Donegal windfarm planning rules closer to realisation

It appears that Variation no.2 to the Donegal County Development Plan 2012-18 (as varied),  which sets zoning and setback rules for windfarms in the county has taken a significant step closer to realisation, following release of an Inspector’s report into the process.  We have blogged extensively on the variation process (see previous blog posts; here, here & here) and the subsequent high court challenge taken by Cllr John Campbell which vindicated the decision of the councils elected members to vary the wind energy elements of the Development Plan.

The Inspector (and author of the report) Mr. van der Kamp was appointed by Minister Coveney on 27 July 2016 after the Irish high court upheld an appeal by Cllr John Campbell, against a decision by the former minister, Alan Kelly, to overrule restrictions placed on windfarm developments by Donegal County Council.  In the high court case the Department had admitted that the section 31 direction issued by Minister Alan Kelly on 3 October 2014 did not set out an adequate statement of reasons, and that the references by the Minister to section 12 of the Planning and Development Act 2000 (as amended) were in error.

As part of the settlement reached in the case, and as ordered by the high court, the current Minister, Simon Coveney, agreed to appoint an inspector to review the process.   The Inspector was tasked, among other things, to write a report reviewing the process, in particular the reasons underlying the issuing of the section 31 direction issued by Minister Alan Kelly  which purported to overturn the decision by Donegal County Council elected members to introduce wind farm planning rules.  In his report the Inspector confirms, despite Minister Kelly’s claims to the contrary, that:

• Donegal County Council did not ignore or take insufficient account of the submissions made by the Minister in May 2014;
• Variation no. 2 did not significantly impact on the internal coherence of the County Development Plan;
• Variation no. 2 did not make the County Development Plan inconsistent with national and regional policies or targets; and
• With respect to the six freshwater pearl mussel catchments – Minister Kelly’s claim that Variation no.2 does not provide proper planning and sustainable development is not capable of objective verification.

The only issue raised by the Inspector in support of Minister Kelly was a Planning Circular PL 20-13, issued in 2013, which advised local authorities not to amend their wind energy policies pending completion of the targeted review of the wind energy guidelines and the renewable energy export policy and development framework.

However, as is well known Planning Circulars, such as PL 20-13, are merely advisory and in this instance the targeted review of the wind energy guidelines, which began in January 2013 remains outstanding and has been stalled by successive Ministers.  Indeed the whole revision process has become something of a running joke with almost 100 answers to Parliamentary Questions (from 2013 to date) stating that publication of the Revised Wind Energy Guidelines is imminent.

Furthermore the renewable energy export policy and development framework was killed off following the collapsed in 2014 of talks with the UK (see RTE and Irish Times), and the development of the export framework was quietly parked.  We are unlikely to see it restarted, any time soon, as even the Department of Communications, Energy and Natural Resources confirmed earlier this year that “any potential delivery of renewable energy export is realistically a post-2020 proposition.”

What to do if you were invited to make a submission on the Inspectors Report

If you have received a copy of the Inspectors report from the Department you should immediately confirm receipt – including the date you received it – to the e-mail provided.  This is important as you will have to respond no later than 10 days from receipt of the report.  In general terms you may comment on any aspect of the report but the key points to highlight are as follow:

1. Welcome the Inspectors report, in particular his findings that:
   • Donegal County Council did not ignore or take insufficient account of the submissions made by the Minister in May 2014;
   • Variation no. 2 did not significantly impact on the internal coherence of the County Development Plan;
   • Variation no. 2 did not make the County Development Plan inconsistent with national and regional policies or targets; and
   • With respect to the six freshwater pearl mussel catchments – Minister Kelly’s claim that Variation no.2 does not provide proper planning and sustainable development is not capable of objective verification.
2. Highlight that planning circulars, in particular PL 20-13, are advisory and this circular was taken into consideration by the elected members in taking their decision to vary the development plan (confirmed by the Inspector as PL 20-13 was referenced in the Ministers May 2014 submission).  You may also wish to raise the points in relation to the stalled guidelines and that the export framework is no longer being developed.
3.  It is important to highlight the significant evidence base in terms of protecting the Fresh Water Pearl Mussel (FWPM).  The six sub basin district’s referred to in variation No.2, were established under the The European Communities Environmental Objectives (Freshwater pearl mussel) Regulations 2009 (in response to a decision of the European Court of Justice against Ireland (Case C-282/02)) with the specific objective of supporting the achievement of favourable conservation status for the habit of the Fresh Water Pearl Mussels.  Ireland is estimated to hold 46% of the remaining Fresh Water Pearl Mussels population in the European union.  The population’s in the six sub basin district’s of Donegal are important not just from a regional and National level, but a European one.  Siltation and sediments entering these habitats related to windfarm development has been identified as pressure sources in the Donegal context (see for example Straboy wind farm appeal which highlighted the issue and the EPA STRIVE Report Management Strategies for the Protection of High Status Water Bodies (2007-2013) highlights the impact of wind farm development on the FWPM on the Oily river.)
4. It should also be noted, in any response, that neither Minister Coveney (nor his predecessor Alan Kelly) have carried out an SEA or AA for any proposed direction, and to amend a Development Plan without carrying out such assessments would be otherwise than in accordance with Irish and EU law.

Next steps

Minister Coveney, under the terms of the settlement with Cllr Campbell,  has until 27 September 2016 to issue his conclusion on the process.  However given the direct and strong position taken by Mr. van der Kamp in his report it is highly unlikely that the Minister will attempt to again overturn variation no.2 and issue a fresh section 31 direction.