Following on from the very popular post of last year (see here), we have attempted to draw together details in relation to wind farm related cases in the Irish superior courts during 2015. One notable point is that there have been very few new cases begun in 2015. This is due to the fact that An Bord Pleanála is in a state of near paralysis when it comes to wind farm applications, with very significant delays the norm (in July 446 turbines were awaiting a decision). The table below gives you an idea of the dramatic halt placed on wind farm approvals, in particular the number of wind turbine planning approvals by An Bord Pleanála in 2015:
*the 2015 figures relate to decisions published by An Bord Pleanála at week 51.
In 2014 almost 75% of the 120 turbines granted permission (89) ended up being challenged in the courts. In 2015 just 10 turbines have been granted permission and the only wind farm planning high court case commenced is Sweetman -V- Mayo County Council & PWWP Developments Ltd 2015/359 JR, which deals with the extension of permission granted by Mayo County Council. Nevertheless it is important to recognise that the legal challenges are directly impacting An Bord Pleanála and the legal issues raised have dramatically slowed the wind farm planning process.
Below is a short synopsis of wind farm related cases: (i) awaiting judgment; (ii) awaiting hearing; and (iii) judgments delivered in 2015. There are further wind farm related cases which were listed/mentioned in the courts in 2015, sadly for these we have no detail, these are listed at the end of the blog post. If any readers wish to furnish details for publication this may be facilitated.
People Over Wind & Anor -v- An Bord Pleanala
We understand that People Over Wind have on 22 December 2015 lodged an appeal petition to the Supreme Court following the judgment of the Court of Appeal. Further details on the Court of Appeal and High Court judgments are contained in the judgment delivered in 2015 section below. 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. We have no detail on the point of law questioned and it should also be noted that there is no guarantee that the Supreme Court will accept the appeal and figures for 2015 show that the majority of leave to appeal applications are refused (see also Callaghan below). We have no date for hearing to report.
Court of Appeal
Callaghan -v- An Bord Pleanala & Ors 2015/500-CoA
This case relates to a current An Bord Pleanála application by North Meath Wind Farm Ltd in relation to a proposal develop the Emlagh 46-turbine wind farm. Further details on the High Court judgments are contained in the judgment delivered in 2015 section below. The question certified for appeal:
Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in the light of Sections 50(2) and 143 of the Planning and Development Act 2000 such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to Section 37A of the Planning and Development Act 2000.
In other words: do the public have a right to be heard/participate in SID pre-application consultations? Mr. Callghan had sought to leapfrog the Court of Appeal and to have this question dealt with by the Supreme Court but this was refused on 15 December 2015, Callaghan -v- An Bord Pleanála & ors  IESCDET 60. We have no date for the Court of Appeal hearing to report.
Sweetman -V- Mayo County Council & PWWP Developments Ltd 2015/359 JR
In this case Mr. Peter Sweetman has brought a challenge against Mayo County Council’s decision to extend the duration of planning permission for a 12 turbine wind farm. It is claimed that the council’s decision to extend the planning permission, granted to PWWP Developments Ltd, in respect of a wind farm at Maheramore Co Mayo should be quashed, on grounds including that no proper Environmental Impact Assessment (EIA) or Appropriate Assessment (AA) were carried out in respect of the proposed development when permission was originally sought in 2010. The case returns for mention on 12 January 2016.
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 19 January 2016.
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 to begin hearings before the high court on 19 January 2016.
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. The Donegal News reported on the initial application to take the judicial review here. The case is listed for hearing beginning on 22 January 2016.
Awaiting delivery of judgment
Balz v An Bord Pleanála 2013/450 JR
An indicative date of 12 February 2016 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 during 2014, by Mr. Justice Barton. The Irish Examiner reported on the initial application for leave to seek a judicial review in June 2013.
Swords -v- Minister for Communications, Energy and Natural Resources & Ors 2013/4122 P
This case is taken by Mr. Pat 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 by An Bord Pleanála in justifying many 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. Eva Barret’s article published in the Journal of Energy & Natural Resources Law (Vol.33 Issue 1, 2015) ‘In sowing the wind, how Ireland could reap the whirlwind’ – a case against Irish wind development(s), provides a good overview of the issues raised.
The hearings for this case took place during 2015 but judgment has been deferred on a number of occasions and is now listed for 4 March 2016.
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 was taken by members of the Rhode Parish Wind Turbine Action Group and Mr. Peter Sweetman. RTE News 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 was heard over 4 days of hearings beginning on 10 March 2015. Judgment was reserved and no date is listed for judgment.
Judgments delivered in 2015
Ratheniska Timahoe & Spink [RTS] Substation & Ors -v- An Bord Pleanala 2014/340 JR
This case related to efforts of the small farming community, in Ratheniska, Co. Laois, who were trying to prevent EirGrid, the Irish state owned electricity transmission operator, from constructing a 400/110 kV electrical substation in their area. An Bord Pleanála had granted permission for the project following an oral hearing. The Save Ratheniska blog provides great detail on the planning process.
