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:
— Cllr. John Campbell (@Cllr_Campbell) 14 March 2017
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.