It wasn’t just the Trump staff writers who employed ‘copy and paste’ these last few weeks it seems Sinn Féin have dusted down their Wind Turbine Regulation Bill 2014 and reintroduced it (subject to one additional section, which we shall discuss below) as the Wind Turbine Regulation Bill 2016. This is in line with Motion 32 passed at the 2016 Ard Fheis, which seeks to “immediately implement legislation which would seek to impose strict setback distances on wind turbine developments.”
The 2016 version was introduced to the Dáil on 20 July 2016 by Brian Stanley TD who stated that:
This Bill seeks to introduce practical regulations that can be implemented so that wind farms are located in the right places. The regulations would allow for sensible development and the protection of our landscape and rural dwellers.
The location of wind farms is dealt with. The set back distance will be ten times the height of the wind turbine to the tip of the blade. Noise levels would have to be within WHO limits and shadow flicker from a propeller would not be permitted to pass over a house.
Sinn Féin are not the first legislators to tackle the growing disquiet and community disharmony with wind farm planning in Ireland. In 2012 Labour Senator John Kelly introduced a Private Members Bill in the Seanad. The Wind Turbines Bill 2012 stalled in the Seanad without any government support. This was followed by another Private Members Bill this time introduced by Labour TD Willie Penrose, in the Dáil. The Environment and Public Health (Wind Turbines) Bill 2012 mirrored the set back distances proposed by Senator Kelly and made a few token references to the Aarhus Convention and the duty of developers to engage in public consultation, with meaningful public participation, in relation to wind farm planning applications. A further three copies of the Penrose Bill were introduced in 2013 by TDs:Luke ‘Ming’ Flanagan, Mick Wallace and Clare Daly. All of the Bills along with the Sinn Féin Wind Turbine Regulation Bill 2014 fell with the dissolution of the previous Dáil.
Analysis of the Bill
As most elements of the 2016 Bill mirror those of the 2014 Bill we have copied those elements of our 2014 blog post below for your information:
Location of turbines
The Bill, at section 3, proposes that locations for the development of wind farms must be designated in County Development Plans (CDPs). Such designation must only be done with the approval of the elected members of the local authority. Therefore applicants for permission will be statute barred from applying for planning permission in areas not designated for wind developmentin a CDP. Set back distances are established, in section 6, on a proportional basis, with all turbines greater than 25 metres in height required to be located no less than ten times the maximum tip height of the turbine away from any dwelling. No consent clause, to allow for closer siting, is provided for in the Bill. Such deals would be clearly unlawful under section 8 of the Bill as would any similar contract with any person living within 3km, defined as the ‘host community’ of a wind farm.
Set back to apply to existing wind farms
Furthermore and most significantly, the Bill as currently drafted, will require existing wind farms to comply with these set back distances. Section 7 provides that wind farm operators have one year from the enactment of the Bill to ensure compliance with the set back distances. A further requirement in the Bill means that wind farm operators must notify residents within the set back zone and the relevant planning authority of their plans in relation to compliance with the set backs. Compliance with the set back distances is also a matter which the Minister may consider when exercising functions in relation grant aid or financial assistance to wind farms including under the REFIT scheme. Therefore failure to comply and remove turbines within the ten times set back zone may lead to a loss of REFIT assistance. Failure to comply may also lead to further penalties under section 8 however these are not yet defined.
Noise and shadow flicker
The provisions relating to noise and shadow flicker (section 5) are relatively clear and require that all future applicants for permission and existing operators shall ensure:
(a) that the noise from the wind turbine does not exceed the noise limits specified in the World Health Organisation Guidelines for Community Noise (1999), or any preceding or replacement guidelines, and
(b) that the distance of the wind turbine is such that any shadow flicker from the turbine does not pass over the dwelling.
