Tag Archives: Donegal County Council

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.

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


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 wind farm planning details in 2015

FWPM and Wind Farm Zones Dongeal 2013

For the first year since we began keeping these records, in 2012, the number of wind turbines granted permission in county Donegal (11) was lower than the number refused (32).  This is a significant change in the trend for such decisions; with the total number of turbines refused permission in 2015 (32) being just one less the the combined total (33) of refusals for the three prior years 2012-2014.

Wind turbine permissions for Donegal, per year

Decision

2012

2013 2014 2015

Granted

87 67 94

11

Refused

5

7 19

32

Withdrawn

1 4

On reviewing the figures for 2012 -2015 the question does arise as to why there is such a steep decline in permissions granted in 2015.  It is clear that public opinion has turned against wind farms in Donegal.  The proposed variation to the County Development Plan in 2014 to set a 10 times height setback and dezone fresh water pearl mussel catchements from wind farm development achieved 3,326 public submissions in its favour.  County Councillors backed this variation only to see the Minister issue a direction to reverse it but this has been appealed to the high court by former Chairman Cllr. John Campbell and awaits hearing – scheduled for June 2016.  As we commented before this legal stand-off leave considerable uncertainty for planners and developers; this may be the cause of the drop in permissions in 2015.

The other contributory factor is the ongoing delays at An Bord Pleanála with 81 wind turbines across 4 cases, relating to Donegal, awaiting decision for very considerable periods of time.  While the delays at An Bord Pleanála relate in the main to other legal issues the uncertainty in relation to the Donegal County Development plan and zoning is another legal lacuna which faces the Board.

Detail in relation to wind farm and anciallry development decisions

There were a total of 18 planning applications, dealing with wind farms and ancillary developments in Donegal concluded during 2015.  Of these applications two were withdrawn.  The high-level figures indicate that in 2015 with respect to Donegal, permission was granted for 11 turbines and refused for 32 turbines.  Of the 11 turbine permissions two were height amendments and six were extensions of duration, leaving just four new permissions being granted during 2015.  Permission was also granted for two 110kv substations, an access route, lightning poles for a substation and 1km of 33kv underground cabling.

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 in 2014 are here.

Table of decisions concluded in 2015

Name

Location Turbines Reference no. Type of App. Status

Decision Date

Altnagapple Wind Farm Ltd Ardara 13 DCC: 15/50265

ABP: PL05E.244918

Full PP REFUSED

30 April 2015

22 September 2015

Aught Wind Farm Ltd Trillick Aught 1km of 33kv u/g cable DCC: 15/50070 Full PP GRANTED 23 March 2015
Clogheravaddy Wind Farm Ltd Frosses 7 DCC: 14/51305

ABP: appeal ongoing

Full PP REFUSED 8 January 2015
Corvin Wind Limited

Bauville

Buncrana

2 DCC: 14/51295 Full PP GRANT = 1

REFUSED = 1

6 January 2015
Corvin Wind Limited

Bauville

Buncrana

1 DCC: 15/50117 Full PP GRANTED 26 March 2015
Declan Clarke

Crockbrackhill

Moville

2 DCC: 14/51367

ABP: PL05E.244481

Amend height GRANTED

22 January 2015

23 June 2015

Derrykillew Community Windfarm Ltd

Derrykillew

Ballyshannon

5 DCC: 14/51400

ABP: appeal ongoing

Full PP REFUSED 10 June 2015
Eamonn McElhinney

Liskeeran

Stranorlar

1 DCC: 15/50407 Ext. of time GRANTED 14 May 2015
Eamonn McElhinney Liskeeran

Stranorlar

1 DCC: 15/50406 Ext. of time GRANTED 14 May 2015
ESB

Meenacahan

Inver

110kv

substation

DCC: 15/50397 Full PP GRANTED 21 May 2015
ESB

Listillion

Letterkenny

110kv substation DCC: 15/50249 Alterations GRANTED 23 April 2015
ESB Networks & EirGrid

Binbane – Letterkenny

& Tievbrack

110kV line

& station

ABP: PL05.VC0071 Pre-app.

Consultation

WITHDRAWN 21 May 2015
Patrick Bonnar

Garvegort windfarm

Garvegort, Glebe

Ardara

4 DCC: 15/50054 Ext of time GRANTED 7 May 2015
GTBC

Aideen Brett

Meenhore

Grousehall

2 DCC: 14/51419 Full PP REFUSED 5 February 2015
Killin Hill Windfarm Ltd

Meenagranoge

Inver

Access route DCC: 15/51088 Full PP GRANTED 8 October 2015
Michael O’Donnell

Carricknamohill

Killybegs

1 DCC: 15/50047 Full PP GRANTED 25 June 2015
Power & Energy Holdings

Clogher Substation

Cullinaboy

Lightning Poles DCC: 15/50765 Full PP GRANTED 24 July 2015
proVento Ireland PLC

Tullylinn

Pettigoe

4 DCC: 13/51404 Full PP REFUSED 10 September 2015

Donegal wind farm planning details in 2014

There were a total of 31 planning applications, dealing with wind farms and ancillary developments in Donegal concluded during 2014.  Of these applications four were deemed invalid and a further four were withdrawn.  Of the four withdrawals three were withdrawn by the applicant and one was deemed withdrawn as further information was not received within the specified time frame.

The high-level figures indicate that in 2014 with respect to Donegal permission was granted for 94 turbines & associated works; 2 individual substations; 2 individual wind masts; 1 38kv line and an access road; and refused for 19 turbines.

Donegal County Council were responsible for granting permission for 84 turbines with An Bord Pleanála granting permission for 10 of the permitted turbines.  Of those refused permission Donegal County Council refused 16 in 2014 and An Bord Pleanála refusing 16.  There is a cross over from 2013 applications but a total of 19 turbines were refused.

Of the turbines granted permission 25 were extensions of duration (of about to expire planning consents) and 43 turbines had amendments made to their planning permissions.  Of these amendments 2 were for height extensions and 41 had amendments made to the permitted timings of the proposed construction works.

There was also one decision in relation to the pre-application consultation on a Strategic Infrastructure Development (SID) by An Bord Pleanála the now 51 turbine development proposed by Planree Ltd. (previously mooted as 45 turbines) was declared an SID and can now bypass Donegal County Council planners.

One final, yet interesting point, is that there are redacted documents on two planning applications see below Derrykillew (withdrawn) and Clogheravaddy (refused).  No explanation has been provided by Donegal County Council as to why such public documents have been redacted.

Note: current live applications for wind farms and ancillary developments in Donegal can be found here.

Table of Donegal wind farm and ancillary development planning applications

concluded in 2014 

Name Location Turbines Reference no. Type of App. Status Decision Due Date
Declan Clarke Crockbrackhill

Moville

Substation DCC: 13/51462 Full PP/Mod. GRANTED 9 January 2014
Declan Clarke Crockbrackhill

Moville

2 DCC: 14/50014 Amend height REFUSED 6 March 2014
Declan Clarke Kinnagoe bay

Inishowen

2 DCC: 14/50368 Amendheight INVALID 30 April 2014
Declan Clarke Crockbrackhill

Moville

2

DCC: 14/50014

ABP: PL05E.243207

Amend height GRANT 5 August 2014
Declan Clarke Crockbrackhill

Moville

2 DCC: 14/51131 Amend height INVALID 10 November 2014
Derrykillew Community Windfarm Limited Derrykillew

Ballyshannon

5 DCC: 14/50394 Full PP WITHDRAWN 14 May 2014
ESB Networks Rossiger

Stranorlar

38kV line DCC: 14/50172 Extend Duration GRANT 3 April 2014
ESB Wind Development Limited

Bradlieve Windfarm

Ballymagroarty

Ballintra

7

DCC: 12/50652

ABP: PL05E.242411

Full PP REFUSED 24 January 2014
FahanWind Ltd Upper Illies

Buncrana

2 DCC: 14/51149 Full PP GRANTED 23 November 2014
Highland Wind Energy Lurganboy

Rathmullen

4 DCC: 14/50292 ExtendDuration GRANTED 17 April 2014
Island Seafoods Killybegs 1 DCC: 14/51410 Full PP INVALID 10 December 2014
Maas Wind Ltd Loughderryduff

Maas

Substation DCC: 14/50553 Full PP GRANT 3 July 2014
Maas Wind Ltd Loughderryduff

Maas

Access Road DCC: 14/51187 AmendAccess road GRANTED 20 November 2014
Meenbane

Michael Magee

Meenbane

Ballybofey

3 DCC: 12/50583 Full PP WITHDRAWN 5 June 2014
M.D. South Windfarm Limited Lough Cuill

Meenadreen & Croaghnameal

11

DCC:12/50866

ABP: PL05E.242056

Full PP GRANT = 8

REFUSE = 3

No date available
North West Wind Ltd Loughderryduff

Maas, Glenties

11 DCC: 14/50070 Ext. of time GRANTED 13 February 2014
Planree Ltd Carrckduff Hill

Lismullyduff

Ballybofey –

Killygordan

51 ABP: PL05.PC0170 Pre-appconsultation Is Strategic Infrastructure Development (SID) 4 December 2014
Pro Power EnergyLimited Inishowen West 2 DCC: 12/50488 Full PP GRANT = 1

REFUSED = 1

13 February 2014
REACT Energy Ltd Altilow

Donegal Town

6

DCC: 14/50326

ABP: PL05E.243413

Full PP REFUSED 1 May 2014
Reforce Energy Limited Meenybraddan

Croagh

1 DCC: 13/51189 Full PP DEEMED

WITHDRAWN

19 May 2014
SSE & Coillte Cark 15 DCC: 13/51609 Full PP GRANT 13 February 2014
SSE & Coillte Carrickalangan

Drumkeen

Windmast DCC: 13/51271 Retention GRANTED 21 March 2014
SSE & Coillte Killymasny

Drumkeen

Windmast DCC: 13/51346 Retention GRANTED 21 March 2014
Three Trees Wind Energy Limited Three Trees

Quigley’s Point

5 DCC: 13/51550 Ext. of time GRANTED 23 January 2014
Three Trees Wind Farm Glackmore Hill

Quigley’s Point

5 (2) DCC: 13/50149 Ext. of time GRANTED 23 January 2014
Windgeneration Ireland Ltd Meenadreen

extension

5 DCC: 14/51229 Amend construction condition GRANTED 4 December 2014
Windgeneration Ireland Ltd Croaghnameal 8 DCC: 14/51228 Amend construction condition GRANTED 4 December 2014
Windgeneration Ireland Ltd Straness 28 DCC: 14/50467 Amend construction condition INVALID 25 April 2014
Windgeneration Ireland Ltd Straness 28 DCC: 14/50508 Amend construction condition WITHDRAWN 20 June 2014
Windgeneration Ireland Ltd Straness 28 DCC: 14/50777 Amend construction condition GRANTED 21 August 2014

Minister Kelly, section 31 and wind farm planning in Donegal

It has been another interesting year in relation to wind farm planning in Donegal.  Just before Christmas the Chairman of Donegal County Council, Cllr. John Campbell , was granted leave by the high court to challenge the section 31 Direction issued by the Minister for the Environment, Labour’s Alan Kelly.  This case is just one of 17 wind farm related actions in the high court in 2014.  As regular readers of this blog will know the Ministerial Direction sought to reverse variation no.2 of the Donegal County Development Plan which set a ten times maximum tip height setback from wind turbines to homes and zoned 6 Freshwater Pearl Mussel catchment sub-basins as not favoured for wind energy development.  See previous posts in relation to the variation and the proposed Ministerial intervention.

Unclear if Direction has “immediate effect” or requires Council approval

The Minister eventually issued the Direction to Donegal County Council on 3 October 2014 <PDF copy here> but this was under subsection 31(11)(a)(ii) of the Act and was done without the appointment of an Inspector as provided for under subsection 31(11)(b).  This is significant, if the Minister had appointed an Inspector any subsequent direction issued would have been made under subsection 31(16) of the Act and would have had “immediate effect and its terms are considered incorporated into the [development] plan” (subsection 31(17)).  The failure to appoint an Inspector leaves uncertainty as to when, if at all, the County Development Plan has been amended as per the Ministerial Direction.  Furthermore, the Direction issued by the Minister failed to set an effective date or a deadline, nor is an effective date or deadline provided for in the Act, within which elected members must comply with such a Direction under subsection 31(11)(a)(ii).

From media reports (as no minutes are yet available) the issue of the Ministerial Direction was not raised at any of the subsequent Donegal County Council meetings before Christmas and no motion was ever put to the elected representatives to adopt the Direction and amend the development plan accordingly.  It is important to note that the making and amending of a development plan is a reserved function of the elected representatives.  While the elected members may have little choice but to accept such a motion to change the plan, as Directed by the Minister, nevertheless changes to a development must be adopted by resolution of the elected members before taking effect.  Any effort by the Council Executive to amend the plan without a resolution of the elected members would appear to be unlawful.  Therefore, despite the Direction being issued on 3 October 2014 the variation as passed on 30 June 2014 remains in force.

Judicial Review

It is likely that these issues will be brought to the surface as part of Cllr. Campbell’s judicial review of the Ministerial Direction.  While Cllr. Campbell has given a few interviews to the Donegal media in relation to the court action, see for example a Highland Radio interview (including audio) and a Donegal News article, little detail in relation to his precise legal arguments are in the public domain.   However, Cronan Scanlon in his Donegal News report highlights that “a separate application to have a stay put on the implementation of Minister Kelly’s direction will be heard in the High Court on January 12.” (I presume this should read 13 January 2015 as the case – Campbell -v- Minister for Enviroment, Community & Local Gov 2014/712 JR -is listed for return to the court on that date by courts.ie.)  It is likely that the “stay” will crystallise the issue and ensure that the variation, including the setbacks and zoning, as passed on 30 June 2014 remains in force, at least until the substantive issues are decided by the court.

Can the Council grant planning permission in contravention of variation no. 2?

This is more than just an interesting question as at least two applications for permission await a decision before Cllr. Campbell’s “stay” hearing.  Given that the Ministerial Direction hasn’t been given effect, through a resolution of the elected members, it seems that should the Council planners be minded to grant permission, without seeking further information, for wind farm applications such as Corvin (DCC: 14/51295) or Clogheravaddy (DCC: 14/51305) that a vote on a material contravention under section 34(6) of the Planning and Development Act would be required.  Alternatively an emergency meeting of the Council could be convened to give effect to the Ministerial Direction, albeit for a brief period before Cllr. Campbell’s “stay” is put in place.  It seems wind farm planning in Donegal for 2015 will continue to intrigue.


Consultation on Draft Ministerial Direction

On the 22 July 2014 the Minister for the Environment, Community and Local Government, notified Donegal County Council of his intent to issue a Direction pursuant to Section 31 of the Planning and Development Act 2000 (as amended).  The draft direction relates to Variation No. 2 to the County Donegal Development Plan 2012-2018 (as varied), which relates to wind farm planning and zoning in the county.

Regular readers will be aware that on 30 June 2014 Donegal Councillors passed a series of variations (known as variation no.2) to the wind farm planning sections of the County Development Plan.  The primary elements of the variation will 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.

However newly appointed Minister Alan Kelly has issued a draft direction to the Council which seeks to overturn these wind farm planning decisions taken by the elected members of Donegal County Council.   The Minister has two main issues, he claims:

  1. the elected members have either ignored or not adequately considered his submission on the matters made on 7 May 2014 which highlighted what the Minister considered to be inconsistencies of the varied plan with (i) the 2006 Wind Energy Guidelines, (ii) the Border Regional Authority Regional Planning Guidelines, and (iii) National targets for the generation of energy from wind ; and
  2. the decision by the elected members to alter the policies and objectives in regard to the wind energy objectives does not provide for proper planning and sustainable development and therefore the County Donegal development Plan 2012-2018 and is not in compliance with the requirements of s.9, s.10, s.12, and s.28 of the Planning and Development Act 2000 (as amended).

The matter has been discussed twice at recent Council meetings and the elected members shall be making a submission to the Minister.  Chairman John Campbell has in many interviews (including on Morning Ireland) highlighted that the incorporation of national wind farm policies and targets in Donegal does not begin on a ‘blank canvas’ as there are considerable ecological constraints and the needs of local residents to consider when establishing what is proper planning and sustainable development of the county.

Despite what the Minister claims the Council have met all the statutory requirements in relation to sections 9, 10, 12 and 28 of the Planning Act.  The varied county development plan sets out a clear overall strategy for wind farm development in the county (s.10) and is clearly in line with the over-arching requirement to provide for the proper planning and sustainable development of the area (s.12).  With respect to consistency 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 (s.9).  Donegal councillors must balance the significant ecological constraints in the county, including the European and Irish statutory protection of the FWPM and sub-basins (s.10) and the importance to protect the amenity of the county’s residents with all national policies.

The balance achieved in the varied plan directs wind farm developers away (not an outright ban) from FWPM sites (this is similar to Kerry Council) and recognises a turbine height proportionate buffer zone around homes (unlike the blanket ban in Tipperary North who set a 1km setback).  The impact of a proportionate setback is two fold it directs large-scale (height) development away from homes but also ensures that where developers seek to introduce turbines closer to residential areas the scale and size of turbines will not prove incongruent or visually dominant on residential amenity and the receiving landscape.

In my opinion Donegal’s councillors have shown great ability in achieving a consistent balance in relation to the competing objectives and constraints within which they must plan for the county while setting a clear strategy for areas to be targeted for development and the acceptable height of turbines in those areas.

Written submissions or observations in respect of the draft direction may be made to Donegal Council and must be received no later than 5.00pm on the 18 August 2014.  All submissions shall be taken into consideration by the Minister before he takes a decision in relation to the draft direction.  Submissions can be made either:

  1. by email to donegalcdp@donegalcoco.ie; or
  2. by post to Mr. Denis Kelly, Senior Executive Planner, Central Planning Unit, Donegal County Council, County House, Lifford, Co. Donegal.

** It is important to note that this consultation is not on the merits of dezoning the FWPM area or the introduction of a setback.  The elected members under the requirements of s.12(11) and s.13 of the planning act have already decided that such zoning and setbacks are proper planning and sustainable development of the area.  The consultation is only in relation to the Minister’s powers (or not) to issue the direction under the Planning and Development Act (as amended) and his power to overturn the lawful and democratic decision of the Council.


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