Category Archives: Planning

Donegal wind farm planning details in 2016

ballyshannon-windfarm-and-house2

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

Wind turbine permissions for Donegal, per year

Decision/Year

2012 2013 2014 2015 2016

Granted

87 67 94 11

24

Refused

5 7 19 32

52

Withdrawn   1 4

 

Detail in relation to wind farm and ancillary development decisions

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

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

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

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

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

Table of wind farm and ancillary development decisions in Donegal 2016

Name

Location Turbines Reference no. Type of App. Status

Decision Date

Carrickaduff Windfarm

Planree Ltd

Between Barnes and Killygordon 49

ABP: PA0040

Full PP REFUSED

25 March 2016

Clogheravaddy Wind Farm Ltd

Frosses 7

DCC: 14/51305

ABP: PL05E.244417

Full PP GRANTED

19 February 2016

Clogheravaddy wind Ltd

Binbane Grid Connection

DCC: 16/50440

Full PP INVALID

6 April 2016

Clogheravaddy wind Ltd

Binbane Grid Connection

DCC: 16/50473

ABP: PL05 .246851

Full PP DCC: Refused

ABP: GRANTED

DCC: 8 June 2016

ABP: 24 Nov 2016

Connective Energy Holdings Ltd

Meenagrauv

Ballybofey

1

DCC: 15/51071

Full PP GRANTED

15 May 2016

Corvin Wind Ltd

Bauville, Inishowen Substation

DCC: 16/51540

Full PP GRANTED

1 December 2016

Cufgaze Limited

Drumnahough and Lenalea Wind Farms to Clogher Substation Substation

&

Grid Connection

ABP: VC0097

Pre-App consultation Is not strategic infrastructure

20 October 2016

Cunard Asset Management

Meenhore

Grousehall

2

DCC: 16/50040

Full PP INVALID

21 January 2016

Cunard Asset Management

Meenhore

Grousehall

2

DCC: 16/50209

Full PP INVALID

11 April 2016

Cunard Asset Management

Meenhore

Grousehall

2

DCC: 16/50209

Full PP REFUSED

15 June 2016

Declan Clarke

Kinnegoe Bay 1

DCC: 15/51683

ABP: PL05.246265

Full PP REFUSED

12 July 2016

Derrykillew Community Windfarm Ltd

Derrykillew

Ballyshannon

5

DCC: 14/51400

ABP: PL05E.245108

Full PP GRANTED

18 March 2016

ESB Networks and EirGrid PLC

Donegal 110kv Alter 110kv line

ABP: PL05.VM0010

Full PP GRANTED

11 May 2016

ESB

Sorn Hill Station & Transformer

DCC: 16/50829

Extend Duration GRANTED

21 July 2016

Gineadóir Gaoith Teoranta

Cronalaght Substation

DCC:15/51726

Amend PP GRANTED

25 February 2016

Gineadior Gaoithe Teo.

Gweedore 5

DCC: 16/50989

ABP: PL05.247194

Amend turbines GRANTED

DCC: 18 August 2016

22 December 2016

Glenalla Green Ltd.

Garrymore

Kerrykeel

1

DCC: 16/50297

Extend duration GRANTED

21 April 2016

Karol McElhinney

Aheavagh, Ballybofey 1

DCC: 16/50540

Extend duration GRANTED

16 June 2016

Lettergull Energy Ltd

Raphoe to Listillion Grid connection

DCC: 15/50968

Full PP GRANTED

18 February 2016

Lir Energy Ltd

Gweedore 1

DCC: 16/51532

Full PP INVALID

20 October 2016

Lir Energy Ltd

Gweedore 1

DCC: 16/51486

Full PP INVALID

12 October 2016

Maas Wind Ltd

Maas 11 Hardstands

DCC: 16/50564

ABP: PL05 .246871

Full PP GRANTED

DCC: 10 June 2016

21 December 2016

Planree Ltd

Cornashesk, Killygordon Wind Mast

DCC: 16/50254

Retention GRANTED

21 April 2016

Planree Ltd

Meenbog, Ballybofey Wind Mast

DCC: 16/50348

Retention GRANTED

21 April 2016

Planree Ltd

Ballyarrell Mountain & Lismulladuff, Killygordan 2 met masts

ABP: PL05E.RL3419

s.5 referral Is development

(Not Exempted)

8 February 2016

Planree Ltd

Meenbog, Ballybofey Wind Mast

DCC: 16/50447

Full PP INVALID

7 April 2016

Planree Ltd

Meenbog

Ballybofey

Wind Mast

DCC: 16/50585

Full PP GRANTED

16 June 2016

proVento Ireland PLC

Tullylinn

Pettigoe

4

DCC: 13/51404

ABP: PL05E.245588

Full PP GranTED

30 August 2016


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.


Wind Turbine Regulation Bill 2016

It wasn’t just the Trump staff writers who employed ‘copy and paste’ these last few weeks it seems Sinn Féin have dusted down their Wind Turbine Regulation Bill 2014 and reintroduced it (subject to one additional section, which we shall discuss below) as the Wind Turbine Regulation Bill 2016.  This is in line with Motion 32 passed at the 2016 Ard Fheis, which seeks to “immediately implement legislation which would seek to impose strict setback distances on wind turbine developments.”

The 2016 version was introduced to the Dáil on 20 July 2016 by Brian Stanley TD who stated that:

This Bill seeks to introduce practical regulations that can be implemented so that wind farms are located in the right places. The regulations would allow for sensible development and the protection of our landscape and rural dwellers.

The location of wind farms is dealt with. The set back distance will be ten times the height of the wind turbine to the tip of the blade. Noise levels would have to be within WHO limits and shadow flicker from a propeller would not be permitted to pass over a house.

Legislative background

Sinn Féin are not the first legislators to tackle the growing disquiet and community disharmony with wind farm planning in Ireland.  In 2012 Labour Senator John Kelly introduced a Private Members Bill in the Seanad.  The Wind Turbines Bill 2012 stalled in the Seanad without any government support.  This was followed by another Private Members Bill this time introduced by Labour TD Willie Penrose, in the Dáil.  The Environment and Public Health (Wind Turbines) Bill 2012 mirrored the set back distances proposed by Senator Kelly and made a few token references to the Aarhus Convention and the duty of developers to engage in public consultation, with meaningful public participation, in relation to wind farm planning applications.  A further three copies of the Penrose Bill were introduced in 2013 by TDs:Luke ‘Ming’ Flanagan, Mick Wallace and Clare Daly.  All of the Bills along with the Sinn Féin Wind Turbine Regulation Bill 2014 fell with the dissolution of the previous Dáil.

Analysis of the Bill

As most elements of the 2016 Bill mirror those of the 2014 Bill we have copied those elements of our 2014 blog post below for your information:

Location of turbines

The Bill, at section 3, proposes that locations for the development of wind farms must be designated in County Development Plans  (CDPs).  Such designation must only be done with the approval of the elected members of the local authority.  Therefore applicants for permission will be statute barred from applying for planning permission in areas not designated for wind developmentin a CDP.  Set back distances are established, in section 6, on a proportional basis, with all turbines greater than 25 metres in height required to be located no less than ten times the maximum tip height of the turbine away from any dwelling.  No consent clause, to allow for closer siting, is provided for in the Bill.  Such deals would be clearly unlawful under section 8 of the Bill as would any similar contract with any person living within 3km, defined as the ‘host community’ of a wind farm.

Set back to apply to existing wind farms

Furthermore and most significantly, the Bill as currently drafted, will require existing wind farms to comply with these set back distances.   Section 7 provides that wind farm operators have one year from the enactment of the Bill to ensure compliance with the set back distances.  A further requirement in the Bill means that wind farm operators must notify residents within the set back zone and the relevant planning authority of their plans in relation to compliance with the set backs.  Compliance with the set back distances is also a matter which the Minister may consider when exercising functions in relation grant aid or financial assistance to wind farms including under the REFIT scheme.  Therefore failure to comply and remove turbines within the ten times set back zone may lead to a loss of REFIT assistance.   Failure to comply may also lead to further penalties under section 8 however these are not yet defined.

Noise and shadow flicker

The provisions relating to noise and shadow flicker (section 5) are relatively clear and require that all future applicants for permission and existing operators shall ensure:

(a) that the noise from the wind turbine does not exceed the noise limits specified in the World Health Organisation Guidelines for Community Noise (1999), or any preceding or replacement guidelines, and
(b) that the distance of the wind turbine is such that any shadow flicker from the turbine does not pass over the dwelling.

The compliance penalties of section 8 also apply to operators who do not adhere to the noise and shadow flicker requirements.  Again, these provision will relate to all existing wind farms, however no transitional procedures for existing wind farm operators are detailed in the Bill in relation to noise and shadow flicker.  Therefore no timeline for compliance is defined and it must be presumed to be effective from the date of enactment.

Public Consultation

A further section to be noted relates to the issue of public consultation in relation to wind farm planning applications.  Section 4 includes a few novel provisions in relation to the format of such consultation.   The standard newspaper notice for a planning application will now be required to include a copy of an ordinance survey map marked with the exact location of each proposed wind turbine.  In addition applicants for wind farm planning permission will be required to have notices broadcast on a local radio station broadcasting in the area of the proposed development to the effect that the developer is arranging a public meeting to be held at a named convenient time and in a named convenient location near to the proposed development, at which the public may submit, in writing or verbally any comments, information, analyses or opinions that they consider to be relevant to the proposed development.  A report from this public meeting must then be submitted, by the developer, to the local planning authority or An Bord Pleanála, as appropriate, as part of the planning process.  The meeting report must be part of the public file.

Health impact assessment

A final point to be noted is contained in Section 4 which details a range of information which must be included in any wind farm planning application.   Subsection 4(b)(ii) requires that a formal assessment in writing and a non-technical outline of the ‘potential impacts of the proposed [wind farm] construction on the physical and mental health of the host community’, that is anyone living within 3km of the proposed development, must be lodged with the local authority and public library in relation to the proposed wind farm.  The issue of health impact assessments is not novel and is required under the EIA Directive, however as pointed out by An Bord Pleanála’s senior inspector in his report (pages 46-48) on the Straboy wind farm oral hearing guidance is required in order to undertake such a health impact assessment.  A general review of wind farm planning applications indicates that it is rare, if ever, that a meaningful health impact assessment is undertaken in Ireland.  The Sinn Féin Bill does not provide guidance in relation to such an assessment but at least it does make a health impact assessment mandatory for all new developments.

Co-Ownership for Local Communities

The only change from the 2014 Bill is in relation to a new section 12 on Co-Ownership for Local Communities.  Sinn Féin like all other political parties have bought into the community acceptance model of planning and therefore see co-ownership of the wind farm as a solution.  Section 12 of the Bill provides that Wind Farm Developers must offer for sale to local residents, initially within 4km of a development, up to a 20% stake in the project.  If the full 20% not taken up within 12 months the wind farm developer must extend the offer to those living within 10km of the development for a further period of 6 months.

What is missing however is the Community Co-Operative element which Sinn Féin adopted motion 174 at their 2015 Ard Fheis and which provided that:

… this Ard Fheis calls for the granting of planning permission to an applicant for the development of Renewable Energy Generation of 1MW or above to be conditional upon the applicant entering into an agreement with the local authority to allocate 6.25% of company shares in the said development for the direct funding of community facilities in the vicinity of the development and for the co-operative ownership by the local community of a life interest in the development, that being the 6.25% of shares.

This 6.25% will be the minimum life interest the community co-operative can have in said development.  The allocation of said shares and any funds earned from such shares are to be held in trust by the local authority until a community co-operative can be formed for the local area. The community co-operative shall then allocate earnings from said shares to community projects and organisations in the immediate area.

Sinn Féin have clearly ditched their 2015 Ard Fheis motion, which forced free from compensation to the developer 6.25% ownership of the development into host community hands in favour of a forced shared investment offering model of up to 20% (developer gets paid for these shares).  It seems that the wind lobby have successfully overturned Sinn Féin policy adopted at an Ard Fheis.

Conclusion

The 2016 Bill is likely to remain in the legislative queue and shall not be passed in current Dáil.  It seems local communities threatened by wind farm developments must rely on the long awaited wind energy guidelines to provide some protection; the revision of the Guidelines began in January 2013 and remains incomplete with Minister Denis Naughten the latest to stone wall when questioned when they’ll be published.

Legislating for safe setbacks remains the only lasting solution to the problem facing local communities when faced by big wind.


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!

 


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