This is a guest post from Francis Clauson. He has the misfortune of living next door to a multiple wind farms and has many years experience in trying to engage with his local authority to enforce noise conditions related to the wind farm’s planning permission. You can also follow him on twitter @fclauson.
The Planning and Development Act 2000 (PDA), as amended, has a number of options where a member of the public can challenge the implementation of a planning permission without necessarily going through the rigours and vast expense of a court case.
All planning permissions once decided comes with a set of planning conditions which need to be complied with. In the event that any of the conditions are either breached or not complied with then any member of the public can make a complaint to the appropriate local authority who, under Section 152 of the PDA, must, upon consideration, write a “Warning Letter” and follow this up with appropriate investigation to determine if a development is fully complying with the laid down planning conditions. This provides an effective method of engaging with the planning process post determination. Despite my own experiences in this matter where investigations have far exceeded the targeted 12 weeks dead line outlined in the PDA any LA investigation which does not confirm full compliance with a grant of planning and its conditions following a complaint leaves a defect on the planning permission and the associated development until the matter is resolved. This might have financial or re-sale implication for the development and would be something most developers would want to resolve quickly.
Writing a letter to the Local Authority is a simple but effective way of asking the planning authority to pursue the matter of a potential breach on your behalf. Importantly it costs nothing. Obviously vexatious or unsubstantiated complaints will not be tolerated so always stick to facts in your letter and provide as much evidence to back up you argument as possible. A useful guide can be found here (PDF).
A second way of engaging with the planning process is where you believe the planning process has been circumvented. Specifically where a developer believes an aspect of a development is an “exempt development”. In this instance you can ask the Local Authority under Section 5 of the PDA to make a determination if a development is an exempt development or not. Many of the wind farm developments have been built without proper planning for the grid connection. In the O’Grianna case the judge made it clear that the grid connection forms part of the “development” which needs to be subject to the rigours of the EIA process and there for cannot be an exempt development. This is picked up in PDA 2000 Part 1(4)(4)
Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.
Section 5 determinations cost a small fee of €80. A useful guide can be found here and Dublin City Section 5 advice (other councils have similar guides) although most of these are written where developers are seeking confirmation that an exemption applies.
As an example, the Kilvinane Wind Farm Limited development asked Cork CC for a determination over the matter of turbine size/output/location. This was appealed to An Bord Pleanála who determined that such a change in particulars from the original planning application was material and as such the development was a development and it was not exempt. The An Bord Pleanála determination is here.
This determination effectively made the development an unauthorised development but there is a “get out of jail card” following the European Commission v Ireland Case C‑215/06. Using Section 177C of the PDA the developer applied for a Substitute Planning Consent. The first stage is to request permission to apply for substitute planning, to An Bord Pleanála, and the report for this can be found here. What is useful is the inspector’s report (PDF) which laid out how the test for “exceptional” circumstances might be assessed. It’s only in such circumstances that 177C can be called upon. Part X of the planning act which contains 177C was added following CJEU Case C‑215/06.
Kilvinane subsequently applied for substitute consent (here) and the decision is due on 25 February 2016. What is interesting about this case is that the developer made the decision themselves to apply for substitute consent under 177C because, I assume, they did not want a defect left on the development effecting future re-sell/financing matters. It is not clear what would have happened if the developer had not as the wording of 177B has not been tested in court (to my knowledge). It’s my understanding the local authority would have no choice but to pursue under Section 160 of the PDA as an unauthorised development because 177B does not offer a route to enforce a 177B request without a court order to do so.
A note on Section 160 (enforcement):
- the local authority can only pursue a development under this section for the first 7 years following the commencement of the development. Once 7 years is up then the local authority is powerless to take action.
- a member of the public can take a Section 160 at any time but I would suggest you read the Derrybrien Supreme Court judgment to show the level of latitude the court can take in agreeing with a plaintiff.
In terms of Section 5 referrals it’s worth considering and taking a look at 6 wind farm related referrals currently under consideration by An Bord Pleanála:
- http://www.pleanala.ie/casenum/RL3411.htm decision due date 10 February 2016
- http://www.pleanala.ie/casenum/RL3410.htm decision due date 10 February 2016
- http://www.pleanala.ie/casenum/RL3409.htm decision due date 10 February 2016
- http://www.pleanala.ie/casenum/RL3408.htm decision due date 10 February 2016
- http://www.pleanala.ie/casenum/RL3369.htm decision due date 13 January 2016
- http://www.pleanala.ie/casenum/RL3375.htm decision due date not available (deferred)
Investigation by the Commissioner for Energy Regulation (CER)
A separate approach is that any generator who is operating over a grid connection which does not have the benefit of planning would be exposed to investigation by the Commissioner for Energy Regulation (CER) although to date there is little evidence of them taking a rigorous approach to this as they have generally offloaded the onus of invalid or incomplete planning permission to local authorities.
This needs to be addressed as a key tenet of the generation licence is compliance with both European and Irish planning and environmental law. This obligation for the CER to enforce its licence can be found in the Electrical Regulation Act 1999 (as amended) where it sets out clear requirements for the CER, including under Section 9(5):
(g) to grant, monitor the performance of, modify, revoke and enforce licences and authorisations pursuant to this Act,
Members of the public should ensure the use every avenue possible to insist that any development complies with its laid down planning conditions. In summary the options open to make a challenge are:
- Submission at time of planning to local authority;
- Appeals and submissions to An Bord Pleanála;
- Judicial Review where there is a belief An Bord Pleanála have failed to be rigorous in their duties;
- Section 152 complaints to local authorities if any planning conditions are not complied with;
- Section 5 determinations request where parts of development have circumvented EIA processes; and
- Letters to CER asking them to confirm that a generation licence is being complied with.
Last updated: 10 January 2016
We are also aware of the high court cases in relation to the Kilvinane wind farm. In our wind farms in the Irish courts 2015 blog we advise:
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.