Tag Archives: Fresh Water Pearl Mussel

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.
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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.


Section 28: Specific Planning Policy Requirements

FWPM and Wind Farm Zones Dongeal 2013

As described by A&L Goodbody: “Specific Planning Policy Requirements are sections of guidelines labelled as such and they are grafted into the Minster’s guideline-making power. Compared to ordinary guidelines, however, their effect is significantly different:

  • They constrain planning authorities’ normal discretion; they must be applied by a planning authority in deciding whether to grant planning permission;
  • Where Specific Planning Policy Requirements conflict with any provision of a development plan, they apply instead of the conflicting development plan provisions; and
  • Where planning permission for an apartment block (of a kind governed by the Multi-Unit Developments Act 2011) was granted before the introduction of applicable Specific Planning Policy Requirements, any application for an amending permission will be subject to a fast track procedure that can be appealed to the Board only in limited circumstances.”

Our plan for this blog post is to test the claim by A&L Goodbody (and others) that these new requirements “must be applied”.  In other words are they such a clear attack on local democratic decision making and county development plans.

This new species of planning guideline – Specific Planning Policy Requirements – was introduced by the Planning and Development (Amendment) Act 2015 (PDF) which was passed in a few short weeks before Christmas 2015.  The Bill was introduced by Waterford based Fine Gael Senator Maurice Cummins on behalf of Minister for Environment Community and Local Government (Alan Kelly), on 26 November 2015.  It was then very quickly ushered through the legislative process by Fine Gael Junior Minister Paudie Coffey concluding in the Oireachtas on 17 December 2015.  It was signed by the President on 29 December 2015.  The full legislative history is available here.

More recently the legislation has come in for some criticism in the main stream media: see Irish Independent, 20 February 2016, New planning rules a ‘sleight of hand’, says expert; and RTE News, 22 February 2016, Councillors criticise new planning powers for minister.  Both these pieces followed the informative blog post by Neil van Dokkum, 18 February 2016, The amendment of Section 28 of the PDA 2000 and a follow up on 21 February 2016, More on that Sect 28 Amendment.

Sadly only one of our legislators Independent Senator Gerard Craughwell seemed to understand the impact of the amendment and made the following insightful, but ignored, contribution in the Seanad on 17 December 2016:

Development plans are obliged to be drawn up with due regard to legislation, national policy, national planning advice and so forth.  A development plan is a complex document drawn up by those who have unparalleled knowledge of their county and their aims for it.  It is contributed to by the public through an extensive round of consultation.  It is a collaborative, informed, visionary document for the local area by local people. For the development plan to be subjugated to the whim of a Minister is totally unacceptable.  …, for the guidelines of a Minister to carry supremacy over local statements of intent regarding a development plan is an undermining of democracy of the worst kind.  I would be interested in the Minister of State’s comments in this regard.

The Minister (Paudie Coffey) failed to address this point in his response and the Bill was duly passed.

What is clear however is that the Act as passed, while introduced to provide legislative underpinning to certain measures of the recently approved Government housing package entitled “Stabilising Rents, Increasing Supply”, namely the new Sustainable Urban Housing: Design Standards for New Apartments – Guidelines for Planning Authorities, which set minimum apartment sizes, has the effect of creating a new and significant power for an Environment Minister which could be used to undermine the County Development Plan process.  The Act further weakens the powers of local authorities and their elected members in directing planning policy for their areas.

The introduction of the Apartment Size Guidelines provides a few pointers as to the application of the Act.  The information note issued with the revised Apartment Size Guidelines state that they are “the first set of Ministerial Guidelines issued under Section 28 of the Planning and Development Act 2000 as amended by the 2015 Act above which enables the Minister to set out specific planning policy requirements.”  This seems to confirm our initial thoughts that the legislation cannot be retrospectively applied to older guidelines, such as the Wind Energy Guidelines 2006.

From reading the revised Apartment Size Guidelines it seems that the Department of the Environment approach is that each specific planning policy requirement, contained in a Section 28 guideline must be clearly identified as such.  However as noted by others it seems that the Environment Minister’s in their rush to issue the new guidelines before Christmas published them on 21 December 2015, before the President signed the new legislation into law 29 December 2015, thus risking their so called mandatory status on a simple timing technicality.

As to the specifics on the legislaiton Neil van Dokkum’s blog deals with the insertion of sub-section 1C into section 28 of the Planning and Development Act 2000 (as amended).  Changes were also made to other sections.  We have set out below the revised section 34(2) [new provisions in red] which deals with matters that are to be considered when making a decision on a planning application:

(a) When making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area, regard being had to—

(i) the provisions of the development plan,

(ia) any guidelines issued by the Minister under section 28 

(ii) the provisions of any special amenity area order relating to the area,

(iii) any European site or other area prescribed for the purposes of section 10(2)(c),

(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,

(v) the matters referred to in subsection (4), and

(vi) any other relevant provision or requirement of this Act, and any regulations
made thereunder.

(aa) When making its decision in relation to an application under this section, the planning authority shall apply, where relevant, specific planning policy requirements of guidelines issued by the Minister under section 28.

(b) In considering its decision in accordance with paragraph (a), a planning authority shall consult with any other planning authority where it considers that a particular decision by it may have a significant effect on the area of that authority, and the authority shall have regard to the views of that other authority and, without prejudice to the foregoing, it shall have regard to the effect a particular decision by it may have on any area outside its area (including areas outside the State).

(ba) Where specific planning policy requirements of guidelines referred to in  subsection (2)(aa) differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the development plan.

(c) and section 54 (as amended by section 257 of this Act) of the Waste Management Act, 1996, where an application under this section relates to development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, a planning authority shall take into consideration that the control of emissions arising from the activity is a function of the Environmental Protection Agency.

(d) In this subsection ‘specific planning policy requirements’ means such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including the Board, in securing overall proper planning and sustainable development.

The clear question is what does all this mean?  As we had written as a comment on a Neil van Dokkum’s blog: The old requirement was that planning authorities must merely ‘have regard to’ the section 28 guidelines generally, as they are primarily advisory in nature.  Following these changes when considering a planning application, planning authorities must now apply the ‘specific planning policy requirements’ of ministerial guidelines.  Thus there is now a distinction between matters in ministerial guidelines that are advisory in nature and that planning authorities shall ‘have regard to’ and matters which appear mandatory in nature.

The important point to note is that the amendment Act also defines: ‘specific planning policy requirements’ to mean such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including An Bord Pleanála, in securing overall proper planning and sustainable development.

What is clear from this definition is that it is not merely enough to identify a matter as a specific planning policy requirement, it must also be issued to support consistent application of policy in securing overall proper planning and sustainable development.  Who can decide whether a specific planning policy requirement actually secures overall proper planning and sustainable development?  Shall this be left to the planning authority or ultimately the courts, or some other body?  The Act is silent.

This new standard of overall proper planning and sustainable development is also problematic when making a planning decision.  It immediately creates a conflict between the legislative requirement for a planning authority or An Bord Pleanála to restrict themselves to considering to proper planning and sustainable development of the area; as opposed to the newer overall proper planning and sustainable development, which specific planning policy requirements seek to secure.  The significance of this conflict between what is overall proper planning and sustainable development or that for the area becomes problematic where environmental impacts fall to be considered.

Take for example in Donegal where elected members sought to protect the Fresh Water Pearl Mussel SACs and sub-basin districts by identifying them as areas not favourable for wind energy development (see map above).  This would fall to be seen as a reasonable planning matter which the Donegal councillors would justify as a strategy to promote proper planning and sustainable development of the area.  If, for example, a Minister in future was then to use section 28 guidelines and a specific planning policy requirement to open these Fresh Water Pearl Mussel SACs and sub-basin districts up to wind farm development, would Donegal Council or An Bord Pleanála be required to follow the Ministers mandatory guidelines even if it would lead to significant negative impacts on the Fresh Water Pearl Mussel SACs and sub-basin districts?

Obviously the other requirements of the Act namely 34(2)(a)(vi) any other relevant provision or requirement of this Act, and any regulations made thereunder, must also be had regard to when making a planning decision.  Therefore issues arising as part of an EIA must also be taken into consideration; the seemingly mandatory nature of these specific planning policy requirements could be tempered somewhat.  It seems clear to us that despite the terminology implying that the specific planning policy requirements are mandatory and they shall apply, they cannot trump environmental considerations in relation to proper planning and sustainable development of the area and the need for screening and environmental impact assessments, when necessary, under EU and Irish law.

Nevertheless this legislative change is an attack on local democracy and could damage local authorities in protecting receiving environments from inappropriate development, if used inappropriately by An Bord Pleanála.  In the amendment to section 34 it clearly sets out that where specific planning policy requirements of guidelines differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the county development plan.  What remains unclear however is whether in determining appeals where Section 28 guidelines containing specific planning policy requirements that differ materially from a County Development Plan: whether An Bord Pleanála would be required under section 37(2)(c) to indicate in its decision the main reasons and considerations for applying the specific planning policy requirement(s) when contravening materially the development plan.  Without such reasoning it is difficult to challenge in court any such decisions.

The reason we are unsure, in relation to reasons for decisions, is that a County Council may find itself in a position where despite a development materially contravening its Development Plan it doesn’t refuse permission as it as it can rely on a specific planning policy requirement to grant permission (section 34(2)(a)-(aa)), and therefore the section 37(2)(c) requirement on An Bord Pleanála to indicate the main reasons and considerations for contravening materially the development plan would not apply.  The further we have developed scenarios in relation to applying specific planning policy requirement(s) the more problematic they appear.

Our main point however is that while described by many as mandatory, specific planning policy requirements have limits:

  • They must be issued to support consistent application of policy in securing overall proper planning and sustainable development; and it must be noted that overall proper planning and sustainable development is a novel term in Irish planning which to date appears not to have a legal definition.
  • They are just one of many matters which a planning authority or An Bord Pleanála must have regard to and apply, where relevant when making its decision in relation to an application.
  • The planning authority and An Bord Pleanála still appear to retain wide discretion when weighing up the constituent elements which regard is being had to or which the apply, where relevant, as set out in the planning and development legislation when arriving at their decision under section 34.

In concluding therefore it is the broad discretion which local authorities and An Bord Pleanála retain, in making its decisions that leaves the new ministerial specific planning policy requirement(s) and their application as a dangerous weapon, which could be used to undermine the local democratically taken decisions to ensure proper planning and sustainable development of the area.


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.


Response to CEO Report on Donegal Wind Farm Planning Variations

As discussed previously on this blog (here, here) Donegal County Council will on Monday 30 June 2014 meet to consider and vote upon the proposed variations to the wind energy sections of the County Development Plan 2012-2018 (as amended).   As part of this process an unprecedented 3,326 submissions were received in response to the public consultation on the variations.  A summary of the submissions is available here.
As required by the Planning and Development Acts the Chief Executive of Donegal County Council has drafted a report on the proposed variations and this has been issued to the elected members for consideration.  The Chief Executive’s Report however discounts the vast majority of submissions – greater than 98% of the 3,326 – who support the proposals to grant greater protection to residential amenity, in assessing wind farm applications, through an express objective, and the establishment of a ten times turbine height setback from homes and centres of human habitation.  His report also fails to accept that the Fresh Water Pearl Mussel (FWPM) sub-basin catchment areas protected in Irish and EU law should be designated as not favoured for wind farm development.  Again this proposal has the support of more than 98% of submissions received.
This post will not comment in detail on the Glenveagh variation.  Suffice to say – a total of 2,188 submissions were against weakening the protections of Glenveagh from wind farm development, with only 4 submissions in support of Fianna Fail Cllr Blaney’s proposal to weaken Glenveagh’s protection from wind farm development.  The Chief Executive has recommended that Glenveagh protections as currently defined remain in place.  It is the FWPM dezoning and the setback variations that I will address in detail here.
The Fresh Water Pearl Mussel (FWPM)
The Chief Executive’ s Report (page 25) in recommending not to catergorise the FWPM sub-basins as not favoured claims that:
the inclusion of the Freshwater Pearl Mussel Basin areas as ‘Not Favoured’ for wind energy projects is not evidence based and would be biased against a sector that may not be presenting the most significant risk to the FPM and may represent a blanket ban where appropriate mitigation measures may be feasible
This takes an extremely strained – down right wrong – interpretation of planning and environmental law.  This is extraordinary given the fact that the zoning of areas as open to consideration (favoured) for wind energy in the current Development Plan was undertaken despite the Department of Environment warning of a lack of evidence base to zone areas as favoured in the first place (see extract below from letter 30 March 2012 to Donegal Council):
DCC CDP Enviro NO EVIDENCE Base
Furthermore the FWPM populations and habitats are protected in Irish and EU law and the Sweetman judgment (paragraph 44) confirms that a plan can only be approved when the best scientific knowledge in the field – are certain that the plan or project will not have lasting adverse effects on the integrity of that site.  Donegal County Council have wrongly decided to shift this burden of proof away from themselves and to reverse it.
Despite the burden of proof falling on those proposing to zone these areas as favoured evidence does exist which confirms the risks wind farm and ancillary development pose to FWPM catchments.  For example the Straboy wind farm appeal near Glenties highlighted the issue in a clear manner.   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.  Such a not favoured zoning for FWPM catchments was also introduced in Kerry in 2013 and has worked well.  The evidence is there only Donegal County Council do not wish to see it.
The Council also claim that designating the FWPM areas as not favoured is equivalent to a ban.  This is not the case.   What is being proposed is not a ban.   The intention of the zoning as not favoured is intended to be interpreted as requiring a higher level of scrutiny for applications which may be made in these areas.  It does not exclude planning applications in those areas but it sets the onus of proof on the developer at a higher level to prove there will be no negative impact thus directing development away from these sensitive areas in the first instance.
Setback distance 10 times turbine height
The primary reason given as to why the introduction of a specific setback distance is not accepted by the Council is that it is not consistent with the Ministerial Wind Energy Guidelines 2006 and it is recommended that the Councils policy in relation to residential amenity and set back of turbines, be retained as consistent with the current Ministerial Guidelines.
An important point must be made here, there is currently no setback identified or provided for in Donegal.  The Council themselves in their submission on the review of the National (Ministerial) Noise Guidelines (Jan 2014) at point 3(b) on page two of their submission call for consideration of a ten times the tip height setback.   The Manager’s report and his recommendation are in conflict with this submission which was the outcome of a planning workshop held by Councillors on the issue.

A further more sinister point must be raised, the Department of the Environment has threatened the Council that establishing a ten times turbine height setback would lead them to issue a Ministerial Direction to reverse it.  No tacit reason for this threat has been identified.  The Irish Wind Energy Agency (IWEA) in their submission confirm that at least 9% of the County is still available for wind farm applications should a 1km exclusion zone from homes be put in place.  The average height of turbines in Donegal at present is less than 100m and Enercon E70’s are the most popular in current applications – overall height 99.5m.  Therefore a 10 times setback would equate to less than a 1km exclusion around homes.

Even with a 10 times setback and 100m turbines there remains almost 46,000 hectares (45,900) open for developers.  It is entirely unreasonable for the Council or the Minister to claim that the setback is a measure equivalent to a ban on wind farms in the County.  On average 10 hectares is required for a 100m tall turbine from this it is clear that there is ample area available outside of areas close to homes where developers should be directed to in the first instance.  It must also be noted that the current CDP runs until 2018 and if the setback is too restrictive it can then be reviewed.
Role of elected Councillors in planning
Finally, the power to vary the CDP is provided under s.13 of the Planning and Development Acts to empower Cllrs to ensure planning policy is proper and sustainable for the area (in this case the County of Donegal).  Blunt application of national policy would pepper the county with wind farms in inappropriate locations.  Varying the plan in a measured and prudent way by providing a setback from homes and protecting ecologically sensitive species and habitats represents best practice in planning.

Donegal 110kv line ‘energisation’ and spin

The Minister for Communications, Energy and Natural Resources, Pat Rabbitte TD, is expected in Letterkenny today to announce that the Donegal 110kv line has been energised.  While this announcement may well be one of his final public acts as Minister it is also part of a wider PR exercise in support of EirGrid’s massive power-line and pylon plans which are required to prop-up wind farm expansion across the country.  Sadly the national media and most local media in Donegal will accept the claims made by the Minister and EirGrid, in their carefully crafted PR, and present this to the public without any critical analysis.

Despite the positive spin, from today’s event, the Donegal 110kv project has caused extensive environmental damage and has been significantly delayed.  For example a quick visit to the EirGrid website shows that energisation was to have been achieved by late 2012, a fact that will probably not feature in the PR at today’s event (and will likely be removed from the website following this blog post so here it is via the Internet Archive).  However, it is the detrimental environmental impacts of this project and the significant lack of oversight from Donegal County Council and the NPWS which are a cause of great concern.  For example yesterday the Donegal Post (a local paper) carried as a front page story (continued on page 8) a series of shocking images and reports of the damaged caused by the construction works related to this project in protected habitat areas.

Donegal Post 25 June 2014 110kv line

Despite an ecological protocol being put in place for the project is seems the little attention has been paid to the processes and procedures to protect the environment and ensure the line construction does not impact on a number of sensitive ecological sites.  Even in instances where serious breaches of the protocol have been raised the subsequent investigation reports have downplayed the impact of such significant breaches.  For example see the Environmental Incident Report (December 2013) in relation to breaches of the protocol with respect to the Fresh Water Pearl Mussel (FWPM) sub-basin catchment of the Owenea.

While this incident report relates to a very serious breach of the protocol, a further issue is of grave systemic concern.  At section 7.3 (Monitoring of water quality in the Clady River and Owenea River) of the Ecology Protocol a number of tests and reports to be made and forwarded to the NPWS (DAHG) on a monthly and annual basis.  This Protocol relates to Condition 2 of the planning permission which states that:

“The undertaker shall be required to engage the services of a project ecologist for the duration of the construction period. A protocol shall be drawn up with the National Parks and Wildlife Service of the Department of the Environment, Heritage and Local Government to establish inspection and monitoring procedures and be agreed with the planning authority.”

This condition and protocol gives effect to the measures which are to minimise siltation risks in FWPM catchments in the vicinity of the development and are also to be used to flag any significant water quality issues that may give rise to concern.  Requests for access to copies of these reports which the NPWS (DAHG) are required, under the protocol to receive, were made under to Access to Information on the Environment (AIE) request ref: 2014/10.  In response the NPWS confirmed that they do not have these reports.  Further enquiries have been made with the NPWS regional office who also advise that they do not have these reports either.  It is clear that the testing and reporting elements of the protocol required to reinforce and assess to mitigation measures and attendant monitoring programs have not been adhered to at all.

While it is bad enough that there is obviously no effective oversight of these monitoring and test reports the 110kv project is also being used to spin the effectiveness of such mitigation measures in FWPM catchment areas in the current consultation in relation to the proposed variation to the county development plan which would re-categorise FWPM sub-basin catchments as not favoured for wind farm development.   The purported effectiveness of the 110kv line mitigation was raised in just three submissions to the consultation (no 356, 581 & 582) out of 3,326 received.  However the Council Chief Executive saw fit to mention these claims in his report (last paragraph page 9) on the proposed variations to the County Development Plan.  This is despite their being no evidence base to back them up as the monitoring and testing reports, in relation to water quality, are not available in relation to the project.

The rotten irony in all of this is that despite the FWPM populations and habitats being protected in Irish and EU law and the Sweetman judgment (paragraph 44) confirming that a plan can only be approved when the best scientific knowledge in the field – are certain that the plan or project will not have lasting adverse effects on the integrity of that site, Donegal County Council in its Chief Executive’s report claim that there is no evidence base to support the de-categorisation of the FWPM zones as favoured for wind farm development.  This reversal of the burden of proof with respect to the evidence required, to base a decision upon, by the local authority is staggering but not surprising when large government organisations such as EirGrid, NPWS and DAHG fail to carry out their duties and when the national media fail to look behind the spin in relation to wind farms and ancillary developments.

Despite the wind industry mantra of Act On Facts and claims in relation to the need for evidence based science as the basis of wind farm development in Ireland, when one digs beneath the spin one finds no real evidence for targeting sensitive ecological sites as hosts for wind farms.  Let us hope Donegal’s councillors act on facts (not spin) and dezone the FWPM catchments in the county.

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Update: the Minister in a room packed with EirGrid, ESB Networks, County Council officials and the media, at the Radisson Blu Hotel, Letterkenny, announced the ‘energisation’ on 26 June 2014.

Some of the blind media spin is here: Highland Radio and Donegal Daily


Next steps: Donegal wind farm planning variations vote (30 June 2014)

Monday 30 June 2014 at 12 noon will see Donegal County Council convene a special council meeting to consider the proposals to amend Chapter 7 of the County Donegal Development Plan, Section 7.2, ‘Energy’, as included in Draft Variation (No. 2) to County Donegal Development Plan 2012-2018 (as varied).  The meeting and vote will take place in the council chamber at County House, Lifford.

The meeting will take place following a workshop for councillors on the issue which is scheduled to begin at 10:00am.  The proposed variation seeks to make 5 specific amendments to the Councils policy in relation to wind energy development, which are in summary:

Amendment 1 – Text amendment providing for the inclusion of the Fresh Water Pearl Mussel catchments contained in the Freshwater Pearl Mussel Sub-Basin Management Plans for Clady, Eske, Glaskeelin, Leannan, Owencarrow and Owenea as areas ‘Not Favoured’ for wind energy developments.

Amendment 2 – Insertion of an Objective that specifically requires wind energy developments not to adversely impact upon the existing residential amenities of residential properties, and other centres of human habitation.

Amendment 3 – Provides for mapping amendment to Map 9 (wind energy) to identify the 6 FWPM catchments as ‘Not Favoured’ for wind energy.

FWPM and Wind Farm Zones Dongeal 2013

Amendment 4 – Text amendment regarding locations in the County within which turbines must not be located resulting in:

(a) Deletion of the text reference and definition of the Zone of Visual Influence of Glenveagh National Park.

(b) Insertion of reference to FWPM catchments.

(c) Provision of a set back distance of ten times the tip height of turbines from residential properties and other centres of human habitation.

 Amendment 5 – Provides a definition in respect of ‘Centres of Human Habitation.’

I have blogged on the proposals during the public consultation process here and shall set out further detail in relation to the consultation process in another post.  In response to the month long public consultation 3,326 submissions were received.   The elected members will consider these submissions and the report of the Chief Executive (which I will respond to in a later post).  However those close to the various groupings on the council indicate that the FWPM re-designation as not favoured and the 10 times setback will be passed in line with the majority (greater than 98%) of public submissions.  Indications are that the proposal to weaken protections on Glenveagh will not succeed.

As always your support can help, so please take time to contact your local councillor to ensure they vote to setback and dezone from wind farms in the County Development Plan.

 


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