Wind farms in the Irish high court

Seeking redress in Ireland’s superior courts is expensive and is in general the last resort for many.   However, 2014 will be seen as a significant year in relation to the number of wind farm cases initiated. For example, if you look to An Bord Pleanála wind turbine planning figures for 2014 – up to 31 October 2014 – a total of 117 wind turbines were granted permission by the planning board, it is therefore notable that a staggering total of 89 turbines (more than 76% of that total) cannot proceed to be built as they are subject to high court judicial review.

In any functional democratic society the issues giving rise to this extraordinary percentage of wind farm related cases would be addressed.  Not only does the number of cases point to a significant lack of public and community acceptance of wind farm planning policy and subsequent approved projects in rural Ireland, it is also a significant cost to the exchequer particularly where An Bord Pleanála either lose the case (as is increasingly common) or they seek to defend their decisions, in relation to environmental assessments, in lengthy high court proceedings.  Furthermore, the developer is generally represented as a notice party to such proceedings and significant costs are also incurred by them from such participation.

Below is a short synopsis of wind farm related cases: (i) awaiting judgment; (ii) awaiting hearing; and (iii) significant judgments delivered in the high court in 2014.  One other point to note is that there are further wind farm related cases which were listed/mentioned in the high court in 2014, which we have no detail on, these are listed at the end of the blog post.  If any readers wish to furnish details for publication this may be facilitated.

Awaiting delivery of judgment

Balz v An Bord Pleanála 2013/450 JR

An indicative date of 19 November 2014 10 December 2014 for delivery of judgment is listed on courts.ie.  This case relates to permission granted by An Bord Pleanála for an 11-turbine Cleanrath wind farm, in Cork, under application reference 240801: Cleanrath North and South, Derrineanig, Macroom, Co. Cork. (11/5245).  The case was heard over 5 days by Mr. Justice Barton.  The Irish Examiner reported on the initial application for leave to seek a judicial review in June 2013.

O’Grianna & ors v An Bord Pleanála 2014/19 JR

An indicative date of 12 December 2014 for delivery of judgment is listed on courts.ie.  This case relates to permission granted by An Bord Pleanála for a 6-turbine wind farm near Ballingeary, Co. Cork, under application reference 242223: Derragh, Rathgaskig and Lack Beg Near, Ballingeary, Co. Cork. (12/05270).  The case was heard over 4 days by Mr. Justice Peart.  The Irish Examiner reported on the initial application to seek judicial review by 12 residents who live and work between 500m and 2km from the proposed wind farm.  This judgment is likely to be significant as An Bord Pleanála, in oral argument, claimed inter alia that in having regard to the 2006 Wind Energy Guidelines they could grant permission for projects which were otherwise than in accordance with the noise limits set in the 2006 guidelines.

Update: Judgment was delivered on 12 December 2014 and permission for the wind farm was quashed, see local media report here.  I shall post a link to the judgment <here>, when available.  The case returns for hearing, in relation to whether or not the planning application can be remitted back to An Bord Pleanála, on 20 February 2015.

Awaiting hearing

Ardragh Wind Farm Limited -v- An Bord Pleanala 2014/518 JR

This case is an appeal by the developer Ardragh Wind Farm Limited against An Bord Pleanála’s refusal of the proposed development of 5-turbines near Bantry, Co. Cork under application reference 240461: Ardrah, Kealkil, Bantry, Co. Cork. (11/318).  The case is listed for mention before the high court on 9 December 2014 13 January 2015.

Campbell -v- Minister for Enviroment, Community & Local Gov 2014/712 JR

This case relates to a challenge taken by Mayor of Donegal, Cllr. John Campbell against a section 31 direction from the Minister for Environment.  The direction sought to overturn variation no. 2 to the Donegal County Development Plan (2012-2018) (as amended).  The variation had set a 10 times setback distance from wind farms to homes and zoned 6 Freshwater Pearl Mussel catchments as unfavoured for wind energy development.  Cllr Campbell also confirmed to Donegal News “that a separate application to have a stay put on the implementation of Minister Kelly’s direction will be heard in the High Court” when the case returns for mention on 13 January 2015.

