A wind farm built in breach of environmental regulations is now in a legal limbo after being refused retrospective planning consent.
Derrybrien Wind Farm in Co Galway has already cost the State €17m in European Commission fines, with the total rising by €15,000 every day that its status remains unresolved.
The development has been at the centre of protracted legal disputes after its construction caused a massive peat slide that caused huge damage to land, property, rivers and wildlife in 2003.
A European Commission investigation found the wind farm had been built without proper environmental assessment which rendered its planning permission invalid.
A dispute then arose between the State and the operators of the facility, a subsidiary of ESB, who argued they had complied with all the planning procedures set out for them at the time.
It was finally agreed last year that ESB would apply for ‘substitute consent’ for the wind farm but in a decision just published, An Bord Pleanála have refused the application.
The decision, which runs counter to the recommendation of the board’s inspector who examined the case, says there were not grounds for exceptional circumstances to be applied to the case
“It is considered that in this case, significant effects on the environment occurred with significant permanent residual effects that can not be fully mitigated,” the board says in its decision.
“The significant effects on the environment were clear, profound and unacceptable.”
It says while it accepts that changes were to the construction management of the development following the peat slide, and that work was carried out to help remedy the damage done, it still did not fall under the scope of exceptional circumstances as required for the substitute consent to be granted.
An Bord Pleanála’s decision follows a highly critical European Commission assessment of the project late last year in which it said insufficient checks and monitoring was being carried out at the site.
Locals living under Derrybrien Wind Farm in south Galway expressed their “delight” with An Bord Pleanála’s decision.
Farmer Martin Collins of the Derrybrien Development Association said the community “wholeheartedly welcomed” the board’s ruling.
However, he said it was “Kafkaesque” that the wind farm which his community had unsuccessfully sought a halt to after the devastating landslide in 2003 could have been deemed unauthorised almost 20 years later.
“Ireland is also paying weekly fines to the European Commission over this project, amounting to €15,000 a day,” Mr Collins said.
“Given all the twists and turns, cases to the Irish courts, to Europe and two European Court of Justice rulings, it is unbelievable now that the farm has been found to be unauthorised.”
Up to 100,000 fish were killed and farmland and forestry engulfed in the major peat slide during construction work on the wind farm in October 2003.
When contacted for comment, the ESB said only that it was disappointed with the decision and would study the details before deciding on the next steps to take.
The Department of Housing and Planning said it would consider the ruling carefully but could not comment further at this time.
“It is important to note that Section 30 of the Planning and Development Act 2000 precludes the minister from exercising any power or control over any particular case with which a planning authority or An Bord Pleanála is or may be concerned,” it said.
Galway County Council said: “This decision, and any implications involved, will now be given the full consideration by the planning authority.”
The European Commission imposed a €5m fine on Ireland in November 2019 as a result of the long-running breaches at the wind farm site, with €15,000 daily fines to continue until such time as they were resolved.
So far, €13.22m has been paid, another €2.745m is outstanding to cover the six months up to last November and another six-month payment of €2.745m will fall due in April.
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