February 24, 2020

Legal battles persist over wind farms

By Michael Clifford; Additional reporting by Christy Parker | Irish Examiner | Monday, February 24, 2020 | www.irishexaminer.com

Sheila Brosnan has seen the landscape change around the home she moved into 18 years ago.

She is living in the Sliabh Luachra area that encompasses rolling hills on the Cork-Kerry border, taking in Ballydesmond on the Cork side and Scataglin in Kerry.

“There is a mass of turbines,” she says. “We would have seen them all going up but one in particular has really impacted on me and my family in the house here.”

That was bad enough but the latest windfarm planned for the area would have a turbine within 500m of her home.

“I have seen other ones of this size (height of 180m); a woman a few miles back the road where they have a lot of turbines showed me. The flicker off the blade is frightening and the noise levels are substantial. It would totally aggravate your health.”

The latest farm planned for the area is the one that brings with it the biggest threat to Ms Brosnan and her family’s way of life. A project which consists of 12 wind turbines received planning permission in November 2018. It is being developed by Tralee-based company Silverbirch.

It has prompted locals to organise into a group, the Sliabh Luachra Wind Awareness, to challenge it.

A number of public meetings took place, during one of which Independent TD Danny Healy-Rae got a very negative reaction because it was suggested his earth-moving business was benefiting from the proliferation of windfarms. (He subsequently clarified that none of his companies are directly involved in the construction of windfarms).

In 2018, Kerry Country Council refused planning permission for the development which was then for 14 turbines. Following an appeal to An Bord Pleanála, the project got the green light with a reduction on the number of turbines to 12.

For Ms Brosnan, her husband, and two children, this project is one too far.

“Our major concern would be the shadow flicker,” he says. “Two of the turbines to go near our house would have flicker in the morning and evening and big sound pressures.

“The WHO (World Health Organisation) clarified that sleep deprivation is an issue with these turbines and my children are only 14 and 10. We worked hard to make a life here and for these developers to be allowed come in and upset our lives is simply wrong.”

Just before Christmas, Ms Brosnan and her neighbours received a major boost in their efforts to stop the development. The High Court ruled that An Bord Pleanála should not have granted planning.

The judgment was based on the failure of the board to take account of the hen harrier, a bird of prey, which is to be found in the locale. It is not yet clear whether there will be another application for a modified version of the farm. As such, the future of the project now hangs in the balance.

Fred O’Sullivan, chair of the Sliabh Luachra group, says irrespective of the outcome, they won’t be stopping anytime soon. “What we feel is that we’ve done our share,” he says.

“Kerry is littered with windfarms at this stage. We have facilitated enough. No matter how things go, we will be against any windfarm unless they can keep it at least 1km away from people’s homes.”

Therein lies the kernel of the problem with the future of onshore wind-farming in Ireland. An island off western Europe, on the edge of the Atlantic, should be ideal for it. The topography in various parts of the island would be perfect for harvesting wind. Increasing the generation of electricity by renewable energy is a central plank of the government’s climate action plan.

But finding sufficient locations which do not impact on the lives of the country’s dispersed population is a major, and in some ways, irredeemable headache.

Last Wednesday, the deadline passed for submissions on new draft guidelines for windfarm developments. The main thrust of the guidelines is to ensure windfarms are developed in a manner that does not impact adversely on the lives of those in the vicinity.

There are three main planks to this issue:

• The distance of the turbines from the nearest domestic dwelling;
• The noise pollution from the turbines;
• The business of shadow flicker, which can have a serious psychological impact.

The guidelines were published on December 12 and have been over six years in the making. Most observers are in no doubt this represented a major exercise in kicking the can down the road.

The last time it was attempted there were over 7,500 submissions, the vast majority of which complained that the guidelines were not stringent enough on developers.

And that is the major problem with wind-farming. Throughout the country over the last decade, in particular, plans for windfarms have repeatedly come up against communities who maintain that their lives are going to be adversely affected by the operation of the turbines.

Communities that consider themselves under threat want the hopelessly out-of-date 2006 guidelines revised to take account of new technology. Developers, on the other hand, claim that the potential for siting farms at sparsely populated areas around the country will disappear if the guidelines are too stringent. They also want clarity.

Developers also say, in some instances, that the impact being claimed is exaggerated or, in the case of prospective farms, that fears are being blown out of proportion.

