A number of residents in the Ballyduff/Araglin area living close to the Barranafaddock Wind Farm were disappointed this week to learn that the developers of the wind farm successfully appealed an earlier High Court order.
The residents had brought a case to the High Court claiming a deviation from the permitted blade length of the turbines where 90 metre diameter blades were permitted but 103 metre diameter blades were used. However, the High Court from 2019 that nine of the twelve wind turbines be ‘put on standby’, has now been overturned in the Court of Appeal.
In 2019, the High Court ordered that nine of the twelve wind turbines on the farm between Ballyduff and Araglin be ‘ put on standby’ as it was ruled at the time that the turbines were in breach of an EU directive on environmental impact assessments.
Several residents living in the vicinity of the wind farm brought the case to the High Court due to a deviation from the permitted blade length of 45 metres (90 metres diameter) to the constructed blade length of 51.5 metres (103 metre diameter).
The trial judge noted that the planning did not authorise the erection of the ‘ as built’ turbines, meaning that this constituted for a change or extension of the permitted development, requiring a planning application.
He held that the developer should have the opportunity to regularise the planning status of the wind turbines, and that it would be ‘ inappropriate’ to order the immediate removal of the turbines.
In late December 2019, a ruling was delivered by the Court of Appeal which saw the turbines continue to operate until a full hearing could be held.
Last week, the developers of the wind farm successfully appealed the High Court order.
Ms Justice Caroline Costello, Ms Justice Aileen Donnelly and Mr Justice Maurice Collins concluded the case that the decision-making function of An Bord Pleanála, or a planning authority, under section 5 referrals, does not extend to making declarations in respect of ‘unauthorised development’.
According to Mr Justice Collins, the issue of whether a development was unauthorised or not is ultimately a matter for the courts.
It was also stated in the conclusion, that the issue of the change in rotor diameter of the turbines and whether this constitutes an unauthorised development in circumstances where this was agreed and approved by the planning authority on foot of the compliance submission submitted by the developer, is ‘ most central’ to the disposal of the appeal.
This meant that residents were precluded from claiming the change in the blade diameter was an unauthorised development on the basis that they had been agreed upon and approved by the planning authority, Waterford City and County Council on foot of a compliance submission from the developer.
Claims made by residents regarding validity issues in the planning decision due to the lack of an Environmental Impact Assessment or screen process were also rejected as they had been provided in the original application for planning permission for the wind farm.
According to Mr Justice Collins, whether the change in rotor diameter constituted as material or immaterial deviation from the planning permission was not necessary to consider in the Court of Appeal, he concluded that it would have been ‘ appropriate’ to remit this matter to the High Court.
“There is, however, no need to make such a remittal in light of the findings I have made in respect of the other issue,” he said.
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