The developers of a wind farm in west Waterford have successfully appealed a High Court order restraining its operations while they seek to regularise the planning status of wind turbines whose design had been altered from the original grant of planning permission.
In the latest chapter in a long-running legal battle between the wind farm operator and local residents, the Court of Appeal ruled in favour of Barranafaddock Sustainable Electricity (BSE), against a High Court ruling restricting the operation of the wind farm near Ballyduff, Co Waterford, until a determination was made on its planning status.
Several residents living in the vicinity of the wind farm had obtained a High Court order in 2019 restraining its operation on the basis that nine of its 12 turbines were not in compliance with the original grant of planning permission by Waterford City and County Council in 2011 due to changes to the diameter of their rotor blades, which increased from 90m to 103m.
Complaints by local residents
Although the local authority had issued a decision the wind farm operator was in compliance with the 2011 permission, it subsequently made a section 5 referral about the length of the rotor blades to An Bord Pleanála following complaints by local residents.
An Bord Pleanála determined the changes represented a new development which was not exempted from requiring planning permission.
The board’s ruling resulted in the High Court making an order restraining the operation of the wind turbines to allow the BSE time to regularise the planning status of the wind farm but said it would be inappropriate to make an order requiring the immediate removal of the wind turbines.
However, the Court of Appeal with Ms Justice Caroline Costello presiding with Ms Justice Aileen Donnelly and Mr Justice Maurice Collins ruled that the decision-making powers of An Bord Pleanála under section 5 referrals do not extend to making declarations that the wind farm was an unauthorised development, although it observed the legislation was “not clear or direct” on the issue.
At the same time, Mr Justice Collins acknowledged that, frequently, the inevitable implication of a finding that a development is not an exempted development is that it is not authorised.
Matter for the courts
He said the issue on whether a development was unauthorised or not was ultimately a matter for the courts.
Mr Justice Collins said there may also be aspects of the board’s decision which courts would accord due weight as it represented the decision of an expert body with decision-making powers on planning matters.
The Court of Appeal ruled that the residents were precluded from claiming the change to the diameter of the rotor blades was an unauthorised development on the basis that they had been agreed and approved by the council on foot of a compliance submission by BSE.
While the High Court had found there was no express agreement between the local authority and BSE on changes to the diameter of the rotor blades, the Court of Appeal said it was satisfied an agreement existed.
It also rejected the argument by local residents that they could challenge the council’s compliance decision on the basis that no Environmental Impact Assessment or screen process had been provided in the original application for planning permission for the wind farm.
Mr Justice Collins said the Court of Appeal could not make any determination that the wind farm was an unauthorised development on that basis as any such challenge should have been carried out by way of judicial review within a statutory timeframe.
Although there was no need to make a ruling on the question as to whether the changes in the rotor blade diameter represented a material deviation from the 2011 permission, Mr Justice Collins said the only way it could be determined would be to remit the issue to the High Court.
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