May 25, 2022

Group challenges €46m Kerry wind farm development for a second time

Developer Stacks Mountain Windfarm Limited, which has offices in Lissarda, Co Cork, asked that the challenge be entered into the fast-track Commercial Court list | Ann O’Loughlin | Irish Examiner | Mon, 23 May, 2022 |

A new legal challenge to a €46 million wind farm development in Co. Kerry has been launched.

The case on Monday was entered in the list of the High Court’s fast-track Commercial Court. This is the second time the North Kerry Wind Turbine Awareness Group has sought to challenge the development in the High Court.

In 2017, Mr Justice Brian McGovern upheld An Bord Pleanála’s permission for the 10-turbine project as clear, properly reasoned and in accordance with law. He refused to grant the relief sought by the local campaign group.

However, when leave was granted for the challenge to be appealed directly to the Supreme Court, the planning board indicated it did not intend to further defend the matter and, on consent, its permission was quashed and the planning application was remitted back.

On Monday, developer Stacks Mountain Windfarm Limited, which is joined as a notice party, asked that the planned new challenge to the board’s fresh permission for seven wind turbines, granted last December, would be entered into the fast-track Commercial Court list.

‘Particular urgency’

Tom Flynn SC, for the developer, said his client has already spent €3 million on this project and is anxious for the matter to progress as quickly as possible.

A director of Stacks, Michael Murnana, said in a sworn statement that the judicial review challenge is affecting the deliverability of a project that will see €46 million invested in renewable energy.

Permission for the development was first sought from Kerry County Council more than eight years ago. Any further delay could have “serious implications” for the project’s viability, he said.

There is a “particular urgency” to this application, as the firm, which has offices in Lissarda, Co Cork, has applied to participate in the next auction under the State’s Renewable Energy Support Scheme 2, said Mr Murnana. If successful at the May auction, the wind farm must be operating commercially by December 2025, he said, adding that it is of “critical importance” that this is achieved.

The €3 million spent to date represents a “significant financial investment” by the company in the wind farm which will see no commercial return until it is operational, he added.

Group’s objections

In their action against An Bord Pleanála, to which Stacks and Kerry County Council are notice parties, the North Kerry Wind Turbine Awareness Group seeks an order overturning planning permission granted for the wind farm in Listowel.

The group bases its challenge on a number of domestic and European law grounds, including that certain environmental assessments required under the Environmental Impact Assessment (EIA) and Habitats directives were deficient.

It complains there are allegedly no precise definitive findings capable of removing all scientific doubt about the development’s impact on a special protection area, particularly in respect of the hen harrier bird of prey.

Further, it alleges the proposed development permission involved an unsolicited planning submission, which gave the effect that the North Kerry group was denied an opportunity to properly participate in the process.

Mr Justice Denis McDonald was satisfied there was a significant commercial element to the case that warranted its entry into the expedited list. The application for leave for judicial review was adjourned until next week to be heard in the court’s commercial planning list.

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