Connelly -v- An Bord Pleanala & Ors 2014/488 JR

According to the Clare Champion this case is being taken by a representative of the Coore/Shannaway Residents Group against An Bord Pleanála’s grant of permission for a 4-turbine wind farm under application reference 239378: Coor West, Shanavogh East and Shanavogh West, Co. Clare. (11/360).  The case is listed for mention before the high court on 16 December 2014 3 February 2015.

People Over Wind & Anor -v- An Bord Pleanala 2014/487 JR

This case relates to Coillte’s proposed 18-turbine Cullenagh wind farm in Co. Laois and is taken by local groups People Over Wind and Environmental Action Alliance.  An Bord Plenaála reference for the application is – 242626: East of Ballyroan Village/Southwest of Timahoe Village, Co. Laois. (13/268).  The Leinster Express reports on the application for leave to take judicial review proceedings.  The case is listed for 4 days of hearings beginning on 3 March 2015.

Swords -v- Minister for Communications, Energy and Natural Resources & Ors 2013/4122 P

This case is taken by Mr. Swords who is challenging the legality of Ireland’s National Renewable Energy Action Plan (NREAP) which it is claimed was introduced otherwise than in accordance with the requirements of article 7 (public participation) of the Aarhus Convention.  The NREAP is used to underpin REFIT support for wind farm development and planning decisions in relation to wind farm developments.  Mr. Swords is also seeking a declaration from the high court that this funding and related planning permissions for wind farms are unlawful.  The Irish Examiner reported on the case here.  The case is now listed for hearing (of up to 10 days) beginning on 3 March 2015.

Carroll & Ors -v- An Bord Pleanala 2014/475 JR

This case relates to the proposed 29-turbine Yellow River wind farm near Rhode, Co. Offaly.  The case is taken by members of the Rhode Parish Wind Turbine Action Group and Mr. Peter Sweetman.  RTE News also reported on the original application for leave to seek judicial review.  The An Bord Pleanála reference for this strategic infrastructure development application (SID) is – PA0032: Rhode, Co. Offaly. The case is listed for 4 days of hearings beginning on 10 March 2015.

Callaghan -v- An Bord Pleanala & Ors 2014/647 JR

This case relates to a current An Bord Pleanála application by North Meath Wind Farm Ltd in relation to a proposal to have a 46-turbine wind farm declared a strategic infrastructure development (SID).  The An Bord Pleanála reference for the application is PA0038: Co. Meath.  Mr. Callaghan claims that the SID process is fundamentally unfair and prejucdicial as by “bypassing the normal planning process means the developer has plenty of opportunity to meet any concerns of the board while he, a person of limited resources, has just one opportunity to deal with matters within a specified time scale.”  The case is listed for 5 days of hearings beginning on 14 April 2015.  This is a significant case and should Mr. Callaghan be successful the current SID process would require alteration to ensure adequate public participation in line with International law and conventions.

Grace & anor -v- An Bord Pleanala 2014/533 JR

This case relates to ESB Wind Development Ltd and Coillte’s proposed 16-turbine wind farm at Keeper Hill, Co. Tipperary, and is taken by Ms. Edel Grace and Mr. Peter Sweetman.  The Irish Independent reported on the initial application seeking leave to review and highlights the potential impact on hen harrier habitat in the Slieve Felim to Silvermine Mountains Special Protection Area between Limerick and Tipperary.  An Bord Pleanála’s reference for the planning application is 241924: Bunkimalta, Bauraglanna, Lackabrack, Keeper Hill, Co. Tipperary. (13/51/0035).   The case is listed for 7 days of hearings beginning on 14 April 2015.

Buckley & Anor -v- An Bord Pleanala 2014/579 JR

This case relates to Ecopower’s proposed 22-turbine wind farm at Upperchurch, Co. Tipperary.  RTE News reported on the initial application for leave to seek judicial review and highlighted that one of the issues to be considered relates to the withdrawal of consent by Mr. Buckley for his lands to be used as part of the proposed development.  An Bord Pleanála’s reference for the planning application is 243040: Graniera Shevry, Knockcurraghbola Upperchurch, Co. Tipperary. (13/510003).  The case returns for mention, to the high court, on 12 May 2015.

Significant judgments issued in 2014

Two of the most significant judgments issued in 2014 are those of Kelly -v- An Bord Pleanála [2014] IEHC 400, delivered by Mrs. Justice Finlay Geoghegan, on 25 July 2014, and Kelly -v- An Bord Pleanála (no. 2) [2014] IEHC 422, also delivered by Mrs. Justice Finlay Geoghegan on 18 September 2014.  This case related to two wind farms, in Co. Roscommon, proposed by Galetech Energy Developments Ltd which comprised a total of 35 turbines.  The An Bord Pleanála references are:

The judgments quashed An Bord Pleanála’s decisions to grant permission to the two projects and returned them to the Board for reconsideration.  The basis for the decision was due to An Bord Pleanála’s failure to conduct an Appropriate Assessment and its failure to provide adequate reasons for its determination that the wind farms would not adversely affect the integrity of European sites.  The second judgment (no. 2) further confirmed that Mr. Kelly, who is the chairperson of the Wind Turbine Action Group South Roscommon, was entitled to an order to recover costs against An Bord Pleanála, a significant matter given the hearing lasted 6 days.

Two further significant judgments issued in 2014 in relation to the application of costs in wind farm judicial reviews.  In McCallig -v- An Bord Pleanála (no. 2) [2014] IEHC 353, delivered by Mr. Justice Herbert, on 9 April 2014, and McCallig -v- An Bord Pleanála (no. 3) [2014] IEHC 354, on 5 June 2014.  These judgments confirmed that for non environmental elements (planning grounds) of a judicial review that a successful applicant, in this case Ms. McCallig, is entitled to recover costs against An Bord Pleanála (and where appropriate the notice party/wind farm developer).  The wind farm in question was a proposed 35-turbine development near Glenties, Co. Donegal.  An Bord Pleanála reference 237656: Graffy and Meenagrubby,Surrounding Townlands,Glenties,Co. Donegal. (09/30520).

Again these judgments will place a significant cost burden on An Bord Pleanála, as Ms. McCallig’s case was heard over 15 days where she was successful in having the wind farm permission declared void in so far as it affected her property (planning grounds), despite being unsuccessful on a number of environmental grounds.

Further wind farm related cases

Anderson v Finavera Wind Farm and Ors 2013/6852 P, was subject of an order in July.

Kilvinane Wind Farm limited v An Bord Pleanála 2012.129 JR, appears to be on hold awaiting outcome of appeal of Bailey -v- Kilvinane wind farm Ltd [2014] IEHC 509, under supreme court reference 491/13.

Ratheniska Timahoe & Spink [RTS] Substation & Ors -v- An Bord Pleanala 2014/340 JR, was heard in November/December 2014, judgment delivered 14 January 2015 available here.

Shivnen v Enercon and Carrigcannon wind farm 2011/9955 P, wind farm noise case which was subject of discovery motions in 2014.

______________________

Last updated:

21 November 2014 – – (Balz judgment due date amended)

10 December 2014 — (Ardragh mention date updated)

20 December 2014 — (O’Grianna judgment delivered; Connelly mention date updated)

28 December 2014 — (Added Campbell and Callaghan cases, and link to O’Grianna judgment story)

1 February 2015 — (Added links to O’Grianna and Ratheniska judgments)

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About cawtdonegal

Concerned About Wind Turbines (CAWT) - Donegal View all posts by cawtdonegal

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