Greenwire Project which is currently before An Bord Pleanala and is seeking the same status of this part of that development but that for political reasons it has not been decided to actively pursue this project although the application is still before An Bord Pleanala. I beg to refer to an extract from the Board’s website which clearly indicates that this proposal is still before the board, is still a live application, and is being currently considered by the board and 1 beg to refer to these document marked with the letters “JCI” I have signed my name prior to the swearing hereof, T say that the issue of Greenwite first arose in an email on the 10" June 2014 in the documents which were disclosed in the Affidavit of Chris Clarke sworn on the 23 day of January 2015. In an email sent from Mr Ciaran Sommers to Philip Green there is a reference to PCO178 which is the number accorded to the Kells Windfarm. Mr Green is10. informed that there is a proposed windfarm of up to 50 turbines proposed in North Meath and the perspective Applicant phoned requesting a first meeting as soon as convenient. It appears from Mr Sommers email that this very application was mentioned at # mecting held in respect of PCO148 which is the Greenwire Project. ‘There is therefore from the very beginning a direct connection between the two developments namely that Greenwire representatives were discussing this application with Mr Greene at a meeting held in or about June 2014. ‘occurred some twelve months after the lodging of the Greenwire Project and after the date that that particular project had stalled for political reasons. It has still not been determined by An Bord Pleanala and is still « live application before the board awaiting determination. I say that this is determined by Mr Greene in an email sent on the 11" June 2014 and J say that while that email refers to the windfarm being a separate windfarm project entirely separate from Greenwire the only difference it appears between the two projects is that one intends to connect to the grid in the United Kingdom whereas the other is indicated as being for domestic purposes but T say that in all other respects it would appear the two applications are virtually identical, that is one is a subset of the other. 1 say that all of the persons involved in procuring for example the land holding agreement are the same, the community liaison personnel are the same, the envitonmental impact statement draws on specialists which are common to both projects if not identical, the community benefit scheme that is being offered is identical and they company directors from Element and from North Meath Windfarm I say and believe are the same. T say that at all times when the application was being considered the relationship between the two projects was at Jeast on the face of the documentation being considered a crucial issue in respect of the board and T say that this is because ifthe Kells Windfarm project was merely a subset of much bigger project then having regard to the requirements of the Environmental Impact Assessment Directive it would have to be the bigger project that was required to be considered, The concept of project splitting isuM. 12, 1B. 14 well known to the board and they have a requirement to ensure that totality of a project is considered and not just parts of it because if a project is divided into separate component parts then the full impact of the project will never be considered and therefore the requirements of the directive will be fundamentally breached. T say and believe that there are a large number of instances where projects have been refused because they have been deemed to be project splitting that is elements only of the project have been applied for individually and this has always been asserted to be inappropriate and inconsistent with requirements of the directive and I say that that is at the heart of these proceedings because of the relationship between the Kells Windfarm Project and the Greenwire Project. T say that when the officials of An Bord Pleanala discussed this with the representatives of Element they raised this issue with them and I say that the drafls of the documentation that has been circulated indicates that the responses that were obtained evolved during the course of the preparation of the reports to the final minutes of the meeting, T say that in the documentation received in respect of the minutes of the meeting of the 24" July 2014, the board questioned the relationship of the Kells Windfarm Project to the proposed Greenwire Project. The response of the perspective Applicant was that the Windfarm was not part of Greenwire and will be for domestic purposes only. I say that the officials and it is not clear who in the board indicated this emphasised that it was important that the perspective Applicant be as clear about this as possible, T say that I find this very curious given that at that stage and in the days immediately thereafter it becomes clear from the documentation which has been furnished that the board were well aware of the similarity between the two projects and that there was no difference between the two. I say that the board was asking a question that they already knew the answer to as there had been significant contact between the Inspector who appears to have been dealing with the Greenwire