Last year, the government committed to generating 70% of electricity through renewables – primarily wind – by the year 2030. In 2018, around a third of the country’s energy needs came from wind, the second-highest proportion in the EU. Even allowing for other renewables such as solar power, that will require a major ramping up of wind energy.

As far as the industry is concerned, there are a small minority of people who are “opposed” to wind energy.

Otherwise, the operation of turbines don’t impact on people’s lives. Just as there are people in the vicinity of windfarms whose upheaval has been recognised by the courts, there are also, in a small number of examples, people who built their one-off house in the vicinity of the turbines.

Joe Noonan is a Cork-based solicitor who specialises in environmental law. He has represented a number of people who have brought legal actions over difficulties with wind farms.

“The main stumbling block is an air of unreality bordering on dishonesty about the public stance in relation to wind energy,” he says.

“There is a well-known, documented, potential serious noise problem from badly sited wind turbines that has been found in several places around the country. What one would expect is an acknowledgment of that and a determination to face it and learn from the mistakes. What is happening is a veil of silence over the reality. It is not being addressed and what that does is makes people really mad, because these are genuine people.”

David Connolly, chief executive of the Irish Wind Energy Association, paints a very different picture. He says: “It is vital that communities are on board when you bring windfarms to an area but our general experience is that 80%-90% of people are supportive and we wouldn’t agree that the vast majority or anything like that is opposed.

“We have built over 250 windfarms in Ireland, there are lots of projects out there and the vast majority go by without people hearing an awful lot about them.”

The association is opposed to some aspects of the new guidelines, principally concerning noise pollution. Mr Connolly says the new limits on noise are going to be imposed without reverting to a proper body of evidence.

“We did a survey of our members about noise complaints and we got through about half of them. Ten complaints were recorded in that group so that would suggest there might be 20-30 across the whole fleet. That is out of a total number of noise complaints in the country in the thousands.”

The industry is adamant it is making a hugely positive contribution to the green economy. Last year, there were 24 new windfarms built in the State, the second- highest number on record. In 2018, the industry contributed €2.5m to local communities through funds. The industry employs 4,000 people.

All of this is hugely positive but those who find themselves on the wrong end of the turbines often believe the apparatus of the State is inclined to turn a blind eye when problems arise in order to keep the show on the road.

Apart from the Sliabh Luachra judgment, there were two others in the superior courts last December that raised serious issues about how the planning system processes windfarm development.

The Supreme Court overturned a decision by An Bord Pleanála for a windfarm in Inchigeelagh, Co Cork, on foot of an appeal by a couple who run a horticulture business in the area.

Klaus Balz and Hanna Heubach had appealed the decision to grant permission for 11 turbines, which would have been 637m from their home. They claimed the board failed to properly take into account the noise generated by the turbines.

The five-judge court found in favour of the couple, who had argued that the board had not taken into account an aspect of the 2006 guidelines which observed that an “appropriate balance” had to be achieved between power generation and noise impact.

The court found that An Bord Pleanála’s decision in the case had “an unfortunate tone, at once defensive and circular”.

Another case decided in the High Court in the same month concerned Barnafaddock, a windfarm in Ballyduff, Co Waterford. This farm of 11 turbines had received planning permission in 2011 and was subsequently constructed and put into operation.

Some local people repeatedly complained about noise pollution from the turbines and investigated whether they had been built according to the permission. They discovered that the blade span on the turbines was 103m and not the 90m for which planning permission had been granted. As a result, seven local people brought a legal challenge to the development.

Judge Garret Simons told the court that “the 2011 permission did not authorise the erection of wind turbines of the scale and dimensions actually put up”.

The issue is now at the appeal stage.

There have been other cases over the last five years, but apart from those that wind their way through the expensive legal system, there have also been instances where local pressure has ensured projects have not gone ahead, and others in which projects have gone ahead leaving bitter reaction in local communities.

Whether the path towards more wind energy can be smoothing when the new guidelines are implemented remains to be seen.

Noise guidelines ‘will add €3bn to energy bills’

The wind energy’s representative body claims that if the new draft guidelines relating to noise are implemented it could cost the country €3bn extra in electricity costs.

Irish Wind Energy Association CEO, David Connolly, says the proposals on noise make no evaluation of the cost of implementation.

“If we go with the draft guidelines it could cost an extra €3bn because of the restrictions on noise compared to the restrictions that were in the original 2006 guidelines,” he says.

“Of course the Government has to evaluate how to protect people in local areas but we also have to take into account the cost to every day people in terms of meeting climate change targets. They haven’t quantified the cost of doing this.

