It has been another interesting year in relation to wind farm planning in Donegal. Just before Christmas the Chairman of Donegal County Council, Cllr. John Campbell , was granted leave by the high court to challenge the section 31 Direction issued by the Minister for the Environment, Labour’s Alan Kelly. This case is just one of 17 wind farm related actions in the high court in 2014. As regular readers of this blog will know the Ministerial Direction sought to reverse variation no.2 of the Donegal County Development Plan which set a ten times maximum tip height setback from wind turbines to homes and zoned 6 Freshwater Pearl Mussel catchment sub-basins as not favoured for wind energy development. See previous posts in relation to the variation and the proposed Ministerial intervention.
Unclear if Direction has “immediate effect” or requires Council approval
The Minister eventually issued the Direction to Donegal County Council on 3 October 2014 <PDF copy here> but this was under subsection 31(11)(a)(ii) of the Act and was done without the appointment of an Inspector as provided for under subsection 31(11)(b). This is significant, if the Minister had appointed an Inspector any subsequent direction issued would have been made under subsection 31(16) of the Act and would have had “immediate effect and its terms are considered incorporated into the [development] plan” (subsection 31(17)). The failure to appoint an Inspector leaves uncertainty as to when, if at all, the County Development Plan has been amended as per the Ministerial Direction. Furthermore, the Direction issued by the Minister failed to set an effective date or a deadline, nor is an effective date or deadline provided for in the Act, within which elected members must comply with such a Direction under subsection 31(11)(a)(ii).
From media reports (as no minutes are yet available) the issue of the Ministerial Direction was not raised at any of the subsequent Donegal County Council meetings before Christmas and no motion was ever put to the elected representatives to adopt the Direction and amend the development plan accordingly. It is important to note that the making and amending of a development plan is a reserved function of the elected representatives. While the elected members may have little choice but to accept such a motion to change the plan, as Directed by the Minister, nevertheless changes to a development must be adopted by resolution of the elected members before taking effect. Any effort by the Council Executive to amend the plan without a resolution of the elected members would appear to be unlawful. Therefore, despite the Direction being issued on 3 October 2014 the variation as passed on 30 June 2014 remains in force.
It is likely that these issues will be brought to the surface as part of Cllr. Campbell’s judicial review of the Ministerial Direction. While Cllr. Campbell has given a few interviews to the Donegal media in relation to the court action, see for example a Highland Radio interview (including audio) and a Donegal News article, little detail in relation to his precise legal arguments are in the public domain. However, Cronan Scanlon in his Donegal News report highlights that “a separate application to have a stay put on the implementation of Minister Kelly’s direction will be heard in the High Court on January 12.” (I presume this should read 13 January 2015 as the case – Campbell -v- Minister for Enviroment, Community & Local Gov 2014/712 JR -is listed for return to the court on that date by courts.ie.) It is likely that the “stay” will crystallise the issue and ensure that the variation, including the setbacks and zoning, as passed on 30 June 2014 remains in force, at least until the substantive issues are decided by the court.
Can the Council grant planning permission in contravention of variation no. 2?
This is more than just an interesting question as at least two applications for permission await a decision before Cllr. Campbell’s “stay” hearing. Given that the Ministerial Direction hasn’t been given effect, through a resolution of the elected members, it seems that should the Council planners be minded to grant permission, without seeking further information, for wind farm applications such as Corvin (DCC: 14/51295) or Clogheravaddy (DCC: 14/51305) that a vote on a material contravention under section 34(6) of the Planning and Development Act would be required. Alternatively an emergency meeting of the Council could be convened to give effect to the Ministerial Direction, albeit for a brief period before Cllr. Campbell’s “stay” is put in place. It seems wind farm planning in Donegal for 2015 will continue to intrigue.