Category Archives: An Bord Pleanála

Donegal wind farm planning details in 2016

ballyshannon-windfarm-and-house2

For the second year in a row the number of wind turbines granted permission in county Donegal (24) was lower than the number refused (52).  This is a continuation of a significant trend for such decisions; with the total number of turbines refused permission in 2016 (52) being just one more than the combined total (51) of refusals for the two prior years 2014 and 2015.

Wind turbine permissions for Donegal, per year

Decision/Year

2012 2013 2014 2015 2016

Granted

87 67 94 11

24

Refused

5 7 19 32

52

Withdrawn   1 4

 

Detail in relation to wind farm and ancillary development decisions

There were a total of 31 planning determinations, dealing with wind farms and ancillary developments in Donegal concluded during 2016.  Of these applications six were deemed invalid by Donegal County Council.  A total of seven applications were granted for turbines, totalling 24 turbines, and three applications were refused for a total of 52 turbines.  Of the permissions granted two were extensions of duration.

Three windmasts were granted permission (two being retentions).  One section 5 referral and one pre-application consultation were also determined by to An Bord Pleanála during the year.  Further applications determined and granted related to grid connections, substations and amendments to hardstands.  These decisions are most troubling as they clearly demonstrate the prior wind farm permissions and the necessary assessments were significantly flawed by either failing to include or minimising significant elements from the original applications.  Such project splitting and the unwillingness of An Bord Pleanála to adequately reassess applications under Environmental Impact Assessment laws are a growing concern.

One further point to note is that the continued uncertainty in Donegal in relation to the Wind Energy elements of the County Development Plan, in particular the ongoing court action being take by Cllr. John Campbell is adding to growing community and industry anxiety over wind farm planning in the County; with the issue of zoning and safe setbacks from homes to wind farms remaining in legal and planning limbo.

Note: current live applications for wind farms and ancillary developments in Donegal can be found here, and a link to the wind turbine planning permissions for Donegal in 2014, 2015 are here and here.

The featured image was taken by Matt Britton at a wind farm near Ballyshannon, Co. Donegal – see @britpix on twitter.

Table of wind farm and ancillary development decisions in Donegal 2016

Name

Location Turbines Reference no. Type of App. Status

Decision Date

Carrickaduff Windfarm

Planree Ltd

Between Barnes and Killygordon 49

ABP: PA0040

Full PP REFUSED

25 March 2016

Clogheravaddy Wind Farm Ltd

Frosses 7

DCC: 14/51305

ABP: PL05E.244417

Full PP GRANTED

19 February 2016

Clogheravaddy wind Ltd

Binbane Grid Connection

DCC: 16/50440

Full PP INVALID

6 April 2016

Clogheravaddy wind Ltd

Binbane Grid Connection

DCC: 16/50473

ABP: PL05 .246851

Full PP DCC: Refused

ABP: GRANTED

DCC: 8 June 2016

ABP: 24 Nov 2016

Connective Energy Holdings Ltd

Meenagrauv

Ballybofey

1

DCC: 15/51071

Full PP GRANTED

15 May 2016

Corvin Wind Ltd

Bauville, Inishowen Substation

DCC: 16/51540

Full PP GRANTED

1 December 2016

Cufgaze Limited

Drumnahough and Lenalea Wind Farms to Clogher Substation Substation

&

Grid Connection

ABP: VC0097

Pre-App consultation Is not strategic infrastructure

20 October 2016

Cunard Asset Management

Meenhore

Grousehall

2

DCC: 16/50040

Full PP INVALID

21 January 2016

Cunard Asset Management

Meenhore

Grousehall

2

DCC: 16/50209

Full PP INVALID

11 April 2016

Cunard Asset Management

Meenhore

Grousehall

2

DCC: 16/50209

Full PP REFUSED

15 June 2016

Declan Clarke

Kinnegoe Bay 1

DCC: 15/51683

ABP: PL05.246265

Full PP REFUSED

12 July 2016

Derrykillew Community Windfarm Ltd

Derrykillew

Ballyshannon

5

DCC: 14/51400

ABP: PL05E.245108

Full PP GRANTED

18 March 2016

ESB Networks and EirGrid PLC

Donegal 110kv Alter 110kv line

ABP: PL05.VM0010

Full PP GRANTED

11 May 2016

ESB

Sorn Hill Station & Transformer

DCC: 16/50829

Extend Duration GRANTED

21 July 2016

Gineadóir Gaoith Teoranta

Cronalaght Substation

DCC:15/51726

Amend PP GRANTED

25 February 2016

Gineadior Gaoithe Teo.

