Wind farm appeals being deferred
Those of you who follow the twitter account related to this blog will be aware of the increasing number of wind farm planning appeals and cases which are being deferred by An Bord Pleanála. It appeared to us that the number of wind farm decisions of scale – in particular decisions to grant permission – issued by An Bord Pleanála in 2015 has slowed dramatically. It seems we are not alone with this view and today’s Sunday Times also reports that Environment Minister Alan Kelly has ordered a review of An Bord Pleanála in the wake of delays and increasing cost of litigation. It is our view that failings in Irish wind farm planning is the key driver of these delays and the related costly litigation.
Analysis of An Bord Pleanála decisions seems to bear this out: up to the end of week 29 (17 July 2015) An Bord Pleanála had granted permission for just 4 turbines, refused 68 turbines and the ESB withdrew an appeal in relation to 18 turbines. For comparison in 2014 An Bord Pleanála granted permission for 120 turbines, refused 76 turbines with 5 withdrawn by the developer. It should also be noted that of the 120 turbines granted permission by An Bord Pleanála in 2014, 89 turbines are stalled due to legal action (judicial review or appeal) against An Bord Pleanála.
How many turbines await a planning decision?
From our analysis, as at 22 July 2015, at least a total of 446 turbines are awaiting a planning decision – i.e. to either grant or refuse – from An Bord Pleanála. For this analysis we have excluded four section 37 pre-application consultations which are underway in relation to wind farms (see Table 2 below). Table 1 at the end of this blog post gives the detail on the 25 appeals/Strategic Infrastructure Development (SID) applications which An Bord Pleanála hold as currently open.
Of those awaiting a decision only 120 turbines are still within the initial target set by An Board Pleanála to make a decision. The balance 326 turbines have had their decisions deferred or delayed at least once. An aged analysis, by date appeal/application first lodged with An Bord Pleanála, highlights the extent of some of the delays:
- 2015 – 127 turbines
- 2014 – 151 turbines
- 2013 – 126 turbines
- 2012 – 19 turbines
- 2011 – 16 turbines
Why are An Bord Pleanála stalling?
It seems pretty clear that legal action, in particular the judgment in O’Grianna v An Bord Pleanála (and remittal) and the subsequent leave to appeal granted in People over wind v An Bord Pleanála have resulted in An Bord Pleanála being unable to make lawful decisions to grant permissions on wind farm appeals and SID cases.
Also of significance is the high court decision in Kelly v An Bord Pleanála (and remittal) which led to the quashing an reactivation of the two Roscommon appeals which were originally lodged in October 2011 and September 2012. The Derragh wind farm in Cork, appeal lodged in July 2013, is the wind farm associated with the O’Grianna case and was reactivated earlier this month. Last weeks decision by the Irish high court to grant Mr. Callaghan leave to appeal his case against An Bord Pleanála in relation to Emlagh wind farm is also likely to ensure that no decision can be reached on that application until the court proceedings are concluded.
Other local issues such as the legal uncertainty in relation to the Donegal County Development Plan wind farm zoning arising from the delayed Campbell -v- Minister for Enviroment, Community & Local Gov 2014/712 JR case are also contributing to An Bord Pleanála delaying decisions on applications/appeals relating to Donegal.
The proposed review
According to the Sunday Times article Minister Kelly has invited a panel of experts to advise how to increase the output of An Bord Pleanála. Among those invited onto this group are Gregory Jones QC, a UK planning lawyer, Dr. Aine Ryall from The School of Law at UCC, former Kildare County Manager Michael Malone and Mary Hughes IPI President. While it is of course welcome that An Bord Pleanála is being reviewed, it is disconcerting that Minister Kelly, who has delayed the introduction of revised wind farm planning guidelines and who has repeatedly overruled local authorities on wind farm zoning and setback distances from homes seems (using section 31 directions), continues to think that the planning delays are the fault of the planning board and not his government’s flawed wind energy policies.
Nevertheless is it to be hoped that given her strong advocacy of open access to environmental justice the inclusion of Dr. Ryall on the review group should ensure that the review will be an open process and will ultimately result in a more transparent and accessible planning appeals process for Ireland.
