Category Archives: County Development Plan

Minister concedes to setback and zoning for wind farms in Donegal

In the end Minister Coveney skulked out of the legal hearings which would have tested his powers under section 31 of the Planning and Development Act to overturn the democratically passed variation no. 2 to Donegal County Development Plan, dealing with wind energy development.

Councillor John Campbell who took the legal challenge announced the end of this, his second successful foray in the courts against a Ministerial direction, on twitter, where he also highlighted the extent of the shameful delaying tactics of the Minister and his Department:

What is notable is that when tested neither the Minister nor his Department were able to open any documents or arguments in support of their position in court, they merely used the section 31 process to delay the effective date of the variation passed by Donegal County Council.  This has meant that for 3 years local residents and the receiving environment have been exposed to unnecessary risk and unwarranted expense in order to defend the peaceful enjoyment and amenity of their homes and to ensure that their (and your) environment is not subjected to unsustainable wind farm development.

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.

Councillor Campbell had last year successfully obtained an order of the high court quashing a 2014 Ministerial Direction made by then Minister Alan Kelly.  We have blogged extensively on the background to Variation no. 2 (here, here,here), the subsequent section 31 Direction issued by Minister Kelly (here,here), Cllr Campbell’s successful first court challenge; the subsequent report by the Inspector (Hendrik van der Kamp) appointed by Minister Coveney , and the granting of leave to Councillor Campbell for a second court challenge.

In this regard it is important to note that Inspector van der Kamp found in his report 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; and
  • Variation no. 2 did not make the County Development Plan inconsistent with national and regional policies or targets

Furthermore it is also important to note that the Minister and Department were also in possession of the RPS modelling on wind farm planning and yet decided to push through with a direction which failed to protect the Freshwater Pearl Mussel and blocked safe setbacks from homes.

This seemingly irrational behaviour of supporting wind farm development despite the evidence base to the contrary was also mirrored by Mr. Seamus Neely, Donegal County Manager who shocked observers with his submission on the van der Kamp report (see: Neely to DHPLG – S.31 Draft Direction – 1 Sept 2016).  In contacts with us, many have questioned his judgement and future credibility when it comes to wind farm planning, in particular as Donegal County Council is grant aided under the European Union’s INTERREG IVA Programme to protect the Freshwater Pearl Mussel and have prepared draft guidance on the interaction with wind farm as far back as 2014 (see: fwpm draft windfarm guidance 2014).  Ignoring such strong evidence based guidance to promote the wind industry raises many, many questions.  These are issues we will return to in further blog posts.

For now, congratulations to Councillor Campbell and the many who assisted in the background and foreground, in particular the Glenties Wind Farm Information Group (GWIG) and Mr. Peter Crossan, who together with Councillor Campbell have delivered both evidence based zoning and safe setbacks for the people of Donegal.

For those interested the high court references for the two cases are:

  • Campbell -v- Minister for Housing Planning Community and Local Gov 2016/976 JR; and
  • Campbell -v- Minister for Environment, Community & Local Gov 2014/712 JR.
Advertisements

Submission on draft section 31 direction to Wicklow County Council

 

We blogged recently on the draft section 31 direction issued by Minister Coveney to Wicklow County Council, see here.  We have prepared a submission which we sent in today and we have copied it into this blog for your information.  Please note that we have tried to put links to most items referenced and have detailed footnotes appended.

Introduction

Thank you for the opportunity to make a submission on the Draft Direction issued by Minister Coveney to Wicklow County Council on 7 December 2016.  It is our contention that the position put forward by Minister Coveney, including the statement of reasons, do not adequately explain to a member of the general public why such a direction, in relation to the wind energy elements, is well founded.  In our view the draft direction is merely the action of a Minister trying to impose his own alternative strategy for wind energy on a local authority, and this is being done otherwise than in accordance with the principle of proper planning and sustainable development of the local authority area.

Context: Wind farms and the planning system

A fundamental objective of a planning system is that it has to achieve a balance between the need for a development and the impact on neighbours and the general environment.  Despite claims to the contrary from the wind industry, it is clear that wind farms and ancillary infrastructure development create significant disharmony and discontent in the communities into which they intrude.  Catastrophic failure is growing more common, with 100m plus wind turbines collapsing or throwing blades at frightening regularity.[1]

Noise nuisance reports are very prevalent across the world and this wind farm phenomenon is also emerging in Ireland.  These issues are also moving into the courts.[2]  Further noise complaints, enforcement proceedings, and ongoing noise compliance assessments are also more common.[3]  This should not be surprising as evidence has clearly shown that as wind turbines get larger they have also become noisier (see below figure 11, page 28 of the Marshall Day Acoustics report).[4]mda-turbine-size-graph-2013

Furthermore, it has been accepted by Minister Denis Naughten that current planning guidance in particular the outdated section 28 Wind Energy Guidelines (2006) are not fit for purpose.[5]

Draft Direction to Wicklow Council – 7 December 2016

The reasons offered by the Minister in forming his opinion so as to support his section 31 draft direction, in relation to the wind energy elements, can be summarised as follows:

  • Wicklow County Council has ignored or has not taken sufficient account of the Ministers submission;
  • the Development Plan is not in compliance with legislative requirements in relation to sections 9(6), 10(2)(b), 12(11) and 28(1B)(b) of the Act;
  • the Development Plan is not consistent with relevant guidelines to planning authorities issued by me under Section 28 of the Planning & Development Act, 2000, specifically the Wind Energy Guidelines (2006); and
  • the Development Plan would seriously restrict the potential for wind energy development within County Wicklow.

In terms of the Minister’s submissions made to Wicklow County Council it is clear from the history of the Development Plan process and review of council minutes that these submissions were fully considered and debated, yet rejected in part, by the elected members of Wicklow County Council, therefore this basis put forward by the Minister is indefensible.

In relation to the specious claims that the Development Plan fails to meet the legislative requirements (see requirements in relation to sections 9(6), 10(2)(b), 12(11) and 28(1B)(b) of the Act).  The Wicklow County Development Plan sets out a clear overall strategy for wind farm development in the County (section 10(2)) and is clearly in line with the over-arching requirement to provide for the proper planning and sustainable development of the area.

With respect to internal consistency and coherence the local Councillors have in so far as practicable been consistent with the plans, policies and strategies of the Minister, in so far as they relate to proper planning of the area (section 9(6)).  Wicklow Councillors must balance potential development with the importance of protecting the amenity of the county’s residents; safe setbacks distances clearly meet such a fundamental policy objective (section 12(11)).

In terms of section 28, as we have seen in Donegal, when objectively reviewed by an Independent third party arguments put forward by the Minister on behalf of his Department fail to be defended.  In his August 2016 report, Inspector Hendrik W van der Kamp in reviewing similar setbacks as proposed by Donegal County Council he noted that “notwithstanding the likely effect of reduction of the amount of wind energy that can be achieved” as a result of such setbacks, he found that “there is no conflict” between section 28 wind farm guidelines and setbacks of ten times wind turbine tip height.[6]

In terms of the fourth element of the Minister’s reasons no evidence is presented by the Minister to support his claim that the wind energy elements including the setbacks would seriously restrict the potential for wind energy development within County Wicklow.  It is our understanding that no accurate modeling of land area or potential for wind energy development, based on the proposed Wicklow County Development Plan 2016-2022 has been provided by the Minister.  We also understand that national modeling commissioned by the Sustainable Authority of Ireland (SEAI) and undertaken by RPS Consulting in 2015 was fundamentally flawed and misrepresented Not Favoured status’ in development plans as ‘No-go areas’, and assumed a very low 15% delivery rate, for wind projects in land areas other than Flat Peatlands.[7]  Reliance on such data modeling, if this is what the Minister is relying upon is indefensible.

Conclusion

It is clear that Minister Coveney has no evidence base to underpin his reasons for issuing a draft direction in relation to the wind energy elements of the Wicklow County Development Plan.  It is clear that, as happened in Donegal when Cllr. John Campbell successfully challenged the 2014 section 31 direction issued by Minister Alan Kelly, in this instance Minister Coveney has failed to meet the minimum legal threshold to found a draft direction.[8]

Furthermore the Minister has not carried out an SEA or AA for any subsequent section 31 direction and to amend a Development Plan without carrying out such assessments would be otherwise than in accordance with Irish and EU law.

As no assessment or evidence base has been provided by the Minister, any direction would be an obvious attempt in this instance of a Minister trying to impose his own alternative strategy for wind energy on a local authority just because he prefers it – as we have seen in Donegal Inspector Hendrik van der Kamp found no substantive contravention of any mandatory national/regional planning policy, objective or target by providing a setback distance.  Therefore issuing a direction in such circumstances would be contrary to the findings of the Irish high court in Tristor -v- Minister for Environment [2010] IEHC 397.

Should you have any queries in relation to our submission please direct them to cawt.donegal@gmail.com.

______________

Footnotes:

[1] See for example submission of Michael Quinn, 3 February 2014, to the Department of Housing, Planning, Community and Local Government, which provides pictorial evidence of a few such incidents in Donegal, available at http://www.housing.gov.ie/en/DevelopmentHousing/PlanningDevelopment/Planning/PublicConsultations/Submissions-WindEnergy/Donegal/FileDownLoad%2C35276%2Cen.docx.  For details on blade, tower and subassembly failures in relation to wind farms see Health & Safety Executive (UK), Study and development of a methodology for the estimation of the risk and harm to persons from wind turbines, (2013).

[2] In respect to Ireland see Shivnen v Enercon and Carrigcannon wind farm 2011/9955 P, where it has been reported that liability for nuisance has been accepted in the case, see “Families forced from homes due to wind farm noise win court case”, Irish Examiner, 11 December 2016, the article further states that the issue of damages will return to the court in early 2017.  See also Norris, William, “Wind farm noise and private nuisance: issues arising in Davis v Tinsley”, Journal of Planning and Environmental Law (2012).

[3] See for example the well publicised examples of Michael and Dorothy Keane, Roscommon, and Phil and Catherine Hickey, Wexford.  See also the ongoing wind farm noise compliance issues with Gibbet Hill wind farm and the reports on hand at Wexford County Council.

[4] Marshall Day Acoustics (MDA), Examination of the significance of noise in relation to onshore wind farms, 23 November 2013, as commissioned by Sustainable Energy Authority of Ireland (SEAI), available at http://www.seai.ie/Publications/Renewables_Publications_/Wind_Power/Examination-of-the-Significance-of-Noise-in-Relation-to-Onshore-Wind-Farms.pdf.

[5] Minister Denis Naughten in a Dáil Debate on Thursday, 6 October 2016 (Dáil Éireann Debate Vol. 923 No. 3) stated: “I am as anxious as anybody else to have these new guidelines put in place as the current guidelines are not fit for purpose.”

[6] van der Kamp, Hendrik W., Independent review of the Draft Ministerial Direction on Variation no. 2 to the Donegal County Development Plan 2012-2018 issued by the Minister for Housing, Planning, Community and Local Government to Donegal County Council on 22 July 2014, (August 2016).  See blog post: Donegal windfarm planning rules closer to realization, 30 August 2016, available at https://cawtdonegal.wordpress.com/2016/08/30/donegal-windfarm-planning-rules-closer-to-realisation/.

[7] See email from RPS Consulting to Department of Environment, Community and Local Government officials, (19 June 2015), where a note on constraints on the Setback Modeling Exercise identified inter alia No-Go Areas, and delivery rates for various land types.  A copy of the e-mail is available on request.  It is also important to understand that the Not Favoured status in the Wicklow Wind Energy Strategy is not a blanket ban on applications in areas so identified: Not Favoured means that having regard to the high amenity and heritage value of this area, in particular ‘Natura 2000’ and ‘Area of Outstanding Natural Beauty’ designations, and the significant number of views and prospects, these areas are generally not considered suitable for wind energy development, such areas are identified for higher scrutiny in terms of their high amenity and heritage value.

[8] See high court reference Campbell -v- Minister for Environment, Community & Local Gov 2014/712 JR, details of the order quashing the 2014 Section 31 Ministerial Direction are available on our blog post Donegal: Ministerial windfarm direction quashed, 22 June 2016, available at https://cawtdonegal.wordpress.com/2016/06/22/donegal-ministerial-windfarm-direction-quashed/.


Coveney issues Draft s31 Windfarm Direction to Wicklow Council

wicklow-cdp-2016-22-draft-direction

Another County Council, and it’s elected Councillors, has fallen victim of the Minister for windfarms.  This time it is Wicklow who have received a draft direction from Minister Coveney, who is proposing to overturn the elected members decision to insert a setback requirement from windfarms.  The setback from windfarms to residential properties was inserted into the Wicklow County Development Plan 2016-2022 in order to protect constituents from the encroaching threat of inappropriately sited wind turbines. The specific proposal had provided that:

Wind farms shall be at least 1,000m or 10 times the tip height of the proposed turbines from any residential properties or other centres of human habitation with special consideration given to the proximity of such developments to educational establishments.

In the text of the draft direction Minister Coveney, relies heavily on the discredited Wind Energy Guidelines 2006, he states:

The Wicklow County Development Plan 2016 – 2022 is not consistent with relevant guidelines to planning authorities issued by me under Section 28 of the Planning & Development Act, 2000, specifically the Wind Energy Guidelines (2006) … and insufficient grounds have been stated for such departures as required under Section 28(1B)(b) of the Planning & Development Act 2000, as amended.  The plan is therefore in breach of Section 31(1)(c) of the Planning & Development Acts 2000 as amended.

