Details are beginning to emerge of the settlement reached by Cllr. John Campbell and the Department in relation to the quashing of the s31 Ministerial Direction issued by Minister Alan Kelly in October 2014 (see previous blog posts; here, here & here). We understand the high court has approved and issued a number of orders including:
An order of certiorari quashing the County Donegal Development Plan 2012 – 2018 Directive 2014 (“the direction”) of 3 October 2014 issued pursuant to section 31 of the Planning and Development Act 2000 (as amended) on the ground pleaded at (e) 5 of the statement of grounds of December 2014, namely that the respondent erred in failing to provide adequate reasons in the final direction of the 3rd October 2014 which would provide interested members of the public with a sufficient justification for the decision and determination.
An order pursuant to Order 84, rule 27(4) of the Rules of the Superior Courts remitting the matter to the Minister with a direction to reconsider it and to reach a decision in accordance with the findings of the High Court.
An order directing the Minister to pay the applicant’s legal costs of the judicial review proceedings, such costs to be taxed in default of agreement.
Cllr. Campbell and the Department have also agreed that, following the quashing of the s31 direction, it is appropriate that the matter should be remitted to the Minister to the stage of the statutory process where the Minister is entitled to appoint an inspector pursuant to section 31(11) of the Planning and Development Act 2000 (as amended). Under the terms of the settlement the Minister has until 31 July 2016 to appoint an Inspector. Failure to do so by that date means the Department can no longer prevent Variation no.2 of the County Development Plan as passed by the elected members being enforced. As a reminder the primary elements of the variation as passed see:
- the designation of Areas of Fresh Water Pearl Mussel (FWPM) including the catchments identified in the Sub-Basin Management Plans for Clady Eske, Glaskeelin, Leannan, Owencarrow and Owenea (as listed in S.I. 296 of 2009) as not favoured for wind farm development;
- the inclusion of an objective to ensure that wind energy developments do not adversely impact upon the existing residential amenities of residential properties, and other centres of human habitation (*‘Centre of Human Habitation’ includes schools, hospitals, churches, residential buildings or buildings used for public assembly’); and
- the establishment of a set back distance of ten times the tip height of proposed turbines from residential properties and other centres of human habitation.
Congratulations to Cllr. Campbell: who originally introduced the Variaiton no.2; who during his time as Cathaoirleach shepherded it through the Council chamber; and despite the risk of significant costs stuck to his principles in taking the case to the high court to uphold the democratic decision taken by our elected County Councillors.
The issue now returns to the Minister’s desk for review and there is in our eyes little basis to justify the appointment of an inspector following this court reversal. However given that successive planning (environment) ministers appear to be in the pocket of the wind industry it is always possible that Minister Coveney (like his predecessor Alan Kelly) may bend with the wind!