The compliance penalties of section 8 also apply to operators who do not adhere to the noise and shadow flicker requirements. Again, these provision will relate to all existing wind farms, however no transitional procedures for existing wind farm operators are detailed in the Bill in relation to noise and shadow flicker. Therefore no timeline for compliance is defined and it must be presumed to be effective from the date of enactment.
A further section to be noted relates to the issue of public consultation in relation to wind farm planning applications. Section 4 includes a few novel provisions in relation to the format of such consultation. The standard newspaper notice for a planning application will now be required to include a copy of an ordinance survey map marked with the exact location of each proposed wind turbine. In addition applicants for wind farm planning permission will be required to have notices broadcast on a local radio station broadcasting in the area of the proposed development to the effect that the developer is arranging a public meeting to be held at a named convenient time and in a named convenient location near to the proposed development, at which the public may submit, in writing or verbally any comments, information, analyses or opinions that they consider to be relevant to the proposed development. A report from this public meeting must then be submitted, by the developer, to the local planning authority or An Bord Pleanála, as appropriate, as part of the planning process. The meeting report must be part of the public file.
Health impact assessment
A final point to be noted is contained in Section 4 which details a range of information which must be included in any wind farm planning application. Subsection 4(b)(ii) requires that a formal assessment in writing and a non-technical outline of the ‘potential impacts of the proposed [wind farm] construction on the physical and mental health of the host community’, that is anyone living within 3km of the proposed development, must be lodged with the local authority and public library in relation to the proposed wind farm. The issue of health impact assessments is not novel and is required under the EIA Directive, however as pointed out by An Bord Pleanála’s senior inspector in his report (pages 46-48) on the Straboy wind farm oral hearing guidance is required in order to undertake such a health impact assessment. A general review of wind farm planning applications indicates that it is rare, if ever, that a meaningful health impact assessment is undertaken in Ireland. The Sinn Féin Bill does not provide guidance in relation to such an assessment but at least it does make a health impact assessment mandatory for all new developments.
Co-Ownership for Local Communities
The only change from the 2014 Bill is in relation to a new section 12 on Co-Ownership for Local Communities. Sinn Féin like all other political parties have bought into the community acceptance model of planning and therefore see co-ownership of the wind farm as a solution. Section 12 of the Bill provides that Wind Farm Developers must offer for sale to local residents, initially within 4km of a development, up to a 20% stake in the project. If the full 20% not taken up within 12 months the wind farm developer must extend the offer to those living within 10km of the development for a further period of 6 months.
What is missing however is the Community Co-Operative element which Sinn Féin adopted motion 174 at their 2015 Ard Fheis and which provided that:
… this Ard Fheis calls for the granting of planning permission to an applicant for the development of Renewable Energy Generation of 1MW or above to be conditional upon the applicant entering into an agreement with the local authority to allocate 6.25% of company shares in the said development for the direct funding of community facilities in the vicinity of the development and for the co-operative ownership by the local community of a life interest in the development, that being the 6.25% of shares.
This 6.25% will be the minimum life interest the community co-operative can have in said development. The allocation of said shares and any funds earned from such shares are to be held in trust by the local authority until a community co-operative can be formed for the local area. The community co-operative shall then allocate earnings from said shares to community projects and organisations in the immediate area.
Sinn Féin have clearly ditched their 2015 Ard Fheis motion, which forced free from compensation to the developer 6.25% ownership of the development into host community hands in favour of a forced shared investment offering model of up to 20% (developer gets paid for these shares). It seems that the wind lobby have successfully overturned Sinn Féin policy adopted at an Ard Fheis.
The 2016 Bill is likely to remain in the legislative queue and shall not be passed in current Dáil. It seems local communities threatened by wind farm developments must rely on the long awaited wind energy guidelines to provide some protection; the revision of the Guidelines began in January 2013 and remains incomplete with Minister Denis Naughten the latest to stone wall when questioned when they’ll be published.
Legislating for safe setbacks remains the only lasting solution to the problem facing local communities when faced by big wind.