Tag Archives: Noise

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.

Irish government modelling of wind energy potential

image-capacity-1

Today, 16 January 2017, almost four years on from the first public call for submissions on the proposed revision of the 2006 wind energy guidelines, we are sharing information in relation to modelling undertaken by the RPS Group, in 2015, which was commissioned by the Sustainable Authority of Ireland (SEAI) for the then Department of Communications Energy and Natural Resources (now the Department of Communications, Climate Action and Environment) and the then Department of Environment, Community and Local Government (now the department of Housing, Planning, Community and Local Government).

RPS were commissioned to model Ireland’s land area and power generating potential from wind energy developments, taking into account a number of variable factors including:

  • Turbine size, type and hub/tip height;
  • Noise and shadow flicker;
  • Proposed setback distances;
  • Minimum wind speeds;
  • Terrain contours; and
  • Ground factors.

The background to this modelling was the proposed technical revision to the Wind Energy Development Guidelines 2006. As regular readers of this blog will be aware the proposed technical revision has turned into a political hot potato with no Minister yet willing to stand up to the wind industry, despite the Minister for Communications, Climate Action and Environment declaring that the current guidelines are ‘not fit for purpose’. The proposed Strategic Environmental Assessment (SEA) and further consultation have still not been commenced.

Nevertheless, the discussion in the RPS Group, Report on Wind Turbine Noise Modelling, of 11 May 2015 is startling for most communities, as RPS through consultations with the wind industry expect tip heights of between 150m to 175m to be the norm for future developments, with 200m tip heights being required for some low wind sites.  Possible setback distances emerging from the acoustic modelling are also quiet frightening (see copy of table 3.2 below).

image-set-1
Documents, in PDF, we are sharing are:

Further iterations of the modeling then followed which were also released:

Please note these documents were shared with us by a friend of this blog, who gained access to them under the Access to Environmental Information Regulations.  Access was only granted following a number of Appeals to the Commissioner for Environmental Information; with the Department of Housing, Planning, Community and Local Government, further delaying release for three months despite the Commissioners decision.  We are heartened that the Commissioner in deciding that these documents should be released stated:

In my opinion, it is at least possible that disclosure of the withheld information would help the public to scrutinise the reasons put forward by politicians in delaying this important policy decision.  I therefore accept that this public interest argument would favour disclosure now, before a decision is made.

… if disclosure were to lead to a submission being made to the Department which was of such import that it could not be ignored, such a submission would appear to be highly important and very much in the public interest. There is a strong public interest in making the decision [in relation to the revised guidelines] as soon as possible, but there is also a strong public interest in getting it right.
For these reasons I am not persuaded that disclosure would be contrary to the public interest. As that is my conclusion, I must find that refusal to provide access to the withheld information is not justified on this ground.

With the Commissioners words ringing in our ears we are calling on our readers and followers to review, scrutinise and find flaws in the reasons relied upon by your politicians and policy makers.

We are also welcoming guest blogs on this issue and if any of you out there want to provide some much needed technical analysis of these documents and to publish on this blog (or to make a valuable submission to the Minister), please e-mail us at: cawt.donegal@gmail.com.


Submission on draft section 31 direction to Wicklow County Council

 

We blogged recently on the draft section 31 direction issued by Minister Coveney to Wicklow County Council, see here.  We have prepared a submission which we sent in today and we have copied it into this blog for your information.  Please note that we have tried to put links to most items referenced and have detailed footnotes appended.

Introduction

Thank you for the opportunity to make a submission on the Draft Direction issued by Minister Coveney to Wicklow County Council on 7 December 2016.  It is our contention that the position put forward by Minister Coveney, including the statement of reasons, do not adequately explain to a member of the general public why such a direction, in relation to the wind energy elements, is well founded.  In our view the draft direction is merely the action of a Minister trying to impose his own alternative strategy for wind energy on a local authority, and this is being done otherwise than in accordance with the principle of proper planning and sustainable development of the local authority area.

Context: Wind farms and the planning system

A fundamental objective of a planning system is that it has to achieve a balance between the need for a development and the impact on neighbours and the general environment.  Despite claims to the contrary from the wind industry, it is clear that wind farms and ancillary infrastructure development create significant disharmony and discontent in the communities into which they intrude.  Catastrophic failure is growing more common, with 100m plus wind turbines collapsing or throwing blades at frightening regularity.[1]

Noise nuisance reports are very prevalent across the world and this wind farm phenomenon is also emerging in Ireland.  These issues are also moving into the courts.[2]  Further noise complaints, enforcement proceedings, and ongoing noise compliance assessments are also more common.[3]  This should not be surprising as evidence has clearly shown that as wind turbines get larger they have also become noisier (see below figure 11, page 28 of the Marshall Day Acoustics report).[4]mda-turbine-size-graph-2013

Furthermore, it has been accepted by Minister Denis Naughten that current planning guidance in particular the outdated section 28 Wind Energy Guidelines (2006) are not fit for purpose.[5]

Draft Direction to Wicklow Council – 7 December 2016

The reasons offered by the Minister in forming his opinion so as to support his section 31 draft direction, in relation to the wind energy elements, can be summarised as follows:

  • Wicklow County Council has ignored or has not taken sufficient account of the Ministers submission;
  • the Development Plan is not in compliance with legislative requirements in relation to sections 9(6), 10(2)(b), 12(11) and 28(1B)(b) of the Act;
  • the Development Plan is not consistent with relevant guidelines to planning authorities issued by me under Section 28 of the Planning & Development Act, 2000, specifically the Wind Energy Guidelines (2006); and
  • the Development Plan would seriously restrict the potential for wind energy development within County Wicklow.

In terms of the Minister’s submissions made to Wicklow County Council it is clear from the history of the Development Plan process and review of council minutes that these submissions were fully considered and debated, yet rejected in part, by the elected members of Wicklow County Council, therefore this basis put forward by the Minister is indefensible.

In relation to the specious claims that the Development Plan fails to meet the legislative requirements (see requirements in relation to sections 9(6), 10(2)(b), 12(11) and 28(1B)(b) of the Act).  The Wicklow County Development Plan sets out a clear overall strategy for wind farm development in the County (section 10(2)) and is clearly in line with the over-arching requirement to provide for the proper planning and sustainable development of the area.

With respect to internal consistency and coherence the local Councillors have in so far as practicable been consistent with the plans, policies and strategies of the Minister, in so far as they relate to proper planning of the area (section 9(6)).  Wicklow Councillors must balance potential development with the importance of protecting the amenity of the county’s residents; safe setbacks distances clearly meet such a fundamental policy objective (section 12(11)).

In terms of section 28, as we have seen in Donegal, when objectively reviewed by an Independent third party arguments put forward by the Minister on behalf of his Department fail to be defended.  In his August 2016 report, Inspector Hendrik W van der Kamp in reviewing similar setbacks as proposed by Donegal County Council he noted that “notwithstanding the likely effect of reduction of the amount of wind energy that can be achieved” as a result of such setbacks, he found that “there is no conflict” between section 28 wind farm guidelines and setbacks of ten times wind turbine tip height.[6]

In terms of the fourth element of the Minister’s reasons no evidence is presented by the Minister to support his claim that the wind energy elements including the setbacks would seriously restrict the potential for wind energy development within County Wicklow.  It is our understanding that no accurate modeling of land area or potential for wind energy development, based on the proposed Wicklow County Development Plan 2016-2022 has been provided by the Minister.  We also understand that national modeling commissioned by the Sustainable Authority of Ireland (SEAI) and undertaken by RPS Consulting in 2015 was fundamentally flawed and misrepresented Not Favoured status’ in development plans as ‘No-go areas’, and assumed a very low 15% delivery rate, for wind projects in land areas other than Flat Peatlands.[7]  Reliance on such data modeling, if this is what the Minister is relying upon is indefensible.

Conclusion

It is clear that Minister Coveney has no evidence base to underpin his reasons for issuing a draft direction in relation to the wind energy elements of the Wicklow County Development Plan.  It is clear that, as happened in Donegal when Cllr. John Campbell successfully challenged the 2014 section 31 direction issued by Minister Alan Kelly, in this instance Minister Coveney has failed to meet the minimum legal threshold to found a draft direction.[8]

Furthermore the Minister has not carried out an SEA or AA for any subsequent section 31 direction and to amend a Development Plan without carrying out such assessments would be otherwise than in accordance with Irish and EU law.

As no assessment or evidence base has been provided by the Minister, any direction would be an obvious attempt in this instance of a Minister trying to impose his own alternative strategy for wind energy on a local authority just because he prefers it – as we have seen in Donegal Inspector Hendrik van der Kamp found no substantive contravention of any mandatory national/regional planning policy, objective or target by providing a setback distance.  Therefore issuing a direction in such circumstances would be contrary to the findings of the Irish high court in Tristor -v- Minister for Environment [2010] IEHC 397.

Should you have any queries in relation to our submission please direct them to cawt.donegal@gmail.com.

______________

Footnotes:

[1] See for example submission of Michael Quinn, 3 February 2014, to the Department of Housing, Planning, Community and Local Government, which provides pictorial evidence of a few such incidents in Donegal, available at http://www.housing.gov.ie/en/DevelopmentHousing/PlanningDevelopment/Planning/PublicConsultations/Submissions-WindEnergy/Donegal/FileDownLoad%2C35276%2Cen.docx.  For details on blade, tower and subassembly failures in relation to wind farms see Health & Safety Executive (UK), Study and development of a methodology for the estimation of the risk and harm to persons from wind turbines, (2013).

[2] In respect to Ireland see Shivnen v Enercon and Carrigcannon wind farm 2011/9955 P, where it has been reported that liability for nuisance has been accepted in the case, see “Families forced from homes due to wind farm noise win court case”, Irish Examiner, 11 December 2016, the article further states that the issue of damages will return to the court in early 2017.  See also Norris, William, “Wind farm noise and private nuisance: issues arising in Davis v Tinsley”, Journal of Planning and Environmental Law (2012).

[3] See for example the well publicised examples of Michael and Dorothy Keane, Roscommon, and Phil and Catherine Hickey, Wexford.  See also the ongoing wind farm noise compliance issues with Gibbet Hill wind farm and the reports on hand at Wexford County Council.

[4] Marshall Day Acoustics (MDA), Examination of the significance of noise in relation to onshore wind farms, 23 November 2013, as commissioned by Sustainable Energy Authority of Ireland (SEAI), available at http://www.seai.ie/Publications/Renewables_Publications_/Wind_Power/Examination-of-the-Significance-of-Noise-in-Relation-to-Onshore-Wind-Farms.pdf.

[5] Minister Denis Naughten in a Dáil Debate on Thursday, 6 October 2016 (Dáil Éireann Debate Vol. 923 No. 3) stated: “I am as anxious as anybody else to have these new guidelines put in place as the current guidelines are not fit for purpose.”

[6] van der Kamp, Hendrik W., Independent review of the Draft Ministerial Direction on Variation no. 2 to the Donegal County Development Plan 2012-2018 issued by the Minister for Housing, Planning, Community and Local Government to Donegal County Council on 22 July 2014, (August 2016).  See blog post: Donegal windfarm planning rules closer to realization, 30 August 2016, available at https://cawtdonegal.wordpress.com/2016/08/30/donegal-windfarm-planning-rules-closer-to-realisation/.

[7] See email from RPS Consulting to Department of Environment, Community and Local Government officials, (19 June 2015), where a note on constraints on the Setback Modeling Exercise identified inter alia No-Go Areas, and delivery rates for various land types.  A copy of the e-mail is available on request.  It is also important to understand that the Not Favoured status in the Wicklow Wind Energy Strategy is not a blanket ban on applications in areas so identified: Not Favoured means that having regard to the high amenity and heritage value of this area, in particular ‘Natura 2000’ and ‘Area of Outstanding Natural Beauty’ designations, and the significant number of views and prospects, these areas are generally not considered suitable for wind energy development, such areas are identified for higher scrutiny in terms of their high amenity and heritage value.

[8] See high court reference Campbell -v- Minister for Environment, Community & Local Gov 2014/712 JR, details of the order quashing the 2014 Section 31 Ministerial Direction are available on our blog post Donegal: Ministerial windfarm direction quashed, 22 June 2016, available at https://cawtdonegal.wordpress.com/2016/06/22/donegal-ministerial-windfarm-direction-quashed/.


Coveney issues Draft s31 Windfarm Direction to Wicklow Council

wicklow-cdp-2016-22-draft-direction

Another County Council, and it’s elected Councillors, has fallen victim of the Minister for windfarms.  This time it is Wicklow who have received a draft direction from Minister Coveney, who is proposing to overturn the elected members decision to insert a setback requirement from windfarms.  The setback from windfarms to residential properties was inserted into the Wicklow County Development Plan 2016-2022 in order to protect constituents from the encroaching threat of inappropriately sited wind turbines. The specific proposal had provided that:

Wind farms shall be at least 1,000m or 10 times the tip height of the proposed turbines from any residential properties or other centres of human habitation with special consideration given to the proximity of such developments to educational establishments.

In the text of the draft direction Minister Coveney, relies heavily on the discredited Wind Energy Guidelines 2006, he states:

The Wicklow County Development Plan 2016 – 2022 is not consistent with relevant guidelines to planning authorities issued by me under Section 28 of the Planning & Development Act, 2000, specifically the Wind Energy Guidelines (2006) … and insufficient grounds have been stated for such departures as required under Section 28(1B)(b) of the Planning & Development Act 2000, as amended.  The plan is therefore in breach of Section 31(1)(c) of the Planning & Development Acts 2000 as amended.

Guidance on wind energy development is provided in the ‘Wind Energy Development Guidelines’ (2006) issued by the DECLG under s.28 of the Planning & Development Act, 2000.  These Guidelines emphasise the need to fulfil Ireland’s national and international commitments to renewable energy and the importance of developing wind energy infrastructure in Ireland in this regard.  Importantly, the guidelines detail (in section 3.4) the strategic aims and objectives that the development plan should include in relation to wind energy development.

These include … objectives to secure the maximum potential from the wind energy resources of the planning authority’s area commensurate with supporting development that is consistent with proper planning and sustainable development … .

The Minister further claims that the Development Plan:

… specifically stipulates a minimum set-back for wind energy development from residential properties, the effect of which would seriously restrict the potential for wind energy development within County Wicklow and is therefore in conflict with other text within the same objective and with national and regional objectives in relation to the development of wind energy infrastructure.

As with all directions that overturn setback distances no evidence is provided by the Minister to support his claims.  As we have previously seen in Donegal when tested by an independent expert (see blog on Hendrik van der Kamp report) such claims of conflict and inconsistency with other national or regional objectives and guidelines are indefensible.

Those of you who wish to support the people of Wicklow should note that, written submissions or observations in respect of the draft direction must be made before 5pm on Thursday 5 January 2017 and shall be taken into consideration by the Minister before he directs the Planning Authority.  Submissions may be made in one of the following ways:-

  1. By post to: Administrative Officer, Planning Section, Wicklow County Council, Station Road, Wicklow Town; or
  2. Email to: planreview@wicklowcoco.ie

There is another option for people in Wicklow; the draft direction could be challenged through the courts.  As readers of this blog will be aware Cllr. John Campbell (Donegal County Council) has already successfully quashed a s31 windfarm direction issued in 2014.  We understand legal options are being considered by individuals and groups in the Wicklow area.

This issue is set to run-and-run in Wicklow, as it will in other counties who seek to protect people from the risks of having a windfarm foisted upon them.  We shall end this blog with words from local Cllr Shay Cullen, speaking to the Bray People, where he urged as many people as possible to make submissions, this (interfering with Local Authority affairs on windfarm planning) is a crucial issue for rural communities in particular.  He went on to state:

Wind turbines are a major issue which could affect an awful lot of people in Wicklow.  A distance was set which was voted for by councillors on two occasions.  I don’t think the Minister should be interfering.  You have noise issues and the shadow flicker effect, while wind turbines also diminish land and houses prices.  There are real concerns over the impact wind turbines have on people’s homes.

 


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.

A few thoughts on the Wind Turbine Regulation Bill 2014

A Bill to regulate the development of wind turbines in Ireland will be initiated in Dáil Éireann by Sinn Féin TD Michael Colreavy tomorrow 13 March 2014.   The Wind Turbine Regulation Bill 2014 is the first legislative foray by the party south of the border on the vexed issue of wind farm planning.  Despite the title and associated pre-election PR, issued by the party, Sinn Féin are at pains to point out that the Bill does not mean that they are opposed to wind farms.  They claim the Bill merely proposes to restrict the development of industrial wind farms which, if allowed to progress under the existing guidelines, will blight the countryside and divide communities for years to come.  Nevertheless if the Bill as proposed were to be passed into law it would have significant impacts on the wind industry in Ireland.  

Previous wind turbines legislation

It is important to map out some of the legislative context for this Bill.  This is not the first legislative effort 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.  The three TDs later explained that the purpose of initiating the three Bills concurrently was to have them included in the Friday lottery for Private Member’s Bills which may, if drawn, then be debated in the House.   Each of the Bills, primarily seeks to set a minimum distance between wind turbines and residential premises.  The formula for the so called ‘set back’ would be as follows:

If the height of the wind turbine generator is: (a) greater than 25 metres, but does not exceed 50 metres, the minimum distance requirement is 500 metres; (b) greater than 50 metres, but does not exceed 100 metres, the minimum distance requirement is 1,000 metres; (c) greater than 100 metres, but does not exceed 150 metres, the minimum distance requirement is 1,500 metres; (d) greater than 150 metres, the minimum distance requirement is 2,000 metres.

If passed into law a local authority or An Bord Pleanála could not grant permission for a wind farm unless the set back distances were complied with.  The Bills would have no impact on existing wind farms.

The Sinn Fein Bill 2014

The proposed Wind Turbine Regulation Bill 2014 seems to be a direct reaction to the proposed large-scale export projects in the midlands and an effort to set minimum statutory set back distances from turbines to ‘dwellings’.  With respect to the export of electricity generated from wind, section 2 of the Bill proposes to prevent such export until Ireland is ‘deemed’ inter alia to be ‘self-sufficient in the generation and consumption of electrical power.’  Self-sufficient is loosely defined as meaning that the level of electrical power generated from renewable sources (including wind) is deemed, by the Minister for the Environment, as sufficient to meet demand.  There are many interesting issues which could be explored in relation to this proposal and wording however it seems Sinn Féin are determined that no wind shall be exported until domestic demand is first satisfied and subsequently only excess supply, defined as ‘excess product’ in section 2, can then be exported.

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.

Conclusion

It is of course unlikely that the Government parties will adopt the proposed Bill.  Therefore many of the proposals will remain just that, mere proposals.  Sinn Féin know this all too well and the Bill will be employed as an important tool in their Local and European Election campaigns, especially in unfortunate communities who are currently targeted for wind farm development.  Nevertheless the ten times maximum tip height set back has gained almost universal acceptance by local community groups who wish to see development regulated and it is good to see it now being adopted by the political parties.

Minister O’Sullivan’s targeted review of the wind energy guidelines to which more than 7,000 submissions were made is due to conclude in June 2014, with the new revised guidelines to be issued then.  The Department are, for now, stubbornly sticking to a 500m set back distance from homes to turbines.  How this issue plays out on the door steps and the ballot boxes in the May elections is likely to have a more significant impact on the revised set back to be included in the guidelines than any private members or opposition party Bill.

Therefore, don’t be afraid to use your Local and European Election votes wisely in May as it will impact on the future of wind farm planning in Ireland!


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