Background: Focused Review – First call for submissions 30 January 2013
On 30 January 2013 the Department for the Environment issued a press advertisement seeking submissions for what they termed “a focussed review of the 2006 wind energy guidelines”. Many local and community groups were hopeful that the review would herald a change in Irish planning regulations which currently see no formal national safe setback distances from wind farms to homes and other amenities. The review also promised the revision of the out-of-date and ineffective noise and shadow flicker rules.
This appeared to be an urgent issue for regulators and the public were given just a little over two weeks until 15 February 2013 to make submissions to the Department in relation to the proposed changes. Despite the tight time-frame over 550 submissions were received from private individuals, the wind industry, professional institutes and local authorities.
Almost ten months later on 11 December 2013 the Department of Environment issued Proposed Revisions to Wind Energy Development Guidelines 2006 and a report from Marshall Day Acoustics who were commissioned by the Sustainable Energy Authority of Ireland (SEAI), to carry out a study on wind farm noise. Yet again written submissions on these proposed revisions to the Guidelines were invited from the public, this time with a closing date of 21 February 2014. A total of 7,497 submissions were received from interested parties, with the overwhelming majority supporting the establishment of mandatory setbacks between wind farms and residential properties. The vast majority of public support was for setbacks of at least ten times the maximum tip height of the wind turbine rather than the ineffective 500m setback as proposed by the Department.
It is important to put the 7,497 wind energy submissions, and the very significant level of public opposition to inappropriate siting of wind farm development, in some context. In May/June 2014, at the height of the medical card debacle which brought about a partial u-turn by the HSE, a public consultation was launched in relation to medical card eligibility (discretionary medical cards) and a total of 3,248 submissions were received. Despite the highly emotive nature of the medical card issue, it must be noted that, the total of submissions was less than half the volume received on the wind farm issue.
It is also worth noting that during 2014 Westmeath County Council received 5,625 public submissions and Donegal County Council received 3,326 public submissions in relation to wind energy planning and zoning in their respective County Development Plans. The scale of public engagement on this issue is very significant and it shows a growing trend against inappropriate wind farm development and the need to set relevant and safe setbacks between wind farms and homes. Despite the large scale public acceptance that wind farm planning needs appropriate setback regulation the Minister for the Environment (and his Department) continue to put the revision of the guidelines on the long finger with an almost weekly we are still working on it response, in what many see as an ongoing sop to the industry.
Are the guidelines worthless in planning terms?
Given the public push and support to have the wind energy guidelines revised it is important to be aware that guidelines are only guidelines. There will be nothing mandatory about any setback distance or noise limit which is set within them.
A recent judgment from the Irish high court confirmed this. The case is O’Grianna & Ors -v- An Bord Pleanála  IEHC 632 and Justice Peart was clear An Bord Pleanála “was entitled to see the [wind energy] Guidelines as just that, i.e. guidelines.” (see paragraph 16). The duty on a planning authority, in this case An Bord Pleanála, is to have regard to section 28 guidelines. The term have regard to has a specific meaning. As the court outlines a planning authority “is entitled to take other matters into account in relation to its consideration of the Guidelines, and how to apply them or not as the case may be, … .” (see paragraph 16)
What will surprise most people is that there is not even a statutory obligation on An Bord Pleanála or a County Council to give reasons for departing from the noise limits contained in the wind energy guidelines. Mr. O’Grianna (and the other members of the impacted community) had argued that where An Bord Pleanála departs from the wind energy guidelines it should be obliged to give its reasons for doing so. The court did not agree.
… the Board is not obliged to slavishly or rigidly follow and apply the Guidelines, and it follows that it may exercise some discretion in relation to the Guidelines. This is consistent with the requirement that regard be had to them. But secondly, there is no statutory obligation on the Board to give reasons for not following a particular guideline even if it was the situation that they had been departed from. Section 28 imposes no requirement to give any such reasons. (see paragraph 19)
What this means in practice is that even if a so called mandatory setback is set in the revised wind energy guidelines, a planning authority such as An Bord Pleanála or a County Council are not obliged to implement that setback nor are they even under a statutory obligation to give reasons why they don’t implement the setback contained in the guideline. Given the constitutional requirements of natural justice it is quite significant that planning permissions can be granted for wind farms which exceed guideline noise limits without the impacted community (or even the wider public) being advised of the reason for such a decision.
How to make setbacks and noise limits more effective
There are at least two further approaches which could be adopted in relation to wind farm planning in order to make setbacks and noise limits more effective (or even mandatory). The Government could legislate for a mandatory setback and noise limits to be enforced. Legislating for setbacks and noise limits offers a simple and clear means to deliver effective protections for residential amenity from wind farm developers and speculators. Sadly, efforts to legislate in this area have to date been thwarted (see previous blog posts).
The other approach is for local authorities to amend their County Development Plans and introduce setbacks and noise limits. While not mandatory, including setback distances and noise limits in a County Development Plan at least means that An Bord Pleanála under the provisions of section 37(2)(c) of the Planning and Development Act would be obliged to indicate the main reasons and considerations for contravening materially the setbacks set in a county development plan.
At County Council level a proposed wind farm development which materially contravenes a development plan can only be granted permission where three quarters of the elected members vote in favour of the development, as provided under section 34(6) of the Planning and Development Act. While not a bullet-proof solution, including such setbacks and noise limits in a County Development Plan at least places some element of local accountability on a planning authority and requires a significant majority of elected representative support before planning can be granted. This would provide a greater level of protection for affected home owners and local communities far above that of merely including such setbacks and noise limits in section 28 wind energy guidelines.
Sadly, efforts to amend County Development Plans to provide for safe setbacks have also fallen foul of the Minister for the Environment, through Ministerial Directions under section 31 of the Planning and Development Act. It is somewhat ironic that part of the rationale given by the Minister in issuing such directions includes a claim that development plans that include setbacks would be inconsistent with the non-mandatory section 28 guidelines. See for example the Ministerial Direction issued to Donegal County Council, which is subject of an ongoing judicial review (case: Campbell -v- Minister for Enviroment, Community & Local Gov 2014/712 JR, which returns for mention on 24 February 2015, blog post here)
Legislation is the only meaningful route to protection of residential amenity
It is clear that if local communities want to protect their residential amenity from inappropriate siting of wind farms the only effective means to do so is to introduce mandatory safe setback distances and noise limits in legislation. Anything less is merely a political sop to the wind industry and does not actually provide an adequate baseline standard of protection for residential amenity which must be followed by planning authorities during the planning process.