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.
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.
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. Further noise complaints, enforcement proceedings, and ongoing noise compliance assessments are also more common. 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).
Furthermore, it has been accepted by Minister Denis Naughten that current planning guidance in particular the outdated section 28 Wind Energy Guidelines (2006) are not fit for purpose.
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.
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. Reliance on such data modeling, if this is what the Minister is relying upon is indefensible.
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.
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  IEHC 397.
Should you have any queries in relation to our submission please direct them to email@example.com.
 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).
 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).
 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.
 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.
 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.”
 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/.
 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.
 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/.