The case was heard in November/December 2014, and judgment delivered 14 January 2015, see Ratheniska Timahoe & Ors -v- An Bord Pleanála  IEHC 18. The court refused all grounds of appeal, finding no defect in the AA/EIA process. The Leinster Express reported on the shock in the local community when the case was lost (here). There has been much commentary on this decision and the ‘vexed’ issue of costs which An Bord Pleanála legitimately used to their advantage to hold off an appeal, this blog post (link here) gives a decent overview of those issues. We also posted some commentary from Peter Crossan on the judgment here.
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 subsequent planning application is PA0038: Co. Meath. Mr. Callaghan claimed 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 meathwindinfo blog provides links to some affidavits and other particulars in relation to the case.
The first judgment issued in this case refused Mr. Callaghan a protective costs order and also refused discovery of certain documents, see Callaghan -v- An Bord Pleanála & ors  IEHC 235 (delivered 20 February 2015). On the substantive issue, that is the nature of the decision taken by An Bord Pleanála on s37 SID applications, the court refused to accept that the EIA directive was engaged, or that such a decision predetermined planning/EIA matters in a determinative manner, or that the s37 SID process engaged rights to fair procedure, including public participation. The court also refused an application to make a preliminary reference to the Court of Justice of the European Union. Judgment was delivered on 11 June 2015, see Callaghan -v- An Bord Pleanála & ors  IEHC 357.
Mr. Callaghan sought leave to appeal (to the Court of Appeal) and this was granted on 24 July 2015, Callaghan -v- An Bord Pleanála & ors  IEHC 493. The issue of costs for the initial trial was deferred pending the outcome of the appeal, see Callaghan -v- An Bord Pleanála & ors  IEHC 618 (delivered 12 October 2015). Mr. Callghan had sought to leapfrog the Court of Appeal and to have this appeal question dealt with by the Supreme Court but this was refused on 15 December 2015, Callaghan -v- An Bord Pleanála & ors  IESCDET 60. We have no date for the Court of Appeal hearing to report. At the time of writing no decision had been made by An Bord Pleanála on the Emlagh wind farm planning application.
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 Pleanála reference for the application is – 242626: East of Ballyroan Village/Southwest of Timahoe Village, Co. Laois. (13/268). The Leinster Express reported on the application for leave to take judicial review proceedings. On 1 May 2015 the high court refused to quash An Bord Pleanála’s decision to grant permission for the wind farm, see People Over Wind & anor -v- An Bord Pleanála  IEHC 271. There were numerous grounds challenged and the court refused to entertain new grounds raised at hearing. On 11 June 2015, the court refused to amend its decision see, People Over Wind & anor -v- An Bord Pleanála & ors  IEHC 356 and on 19 June 2015 the court certified three questions for appeal to the Court of Appeal, see People Over Wind & anor -v- An Bord Pleanála & ors  IEHC 393.
On appeal the court rejected all points raised in relation to; (i) best scientific knowledge (applicants had argued best scientific evidence); (ii) the Sweetman test with respect to having ‘complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned‘, in this case the Nore Freshwater Pearl Mussel; and (iii) regarding the lawfulness of mitigation through post consent agreement between the developer and named authorities. The appeal court judgment People Over Wind/Environmental Action Alliance Ireland -v- An Bord Pleanála  IECA 272, was delivered 20 November 2015. It is difficult to see this judgment, in particular the post consent mitigation element, surviving a Supreme Court appeal or a CJEU referral. As indicated above an application to appeal to the Supreme Court is lodged and awaits determination.
O’Grianna & ors v An Bord Pleanála 2014/19 JR
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 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.
Judgment was delivered on 12 December 2014, see O Grianna & ors -v- An Bord Pleanála  IEHC 632 and permission for the wind farm was quashed, see local media report here. The case returned for hearing, in relation to whether or not the planning application could be remitted back to An Bord Pleanála. The court permitted the remittal back to An Bord Pleanála in its judgment of 16 April 2015, see O Grianna & ors -v- An Bord Pleanala  IEHC 248. We have blogged extensively on this case. see here, here & here.
O Grianna is a significant milestone in wind farm planning law in Ireland. The reason for the quashing of An Bord Pleanála’s decision was that the planning application and the subsequent Environmental Impact Assessment (EIA) undertaken by An Bord Pleanála related only to the construction of the wind turbines, and did not include the necessary second phase, namely the works necessary to connect the wind farm to the national grid. Therefore an impermissible “project-splitting” had occurred thereby invalidating the decision-making process. The first judgment also confirmed that the 2006 wind energy guidelines, in particular the aspects in relation to noise limits are only guidelines and do not need to be slavishly followed by An Bord Pleanála, nor do the Board even need to give reasons for failing to follow those guidelines (discussed in previous blog post here).
An Bord Pleanála have reactivated the planning appeal in July 2015, see 245082: Derragh, Rathgaskig and Lack Beg Near, Ballingeary, Co. Cork. (12/05270). As with the majority of wind farm appeals with An Bord Pleanála no date for a decision is available at this time.
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 was 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. The appellants sought through the court to further an objection initially raised by the Department of Arts, Heritage and an Gaeltacht (DAHG) but later retracted by them. An Bord Pleanála’s reference for the planning application is 241924: Bunkimalta, Bauraglanna, Lackabrack, Keeper Hill, Co. Tipperary. (13/51/0035). The case was heard over 7 days during April 2015.
Judgment was delivered on 1 October 2015, see Grace & anor -v- An Bord Pleanála & ors  IEHC 593. The court refused the reliefs sought by Ms. Grace and Mr. Sweetman. One important issue addressed by the court deals with the issue of standing (locus standii) to challenge a planning decision of An Bord Pleanála. Neither Ms. Grace nor Mr. Sweetman had participated in the planning process as observers (or appellants to An Bord Pleanála). The court held inter alia due to the lack of participation in the decision process and as they had not shown an impairment of any rights personal to them, it would be manifestly unjust to An Bord Pleanála and the wind farm promoters (ESB and Coillte) to allow Ms. Grace and Mr. Sweetman to stand in the shoes of DAHG and further the Department’s retracted objection.
We understand that there may be a leave to appeal application made in this case, possible return date 19 January 2016.
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 was heard over six days in May 2015.
Mr. Buckley was unsuccessful in his case with judgment delivered on 29 July 2015, see Buckley & anor -v- An Bord Pleanála  IEHC 572. The court refused to accept that the Environmental Impact Assessment or Appropriate Assessment undertaken by An Bord Pleanála were deficient. On the consent issue the court distinguished the case of McCallig v. An Bord Pleanála and Ors  IEHC 60 stating that, the High Court found as a fact that Ms McCallig had not in fact ever granted her consent to the Applicant to make the planning application. In this case, Mr. Buckley clearly granted a consent to the developer to make the initial planning application to Tipperary County Council. However, given the timeline for the case clearly indicated that Mr. Buckley withdrew consent prior to the appeal to An Bord Pleanála, it seems to us the court erred on this point.
Nevertheless, Mr. Buckley sought leave to appeal but legal argument appears to have missed the significance of section 37(1)(b) of the Planning and Development Act that ‘the Board shall determine the application as if it had been made to the Board in the first instance … .‘ While Mr. Buckley may not have quashed the entire permission, if this point had been raised, it is possible he may have won some relief by voiding the application/permission over his lands and may have held off some costs in relation to the case. On 16 September 2015 leave to appeal was refused, see Buckley & Grace -v- An Bord Pleanála  IEHC 590.
Derrybrien Development Society Limited -v- Saorgus Energy Limited & ors
Judgment in this long running s160 planning enforcement case was finally delivered by the Supreme Court on 16 October 2015, see Derrybrien Development Society Limited -v- Saorgus Energy Limited & ors  IESC 77. The case itself dealt with the deforestation of more than 115,000 trees which formed part of the development of a wind farm on the Derrybrien site. In essence, was the deforestation of the lands at Derrybrien an unauthorised development? The appellants were also seeking inter alia an order to restrain, the already completed, deforestation.
Most of you will have heard of the Derrybrien landslide, which began on 16 October 2003 with a massive bog burst/land slide causing significant damage to surrounding areas. The initial slide stopped on 19 October 2003, after travelling two and a half kilometres down stream approximately but on 28 October 2003 following heavy rain the slide continued causing a significant environmental disaster. While there were several contributing factors towards the land slide, a report commissioned by the wind farm company identified that the immediate cause was most probably the ongoing wind farm construction works. It should also be noted that the European Commission took proceedings against Ireland, which resulted in a judgment of the European Court of Justice in Commission v. Ireland Case C- 215/06  E.C.R. 1-4911, which held that the development of the wind farm had not been preceded by an environmental impact assessment as required by the EIA Directive.
The Supreme Court held that despite the planning permissions not covering or extending fully to the deforestation, the forest has been cleared, and the wind farm company has no responsibility for any inadequacy in any planning permissions which might be held to exist if the issue were to be decided on this appeal – the company had acted at all times in the belief that they were in accordance with planning permissions granted by Galway County Council. The court using its discretion refused to allow the appeal while stating:
There is an element of futility in seeking an order to restrain the deforestation, in the circumstances. The Court does not make futile orders.
As pointed out by the excellent Supreme Court of Ireland blogpost in refusing the appeal, ‘the Court affirmed McKechnie J’s High Court decision in Leen v Aer Rianta (here) that “may” in s 160 of the Planning and Development Act 2000 provides a discretion for the courts similar to that held by a court of equity.’
Further wind farm related cases
Anderson v Finavera Wind Farm and Ors 2013/6852 P, (no update).
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  IEHC 509, under supreme court reference 491/13. It appears to us that the wind farm the subject of these proceedings is being considered by An Bord Pleanála under a substitute consent application, see SU0135: Garranure, Kilvinane and Carrigeen, Ballynacarriga, Dunmanway, Co.Cork which is due to be decided before 25 February 2016.
Shivnen v Enercon and Carrigcannon wind farm 2011/9955 P, wind farm noise case we would be grateful for any update on this case.
Last updated: 31 December 2015
We are aware that on such a long blogpost we may have made some errors, or inadvertently omitted a case or certain relevant information. If we have please let us know by emailing: email@example.com or via twitter @CAWT_Donegal.