Tag Archives: Variation

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.

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.

 


Donegal windfarm planning rules closer to realisation

FWPM and Wind Farm Zones Dongeal 2013

It appears that Variation no.2 to the Donegal County Development Plan 2012-18 (as varied),  which sets zoning and setback rules for windfarms in the county has taken a significant step closer to realisation, following release of an Inspector’s report into the process.  We have blogged extensively on the variation process (see previous blog posts; here, here & here) and the subsequent high court challenge taken by Cllr John Campbell which vindicated the decision of the councils elected members to vary the wind energy elements of the Development Plan.

The Inspector (and author of the report) Mr. van der Kamp was appointed by Minister Coveney on 27 July 2016 after the Irish high court upheld an appeal by Cllr John Campbell, against a decision by the former minister, Alan Kelly, to overrule restrictions placed on windfarm developments by Donegal County Council.  In the high court case the Department had admitted that the section 31 direction issued by Minister Alan Kelly on 3 October 2014 did not set out an adequate statement of reasons, and that the references by the Minister to section 12 of the Planning and Development Act 2000 (as amended) were in error.

As part of the settlement reached in the case, and as ordered by the high court, the current Minister, Simon Coveney, agreed to appoint an inspector to review the process.   The Inspector was tasked, among other things, to write a report reviewing the process, in particular the reasons underlying the issuing of the section 31 direction issued by Minister Alan Kelly  which purported to overturn the decision by Donegal County Council elected members to introduce wind farm planning rules.  In his report the Inspector confirms, despite Minister Kelly’s claims to the contrary, that:

  • Donegal County Council did not ignore or take insufficient account of the submissions made by the Minister in May 2014;
  • Variation no. 2 did not significantly impact on the internal coherence of the County Development Plan;
  • Variation no. 2 did not make the County Development Plan inconsistent with national and regional policies or targets; and
  • With respect to the six freshwater pearl mussel catchments – Minister Kelly’s claim that Variation no.2 does not provide proper planning and sustainable development is not capable of objective verification.

The only issue raised by the Inspector in support of Minister Kelly was a Planning Circular PL 20-13, issued in 2013, which advised local authorities not to amend their wind energy policies pending completion of the targeted review of the wind energy guidelines and the renewable energy export policy and development framework.

However, as is well known Planning Circulars, such as PL 20-13, are merely advisory and in this instance the targeted review of the wind energy guidelines, which began in January 2013 remains outstanding and has been stalled by successive Ministers.  Indeed the whole revision process has become something of a running joke with almost 100 answers to Parliamentary Questions (from 2013 to date) stating that publication of the Revised Wind Energy Guidelines is imminent.

Furthermore the renewable energy export policy and development framework was killed off following the collapsed in 2014 of talks with the UK (see RTE and Irish Times), and the development of the export framework was quietly parked.  We are unlikely to see it restarted, any time soon, as even the Department of Communications, Energy and Natural Resources confirmed earlier this year that “any potential delivery of renewable energy export is realistically a post-2020 proposition.

What to do if you were invited to make a submission on the Inspectors Report

If you have received a copy of the Inspectors report from the Department you should immediately confirm receipt – including the date you received it – to the e-mail provided.  This is important as you will have to respond no later than 10 days from receipt of the report.  In general terms you may comment on any aspect of the report but the key points to highlight are as follow:

  1. Welcome the Inspectors report, in particular his findings that:
    • Donegal County Council did not ignore or take insufficient account of the submissions made by the Minister in May 2014;
    • Variation no. 2 did not significantly impact on the internal coherence of the County Development Plan;
    • Variation no. 2 did not make the County Development Plan inconsistent with national and regional policies or targets; and
    • With respect to the six freshwater pearl mussel catchments – Minister Kelly’s claim that Variation no.2 does not provide proper planning and sustainable development is not capable of objective verification.
  2. Highlight that planning circulars, in particular PL 20-13, are advisory and this circular was taken into consideration by the elected members in taking their decision to vary the development plan (confirmed by the Inspector as PL 20-13 was referenced in the Ministers May 2014 submission).  You may also wish to raise the points in relation to the stalled guidelines and that the export framework is no longer being developed.
  3.  It is important to highlight the significant evidence base in terms of protecting the Fresh Water Pearl Mussel (FWPM).  The six sub basin district’s referred to in variation No.2, were established under the The European Communities Environmental Objectives (Freshwater pearl mussel) Regulations 2009 (in response to a decision of the European Court of Justice against Ireland (Case C-282/02)) with the specific objective of supporting the achievement of favourable conservation status for the habit of the Fresh Water Pearl Mussels.  Ireland is estimated to hold 46% of the remaining Fresh Water Pearl Mussels population in the European union.  The population’s in the six sub basin district’s of Donegal are important not just from a regional and National level, but a European one.  Siltation and sediments entering these habitats related to windfarm development has been identified as pressure sources in the Donegal context (see for example Straboy wind farm appeal which highlighted the issue and the EPA STRIVE Report Management Strategies for the Protection of High Status Water Bodies (2007-2013) highlights the impact of wind farm development on the FWPM on the Oily river.)
  4. It should also be noted, in any response, that neither Minister Coveney (nor his predecessor Alan Kelly) have carried out an SEA or AA for any proposed direction, and to amend a Development Plan without carrying out such assessments would be otherwise than in accordance with Irish and EU law.

Next steps

Minister Coveney, under the terms of the settlement with Cllr Campbell,  has until 27 September 2016 to issue his conclusion on the process.  However given the direct and strong position taken by Mr. van der Kamp in his report it is highly unlikely that the Minister will attempt to again overturn variation no.2 and issue a fresh section 31 direction.