Project Mr Phillip Green and the planning officer15, 16. dealing with the Kells Windfarm Project Ms Anne-Marie O’Connor. When the perspective Applicant stated that the Windfarm was not part of Greenwite there appears to have been no follow up questions despite the knowledge that the board officials had in respect of this issue and 1 say that it appears from that memorandum that the board were advising the perspective Applicant to put as much distance as possible between the Greenwire Project and the Kells ‘Windfarm because this was going to create the type of difficulties that I have pointed out earlier in this Affidavit I say that two days after that meeting there is a report sent to a board director ‘Mr Conor Boland the board member who ultimately signed the decision from ‘Anne-Marie 0’Connor the deputy planning officer where she confirms that the turbines were originally part of the Greenwire Scheme. I say that Ms O’Connor could not have formed this opinion except through a detailed review of the Greonwire Project and it is clear from that email that she was familiar with it and T a position to advise Mr Boland as to the extent of the similarity of the two projects, It will be seen from that email that there is a reference to Phillip Green who I understand is involved in the Greenwire Project referring to a discussion with Mr Boland about the Kells Windfarm and the email goes on to indicate the twrbines were originally part of the Greenwire Scheme but are going ahead on the basis of a gate three connection to the national grid. It is therefore accepted in that email that there is not material difference between the two projects and I say Jater in that email there is a recognition of the level of local opposition and I say therefore that almost immediately after the meeting while the minutes wore being formalised that there was an awareness that what was reflected therein was not accurate and that the two schemes were in environmental terms indistinguishable, T say that in preparing the minutes of the meeting Ms O’Connor then added a response from Element Power to a question as to whether they had any other possible similar developments in the pipeline that might be considered part of the same project. ‘The response from Element which is recorded in the minute is that it had no similar projects and that is reonded by Ms O’Connor notwithstanding what was communicated to Mr Boland the board member and17. 18. to Mr Green as these very minutes were being finalised expressly to the contrary. It appears clear that when one looks at the email and the minutes the position as reflected in the minutes cannot be reconciled with the email to Mr Boland and it appears that what was stated by Element was fundamentally incorrect and the Board officials knew it to be so. I say that these reports put into context the importance of the discovery that I seek, I say that the email from Anne-Marie O’Connor to Conor Boland is a document that should appear on the boards file bit it does not, It is a report of the more crucial significance in respect to the consideration of the application which was only received fortuitously and now has been confirmed in the Affidavit of Chris Clarke and there is no reason and certainly no credible reason why this report for example does not appear on the file. It is for that reason that is critical that an Affidavit be sworn setting out all the documentation that was prepared relevant to the determination of the application as it is clear that there are documents missing from the file that should be on that file. I say that that is why it is so crucial that there be an Affidavit sworn in respect of all of the documents generated relating to this application and that an Affidavit in that regard be swom for the purposes of certainty in respect of the documentation and while the board may say that all of these documents have now been provided in the light of the history of this application where crucial documents were not on the file it is important that such an Affidavit be sworn, I say that the Greenwire Project for which the documentation is sough now of crucial significance to the application that I make, It is accepted that the very application formed part of the Greenwire Project by the deputy planning officer of the board and if that is correct and it has never been discounted then the entirety of the consideration of the application is fundamentally flawed and indeed the very scheme for which strategic infrastructure status was accorded is contrary to European Community Law on the basis of project splitting. It now appears that the appropriate project is the Greenwire Scheme and what is being intended is that paris of it are now going to be applied for piecemeal because of various political and strategic reasons and already I am aware that a19. number of other applications have been made and are currently before the board for other parts of the Greenwire Project. These include South Meath, North Kildare, North Offaly, PCO186, which is currently awaiting determination and has the same status at present as the overall Greenwire Project. I say that this is the project I believe which was the subject of a clatification by Element where they indicated that the nearest project was that located in this area which was in or about 30 kilometres on the Kells Project. say that this is not a significant distance when one considers that the Kells Windfarm Project extends over 22 kilometres in the three separate clusters and therefore one has three separate clusters extending over 22 kilometres in the Kells Windfarm Project and one then has a similar arrangement stretching over a similar extent in or about 30 kilometres away and that is the essence of the Greenwire Project and which must as a strategic infrastructure development be considered in its totality and I say that it is that contention that is the heart of one of my complaints in respect of the manner in which this application was determined the entire basis of it and I say that it is crucial that the documentation in respect of Greenwire be made available so that [ am in a position to prove definitively the relationship between the two on the documentation that was in fact lodged to An Bord Pleanala and J beg to refer to soreen grabs of the website from both Greenwire and Kells, known as Emala Windfarm which are in essence identical. T say that another concern that I have arising from the Affidavit of Chris Clarke is that it appears that while much of the reports and correspondence hhave been furnished there is a record that Mr Conor Boland a crucial figure in the decision making process has indicated that he has no documentation to produce. I say that the crucial email was directed to Mr Boland and he must at least have a copy of that email which he responded to. I say that there are various references to meetings that were conducted between the various officials of the board and the board members of at least Mr Boland as he central board member in this decision and I say that it is inconceivable that there is not some records retained by Mr Boland of his consideration at this application not least because he ultimately signed the decision and has made various determinations as part of that decision and yet it appears that he does20. 21 not have a single document in his possession and yet he has had extensive interaction with Mr Green, with Ms O’Connor, and with various administrative officials in the board and that is simply incredible that he has no such documentation. T say that certainly there were documents that would have had to be prepared and indeed prepared by Mr Boland and I say that it is important that all of these documents be listed in an Affidavit so that a true picture particularly in the circumstances of this case of the decision making process can be ascertained. I say that I am very familiar with many of the various persons who are members of the various groups that are referred to by Mr Clarke in his ‘Affidavit wherein he refers to certain documentation that was provided by those groups. I say that from my part I was unaware that any such application ‘was made, I was unaware of the documentation which has now been provided other than those which my solicitor exhibited in her Affidavit and which documentation never furnished to me but was furnished to my legal team and not through my efforts but through her own endeavours where she sought to collect any information she could as part of the proceedings which she had recently become involved in and it is clear that the documentation that was obtained was given to a colleague of my solicitor who subsequently furnished that information to her and that is clear from the name and address of the person who sought that information and which was ultimately furnished. I say that it is important therefore that in these proceedings which raise issues which are so fundamental to me, to my family’s health and wellbeing and to the entire environment in which I and my family live that the documentation in which I seek which is in no way onerous ot unreasonable and will put no particular strain on An Bord Pleanala to produce as they have all this information readily available but which to me is erucial because it is critical to the case which I bring. L bog to refer to the Affidavit of Brian Carroll sworn herein on the 28" day of January 2015. T say that Mr Carroll very helpfully sets out answers to a number of issues which do not require any documentation being made available namely that there was no strategic assessment done in respect of a22. 23. 24, number of projects. I say that the only issue that remains outstanding are the Windfarm Guidelines to which the board had regard when they made their decision. I say that the issues in respect of the state can be resolved. in circumstances where it is confirmed similar to the other documents that there was no strategie environmental assessment done in respect of the Windfarm Guidelines. I say that in the event that that is the case as with the other documents then that will deal with all of the issues in respect of the state. I say that insofar as there is a strategie environmental assessment done then I would ask that that document be made available so as to ascertain the extent to which the guidelines reflect the nature and extent of the assessment that was carried out and whether the board properly applied the guidelines in the context of that assessment. In respect of the opposition to our request for discovery from the Notice Parties outlined in the Affidavit of Nicola Dunleavy sworn 22" January 2015, it is notable that itis continually stressed therein that the “Greemwire” project is a separate and unrelated project to the Emlagh Wind Farm. As can be seen from all of the documents prepared by me, the relationship between the Emlagh Wind Farm and Greenwire project is fundamental to these proceedings. The review contained earlier in this replying affidavit of the emails passing between the board members underlines the relationship between both projects and it is significant that the Greenwire project was repeatedly mentioned both by the Board and Element Power during the course of the pre-application consultation process. ‘The relationship between the Greenwire project and this Emlagh Wind Farm is precisely the factual situation which discovery can address and it is respectfully submitted that this dispute is only capable of being resolved by the swearing of an affidavit of discovery by and on behalf of the Notice Parties herein. On 18" November 2014 at the very outsct of this litigation, Kevin O’Donovan Director of Element Power Ireland Limited and of North Meath Windfarm Limited swore an affidavit to ground an application to have these proceedings transferred to the Commercial Court. In that affidavit Mr O’Donovan25. 26. 27. acknowledges at paragraph 14 that Element Power Ircland Limited, the Applicant in the SID process which is impugned in these proceedings, is also “the proponents of an innovative project called Greenwire which consisted of 40 wind farm sites being developed in the midlands of Ireland to export wind ‘generated electricity to the UK.” ‘Mr O'Donovan cites delays in putting in place appropriate policy framework as the reason why Element Power Ireland Limited has decided to proceed with the “three clusters at the North Meath Windfarm site at Emlagh, near Kells, Co, Meath”. ‘That Affidavit seeks to have the proceedings transferred to the Commercial Court on the basis inter alia that: §) The work in relation to the North Meath project has been ongoing since 2012. ii) Significant costs have been incurred in relation to issues such as environmental surveys, design of the wind farm, installation of wind monitoring marked onsite, public engagement and stakeholder consultation and completion of an EIS and compilation of the documentation submitted for permission on 6" October 2014, iii) Significant cost in securing grid capacity. iv) €1 million cost in respect of grid deposit paid to Birgrid. -y) Over €2 million spent by Element/North Meath Windfarm Limited in respect of development costs in relation to the project. It is public knowledge that North Meath Windfarm Limited was registered on 12/2/2014 and it is respectfully submitted that all of these costs referred to in that Affidavit are costs which were incurred by Element Power Ireland Limited in respect of the Greenwire project and not costs incurred by North Meath Windfarm Limited in respect of this proposed wind farm in three clusters. It is illogical to swear an affidavit on 18" November 2014 to ground an application for transfer of proceedings to the Commercial Court citing costs incurred and work carried out since 2012 which can only relate to the Greenwite project and to now contend, when discovery is sought of documentation relating to the Greenwire project that this North Meath Windfarm site is a standalone project separate and distinct from Greenwire.28. 29. 30. 31. Furthermore, at paragraph 21 of the Affidavit of 18" November 2014, Kevin O'Donovan states that an overarching commercial imperative are the qualifying dates to enable the project “to benefit from the refit to (renewable energy feed-in target) scheme.” The Affidavit recites at paragraph 23 and 24 that there are very important commercial considerations for Element Power Ireland Limited and/or that the commercial activities or Element Power Ireland Limited which “will be significantly impacted upon if the within proceedings are not disposed of expeditiously”. Reference is made to the very commercial viability of Element Power Ireland Limited and its wind farm development, It is respectfully submitted that the very scale upon which Element Power Ireland Limited operates including what Kevin O’Donovan refers to in the said Affidavit as the “innovative project called Greenwire which consists of 40 wind farm sites being developed in the midlands of Ireland to export wind generated electricity to the UK” calls into question whether the commercial viability of Hlement Power Ireland Limited could indeed be threatened by proceedings challenging the strategic infrastructural status conferred on this proposed wind farm. It is submitted that that statement could only be true if any decision affecting this proposed wind farm could have an adverse impact on the overall Greenwire project. In the replying affidavit of Nicola Dunleavy dated 22"! January 2015 to this application for discovery, it is averred at paragraph 32 thereof that the landowner/stakeholder agreements are “simply not relevant” to these proceedings. This position cannot be reconciled with what is set out at paragraph 15 of the Affidavit of Kevin O’Donovan dated the 18" November 2014 wherein he cites the ongoing public engagement and stakeholder consultation since 2012, and the significant cost incurred in relation thereto as ‘one of the reasons why these proceedings should be transferred to the Commercial Court. As referred to earlier in this Affidavit, 1 understand and