No country for wind farmers
What has also become apparent is that wind farmers who only a few years ago were able to process planning applications and appeals with relative ease are now faced with organised local opposition groups who have through targeted legal action thrown the entire planning process into disarray for the wind sector. Ireland it seems is no longer a free and easy country for the subsidy hungry wind farmers. Ignoring the local communities who are forced to bear the imposition of wind farms upon them, at the bidding of the Irish Wind Energy Association, or merely pejoratively labeling us as NIMBY’s is coming back to haunt the policy makers, An Bord Pleanála and the wind energy speculators.
Table 1: Open wind farm Appeals/SID Applications
|244346: Cronin, Gortaphuill, Mullaghardagh, Dysart, Co. Roscommon. (10/541)||Roscommon||16||28 October 2011|
|244347: Milltown, Skeavally, Tawnnagh, Tobermacloughlin, Co. Roscommon. (11/273)||Roscommon||19||10 September 2012|
|PA0029: Oweninney windfarm – Co. Mayo – SID||Mayo||120||04 July 2013|
|245082: Derragh, Rathgaskig and Lack Beg Near, Ballingeary, Co. Cork. (12/05270)||Cork||6||12 July 2013|
|243094: Cnoc Raithni, (Knockranny), Co. Galway (13/829)||Galway||11||10 March 2014|
|243486: Dunmanway, Co. Cork. (13/00551) – Shehy More windfarm||Cork||12||13 June 2014|
|243611: Knockduff and Inchivara, Milestone, Co. Tipperary. (14/10)||Tipperary||2||17 July 2014|
|PA0036: |Adderro WindFarm – Galway SID||Galway||29||16 September 2014|
|PA0038: Emlagh windfarm Co. Meath – SID||Meath||46||06 October 2014|
|244006: Knocknaglogh Lower, Barranastook Upper, Dungarvan, Co. Waterford. (14/600109)||Waterford||12||20 October 2014|
|244033: Ballykinava/Cullmore, Claremorris, Co. Mayo. (P13/617)||Mayo||7||29 October 2014|
|244034: Cloontooa/Caraun, Carrowreagh, Claremorris, Co. Mayo. (P13/633)||Mayo||6||29 October 2014|
|244053: Kilcamin, Crancreagh and Derrinlough, Cloghan, Co. Offaly (14/188)||Offaly||9||31 October 2014|
|244055: Magheramore/Cregganbrack, Bekan, Claremorris, Co. Mayo. (13/631)||Mayo||7||03 November 2014|
|244066: Ballyhorgan South and East, Irramore, Lissahane, Muckenagh Co. Kerry (14/13)||Kerry||10||04 November 2014|
|244095: Boolynagleragh-Boolybrien, Knockatunna and Rathcroney, Co. Clare. (13/681)||Clare||7||06 November 2014|
|244417: Clogheravaddy, Meenagranoge and Meenacahan, Donegal PO, Co.Donegal (14/51305)||Donegal||7||03 February 2015|
|PA0040: Carrickaduff WindFarm SID||Donegal||49||03 February 2015|
|244723: Loughbrattoge, Doocharn and Tullynageer, Co. Monaghan. (14/46)||Monaghan||09 April 2015|
|PA0041: Maighne WindFarm Co. Kildare and Co. Meath SID||Kildare||47||09 April 2015|
|244741: Castlepook North, Carker North, Ballyhoura, Co. Cork. (14/06379)||Cork||10 April 2015|
|244753: Co. Donegal. (15/50117) – Corvin Windfarm||Donegal||1||20 April 2015|
|244903: Pollaghoole, Ballaghanoher, Ross, Clondallow, Co. Offaly. (15/44)||Offaly||5||18 May 2015|
|244918: Altnagapple, Meentanadea and Mulmosog, Co. Donegal. (15/50265)||Donegal||13||25 May 2015|
|245108: Derrykillew, Ballyshannon, Donegal PO, Co. Donegal. (14/51400)||Donegal||5||07 July 2015|
Table 2: List of s37 pre-application consultations
|PC0117: at Mastergeehy, Waterville, Co. Kerry||Kerry||48||12 April 2011|
|PC0122: at Naul, Fingal, Co. Dublin||Fingal Council||30-38||06 July 2011|
|PC0148: Offaly, Meath, Westmeath, Dublin, Carlow and Wexford||40windfarms||16 July 2012|
|PC0199: Co. Tipperary- ESB increase in size of cappagh white windfarm||Tipperary||12 June 2015|