Tag Archives: Legislation

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.

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Wind Turbine Regulation Bill 2016

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

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

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

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

Legislative background

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

Analysis of the Bill

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

Location of turbines

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

Set back to apply to existing wind farms

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

Noise and shadow flicker

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

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

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

Public Consultation

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

Health impact assessment

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

Co-Ownership for Local Communities

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

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

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

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

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

Conclusion

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

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


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.


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