“They haven’t evaluated the cost of how much onshore wind we would lose and how much more difficult it will be to meet the targets the government has set.” The IWEA has some major issues with the draft guidelines. However, Mr Connolly says that it is willing, in the name of compromise, to contemplate the measures in relation to setback distance and shadow flicker, but not noise.

Setback distance is recommended to be “four times the tip height between a wind turbine and the nearest point of the curtilage of any residential property.” This distance with typical tip heights today of around 180m would be 720m.

The noise standards must be in line with World Health Organisation guidelines and take account of “certain noise characteristics specific to wind energy projects, ie tonal, amplitude modulation, and low-frequency noise.” The noise will now be subject to a limit of five decibels above existing background noise up to a maximum permitted noise limit of 43 decibels, day or night.

Shadow flicker must be controlled through specific mechanisms and if this is not adhered to “it will be a specific condition of planning permissions that should shadow flicker occur and impact existing properties the relevant wind turbines must be shut down”.

The industry claims that if the proposed setback distance was in the finalised guidelines it would cut down by 40% the amount of land available for wind energy.

Mr Connolly also feels that in terms of shadow flicker, some discretion must be shown to allow for time to, for instance, shut off a turbine if the phenomenon starts.

However, they have a major issue with the noise restrictions. The IWEA recommends that the limits in the North should be applied here. A submission from the IWEA makes the point that there has been just a handful of noise complaints from windfarms in the North from a total number of noise complaints of the order of 11,000- 12,000.

Independently, a group of acousticians, who say they have acted for developers, government agencies, and residents groups has written to the department to express concern at the guidelines, which they say are deficient in a number of respects.

“Windfarm noise is obviously a very technical subject and having reviewed the draft document section on noise, we are of the opinion that the guidance contains a number of technical errors, ambiguities and inconsistencies and that it requires further detailed review and amendment,” according to the letter.

“In particular, we are concerned that the lack of clarity and some of the inconsistencies in parts of the guidelines could, in themselves, lead to further disputes or discussions, which would go against the aims of the document.” The draft guidelines don’t meet with approval either from those on the ground. Fred O’Sullivan of the Sliabh Loachra Wind Awareness group says that the big problem is the guidelines are not set down in law.

“If you look at the setback distance,” he says.

“Four times, in our case that would be around 720m. We would grab that with both hands. They can breach the guidelines and bring it closer in a planning application and we couldn’t do anything about it. There have been cases where they breached the existing guidelines and we can’t do a thing about it.”

One thing both sides have in common is a failure to take account of evidence in the draft guidelines. The industry is of the opinion that applying evidence would ensure a less restrictive regime. Those on the other side say that it would actually lead to more restrictive guidelines. As with all else in this area it depends on which science or study is being quoted.

Environmental solicitor Joe Noonan says that he doesn’t have confidence in the process of drafting the guidelines.

“They are not based on evidence and there has been no assessment of how effective the old guidelines have been. There is no rigour in terms of looking whether we have a problem here.”

The new guidelines will also impact on repowering, which occurs when a wind farm’s tenure, typically 20 or 25 years, comes to an end. Ordinarily, the farm would be repowered using up-to-date technology, but, the industry warns, if the new rules are more tighter than those applied when the farm was first developed it may not be economically viable to repower the farm which would then become obsolete.

One way or the other, there will be a major onus on the incoming government to finally determine and enact new guidelines. It will be a difficult balancing exercise.

In recent months, efforts to develop off-shore wind have been ramped up but if the target for renewable energy is to be met, the onshore industry will have to expand. Doing so with the minimum of impact on local communities is going to be a tricky business irrespective of how the guidelines are finalised.

‘The last thing I hear every night before I sleep is a ‘booing’ sound’

Christy Parker

Seán Harris can see all 12 turbines from the home he shares with his wife Catherine and adult son Adrian.

The house is 700 metres from the nearest turbine and two kilometres from the furthest, “but the sounds accumulate”, explains the 57-year-old dry stock farmer

“The last thing I hear every night before sleep is an elongated ‘booing’ sound. Some mornings I might as well not have slept at all. It is hugely affecting my health”.

Seán finds the noise “particularly bad” when the wind is from the east or when there is fog, which “brings the sounds to the ground and holds it there”.

The farmer says when he wakes some mornings his eyes “feel glued together”.

Other times his ears hurt and he frequently gets throat infections, which he never previously contracted.

“Some days I just have no energy, even after I’ve slept,” he states.

Catherine is also being treated for respiratory problems.

“Her lungs are only working to 60% normality. She doesn’t smoke or drink and never had respiratory problems before last year. We have no proof of a connection with the turbines but as with the rashes and the sleep deprivation, I’m getting similar reports from communities in other areas close to windfarms”.

Sean attributes the stress and sleep deprivation to theparticular nature of the sounds.

“It’s low-frequency noise (LFN) and it has a subliminal affect,” he says, “even as you sleep. It’s fine outdoors when mingled with other noises, but indoors it’s a nightmare.” LFN is an under-researched phenomenon whose authenticity has divided opinion amongst scientists, health agencies and the public.

It is a low-frequency sound derived from airborne pressure waves that occur at frequencies £ 200 Hz. Some people are sensitive to it, while others are not.

Seán’s son Adrian is unaffected, which Seán believes may be attributed to younger people’s ears and eardrums being more flexible and less prone to the effects.

For Ronald Krikke and his wife Pia, the noise is very real and affecting their sleep.

They built their home 15 years ago but it now sits amid a triangle of turbines.

The 60-year-old training and development officer says prior to the windfarm being erected, representatives assured them that there would be very little noise or shadow flicker.

This seemed true initially, “but then the noise grew progressively more severe”, says Ronald.

“Now it causes us sleep deprivation and other problems that threaten our health”.

Ronald was instrumental in discovering the anomaly in the blades’ size. His research also found that a tall blade on a small tower can pre-empt ‘amplitude modulation’, especially in raised landscapes, which results in a ‘thumping’ sound.

“We now have this intrusion night and day,” he sighs. “It impedes concentration and affects concentration when trying to run a business on my computer.” Ronald says the noise is accentuated depending on how the blades are pitched.

“When pitched upwards,” he explains, cupping his hands to illustrate, “a lot of tension and energy is created and there is usually more noise.” Since the windfarm arrived Pia has developed tinnitus, which the noise exacerbates.

“When the wind is at its most unfavourable it’s like being near a helicopter pad,” Ronald claims.

“We love our garden and have 24 varieties of bamboo growing there, but it’s no longer pleasurable to work there.”

Driver had to quit job, saying lack of sleep made it too dangerous

Christy Parker

Pat Keneally has lived all his life on Barranafaddock, where he and wife Caroline have three children. under 14.

The 43-year-old had been a truck driver around the time the windfarm was constructed, driving most days to Dublin.

“Shortly afterwards I began feeling tired and would sometimes pull in for a nap. I didn’t know what was wrong because I was sleeping ok at night at that time. I would hear a vibrating type sound in the house but never associated it with the turbines, which are about 900m away at the nearest. I got an electrician and plumber in but they found nothing.” He said he then began suffering migraines, insomnia, and sore eyes, which sleeping tablets and other medication failed to resolve.

“Eventually, from talking to my neighbours, I realised it was from the turbines,” he said.

“I’d be awake and restless at 3.30 am and I’d get up, even sending emails to the council at that time to emphasise the time the problem occurred.” He said a council official visited the house, but he has heard nothing since.

Pat said he quit his driving job as “it was too dangerous” and returned to a former job in construction. He claimed the noise and the sleep deprivation continues to trouble him and his wife.

At work he is “tired and in poor form much of the time. Sometimes I can’t even concentrate on a conversation. I’m very bitter over it to be honest”. He claimed the noise is “at best like a car ticking over outside the window and at its worse like a lawnmower”.

Along with his neighbours, Pat is part of the Barranfaddock Family Residents group, which has campaigned against the windfarm since it was commissioned in 2015.

Barranafraddock Sustainable Electricity Limited (Bsel) initially installed the turbines with 103m long blades, despite the fact that nine had planning permission only for 90m blades.

In November 2018, Bord Pleanála ruled that the development transgressed an EU directive requiring an environmental impact assessment and was therefore unauthorised.

Waterford Council then instructed the company to abide with the planning regulations but Bsel sought leave to apply for ‘substitute content’, which An Bord Pleanála refused last August. On the bord’s recommendation, The company re-applied to Waterford Council for retention but unexpectedly withdrew that application last November.

An Bord Pleanála refused ‘substitute consent’ and Bsel is appealing a court order to ‘comply or close’, the farm, with the cost of replacing the turbines estimated as up to €20m.

In response to the residents claims, a spokesperson for Bsel, said “it is not appropriate to comment in the midst of ongoing legal proceedings” pertaining to the development in the broader sense. Waterford Council did not respond to inquiries.

We can’t keep kicking can down the road

Because of objections in rural Ireland to proposed sites, successive governments have dithered, writes Michael Clifford

The planet is burning, rural Ireland is up in arms, but successive Irish governments have responded by doing nothing in response to wind-farm development.

Whether or not the incoming administration will do the same remains to be seen.

On 12 December last, the Government finally published draft guidelines for the development of wind farms. The siting of wind farms is a contentious issue in rural Ireland.

Repeatedly, communities have resisted plans. Repeatedly, communities have sought recourse in the courts. Repeatedly, all with an interest have called for new guidelines, fit for purpose, to be published. Repeatedly, successive governments have kicked that can down the road.

At issue is the old chestnut of the national interest versus local interest. Wind-energy development is a key element of the Government’s climate change strategy. The target is for 70% of the state’s electricity to be produced through renewables by 2030. Achieving that without significant onshore development will be extremely difficult.

Doing so without impacting on the quality of life of an indeterminate number of people in rural Ireland will also be extremely difficult. We have a very dispersed population.

Developing wind farms in splendid isolation is not possible. Against this background, the Government published non-binding guidelines in 2006 for the development of wind farms. The guidelines included a recommended set-back distance of 500m and vague standards for noise pollution.

There were no specific guidelines around shadow flicker, the phenomenon of turbine blades casting shadows through windows or openings, particularly in domestic dwellings.

Within five years of those guidelines being issued, they were hopelessly out of date, the technology in wind energy had advanced so much. For instance, when the guidelines were published, the typical diameter of turbine blades was 50m. Now, it is rarely less than 150m.

Advancing technology left the Government in a bind. New guidelines were undoubtedly required. If those guidelines were too stringent, there would be no further development of wind energy.

If the guidelines were deemed not sufficient to protect residents in the vicinity of wind farms, there could be a high political price to pay. The answer was to kick the can down the road. This has resulted in huge uncertainly for developers and major turmoil for communities, who have had to repeatedly seek relief in the courts.

In August 2013, the then minister for the environment, Phil Hogan, told the Dáil that new guidelines were being drafted, “which will address the key issues of noise (including separation distance) and shadow flicker,” he said.

“Draft guidelines will be published for public consultation by end-November 2013, with a view to finalising guidelines by med-2014,” Hogan said.

The draft was published that November. The public consultation resulted in 7,500 submissions, the vast majority of which wanted longer separation distances and more stringent controls on noise.

In July 2014, when the finalised version was due to be published, the department announced that it was being put back, in order to process the large number of submissions. Now, it would be done by the following September.

September 2014 came and went and no result.

Then it was decided that what was required was a study. The Sustainable Energy Authority of Ireland sought tenders to complete a study on the impact of noise limits on wind farms. Naturally, this necessitated further delay.

That delay lasted all the way to the 2016 general election. Following that, the new minister, Denis Naughton, announced that he would finally publish new draft guidelines by the end of the year.

Then, the European Court ruled on a case that concerned wind turbines in Belgium, in which there had not been sufficient public consultation. There was nothing for it but to put back the deadline in this country. More study was required. More delay ensued.

At the time, Green Party leader, Eamon Ryan, said he found it hard to see how the guidelines could be further delayed, as the process had already been ongoing for three years.

“There is a looming crisis in the renewable sector,” he said.

“We are looking at a lot of further projects that are stalling. The decision to delay is going to make that worse.”

By the following June (2017), there was further reason for delay. The minister for housing was getting in on the act, joining his colleague in environment. Simon Coveney announced what he called “an important milestone in the review of the 2006 Wind Energy Development Guidelines.”

He said he and his colleague have “developed a preferred draft approach to address the key aspects of the review of the guidelines, which I feel strikes the appropriate balance between facilitating future wind-energy projects, in the context of ensuring we can deliver on our EU renewable energy targets, while simultaneously addressing the genuine concerns of local communities, where wind-farm developments are proposed.”

The latest development would reflect exactly such a strategy. The draft guidelines were originally scheduled to be published early last year, but further delays ensued.

By December, it was known that there would be an election in May, at the latest. There was never any chance that a final decision would be arrived at prior to the next election. So it was safe to finally issue the draft guidelines, secure in the knowledge that any fall-out would land in the lap of the incoming government, rather than the incumbent.

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