Consultation on Draft Ministerial Direction

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

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

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

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

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

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

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

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

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

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

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

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


Varying Donegal’s wind farm plans

Proposed Variation (No. 2) to the County Donegal Development Plan 2012-2018

The winds of change are beginning to be felt in relation to Donegal’s wind energy strategy and county development plan.  The hard work of the Glenties Wind Farm Information Group, their advisers and supporters (including the help of a number of well informed Councillors) has culminated in a number of proposed amendments to the county development plan being put to public consultation.

The council summarise the purpose of the proposed changes as follows:

  • to afford greater protection to Fresh Water Pearl Mussels and to reinforce existing Policy FWPM, through the inclusion of the catchments identified in the 6 Sub- Basin Management Plans as areas ‘Not Favoured’ for wind energy development;
  • to afford greater protection to residential properties and centres of human habitation; and
  • to refine the Zone of Visual Influence of turbines within the context of Glenveagh National Park.

The amendments will see centres of human habitation defined so as to include “schools, hospitals, churches, residential buildings or buildings used for public assembly”.   This underlines the ambition of the Glenties group to ensure the changes deliver real protection for local communities faced with the onslaught of encroaching wind farm developments.

Protection of residential amenity to be recognised as development plan objective

Underpinning this protection for local communities will be the recognition, for the first time, through an expressly stated objective of an assurance that wind farm developments do not adversely impact on existing residential amenity.  The precise wording of the development plan objective is:

E-O-6:  To ensure that wind energy developments do not adversely impact upon the existing residential amenities of residential properties, and other centres of human habitation (as defined at 10.6.7) in Chapter 10 Development and Technical Standards.

This objective is further enhanced by a recognition, also for the first time in Donegal, of a progressive setback from proposed wind farm developments to homes.  The principle of the larger the turbine the greater the required separation distance from people will be incorporated into the development plan.

Minimum setback distance of ten times maximum turbine height

This significant and tangible benefit to local communities will see the introduction of a  setback distance of ten times the maximum tip height of proposed turbines from residential properties and other centres of human habitation.  Again “schools, hospitals, churches, residential buildings or buildings used for public assembly”, shall all benefit from this proposal.  The adoption of this variation would greatly reduce the fears of many local communities in relation to residential amenity, wind farm noise and any subsequent indirect health impacts, while also addressing the wind industry’s concern in relation to disproportionate fixed setback distances from wind farms.  The ten times maximum tip height setback is a simple, progressive and proportionate setback which is likely to receive widespread public support.

Dezoning of  Fresh Water Pearl Mussel Areas

There is a legal obligation on Donegal County Council under the Fresh Water Pearl Mussel (FWPM) Regulations – Statutory Instrument No. 296 of 2009 European Communities Environmental Objectives (Freshwater Pearl Mussel) Regulations 2009 -to implement the measures in the FWPM sub-basin plans.  This includes a requirement that measured improvement in the parameters listed in schedules 3 and 4 of the FWPM Regulations, which indicate both the health of the FWPM population and their habitat, should be evident by 2015.  Other specific targets relate to the maintenance and improvement of the water status of the catchment, with some waters earmarked for an improved status by 2015 and, others by, 2021.

The FWPM sub-basin catchment areas in Donegal are generally in areas with significant peat.  Wind farm developments in these areas would pose very significant risks through the excavation and disposition of large quantities of peat.  Objective NH-O-4 of Donegal County Development Plan, also seeks to protect and improve the integrity and quality of FWPM basins therefore the removal of these protected areas from the zoned for wind farm development is to be welcomed and supported.  The proposed wording is as follows (changes to existing plan in red):

Not Favoured – Areas where wind energy proposals will not be favoured have been identified due to the significant environmental, heritage and landscape constraints.  These include; SAC and SPA (Natura 2000) Sites, NHAs, unspoiled areas of EHSAs, Areas of Fresh Water Pearl Mussel 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), important views and prospects. It is considered that these areas have little or no capacity for wind energy development.

The extent of the proposed changes, in particular relating to the six sub-basin areas, are detailed in the map below with the areas in red.

FWPM and Wind Farm Zones Dongeal 2013

Refining the Zone of Visual Influence of Glenveagh National Park

The third element of the proposed variation is to be opposed.  Despite it’s wording this refinement will see a diminution of the protections afforded to the landscape character and zone of visual influence around Glenveagh National Park.  The recent An Bord Pleanála decision in relation to a proposed 16-turbine wind farm at Newmills, Letterkenny was refused, in part, because it “would detract from the visual quality/amenity on … the approach roads to [and] the views to be had from” Glenveagh National Park.

This proposed amendment was facilitated by Fianna Fail councillor Liam Blaney and will in fact lessen the protections for the National Park.  If passed it will, in fact, enable the GDNG Renewables Ltd 16-turbine wind farm development to gain planning permission.  It must, therefore, be opposed.

Have your say before 9 May 2014

Submissions must be received no later than 4.30pm, 9 May 2014,  either by email to donegalcdp@donegalcoco.ie -or-  by post to: Mr. D. Kelly, Senior Executive Planner, Central Planning Unit, Donegal County Council, County House, Lifford, Co. Donegal.

Alternatively the Glenties wind farm information group have a helpful online submission form.  This offers an easy way for you to ‘have your say‘ just follow this link – http://www.gwig.net/index.html – to their website; click ‘Have Your Say’; fill in your name, address and e-mail details; then just click send and your support for the set back and dezoning proposals will be registered with Donegal County Council.

Now is the time for you to have your say on wind farm planning in Donegal – don’t let it pass!


%d bloggers like this: