The Court of Appeal has ordered a wind farm in Co Cork to be dismantled, pending the outcome of the developer’s application for substituted consent.
Mr William Bailey sought orders pursuant to s. 160 of the Planning and Development Act 2000 requiring the dismantling of three wind turbines owned and operated by Kilvinane Wind Farm Ltd. on the ground that, as constructed, they amounted to an unauthorised development as their location varied from and their dimensions exceeded that permitted by a planning permission granted by An Bord Pleanála in July 2002.
One of the wind turbines was found to have a rotor diameter 1m greater than that permitted, while the other two had rotor diameters 23m greater than permitted. The final location of all three turbines was different to that specified and described in the planning permission.
The director and principal of Kilvinane Wind Farm, Mr Draper, had corresponded with the Board on numerous occasions between 2003 and 2006, seeking amendments to his planning permission, which had been apparently accepted by the Board.
Kilvinane then lodged a new planning application in 2010, which was granted, but was appealed by Mr Bailey.
In 2011 Mr Draper submitted a further planning application, which was refused and appealed by Mr Draper.
Also in 2011, two local residents sought a reference under s. 5(4) of the 2000 Act as to whether the as-built three turbines constituted exempted development.
The An Bord Pleanála determined that the alterations of the turbines and the wind farm at Kilvinane constituted development, not exempted development. This decision was then subjected to judicial review by Kilvinane.
In the meantime, the 2011 application had been rejected, as it was found to request modifications to an unauthorised development. Mr Draper also sought to judicially review this decision, but agreed to defer both judicial reviews pending the outcome of the present s.160 proceedings.
Mr Bailey’s arguments were that the turbines did not meet the specifications provided for in the original planning permission, and that the turbines impinged his enjoyment of his farmlands and the rural neighbourhood.
Affidavits were also sworn by local residents supporting the application and detailing the disruption caused by the noise, flicker shadow and dazzle occasionally caused by the turbines.
Mr Bailey further argued that he could find no reference on the planning permission file to the correspondence between Kilvinane and the planning authority sanctioning a deviation from the terms of the planning authority.
He maintained that he only received the information after intimating that he would initiate a formal complaint under the Freedom of Information Act 1997.
Mr Draper stated that his family and his parents lived closer than Mr. Bailey or any of the local residents who swore affidavits in support of these proceedings, yet had not experienced any adverse effects. Mr. Draper emphasised that prior to the submission of the revised planning permission in November 2010 “no issue had ever been raised by any party in relation to the wind turbines”.
The High Court had originally refused the reliefs sought by Mr Bailey, finding that to do so would be premature considering the pending judicial review cases, and noting that the planning authority did not seem to have concerns itself. The Court also observed that Mr Bailey was not adversely affected by the development, and that the application was likely to be a result of an objection to the project as a whole, rather than to the amendments.
The High Court found that Kilvinane had consulted with the planning authority correctly, and that it would be draconian to issue an order under s.160.
On appeal, the Court of Appeal noted that it was unfortunate that the High Court judge had not known that the judicial review proceedings had been abandoned, and indeed had been adjourned to await the decision in the present proceedings.
Considering whether Mr Bailey had the appropriate interest to maintain these proceedings, the Court noted that while every citizen has the right to apply under s.160 of the 2000 Act, factors such as the extent to which an applicant stands affected by the development, the motive for the proceedings and whether any breach of the planning rules was trifling and immaterial are all relevant factors.
The Court of Appeal disagreed with the weight placed by the High Court on the fact that the planning authority had decided not to take any action, finding that if a planning authority’s decision not to take action was to be a major factor in the entitlement of a local resident to seek relief, this would undermine the effectiveness of the s. 160 procedure.
The Court of Appeal found that Mr Bailey did have sufficient interest, and that even if he did have a longstanding objection to the wind farm, this did not mean that he was not entitled to object if the wind farm was operating in an unauthorised way.
In relation to whether the development was unauthorised, the Court found that the turbines deviated significantly from the planning both in location and rotor diameter, and were therefore unauthorised.
Citing Kenny v. Dublin City Council  IESC 9; Cork County Council v. Cliftonhall Ltd.  IEHC 85; and Cork County Council v. Slattery Pre-cast Concrete Ltd.  IEHC 291, the Court found that the question of material/non-material deviations from the terms of an existing permission has been approached from a practical and common sense perspective: is the deviation of such materiality that it would realistically impact on the rights or interests of third parties or be such as would affect planning considerations.
In the present case, the movement and change in size could well have significant impacts in terms of sight lines, noise and shadow flicker for local residents.
The Court then considered whether it should refuse an order under s.160 on discretionary grounds.
It found that there is clear demonstrable evidence of interference by the turbines with the enjoyment by Mr Bailey, his family and other local residents of their property and other local amenities, thus reinforcing the case for the making of the appropriate s. 160 orders.
It was noted that the circumstances in which the deviations from the planning permission had been authorised had some curious, even unsettling aspects.
While there were cases where the developer had acted bona fide, such as Derrybrien Development Society Ltd. v. Saorgus Energy  IESC 77, thereby justifying a refusal to issue s.160 orders, in the present case there was nothing to suggest that either the developer or the Council had given appropriate regard to how the changes were likely to effect third parties such as the local residents.
The case was found to be similar to that of Morris v. Garvey  I.R. 319, in which an unauthorised structure was ordered to be demolished despite reassurances from an official with the planning authority that the deviation was not material.
The Court stated that “If this Court were to allow the private views expressed by a planning official in correspondence with the defendant regarding the materiality of the deviations from the planning permission to defeat the rights of the applicant, it would tend to undermine a pillar upon which the entire edifice of the planning process was erected, namely, the right of the third party objector.”
Thus, the developer was found not to have acted in good faith. Further, while there was a public interest in pursuing renewable energy, this did not mean that wind farms could breach planning laws.
The Court therefore made an order restraining the use of the turbines and an order for them to be dismantled, however this order was stayed pending the outcome of the Board’s determination upon the defendant’s application for substituted consent, with liberty to the defendant to apply to vacate the order if consent is granted by the Board for the turbines as constructed.
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