believe that the landowner/stakcholder agrecments relied upon by Element Power Ireland Limited for the proposed development of a wind farm at Emlagh are the Jandholder/stakeholder agreements which were concluded for and on behalf of Greenwire, If that is indeed the case, the contention by Nicola Dunleavy that the Greenwire project and the Emlagh Windfarm development “are separate and distinet projects” is wholly untrue, T know from the Affidavit of Kevin O’Donovan which grounded the application to have these proceedings admitted to the Commercial Court that the Gate 3 grid capacity was obtained when the Greenwire project expericnced delays. It makes little practical difference in fact, and to me the applicant, whether this proposed ‘wind farm is to link with the domestic grid or the export market, All attempts by the Notice Parties fo distance themselves from the Greenlink project make little sense when a perusal of the directorships of theBlement/Greenwire companies demonstrate that three of the four directors of North Meath Windfarm Limited namely Michael Robert ONeill, Tim Cowhig and Kevin O’Donovan all hold directorships in Greenwire Transmission Pembroke Limited (Reg. No. 536954) and Greenwire Transmission Pentir Limited (Reg, No, 536955) which are interconneetor entities and are companies involved in the energy transmission project which proposes connections at Pembroke and Pentir. All four ditectors of North Meath Windfarm Limited which includes Sean Maguire are directors of Element Power Ireland Limited, Element Power Ireland Finance Limited, Greenwire Limited, Greenwire Windfarm Holdings Limited and Greenwire Transmission Holdings Limited ‘The commonality of directorships alone undermines the contention that the wind farm in North Meath is “separate and distinct” from the Greenwite project. 32, The Greenwire website has a telephone number which remains operational for queries involving inter alia Element Power and Greenwire. 33. I say finally it is unprecedented that a prospective applicant steps aside as soon as the decision is made and an entity never heard of previously becomes the applicant and this issue which is an important element in the proceedings refuses clarity as to who is the real applicant in in this case. 34. It is respectfully submitted that the factual issues arising in these proceedings can only be determined by the swearing of an affidavit of discovery listing the documents sought which are both relevant and necessary to the resolution of the issues arising and the preparation of which, is not, it is respectfully submitted, unduly onerous on the notice parties. at Gl SWORN by sa (CALLAGHAN ot =p Facey 2015 1¢ County off A before daths el 2a a Ap andl | know the deponent. [ ng Bicker ber & PRACTISING SOLICITOR Filed by O’Connell & Clarke Solicitors of Suite 142 The Capel Building, Mary’s Abbey, Capel Street, Dublin 7, Solicitors for the Applicant.‘THE BIGHCOURT 2014/6475R, IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED) Between: JOHN CALLAGHAN Applicant -and- AN BORD PLEANALA First Named Respondent -and- IRELAND AND THE ATTORNEY GENERAL, Second Named Respondent ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND AND NORTH MEATH WINDFARM LIMITED Notice Parties AFFIDAVIT OF JOHN LLAGHAN ‘O'Connell & Clarke Solicitors Capel Street Dublin 7“JC 1” Oyul JOHN CALLAGHAN (New Biber boon PRACTISING SOLICITOR2ia2015 Pleandla: POOH: Ofay, Mea, Westmeath, Dublin, Cartow and Wes. () ‘An Bord Pleanala ae yas PC0148: Offaly, Meath, Westmeath, Dublin, Carlow and Wexford. () Kildare County Council Proposed Greenwite Project comprising over 40 wind farms, cable collector system and converter station, and underground cabs to two grid connection points in Wales, Counties Kildare, Laois, Case reference: PLOS .PC0148 Case type: Pre-Application Consultation Status: Consultation has yet to be concluded Parties Element Power Ireland Limited (Prospective App) Kildare County Council (Local Authority) (Active) Laois County Council (Local Authority) (Active) Offaly County Council (Local Authority) (Active) Meath County Council (Local Authority) (Active) ‘Westmeath County Couneil (Local Authority) (Active) Dublin City Council (Local Authority) (Active) South Dublin County Council (Local Authority) (Active) Dun Laoghaire Rathdown County Council (Local Authority) (Active) Fingal County Council (Local Authority) (Active) Carlow County Council (Lacal Authority) (Active) Wextord County Council (Local Authority) (Active) History + 16/07/2012: Lodged +: Consultation bas yet to be conchided hitputawunpleanaaofeasenumiPcot48.nin 1"“jc” JOHN CALLAGHAN YVawy Bri ber heat PRACTISING SOLICITORPage 2 of 3 Greenwire Porver wan iis’ Peau ieg le GREENWIRE WIND ENERGY IN IRELAND. Wind Energy Export Industry ‘The Greenwire projec ean ie a catalyst For economic recovery inthe Irish Midlands by bhornessing a ee and Surplus natural fescurce and establishing a new export industry. ‘Our company, Elesnant Power, plans to develop up la 730 wind turbines across five ‘counties and’ cabling the ‘electrclty to the UK via. underground cables, providing Tavestment, creating substantial jobs and community benefit inthe process. 02/02/2015Page 3 of 3 ik We footie, Too’. Help [signet Stes ~ ) Web ice tay ¥ [{Soretesoen Emlagh Wind Farm | EMLAGH WIND FARM Wind Project Proposal in North Meath 02/02/2015