Tag Archives: High Court

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.

Cllr Campbell sends Minister’s s31 windfarm direction back to court

It’s groundhog day for windfarm planning in Donegal.  Cllr John Campbell has once again been granted leave by the high court to challenge a section 31 Ministerial Direction issued to Donegal County Council, by Minister Simon Coveney on 6 October 2016, in relation to Variation no. 2 to the Donegal County Development Plan 2012 – 2018 (as varied).

As a reminder the primary elements of the variation as passed would see:

  • the designation of Areas of Fresh Water Pearl Mussel (FWPM) including the catchments identified in the Sub-Basin Management Plans for Clady Eske, Glaskeelin, Leannan, Owencarrow and Owenea (as listed in S.I. 296 of 2009) as not favoured for wind farm development;
  • the inclusion of an objective to ensure that wind energy developments do not adversely impact upon the existing residential amenities of residential properties, and other centres of human habitation (*‘Centre of Human Habitation’ includes schools, hospitals, churches, residential buildings or buildings used for public assembly’); and
  • the establishment of a set back distance of ten times the tip height of proposed turbines from residential properties and other centres of human habitation.

Cllr Campbell had earlier this year successfully obtained an order of the high court quashing a 2014 Ministerial Direction made by then Minister Alan Kelly.  We have blogged extensively on the background to Variation no. 2 (here, here, here), the subsequent section 31 Direction issued by Minister Kelly (here, here), Cllr Campbell’s successful first court challenge and the acceptance by the Inspector (Hendrik van der Kamp) appointed by Minister Coveney that:

  • Donegal County Council did not ignore or take insufficient account of the submissions made by the Minister in May 2014;
  • Variation no. 2 did not significantly impact on the internal coherence of the County Development Plan; and
  • Variation no. 2 did not make the County Development Plan inconsistent with national and regional policies or targets

The other issue to note in relation to this ongoing battle for Donegal’s sovereignty in terms of proper planning and sustainable development of the County is the reliance placed by Minister Coveney, in giving reasons for his direction, on what he accepts is the non-mandatory guidance provided by the s28 wind energy guidelines.  Many planning and legal observers were surprised by Minister Coveney reissuing a section 31 direction to Donegal particularly given that the 2006 Guidelines are accepted by Minister Naughten as being unfit for purpose and that they remain in place without a Strategic Environmental Assessment as required by EU law.

The high court reference for the case is, Campbell -v- Minister for Housing Planning Community and Local 2016/976 JR and it returns for mention on 17 January 2017.


Wind farms in the Irish courts during 2015

Courts logo

Following on from the very popular post of last year (see here), we have attempted to draw together details in relation to wind farm related cases in the Irish superior courts during 2015.  One notable point is that there have been very few new cases begun in 2015.  This is due to the fact that An Bord Pleanála is in a state of near paralysis when it comes to wind farm applications, with very significant delays the norm (in July 446 turbines were awaiting a decision).  The table below gives you an idea of the dramatic halt placed on wind farm approvals, in particular the number of wind turbine planning approvals by An Bord Pleanála in 2015:

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

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

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

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

Awaiting hearing

Supreme Court

People Over Wind & Anor -v- An Bord Pleanala

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

Court of Appeal

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

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

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

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

High Court

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

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

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

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

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

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

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

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

Awaiting delivery of judgment

Balz v An Bord Pleanála 2013/450 JR

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

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

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

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

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

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

Judgments delivered in 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further wind farm related cases

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

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

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

__________________________________________

Last updated: 31 December 2015

We are aware that on such a long blogpost we may have made some errors, or inadvertently omitted a case or certain relevant information.  If we have please let us know by emailing: cawt.donegal@gmail.com or via twitter @CAWT_Donegal.


Peter Crossan: An overview of the powers of An Bord Pleanála

This is a guest post from Peter Crossan.  It was originally published on the Wind Aware Ireland Blog last month and advertised on their twitter feed (see below) and facebook page but was subsequently deleted.

 ___________________________________________________

In the following summary of the role of An Bord Pleanala and how it determines applications for wind farms I propose to rely on the interpretation of the Courts of that role.

The Bord being a statutory body is given its powers and its obligations under the Planning Acts and must have regard to Government Policy.  While much criticised, it is my opinion that it has functioned extremely well over the many years of its existence.  I have been dealing with planning across many areas for the past seventeen years with a particular interest in wind farms.  I would have to say this body has conducted itself to a very high standard over those years and while it is criticised from all sections, it generally tends to get things right.  Where it is found wanting as it has been on occasions by the Courts it has acted promptly to correct these deficits.

Where it comes into conflict with those of us who are opposing wind farms generally comes about through the restrictive nature of the Government’s strategic approach to the National Renewable Energy Action Plan.  Recent decisions of the High Court in wind related matters include O’Grianna v An Bord Pleanala, Kelly v The Bord, and Ratheniska Judgement.  Under Section 143 of the 2000 Planning Act The Bord in carrying out its functions is obliged to have regard to the Policies and Objectives of Government. This includes the Guidelines for wind Farm Development 2006, The Renewable Energy Action Plan and the Directive for the Promotion of Energy from Renewable Resources.

The presumption of the Department of Environment and National Policy is in favour of wind farm development.  The Bord is allowed a discretion to approve a development notwithstanding that there may be some adverse environmental impacts if it is allowed to proceed.  This however is contrasted by The Bord’s obligations in respect of appropriate assessment where adverse affects of matters conserved under The Habitat’s Directive where a development may impact on the integrity of a European Site and that site is likely to be adversely affected or where such integrity cannot be protected by modifications or attached conditions, The Bord is obliged to refuse, as in the Kelly Judgement where the Court found The Bord had not taken proper account of the AA Assessment and had disregarded the Inspector’s concerns in relation to adverse impacts on this environment.

What we have seen from the Judgement in O’Grianna is the demonstration of The Bord’s entitlement to exercise discretion and this is particularly relevant in reference to noise and noise impacts. The Court went to considerable lengths to give reason as to why The Bord are not entitled or obliged to rigidly follow and apply the Guidelines.  And Secondly that there is no statutory obligation on The Bord to give reason for not following a particular Guideline even if it was the situation that they had departed from any Guidelines.

What this effectively means is that no certainty can be placed on the value of the Guidelines which were introduced in 2006 and effectively they are of course only guidelines.  So we are left with a continuing situation where members of the public have no protection at all afforded to them from turbine generated noise.  That is very significant and is something that can only be addressed by Government.

The Court consistently held to the view that the Planning Acts have firmly placed questions of planning and the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of local planning Authorities and The Bord these are expected to have the expertise, competence and experience to deal with planning questions.  The Courts therefore are not vested with that jurisdiction nor are they expected to and therefore cannot exercise discretion with regard to planning matters.

For anyone with an interest in the comprehensive nature of how applications for Judicial Review against decisions of The Bord are reviewed by The Courts, they may find it helpful and informative to read the Judgement in Ratheniska v An Bord Pleanala, where many of the common complaints that arise in relation to planning were brought to the Court by the applicants.  It should have been obvious to those taking the case that they had no grounds for taking a Judicial Review as all of their complaints had been previously ruled upon by The Courts in other cases.

The Court refused the application to quash the Bord’s decision.

The Bord is obliged as stated in the introduction to have regard to the Planning Acts and all relevant Government Policy.  It must also take account of all submissions made to it and give weight to expert supported evidence.  Therefore I always emphasise the necessity when making na appeal of bringing substantiated and qualified opinion to support particular contentions.  As the Environmental Impact Assessment to be undertaken by The Bord will rely heavily on the applicant’s EIS.  Anyone holding a contrary view must be conscious of the fact that the EIS has been prepared by qualified persons dealing with the various sections.

There is clearly a need for more transparency in how An Bord Pleanala reaches its decisions as much of the discretion enjoyed by the Bord is not subject to accountability.  This is not commonly understood and the only people who can change that are the politicians.

by Peter Crossan

 ___________________________________________________

The O’Grianna judgment can be found here – O’Grianna & Ors -v- An Bord Pleanála [2014] IEHC 632

The Ratheniska judgment can be found here – Timahoe & Ors -v- An Bord Pleanála [2015] IEHC 18


Wind farms in the Irish high court

Seeking redress in Ireland’s superior courts is expensive and is in general the last resort for many.   However, 2014 will be seen as a significant year in relation to the number of wind farm cases initiated. For example, if you look to An Bord Pleanála wind turbine planning figures for 2014 – up to 31 October 2014 – a total of 117 wind turbines were granted permission by the planning board, it is therefore notable that a staggering total of 89 turbines (more than 76% of that total) cannot proceed to be built as they are subject to high court judicial review.

In any functional democratic society the issues giving rise to this extraordinary percentage of wind farm related cases would be addressed.  Not only does the number of cases point to a significant lack of public and community acceptance of wind farm planning policy and subsequent approved projects in rural Ireland, it is also a significant cost to the exchequer particularly where An Bord Pleanála either lose the case (as is increasingly common) or they seek to defend their decisions, in relation to environmental assessments, in lengthy high court proceedings.  Furthermore, the developer is generally represented as a notice party to such proceedings and significant costs are also incurred by them from such participation.

Below is a short synopsis of wind farm related cases: (i) awaiting judgment; (ii) awaiting hearing; and (iii) significant judgments delivered in the high court in 2014.  One other point to note is that there are further wind farm related cases which were listed/mentioned in the high court in 2014, which we have no detail on, these are listed at the end of the blog post.  If any readers wish to furnish details for publication this may be facilitated.

Awaiting delivery of judgment

Balz v An Bord Pleanála 2013/450 JR

An indicative date of 19 November 2014 10 December 2014 for delivery of judgment is listed on courts.ie.  This case relates to permission granted by An Bord Pleanála for an 11-turbine Cleanrath wind farm, in Cork, under application reference 240801: Cleanrath North and South, Derrineanig, Macroom, Co. Cork. (11/5245).  The case was heard over 5 days by Mr. Justice Barton.  The Irish Examiner reported on the initial application for leave to seek a judicial review in June 2013.

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

An indicative date of 12 December 2014 for delivery of judgment is listed on courts.ie.  This case relates to permission granted by An Bord Pleanála for a 6-turbine wind farm near Ballingeary, Co. Cork, under application reference 242223: Derragh, Rathgaskig and Lack Beg Near, Ballingeary, Co. Cork. (12/05270).  The case was heard over 4 days by Mr. Justice Peart.  The Irish Examiner reported on the initial application to seek judicial review by 12 residents who live and work between 500m and 2km from the proposed wind farm.  This judgment is likely to be significant as An Bord Pleanála, in oral argument, claimed inter alia that in having regard to the 2006 Wind Energy Guidelines they could grant permission for projects which were otherwise than in accordance with the noise limits set in the 2006 guidelines.

Update: Judgment was delivered on 12 December 2014 and permission for the wind farm was quashed, see local media report here.  I shall post a link to the judgment <here>, when available.  The case returns for hearing, in relation to whether or not the planning application can be remitted back to An Bord Pleanála, on 20 February 2015.

Awaiting hearing

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

This case is an appeal by the developer Ardragh Wind Farm Limited against An Bord Pleanála’s refusal of the proposed development of 5-turbines near Bantry, Co. Cork under application reference 240461: Ardrah, Kealkil, Bantry, Co. Cork. (11/318).  The case is listed for mention before the high court on 9 December 2014 13 January 2015.

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

This case relates to a challenge taken by Mayor of Donegal, Cllr. John Campbell against a section 31 direction from the Minister for Environment.  The direction sought to overturn variation no. 2 to the Donegal County Development Plan (2012-2018) (as amended).  The variation had set a 10 times setback distance from wind farms to homes and zoned 6 Freshwater Pearl Mussel catchments as unfavoured for wind energy development.  Cllr Campbell also confirmed to Donegal News “that a separate application to have a stay put on the implementation of Minister Kelly’s direction will be heard in the High Court” when the case returns for mention on 13 January 2015.

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

According to the Clare Champion this case is being taken by a representative of the Coore/Shannaway Residents Group against An Bord Pleanála’s grant of permission for a 4-turbine wind farm under application reference 239378: Coor West, Shanavogh East and Shanavogh West, Co. Clare. (11/360).  The case is listed for mention before the high court on 16 December 2014 3 February 2015.

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

This case relates to Coillte’s proposed 18-turbine Cullenagh wind farm in Co. Laois and is taken by local groups People Over Wind and Environmental Action Alliance.  An Bord Plenaála reference for the application is – 242626: East of Ballyroan Village/Southwest of Timahoe Village, Co. Laois. (13/268).  The Leinster Express reports on the application for leave to take judicial review proceedings.  The case is listed for 4 days of hearings beginning on 3 March 2015.

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

This case is taken by Mr. Swords who is challenging the legality of Ireland’s National Renewable Energy Action Plan (NREAP) which it is claimed was introduced otherwise than in accordance with the requirements of article 7 (public participation) of the Aarhus Convention.  The NREAP is used to underpin REFIT support for wind farm development and planning decisions in relation to wind farm developments.  Mr. Swords is also seeking a declaration from the high court that this funding and related planning permissions for wind farms are unlawful.  The Irish Examiner reported on the case here.  The case is now listed for hearing (of up to 10 days) beginning on 3 March 2015.

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

This case relates to the proposed 29-turbine Yellow River wind farm near Rhode, Co. Offaly.  The case is taken by members of the Rhode Parish Wind Turbine Action Group and Mr. Peter Sweetman.  RTE News also reported on the original application for leave to seek judicial review.  The An Bord Pleanála reference for this strategic infrastructure development application (SID) is – PA0032: Rhode, Co. Offaly. The case is listed for 4 days of hearings beginning on 10 March 2015.

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

This case relates to a current An Bord Pleanála application by North Meath Wind Farm Ltd in relation to a proposal to have a 46-turbine wind farm declared a strategic infrastructure development (SID).  The An Bord Pleanála reference for the application is PA0038: Co. Meath.  Mr. Callaghan claims that the SID process is fundamentally unfair and prejucdicial as by “bypassing the normal planning process means the developer has plenty of opportunity to meet any concerns of the board while he, a person of limited resources, has just one opportunity to deal with matters within a specified time scale.”  The case is listed for 5 days of hearings beginning on 14 April 2015.  This is a significant case and should Mr. Callaghan be successful the current SID process would require alteration to ensure adequate public participation in line with International law and conventions.

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

This case relates to ESB Wind Development Ltd and Coillte’s proposed 16-turbine wind farm at Keeper Hill, Co. Tipperary, and is taken by Ms. Edel Grace and Mr. Peter Sweetman.  The Irish Independent reported on the initial application seeking leave to review and highlights the potential impact on hen harrier habitat in the Slieve Felim to Silvermine Mountains Special Protection Area between Limerick and Tipperary.  An Bord Pleanála’s reference for the planning application is 241924: Bunkimalta, Bauraglanna, Lackabrack, Keeper Hill, Co. Tipperary. (13/51/0035).   The case is listed for 7 days of hearings beginning on 14 April 2015.

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

This case relates to Ecopower’s proposed 22-turbine wind farm at Upperchurch, Co. Tipperary.  RTE News reported on the initial application for leave to seek judicial review and highlighted that one of the issues to be considered relates to the withdrawal of consent by Mr. Buckley for his lands to be used as part of the proposed development.  An Bord Pleanála’s reference for the planning application is 243040: Graniera Shevry, Knockcurraghbola Upperchurch, Co. Tipperary. (13/510003).  The case returns for mention, to the high court, on 12 May 2015.

Significant judgments issued in 2014

Two of the most significant judgments issued in 2014 are those of Kelly -v- An Bord Pleanála [2014] IEHC 400, delivered by Mrs. Justice Finlay Geoghegan, on 25 July 2014, and Kelly -v- An Bord Pleanála (no. 2) [2014] IEHC 422, also delivered by Mrs. Justice Finlay Geoghegan on 18 September 2014.  This case related to two wind farms, in Co. Roscommon, proposed by Galetech Energy Developments Ltd which comprised a total of 35 turbines.  The An Bord Pleanála references are:

The judgments quashed An Bord Pleanála’s decisions to grant permission to the two projects and returned them to the Board for reconsideration.  The basis for the decision was due to An Bord Pleanála’s failure to conduct an Appropriate Assessment and its failure to provide adequate reasons for its determination that the wind farms would not adversely affect the integrity of European sites.  The second judgment (no. 2) further confirmed that Mr. Kelly, who is the chairperson of the Wind Turbine Action Group South Roscommon, was entitled to an order to recover costs against An Bord Pleanála, a significant matter given the hearing lasted 6 days.

Two further significant judgments issued in 2014 in relation to the application of costs in wind farm judicial reviews.  In McCallig -v- An Bord Pleanála (no. 2) [2014] IEHC 353, delivered by Mr. Justice Herbert, on 9 April 2014, and McCallig -v- An Bord Pleanála (no. 3) [2014] IEHC 354, on 5 June 2014.  These judgments confirmed that for non environmental elements (planning grounds) of a judicial review that a successful applicant, in this case Ms. McCallig, is entitled to recover costs against An Bord Pleanála (and where appropriate the notice party/wind farm developer).  The wind farm in question was a proposed 35-turbine development near Glenties, Co. Donegal.  An Bord Pleanála reference 237656: Graffy and Meenagrubby,Surrounding Townlands,Glenties,Co. Donegal. (09/30520).

Again these judgments will place a significant cost burden on An Bord Pleanála, as Ms. McCallig’s case was heard over 15 days where she was successful in having the wind farm permission declared void in so far as it affected her property (planning grounds), despite being unsuccessful on a number of environmental grounds.

Further wind farm related cases

Anderson v Finavera Wind Farm and Ors 2013/6852 P, was subject of an order in July.

Kilvinane Wind Farm limited v An Bord Pleanála 2012.129 JR, appears to be on hold awaiting outcome of appeal of Bailey -v- Kilvinane wind farm Ltd [2014] IEHC 509, under supreme court reference 491/13.

Ratheniska Timahoe & Spink [RTS] Substation & Ors -v- An Bord Pleanala 2014/340 JR, was heard in November/December 2014, judgment delivered 14 January 2015 available here.

Shivnen v Enercon and Carrigcannon wind farm 2011/9955 P, wind farm noise case which was subject of discovery motions in 2014.

______________________

Last updated:

21 November 2014 – – (Balz judgment due date amended)

10 December 2014 — (Ardragh mention date updated)

20 December 2014 — (O’Grianna judgment delivered; Connelly mention date updated)

28 December 2014 — (Added Campbell and Callaghan cases, and link to O’Grianna judgment story)

1 February 2015 — (Added links to O’Grianna and Ratheniska judgments)


%d bloggers like this: