A retired Cork engineer is entitled to orders requiring the dismantling of three wind turbines at Kilvinane, Co Cork, due to their being built in “material” deviation from planning permission, the Court of Appeal has ruled.
A stay applies on those orders, and other orders restraining operation of the turbines, pending a decision by An Bord Pleanála shortly on an application by Kilvinane Wind Farm Ltd, made in May 2014, for substituted consent for the development as constructed.
If the board grants substituted consent, the developer can apply to have the restraining and dismantling orders lifted.
In those circumstances, the case, brought by local man William Henry Bailey against KWF Ltd, was adjourned to April 6. Mr Bailey had appealed the High Court’s refusal to grant the dismantling orders.
Giving the three-judge appeal court’s decision, Mr Justice Gerard Hogan said two of the three turbines have blade lengths of 90m, 23m more than the permission specified, and all three were built some 20m away from locations specified in the permission.
These were not “trifling” breaches but had consequences in terms of visual impact and noise for people living in the vicinity and there were also relevant planning considerations.
The public interest in ensuring alternative non-carbon-based energy sources are brought to the market cannot give this, or any other wind farm, “a licence to breach the planning laws”, said the judge. There is a public interest in ensuring those laws are adequately enforced and judicial failures to make mandatory orders may “dilute” effective enforcement.
While KWF and its principal, Leonard Draper, argued they had relied on assurances from planners in Cork County Council, the deviations from the permission were not material, the circumstances in which those assurances were given had some “curious, even unsettling aspects”, said Mr Justice Hogan.
An executive planner noted the file made available to her did not include correspondence or drawings from the developer submitted to the council on July 6, 2006, concerning the change in location or increase in blade length, he said.
The planner who signed the October 2006 letter on behalf of the council had, after his retirement, performed consultancy work for KWF “on this very issue”, the judge added.
While it was true the developer had contacted the council about the changes to the turbines, there was nothing to suggest the developer, or the planning officer contacted, had any consideration for the rights of others who might be affected by their actions, he said. No sensible developer could reasonably suppose such deviations could be “informally sanctioned”.
Anther reason for granting the dismantling order was that, three years after An Bord Pleanála ruled the turbines were an unauthorised development, KWF continues to operate the wind farm “in a highly profitable manner”.
Such considerations were sufficient to negate the argument the developer had acted reasonably and in good faith, the judge ruled.
Mr Bailey, a retired chartered engineer, has lived in Kilcasan, about 1km from the wind farm site, for 23 years. His home is among 28 dwellings in the vicinity. Other residents provided sworn statements making complaints, including of noise and “flicker shadow”.
Mr Draper said the turbines were relocated to give stronger foundations and the larger blade turbines were the only ones approved and available within the time required for the financial close of the project. He also argued Cork County Council was at all times fully aware of the planned modifications.
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