An appeal by a Cork windfarm developer over a decision three wind turbines were built in “material” breach of the original planning permission is to be heard by the Supreme Court.
As a result of the material breach finding, Kilvinane Wind Farm Ltd has been ordered by the Court of Appeal to dismantle the turbines and also restrict their operation. Those orders were stayed to facilitate a possible Supreme Court appeal and a pending decision of An Bord Pleanála on the developer’s bid for substituted consent.
In a written determination permitting an appeal by Kilvinane Wind Farm, a three-judge Supreme Court yesterday said it considered the case raised issues of general public importance and would certify two issues for decision in the appeal.
The first concerns what criteria the courts should apply in deciding a development has so materially deviated from a planning permission it has become unauthorised development.
The second concerns the implications of an official of the relevant planning authority (Cork County Council) representing to the developer a particular deviation from the development as originally authorised by the planning authority or An Bord Pleanála will not make it unauthorised.
Kilvane Wind Farm applied to the Supreme Court after the Court of Appeal last March allowed an appeal by William Henry Bailey, a retired engineer, against the High Court’s rejection of his proceedings over the windfarm.
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