Gweedore 5

DCC: 16/50989

ABP: PL05.247194

Amend turbines GRANTED

DCC: 18 August 2016

22 December 2016

Glenalla Green Ltd.

Garrymore

Kerrykeel

1

DCC: 16/50297

Extend duration GRANTED

21 April 2016

Karol McElhinney

Aheavagh, Ballybofey 1

DCC: 16/50540

Extend duration GRANTED

16 June 2016

Lettergull Energy Ltd

Raphoe to Listillion Grid connection

DCC: 15/50968

Full PP GRANTED

18 February 2016

Lir Energy Ltd

Gweedore 1

DCC: 16/51532

Full PP INVALID

20 October 2016

Lir Energy Ltd

Gweedore 1

DCC: 16/51486

Full PP INVALID

12 October 2016

Maas Wind Ltd

Maas 11 Hardstands

DCC: 16/50564

ABP: PL05 .246871

Full PP GRANTED

DCC: 10 June 2016

21 December 2016

Planree Ltd

Cornashesk, Killygordon Wind Mast

DCC: 16/50254

Retention GRANTED

21 April 2016

Planree Ltd

Meenbog, Ballybofey Wind Mast

DCC: 16/50348

Retention GRANTED

21 April 2016

Planree Ltd

Ballyarrell Mountain & Lismulladuff, Killygordan 2 met masts

ABP: PL05E.RL3419

s.5 referral Is development

(Not Exempted)

8 February 2016

Planree Ltd

Meenbog, Ballybofey Wind Mast

DCC: 16/50447

Full PP INVALID

7 April 2016

Planree Ltd

Meenbog

Ballybofey

Wind Mast

DCC: 16/50585

Full PP GRANTED

16 June 2016

proVento Ireland PLC

Tullylinn

Pettigoe

4

DCC: 13/51404

ABP: PL05E.245588

Full PP GranTED

30 August 2016

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Section 28: Specific Planning Policy Requirements

FWPM and Wind Farm Zones Dongeal 2013

As described by A&L Goodbody: “Specific Planning Policy Requirements are sections of guidelines labelled as such and they are grafted into the Minster’s guideline-making power. Compared to ordinary guidelines, however, their effect is significantly different:

  • They constrain planning authorities’ normal discretion; they must be applied by a planning authority in deciding whether to grant planning permission;
  • Where Specific Planning Policy Requirements conflict with any provision of a development plan, they apply instead of the conflicting development plan provisions; and
  • Where planning permission for an apartment block (of a kind governed by the Multi-Unit Developments Act 2011) was granted before the introduction of applicable Specific Planning Policy Requirements, any application for an amending permission will be subject to a fast track procedure that can be appealed to the Board only in limited circumstances.”

Our plan for this blog post is to test the claim by A&L Goodbody (and others) that these new requirements “must be applied”.  In other words are they such a clear attack on local democratic decision making and county development plans.

This new species of planning guideline – Specific Planning Policy Requirements – was introduced by the Planning and Development (Amendment) Act 2015 (PDF) which was passed in a few short weeks before Christmas 2015.  The Bill was introduced by Waterford based Fine Gael Senator Maurice Cummins on behalf of Minister for Environment Community and Local Government (Alan Kelly), on 26 November 2015.  It was then very quickly ushered through the legislative process by Fine Gael Junior Minister Paudie Coffey concluding in the Oireachtas on 17 December 2015.  It was signed by the President on 29 December 2015.  The full legislative history is available here.

More recently the legislation has come in for some criticism in the main stream media: see Irish Independent, 20 February 2016, New planning rules a ‘sleight of hand’, says expert; and RTE News, 22 February 2016, Councillors criticise new planning powers for minister.  Both these pieces followed the informative blog post by Neil van Dokkum, 18 February 2016, The amendment of Section 28 of the PDA 2000 and a follow up on 21 February 2016, More on that Sect 28 Amendment.

Sadly only one of our legislators Independent Senator Gerard Craughwell seemed to understand the impact of the amendment and made the following insightful, but ignored, contribution in the Seanad on 17 December 2016:

Development plans are obliged to be drawn up with due regard to legislation, national policy, national planning advice and so forth.  A development plan is a complex document drawn up by those who have unparalleled knowledge of their county and their aims for it.  It is contributed to by the public through an extensive round of consultation.  It is a collaborative, informed, visionary document for the local area by local people. For the development plan to be subjugated to the whim of a Minister is totally unacceptable.  …, for the guidelines of a Minister to carry supremacy over local statements of intent regarding a development plan is an undermining of democracy of the worst kind.  I would be interested in the Minister of State’s comments in this regard.

The Minister (Paudie Coffey) failed to address this point in his response and the Bill was duly passed.

What is clear however is that the Act as passed, while introduced to provide legislative underpinning to certain measures of the recently approved Government housing package entitled “Stabilising Rents, Increasing Supply”, namely the new Sustainable Urban Housing: Design Standards for New Apartments – Guidelines for Planning Authorities, which set minimum apartment sizes, has the effect of creating a new and significant power for an Environment Minister which could be used to undermine the County Development Plan process.  The Act further weakens the powers of local authorities and their elected members in directing planning policy for their areas.

The introduction of the Apartment Size Guidelines provides a few pointers as to the application of the Act.  The information note issued with the revised Apartment Size Guidelines state that they are “the first set of Ministerial Guidelines issued under Section 28 of the Planning and Development Act 2000 as amended by the 2015 Act above which enables the Minister to set out specific planning policy requirements.”  This seems to confirm our initial thoughts that the legislation cannot be retrospectively applied to older guidelines, such as the Wind Energy Guidelines 2006.

From reading the revised Apartment Size Guidelines it seems that the Department of the Environment approach is that each specific planning policy requirement, contained in a Section 28 guideline must be clearly identified as such.  However as noted by others it seems that the Environment Minister’s in their rush to issue the new guidelines before Christmas published them on 21 December 2015, before the President signed the new legislation into law 29 December 2015, thus risking their so called mandatory status on a simple timing technicality.

As to the specifics on the legislaiton Neil van Dokkum’s blog deals with the insertion of sub-section 1C into section 28 of the Planning and Development Act 2000 (as amended).  Changes were also made to other sections.  We have set out below the revised section 34(2) [new provisions in red] which deals with matters that are to be considered when making a decision on a planning application:

(a) When making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area, regard being had to—

(i) the provisions of the development plan,

(ia) any guidelines issued by the Minister under section 28 

(ii) the provisions of any special amenity area order relating to the area,

(iii) any European site or other area prescribed for the purposes of section 10(2)(c),

(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,

(v) the matters referred to in subsection (4), and

(vi) any other relevant provision or requirement of this Act, and any regulations
made thereunder.

(aa) When making its decision in relation to an application under this section, the planning authority shall apply, where relevant, specific planning policy requirements of guidelines issued by the Minister under section 28.

(b) In considering its decision in accordance with paragraph (a), a planning authority shall consult with any other planning authority where it considers that a particular decision by it may have a significant effect on the area of that authority, and the authority shall have regard to the views of that other authority and, without prejudice to the foregoing, it shall have regard to the effect a particular decision by it may have on any area outside its area (including areas outside the State).

(ba) Where specific planning policy requirements of guidelines referred to in  subsection (2)(aa) differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the development plan.

(c) and section 54 (as amended by section 257 of this Act) of the Waste Management Act, 1996, where an application under this section relates to development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, a planning authority shall take into consideration that the control of emissions arising from the activity is a function of the Environmental Protection Agency.

(d) In this subsection ‘specific planning policy requirements’ means such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including the Board, in securing overall proper planning and sustainable development.

The clear question is what does all this mean?  As we had written as a comment on a Neil van Dokkum’s blog: The old requirement was that planning authorities must merely ‘have regard to’ the section 28 guidelines generally, as they are primarily advisory in nature.  Following these changes when considering a planning application, planning authorities must now apply the ‘specific planning policy requirements’ of ministerial guidelines.  Thus there is now a distinction between matters in ministerial guidelines that are advisory in nature and that planning authorities shall ‘have regard to’ and matters which appear mandatory in nature.

The important point to note is that the amendment Act also defines: ‘specific planning policy requirements’ to mean such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including An Bord Pleanála, in securing overall proper planning and sustainable development.

What is clear from this definition is that it is not merely enough to identify a matter as a specific planning policy requirement, it must also be issued to support consistent application of policy in securing overall proper planning and sustainable development.  Who can decide whether a specific planning policy requirement actually secures overall proper planning and sustainable development?  Shall this be left to the planning authority or ultimately the courts, or some other body?  The Act is silent.

This new standard of overall proper planning and sustainable development is also problematic when making a planning decision.  It immediately creates a conflict between the legislative requirement for a planning authority or An Bord Pleanála to restrict themselves to considering to proper planning and sustainable development of the area; as opposed to the newer overall proper planning and sustainable development, which specific planning policy requirements seek to secure.  The significance of this conflict between what is overall proper planning and sustainable development or that for the area becomes problematic where environmental impacts fall to be considered.

Take for example in Donegal where elected members sought to protect the Fresh Water Pearl Mussel SACs and sub-basin districts by identifying them as areas not favourable for wind energy development (see map above).  This would fall to be seen as a reasonable planning matter which the Donegal councillors would justify as a strategy to promote proper planning and sustainable development of the area.  If, for example, a Minister in future was then to use section 28 guidelines and a specific planning policy requirement to open these Fresh Water Pearl Mussel SACs and sub-basin districts up to wind farm development, would Donegal Council or An Bord Pleanála be required to follow the Ministers mandatory guidelines even if it would lead to significant negative impacts on the Fresh Water Pearl Mussel SACs and sub-basin districts?

Obviously the other requirements of the Act namely 34(2)(a)(vi) any other relevant provision or requirement of this Act, and any regulations made thereunder, must also be had regard to when making a planning decision.  Therefore issues arising as part of an EIA must also be taken into consideration; the seemingly mandatory nature of these specific planning policy requirements could be tempered somewhat.  It seems clear to us that despite the terminology implying that the specific planning policy requirements are mandatory and they shall apply, they cannot trump environmental considerations in relation to proper planning and sustainable development of the area and the need for screening and environmental impact assessments, when necessary, under EU and Irish law.

Nevertheless this legislative change is an attack on local democracy and could damage local authorities in protecting receiving environments from inappropriate development, if used inappropriately by An Bord Pleanála.  In the amendment to section 34 it clearly sets out that where specific planning policy requirements of guidelines differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the county development plan.  What remains unclear however is whether in determining appeals where Section 28 guidelines containing specific planning policy requirements that differ materially from a County Development Plan: whether An Bord Pleanála would be required under section 37(2)(c) to indicate in its decision the main reasons and considerations for applying the specific planning policy requirement(s) when contravening materially the development plan.  Without such reasoning it is difficult to challenge in court any such decisions.

The reason we are unsure, in relation to reasons for decisions, is that a County Council may find itself in a position where despite a development materially contravening its Development Plan it doesn’t refuse permission as it as it can rely on a specific planning policy requirement to grant permission (section 34(2)(a)-(aa)), and therefore the section 37(2)(c) requirement on An Bord Pleanála to indicate the main reasons and considerations for contravening materially the development plan would not apply.  The further we have developed scenarios in relation to applying specific planning policy requirement(s) the more problematic they appear.

Our main point however is that while described by many as mandatory, specific planning policy requirements have limits:

  • They must be issued to support consistent application of policy in securing overall proper planning and sustainable development; and it must be noted that overall proper planning and sustainable development is a novel term in Irish planning which to date appears not to have a legal definition.
  • They are just one of many matters which a planning authority or An Bord Pleanála must have regard to and apply, where relevant when making its decision in relation to an application.
  • The planning authority and An Bord Pleanála still appear to retain wide discretion when weighing up the constituent elements which regard is being had to or which the apply, where relevant, as set out in the planning and development legislation when arriving at their decision under section 34.

In concluding therefore it is the broad discretion which local authorities and An Bord Pleanála retain, in making its decisions that leaves the new ministerial specific planning policy requirement(s) and their application as a dangerous weapon, which could be used to undermine the local democratically taken decisions to ensure proper planning and sustainable development of the area.


Wind farms at An Bord Pleanála during 2015

An Bord Pleanála Logo

As followers of our Twitter account will be aware we provide a weekly update on the number of turbines granted and refused on appeal by An Bord Pleanála.  Since 2014 we also began recording the number of turbines placed on appeal or applied for and subsequently withdrawn.   The purpose of this blog post is to give our readers the detail of An Bord Pleanála’s wind farm activity for 2015 and to provide a high level comparison between the last three years.  An Bord Pleanála’s list of weekly decided cases is published online and can be found here.

Outcome 2013 2014 2015
Granted 164 120 10
Refused 117 76 115
Withdrawn 0 5 19
Total Turbines  281 201 144

The most notable trend in the table above is the clear halt placed on granting wind turbine planning permissions during 2015.  The two prior years saw a grant/refuse ration of 3/2 – for every three turbines granted permission two would be refused – but 2015 saw the number of permissions granted collapse to only ten turbines, across 5 planning applications.

As we noted in our review of wind farms in the Irish courts during 2015, “we believe 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).”  Those opposed to wind farms are very organised and more often than not shall bring court challenges to An Bord Pleanála decisions.  Of the 120 turbines granted permission in 2014 almost 75%, 89 turbines, were challenged in the courts.  Significant judgments such as O Grianna & ors -v- An Bord Pleanála [2014] IEHC 632 and others have helped to clarify significant weaknesses in An Bord Pleanála assessment of wind farm applications and forced the Board to revise their flawed processes, thus lengthening the period for decisions.

As an example a 16 turbine wind farm which Galetech first applied to Roscommon County Council for planning permission in 2010, was subsequently appealed to An Bord Pleanála in 2011, was subject of High Court hearings in 2013, and judgments in 2014 (here and here) this wind farm planning appeal still remains undecided by An Bord Pleanála in January 2016.  This example is not alone see our previous blog on such delays.

As is clear 2015 was the year An Bord Pleanála failed to grant permission for any wind farm of scale.  There are many out there who hope this trend continues for many years to come.  Whatever the underlying reason there remains a significant number of turbines awaiting decision and until those decisions are made many communities remains under threat from the lack of mandatory setbacks between homes and turbines.

As promised we have set out below the detail of wind turbine decisions during 2015.  These are divided into the following groups for ease of reference:

  • Those granted permission
  • Those refused permission
  • Those withdrawn
  • Other decisions of interest

Those granted permission during 2015 by An Bord Pleanála

Case No County No. of Turbines Date
243776: Cloggagh, Ballyjamesduff, Co. Cavan (14/103) Cavan 1 16/01/2015
243964: Kilcarrig, Bagenalstown, Co. Carlow. (13/322) Carlow 1 18/02/2015
244753: Co. Donegal. (15/50117) Donegal 1 24/09/2015
244481: Crockbrack Hill, Carrowbeg and Meenletterbale, Moville, Co.Donegal (14/51367) Donegal 2 23/06/2015
244903: Pollaghoole, Ballaghanoher, Ross, Clondallow, Co. Offaly. (15/44) Offaly 5 21/10/2015

Those refused permission during 2015 by An Bord Pleanála

Case No

County No. of Turbines

Date

244147: Cronaliegh, Kildavin, Co. Carlow (14/81)

Carlow

1

02/04/2015

242819: Proctor and Gamble, Coolaholloga, Nenagh, Co. Tipperary. (13/510334)

Tipperary

1

28/04/2015

244388: Hilltop Farm, Turbeagh, Mitchelstown, Co. Cork. (14/05573)

Cork

1

12/05/2015

PA0031: Proposed Cluddaun Wind Farm and associated works, Mayo

Mayo

48

18/05/2015

243479: Rathconnor, Four Mile House, Co. Roscommon. (PD13/78)

Roscommon

2

15/06/2015

244357: Cregg, College and Rathgillen Townlands, Nobber, Co. Meath (KA14/0921)

Meath

6

19/06/2015

244088: Carrowmore South, Einagh and Shragh, Doonbeg, Co. Clare. (14/487)

Clare

9

02/07/2015

244918: Altnagapple, Meentanadea and Mulmosog, Co. Donegal. (15/50265)

Donegal

13

22/09/2015

244723: Loughbrattoge, Doocharn and Tullynageer, Co. Monaghan. (14/46)

Monaghan

5

30/11/2015

PA0031: Ardderroo Windfarm Limited, Galway

Galway

29

21/12/2015

Those ‘withdrawn’ before a decision was reached during 2015

Case No

County No. of Turbines

Date

243851: Bahaga, Cappagh, Foildarg, Oldcastle, Cappaghwhite, Co. Tipperary. (13/210)

Tipperary

18

26/02/2015

245670: Rathclarish, Carrick-On-Suir, Co. Tipperary (15/600699)

Tipperary

1

05/11/2015

Other decisions of interest

In January An Bord Pleanála decided that a 10kv overhead line to a wind farm from a consented development is development and is exempted development.

In March the Board decided that a 47 turbine wind farm proposed in five clusters located in north County Kildare (45 turbines) and south County Meath (2 turbines) is a project that qualifies for application under the Strategic Infrastructure Development (SID) process.

In April a referral in relation to Lisdowney wind farm of whether the construction of a 20KV electrical connection between the consented windfarm ( 12/172) and existing ESB substation is or is not development or is or is not exempted development was withdrawn

In May ESB Networks and EirGrid withdrew an SID pre-application in relation to amendments to the Donegal 110kv project, including the relocation of a switching station from Tievebrack to Drumnalough, and the extension and amendment to the Ardnagappary to Drumnalough line.  It is clear agreement was reached between the Board and the applicants and a revised application lodged later in 2015.

During the year An Bord Pleanála concluded a number of cases/referrals in relation to the Kilvinane wind farm; see leave to apply for substitute consent granted in Aprilleave to apply for substitute consent granted in April, decision to permit a pre-application consultation meeting.  The substitute consent was applied for late in 2015 and awaits a decision.

_____________________________________

Last updated: 16 January 2016

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: cawt.donegal@gmail.com or via twitter@CAWT_Donegal.

 

 

 


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