A Bill to regulate the development of wind turbines in Ireland will be initiated in Dáil Éireann by Sinn Féin TD Michael Colreavy tomorrow 13 March 2014. The Wind Turbine Regulation Bill 2014 is the first legislative foray by the party south of the border on the vexed issue of wind farm planning. Despite the title and associated pre-election PR, issued by the party, Sinn Féin are at pains to point out that the Bill does not mean that they are opposed to wind farms. They claim the Bill merely proposes to restrict the development of industrial wind farms which, if allowed to progress under the existing guidelines, will blight the countryside and divide communities for years to come. Nevertheless if the Bill as proposed were to be passed into law it would have significant impacts on the wind industry in Ireland.
Previous wind turbines legislation
It is important to map out some of the legislative context for this Bill. This is not the first legislative effort to tackle the growing disquiet and community disharmony with wind farm planning in Ireland. In 2012 Labour Senator John Kelly introduced a Private Members Bill in the Seanad. The Wind Turbines Bill 2012 stalled in the Seanad without any government support. This was followed by another Private Members Bill this time introduced by Labour TD Willie Penrose, in the Dáil. The Environment and Public Health (Wind Turbines) Bill 2012 mirrored the set back distances proposed by Senator Kelly and made a few token references to the Aarhus Convention and the duty of developers to engage in public consultation, with meaningful public participation, in relation to wind farm planning applications.
A further three copies of the Penrose Bill were introduced in 2013 by TDs: Luke ‘Ming’ Flanagan, Mick Wallace and Clare Daly. The three TDs later explained that the purpose of initiating the three Bills concurrently was to have them included in the Friday lottery for Private Member’s Bills which may, if drawn, then be debated in the House. Each of the Bills, primarily seeks to set a minimum distance between wind turbines and residential premises. The formula for the so called ‘set back’ would be as follows:
If the height of the wind turbine generator is: (a) greater than 25 metres, but does not exceed 50 metres, the minimum distance requirement is 500 metres; (b) greater than 50 metres, but does not exceed 100 metres, the minimum distance requirement is 1,000 metres; (c) greater than 100 metres, but does not exceed 150 metres, the minimum distance requirement is 1,500 metres; (d) greater than 150 metres, the minimum distance requirement is 2,000 metres.
If passed into law a local authority or An Bord Pleanála could not grant permission for a wind farm unless the set back distances were complied with. The Bills would have no impact on existing wind farms.
The Sinn Fein Bill 2014
The proposed Wind Turbine Regulation Bill 2014 seems to be a direct reaction to the proposed large-scale export projects in the midlands and an effort to set minimum statutory set back distances from turbines to ‘dwellings’. With respect to the export of electricity generated from wind, section 2 of the Bill proposes to prevent such export until Ireland is ‘deemed’ inter alia to be ‘self-sufficient in the generation and consumption of electrical power.’ Self-sufficient is loosely defined as meaning that the level of electrical power generated from renewable sources (including wind) is deemed, by the Minister for the Environment, as sufficient to meet demand. There are many interesting issues which could be explored in relation to this proposal and wording however it seems Sinn Féin are determined that no wind shall be exported until domestic demand is first satisfied and subsequently only excess supply, defined as ‘excess product’ in section 2, can then be exported.
Location of turbines
The Bill, at section 3, proposes that locations for the development of wind farms must be designated in County Development Plans (CDPs). Such designation must only be done with the approval of the elected members of the local authority. Therefore applicants for permission will be statute barred from applying for planning permission in areas not designated for wind developmentin a CDP. Set back distances are established, in section 6, on a proportional basis, with all turbines greater than 25 metres in height required to be located no less than ten times the maximum tip height of the turbine away from any dwelling. No consent clause, to allow for closer siting, is provided for in the Bill. Such deals would be clearly unlawful under section 8 of the Bill as would any similar contract with any person living within 3km, defined as the ‘host community’ of a wind farm.
Set back to apply to existing wind farms
Furthermore and most significantly, the Bill as currently drafted, will require existing wind farms to comply with these set back distances. Section 7 provides that wind farm operators have one year from the enactment of the Bill to ensure compliance with the set back distances. A further requirement in the Bill means that wind farm operators must notify residents within the set back zone and the relevant planning authority of their plans in relation to compliance with the set backs. Compliance with the set back distances is also a matter which the Minister may consider when exercising functions in relation grant aid or financial assistance to wind farms including under the REFIT scheme. Therefore failure to comply and remove turbines within the ten times set back zone may lead to a loss of REFIT assistance. Failure to comply may also lead to further penalties under section 8 however these are not yet defined.
Noise and shadow flicker
The provisions relating to noise and shadow flicker (section 5) are relatively clear and require that all future applicants for permission and existing operators shall ensure:
(a) that the noise from the wind turbine does not exceed the noise limits specified in the World Health Organisation Guidelines for Community Noise (1999), or any preceding or replacement guidelines, and
(b) that the distance of the wind turbine is such that any shadow flicker from the turbine does not pass over the dwelling.
The compliance penalties of section 8 also apply to operators who do not adhere to the noise and shadow flicker requirements. Again, these provision will relate to all existing wind farms, however no transitional procedures for existing wind farm operators are detailed in the Bill in relation to noise and shadow flicker. Therefore no timeline for compliance is defined and it must be presumed to be effective from the date of enactment.
A further section to be noted relates to the issue of public consultation in relation to wind farm planning applications. Section 4 includes a few novel provisions in relation to the format of such consultation. The standard newspaper notice for a planning application will now be required to include a copy of an ordinance survey map marked with the exact location of each proposed wind turbine. In addition applicants for wind farm planning permission will be required to have notices broadcast on a local radio station broadcasting in the area of the proposed development to the effect that the developer is arranging a public meeting to be held at a named convenient time and in a named convenient location near to the proposed development, at which the public may submit, in writing or verbally any comments, information, analyses or opinions that they consider to be relevant to the proposed development. A report from this public meeting must then be submitted, by the developer, to the local planning authority or An Bord Pleanála, as appropriate, as part of the planning process. The meeting report must be part of the public file.
Health impact assessment
A final point to be noted is contained in Section 4 which details a range of information which must be included in any wind farm planning application. Subsection 4(b)(ii) requires that a formal assessment in writing and a non-technical outline of the ‘potential impacts of the proposed [wind farm] construction on the physical and mental health of the host community’, that is anyone living within 3km of the proposed development, must be lodged with the local authority and public library in relation to the proposed wind farm. The issue of health impact assessments is not novel and is required under the EIA Directive, however as pointed out by An Bord Pleanála’s senior inspector in his report (pages 46-48) on the Straboy wind farm oral hearing guidance is required in order to undertake such a health impact assessment. A general review of wind farm planning applications indicates that it is rare, if ever, that a meaningful health impact assessment is undertaken in Ireland. The Sinn Féin Bill does not provide guidance in relation to such an assessment but at least it does make a health impact assessment mandatory for all new developments.
It is of course unlikely that the Government parties will adopt the proposed Bill. Therefore many of the proposals will remain just that, mere proposals. Sinn Féin know this all too well and the Bill will be employed as an important tool in their Local and European Election campaigns, especially in unfortunate communities who are currently targeted for wind farm development. Nevertheless the ten times maximum tip height set back has gained almost universal acceptance by local community groups who wish to see development regulated and it is good to see it now being adopted by the political parties.
Minister O’Sullivan’s targeted review of the wind energy guidelines to which more than 7,000 submissions were made is due to conclude in June 2014, with the new revised guidelines to be issued then. The Department are, for now, stubbornly sticking to a 500m set back distance from homes to turbines. How this issue plays out on the door steps and the ballot boxes in the May elections is likely to have a more significant impact on the revised set back to be included in the guidelines than any private members or opposition party Bill.
Therefore, don’t be afraid to use your Local and European Election votes wisely in May as it will impact on the future of wind farm planning in Ireland!