Guidance on wind energy development is provided in the ‘Wind Energy Development Guidelines’ (2006) issued by the DECLG under s.28 of the Planning & Development Act, 2000.  These Guidelines emphasise the need to fulfil Ireland’s national and international commitments to renewable energy and the importance of developing wind energy infrastructure in Ireland in this regard.  Importantly, the guidelines detail (in section 3.4) the strategic aims and objectives that the development plan should include in relation to wind energy development.

These include … objectives to secure the maximum potential from the wind energy resources of the planning authority’s area commensurate with supporting development that is consistent with proper planning and sustainable development … .

The Minister further claims that the Development Plan:

… specifically stipulates a minimum set-back for wind energy development from residential properties, the effect of which would seriously restrict the potential for wind energy development within County Wicklow and is therefore in conflict with other text within the same objective and with national and regional objectives in relation to the development of wind energy infrastructure.

As with all directions that overturn setback distances no evidence is provided by the Minister to support his claims.  As we have previously seen in Donegal when tested by an independent expert (see blog on Hendrik van der Kamp report) such claims of conflict and inconsistency with other national or regional objectives and guidelines are indefensible.

Those of you who wish to support the people of Wicklow should note that, written submissions or observations in respect of the draft direction must be made before 5pm on Thursday 5 January 2017 and shall be taken into consideration by the Minister before he directs the Planning Authority.  Submissions may be made in one of the following ways:-

  1. By post to: Administrative Officer, Planning Section, Wicklow County Council, Station Road, Wicklow Town; or
  2. Email to: planreview@wicklowcoco.ie

There is another option for people in Wicklow; the draft direction could be challenged through the courts.  As readers of this blog will be aware Cllr. John Campbell (Donegal County Council) has already successfully quashed a s31 windfarm direction issued in 2014.  We understand legal options are being considered by individuals and groups in the Wicklow area.

This issue is set to run-and-run in Wicklow, as it will in other counties who seek to protect people from the risks of having a windfarm foisted upon them.  We shall end this blog with words from local Cllr Shay Cullen, speaking to the Bray People, where he urged as many people as possible to make submissions, this (interfering with Local Authority affairs on windfarm planning) is a crucial issue for rural communities in particular.  He went on to state:

Wind turbines are a major issue which could affect an awful lot of people in Wicklow.  A distance was set which was voted for by councillors on two occasions.  I don’t think the Minister should be interfering.  You have noise issues and the shadow flicker effect, while wind turbines also diminish land and houses prices.  There are real concerns over the impact wind turbines have on people’s homes.

 


Cllr Campbell sends Minister’s s31 windfarm direction back to court

It’s groundhog day for windfarm planning in Donegal.  Cllr John Campbell has once again been granted leave by the high court to challenge a section 31 Ministerial Direction issued to Donegal County Council, by Minister Simon Coveney on 6 October 2016, in relation to Variation no. 2 to the Donegal County Development Plan 2012 – 2018 (as varied).

As a reminder the primary elements of the variation as passed would 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.

Cllr Campbell had earlier this year successfully obtained an order of the high court quashing a 2014 Ministerial Direction made by then Minister Alan Kelly.  We have blogged extensively on the background to Variation no. 2 (here, here, here), the subsequent section 31 Direction issued by Minister Kelly (here, here), Cllr Campbell’s successful first court challenge and the acceptance by the Inspector (Hendrik van der Kamp) appointed by Minister Coveney 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; and
  • Variation no. 2 did not make the County Development Plan inconsistent with national and regional policies or targets

The other issue to note in relation to this ongoing battle for Donegal’s sovereignty in terms of proper planning and sustainable development of the County is the reliance placed by Minister Coveney, in giving reasons for his direction, on what he accepts is the non-mandatory guidance provided by the s28 wind energy guidelines.  Many planning and legal observers were surprised by Minister Coveney reissuing a section 31 direction to Donegal particularly given that the 2006 Guidelines are accepted by Minister Naughten as being unfit for purpose and that they remain in place without a Strategic Environmental Assessment as required by EU law.

The high court reference for the case is, Campbell -v- Minister for Housing Planning Community and Local 2016/976 JR and it returns for mention on 17 January 2017.


Donegal windfarm planning rules closer to realisation

FWPM and Wind Farm Zones Dongeal 2013

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.


Donegal: Ministerial windfarm direction quashed

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:

  1. 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;
  2. 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
  3. 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.

What next?

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!

 


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.


%d bloggers like this: