Category Archives: Ministerial Direction s31

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.

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!

 


Wind farms in the Irish courts during 2015

Courts logo

Following on from the very popular post of last year (see here), we have attempted to draw together details in relation to wind farm related cases in the Irish superior courts during 2015.  One notable point is that there have been very few new cases begun in 2015.  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).  The table below gives you an idea of the dramatic halt placed on wind farm approvals, in particular the number of wind turbine planning approvals by An Bord Pleanála in 2015:

Outcome 2014 2015
Granted 120 10
Refused 76 115
Withdrawn 5 19

*the 2015 figures relate to decisions published by An Bord Pleanála at week 51.

In 2014 almost 75% of the 120 turbines granted permission (89) ended up being challenged in the courts.  In 2015 just 10 turbines have been granted permission and the only wind farm planning high court case commenced is Sweetman -V- Mayo County Council & PWWP Developments Ltd 2015/359 JR, which deals with the extension of permission granted by Mayo County Council.  Nevertheless it is important to recognise that the legal challenges are directly impacting An Bord Pleanála and the legal issues raised have dramatically slowed the wind farm planning process.

Below is a short synopsis of wind farm related cases: (i) awaiting judgment; (ii) awaiting hearing; and (iii) judgments delivered in 2015.  There are further wind farm related cases which were listed/mentioned in the courts in 2015, sadly for these we have no detail, these are listed at the end of the blog post.  If any readers wish to furnish details for publication this may be facilitated.

Awaiting hearing

Supreme Court

People Over Wind & Anor -v- An Bord Pleanala

We understand that People Over Wind have on 22 December 2015 lodged an appeal petition to the Supreme Court following the judgment of the Court of Appeal.  Further details on the Court of Appeal and High Court judgments are contained in the judgment delivered in 2015 section below.  This case relates to Coillte’s proposed 18-turbine Cullenagh wind farm in Co. Laois and is taken by local groups People Over Wind and Environmental Action Alliance.  We have no detail on the point of law questioned and it should also be noted that there is no guarantee that the Supreme Court will accept the appeal and figures for 2015 show that the majority of leave to appeal applications are refused (see also Callaghan below).  We have no date for hearing to report.

Court of Appeal

Callaghan -v- An Bord Pleanala & Ors 2015/500-CoA

This case relates to a current An Bord Pleanála application by North Meath Wind Farm Ltd in relation to a proposal develop the Emlagh 46-turbine wind farm.  Further details on the High Court judgments are contained in the judgment delivered in 2015 section below.  The question certified for appeal:

Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in the light of Sections 50(2) and 143 of the Planning and Development Act 2000 such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to Section 37A of the Planning and Development Act 2000.

In other words: do the public have a right to be heard/participate in SID pre-application consultations?  Mr. Callghan had sought to leapfrog the Court of Appeal and to have this question dealt with by the Supreme Court but this was refused on 15 December 2015, Callaghan -v- An Bord Pleanála & ors [2015] IESCDET 60.  We have no date for the Court of Appeal hearing to report.

High Court

Sweetman -V- Mayo County Council & PWWP Developments Ltd 2015/359 JR

In this case Mr. Peter Sweetman has brought a challenge against Mayo County Council’s decision to extend the duration of planning permission for a 12 turbine wind farm.  It is claimed that the council’s decision to extend the planning permission, granted to PWWP Developments Ltd, in respect of a wind farm at Maheramore Co Mayo should be quashed, on grounds including that no proper Environmental Impact Assessment (EIA) or Appropriate Assessment (AA) were carried out in respect of the proposed development when permission was originally sought in 2010.  The case returns for mention on 12 January 2016.

Ardragh Wind Farm Limited -v- An Bord Pleanala 2014/518 JR

This case is an appeal by the developer Ardragh Wind Farm Limited against An Bord Pleanála’s refusal of the proposed development of 5-turbines near Bantry, Co. Cork under application reference 240461: Ardrah, Kealkil, Bantry, Co. Cork. (11/318).  The case is listed for mention before the high court on 19 January 2016.

Connelly -v- An Bord Pleanala & Ors 2014/488 JR

According to the Clare Champion this case is being taken by a representative of the Coore/Shannaway Residents Group against An Bord Pleanála’s grant of permission for a 4-turbine wind farm under application reference 239378: Coor West, Shanavogh East and Shanavogh West, Co. Clare. (11/360).  The case is listed to begin hearings before the high court on 19 January 2016.

Campbell -v- Minister for Enviroment, Community & Local Gov 2014/712 JR

This case relates to a challenge taken by Mayor of Donegal, Cllr. John Campbell against a section 31 direction from the Minister for Environment.  The direction sought to overturn variation no. 2 to the Donegal County Development Plan (2012-2018) (as amended).  The variation had set a 10 times setback distance from wind farms to homes and zoned 6 Freshwater Pearl Mussel catchments as unfavoured for wind energy development.  The Donegal News reported on the initial application to take the judicial review here.  The case is listed for hearing beginning on  22 January 2016.

Awaiting delivery of judgment

Balz v An Bord Pleanála 2013/450 JR

An indicative date of 12 February 2016 for delivery of judgment is listed on courts.ie.  This case relates to permission granted by An Bord Pleanála for an 11-turbine Cleanrath wind farm, in Cork, under application reference 240801: Cleanrath North and South, Derrineanig, Macroom, Co. Cork. (11/5245).  The case was heard, over 5 days during 2014, by Mr. Justice Barton.  The Irish Examiner reported on the initial application for leave to seek a judicial review in June 2013.

Swords -v- Minister for Communications, Energy and Natural Resources & Ors 2013/4122 P

This case is taken by Mr. Pat Swords who is challenging the legality of Ireland’s National Renewable Energy Action Plan (NREAP) which it is claimed was introduced otherwise than in accordance with the requirements of article 7 (public participation) of the Aarhus Convention.  The NREAP is used to underpin REFIT support for wind farm development and by An Bord Pleanála in justifying many planning decisions in relation to wind farm developments.  Mr. Swords is also seeking a declaration from the high court that this funding and related planning permissions for wind farms are unlawful.  The Irish Examiner reported on the case here.  Eva Barret’s article published in the Journal of Energy & Natural Resources Law (Vol.33 Issue 1, 2015) ‘In sowing the wind, how Ireland could reap the whirlwind’ – a case against Irish wind development(s), provides a good overview of the issues raised.

The hearings for this case took place during 2015 but judgment has been deferred on a number of occasions and is now listed for 4 March 2016.

Carroll & Ors -v- An Bord Pleanala 2014/475 JR

This case relates to the proposed 29-turbine Yellow River wind farm near Rhode, Co. Offaly.  The case was taken by members of the Rhode Parish Wind Turbine Action Group and Mr. Peter Sweetman.  RTE News reported on the original application for leave to seek judicial review.  The An Bord Pleanála reference for this strategic infrastructure development application (SID) is –PA0032: Rhode, Co. Offaly. The case was heard over 4 days of hearings beginning on 10 March 2015.  Judgment was reserved and no date is listed for judgment.

Judgments delivered in 2015

Ratheniska Timahoe & Spink [RTS] Substation & Ors -v- An Bord Pleanala 2014/340 JR

This case related to efforts of the small farming community, in Ratheniska, Co. Laois, who were trying to prevent EirGrid, the Irish state owned electricity transmission operator, from constructing a 400/110 kV electrical substation in their area.  An Bord Pleanála had granted permission for the project following an oral hearing.  The Save Ratheniska blog provides great detail on the planning process.

The case was heard in November/December 2014, and judgment delivered 14 January 2015, see Ratheniska Timahoe & Ors -v- An Bord Pleanála [2015] IEHC 18.  The court refused all grounds of appeal, finding no defect in the AA/EIA process.  The Leinster Express reported on the shock in the local community when the case was lost (here).  There has been much commentary on this decision and the ‘vexed’ issue of costs which An Bord Pleanála legitimately used to their advantage to hold off an appeal, this blog post (link here) gives a decent overview of those issues.  We also posted some commentary from Peter Crossan on the judgment here.

Callaghan -v- An Bord Pleanala & Ors 2014/647 JR

This case relates to a current An Bord Pleanála application by North Meath Wind Farm Ltd in relation to a proposal to have a 46-turbine wind farm declared a strategic infrastructure development (SID).  The An Bord Pleanála reference for the subsequent planning application is PA0038: Co. Meath.  Mr. Callaghan claimed that the SID process is fundamentally unfair and prejucdicial as by “bypassing the normal planning process means the developer has plenty of opportunity to meet any concerns of the board while he, a person of limited resources, has just one opportunity to deal with matters within a specified time scale.”  The meathwindinfo blog provides links to some affidavits and other particulars in relation to the case.

The first judgment issued in this case refused Mr. Callaghan a protective costs order and also refused discovery of certain documents, see Callaghan -v- An Bord Pleanála & ors [2015] IEHC 235 (delivered 20 February 2015).  On the substantive issue, that is the nature of the decision taken by An Bord Pleanála on s37 SID applications, the court refused to accept that the EIA directive was engaged, or that such a decision predetermined planning/EIA matters in a determinative manner, or that the s37 SID process engaged rights to fair procedure, including public participation.  The court also refused an application to make a preliminary reference to the Court of Justice of the European Union.  Judgment was delivered on 11 June 2015, see Callaghan -v- An Bord Pleanála & ors [2015] IEHC 357.

Mr. Callaghan sought leave to appeal (to the Court of Appeal) and this was granted on 24 July 2015, Callaghan -v- An Bord Pleanála & ors [2015] IEHC 493.  The issue of costs for the initial trial was deferred pending the outcome of the appeal, see Callaghan -v- An Bord Pleanála & ors [2015] IEHC 618 (delivered 12 October 2015).  Mr. Callghan had sought to leapfrog the Court of Appeal and to have this appeal question dealt with by the Supreme Court but this was refused on 15 December 2015, Callaghan -v- An Bord Pleanála & ors [2015] IESCDET 60.  We have no date for the Court of Appeal hearing to report.  At the time of writing no decision had been made by An Bord Pleanála on the Emlagh wind farm planning application.

People Over Wind & Anor -v- An Bord Pleanala 2014/487 JR

This case relates to Coillte’s proposed 18-turbine Cullenagh wind farm in Co. Laois and is taken by local groups People Over Wind and Environmental Action Alliance.  An Bord Pleanála reference for the application is – 242626: East of Ballyroan Village/Southwest of Timahoe Village, Co. Laois. (13/268).  The Leinster Express reported on the application for leave to take judicial review proceedings.  On 1 May 2015 the high court refused to quash An Bord Pleanála’s decision to grant permission for the wind farm, see People Over Wind & anor -v- An Bord Pleanála [2015] IEHC 271.  There were numerous grounds challenged and the court refused to entertain new grounds raised at hearing.  On 11 June 2015, the court refused to amend its decision see, People Over Wind & anor -v- An Bord Pleanála & ors [2015] IEHC 356 and on 19 June 2015 the court certified three questions for appeal to the Court of Appeal, see People Over Wind & anor -v- An Bord Pleanála & ors [2015] IEHC 393.

On appeal the court rejected all points raised in relation to; (i) best scientific knowledge (applicants had argued best scientific evidence); (ii) the Sweetman test with respect to having ‘complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned‘, in this case the Nore Freshwater Pearl Mussel; and (iii) regarding the lawfulness of mitigation through post consent agreement between the developer and named authorities.  The appeal court judgment People Over Wind/Environmental Action Alliance Ireland -v- An Bord Pleanála [2015] IECA 272, was delivered 20 November 2015.  It is difficult to see this judgment, in particular the post consent mitigation element, surviving a Supreme Court appeal or a CJEU referral.  As indicated above an application to appeal to the Supreme Court is lodged and awaits determination.

O’Grianna & ors v An Bord Pleanála 2014/19 JR

This case relates to permission granted by An Bord Pleanála for a 6-turbine wind farm near Ballingeary, Co. Cork, under application reference 242223: Derragh, Rathgaskig and Lack Beg Near, Ballingeary, Co. Cork. (12/05270).  The Irish Examiner reported on the initial application to seek judicial review by 12 residents who live and work between 500m and 2km from the proposed wind farm.

Judgment was delivered on 12 December 2014, see O Grianna & ors -v- An Bord Pleanála [2014] IEHC 632 and permission for the wind farm was quashed, see local media report here.  The case returned for hearing, in relation to whether or not the planning application could be remitted back to An Bord Pleanála.  The court permitted the remittal back to An Bord Pleanála in its judgment of 16 April 2015, see O Grianna & ors -v- An Bord Pleanala [2015] IEHC 248.  We have blogged extensively on this case. see here, here & here.

O Grianna is a significant milestone in wind farm planning law in Ireland.  The reason for the quashing of An Bord Pleanála’s decision was that the planning application and the subsequent Environmental Impact Assessment (EIA) undertaken by An Bord Pleanála related only to the construction of the wind turbines, and did not include the necessary second phase, namely the works necessary to connect the wind farm to the national grid.  Therefore an impermissible “project-splitting” had occurred thereby invalidating the decision-making process.  The first judgment also confirmed that the 2006 wind energy guidelines, in particular the aspects in relation to noise limits are only guidelines and do not need to be slavishly followed by An Bord Pleanála, nor do the Board even need to give reasons for failing to follow those guidelines (discussed in previous blog post here).

An Bord Pleanála have reactivated the planning appeal in July 2015, see 245082: Derragh, Rathgaskig and Lack Beg Near, Ballingeary, Co. Cork. (12/05270).  As with the majority of wind farm appeals with An Bord Pleanála no date for a decision is available at this time.

Grace & anor -v- An Bord Pleanala 2014/533 JR

This case relates to ESB Wind Development Ltd and Coillte’s proposed 16-turbine wind farm at Keeper Hill, Co. Tipperary, and was taken by Ms. Edel Grace and Mr. Peter Sweetman.  The Irish Independent reported on the initial application seeking leave to review and highlights the potential impact on hen harrier habitat in the Slieve Felim to Silvermine Mountains Special Protection Area between Limerick and Tipperary.  The appellants sought through the court to further an objection initially raised by the Department of Arts, Heritage and an Gaeltacht (DAHG) but later retracted by them.  An Bord Pleanála’s reference for the planning application is 241924: Bunkimalta, Bauraglanna, Lackabrack, Keeper Hill, Co. Tipperary. (13/51/0035).   The case was heard over 7 days during April 2015.

Judgment was delivered on 1 October 2015, see Grace & anor -v- An Bord Pleanála & ors [2015] IEHC 593.  The court refused the reliefs sought by Ms. Grace and Mr. Sweetman.  One important issue addressed by the court deals with the issue of standing (locus standii) to challenge a planning decision of An Bord Pleanála.   Neither Ms. Grace nor Mr. Sweetman had participated in the planning process as observers (or appellants to An Bord Pleanála).  The court held inter alia due to the lack of participation in the decision process and as they had not shown an impairment of any rights personal to them, it would be manifestly unjust to An Bord Pleanála and the wind farm promoters (ESB and Coillte) to allow Ms. Grace and Mr. Sweetman to stand in the shoes of DAHG and further the Department’s retracted objection.

We understand that there may be a leave to appeal application made in this case, possible return date 19 January 2016.

Buckley & Anor -v- An Bord Pleanala 2014/579 JR

This case relates to Ecopower’s proposed 22-turbine wind farm at Upperchurch, Co. Tipperary.  RTE News reported on the initial application for leave to seek judicial review and highlighted that one of the issues to be considered relates to the withdrawal of consent by Mr. Buckley for his lands to be used as part of the proposed development.  An Bord Pleanála’s reference for the planning application is 243040: Graniera Shevry, Knockcurraghbola Upperchurch, Co. Tipperary. (13/510003).  The case was heard over six days in May 2015.

Mr. Buckley was unsuccessful in his case with judgment delivered on 29 July 2015, see Buckley & anor -v- An Bord Pleanála [2015] IEHC 572.  The court refused to accept that the Environmental Impact Assessment or Appropriate Assessment undertaken by An Bord Pleanála were deficient.  On the consent issue the court distinguished the case of McCallig v. An Bord Pleanála and Ors [2013] IEHC 60 stating that, the High Court found as a fact that Ms McCallig had not in fact ever granted her consent to the Applicant to make the planning application.  In this case, Mr. Buckley clearly granted a consent to the developer to make the initial planning application to Tipperary County Council.  However, given the timeline for the case clearly indicated that Mr. Buckley withdrew consent prior to the appeal to An Bord Pleanála, it seems to us the court erred on this point.

Nevertheless, Mr. Buckley sought leave to appeal but legal argument appears to have missed the significance of section 37(1)(b) of the Planning and Development Act that ‘the Board shall determine the application as if it had been made to the Board in the first instance … .‘  While Mr. Buckley may not have quashed the entire permission, if this point had been raised, it is possible he may have won some relief by voiding the application/permission over his lands and may have held off some costs in relation to the case.  On 16 September 2015 leave to appeal was refused, see Buckley & Grace -v- An Bord Pleanála [2015] IEHC 590.

Derrybrien Development Society Limited -v- Saorgus Energy Limited & ors

Judgment in this long running s160 planning enforcement case was finally delivered by the Supreme Court on 16 October 2015, see Derrybrien Development Society Limited -v- Saorgus Energy Limited & ors [2015] IESC 77.  The case itself dealt with the deforestation of more than 115,000 trees which formed part of the development of a wind farm on the Derrybrien site.  In essence, was the deforestation of the lands at Derrybrien an unauthorised development?  The appellants were also seeking inter alia an order to restrain, the already completed, deforestation.

Most of you will have heard of the Derrybrien landslide, which began on 16 October 2003 with a massive bog burst/land slide causing significant damage to surrounding areas.  The initial slide stopped on 19 October 2003, after travelling two and a half kilometres down stream approximately but on 28 October 2003 following heavy rain the slide continued causing a significant environmental disaster.  While there were several contributing factors towards the land slide, a report commissioned by the wind farm company identified that the immediate cause was most probably the ongoing wind farm construction works.  It should also be noted that the European Commission took proceedings against Ireland, which resulted in a judgment of the European Court of Justice in Commission v. Ireland Case C- 215/06 [2008] E.C.R. 1-4911, which held that the development of the wind farm had not been preceded by an environmental impact assessment as required by the EIA Directive.

The Supreme Court held that despite the planning permissions not covering or extending fully to the deforestation, the forest has been cleared, and the wind farm company has no responsibility for any inadequacy in any planning permissions which might be held to exist if the issue were to be decided on this appeal – the company had acted at all times in the belief that they were in accordance with planning permissions granted by Galway County Council.   The court using its discretion refused to allow the appeal while stating:

There is an element of futility in seeking an order to restrain the deforestation, in the circumstances.  The Court does not make futile orders.

As pointed out by the excellent Supreme Court of Ireland blogpost in refusing the appeal, ‘the Court affirmed McKechnie J’s High Court decision in Leen v Aer Rianta (here) that “may” in s 160 of the Planning and Development Act 2000 provides a discretion for the courts similar to that held by a court of equity.’

Further wind farm related cases

Anderson v Finavera Wind Farm and Ors 2013/6852 P, (no update).

Kilvinane Wind Farm limited v An Bord Pleanála 2012.129 JR, appears to be on hold awaiting outcome of appeal of Bailey -v- Kilvinane wind farm Ltd [2014] IEHC 509, under supreme court reference 491/13.  It appears to us that the wind farm the subject of these proceedings is being considered by An Bord Pleanála under a substitute consent application, see SU0135: Garranure, Kilvinane and Carrigeen, Ballynacarriga, Dunmanway, Co.Cork which is due to be decided before 25 February 2016.

Shivnen v Enercon and Carrigcannon wind farm 2011/9955 P, wind farm noise case we would be grateful for any update on this case.

__________________________________________

Last updated: 31 December 2015

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.


%d bloggers like this: