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In a recent court judgment at the end of 2014, O’Griana v An Bord Pleanala, Cork Co Council and Framore Limited, Justice Peart ruled that planning permission should not be granted for an windfarm project requiring a grid connection unless the grid connection details are provided in the Environmental Impact Assessment (EIA) process.

The case related to a 6 turbine wind farm in at Réidh na nDoirí, Ballingeary, Co. Cork and is one of many wind farm permissions which are currently being challenged in the courts.

To date planning authorities have accepted developers’ claims that details from ESB Networks are often not available at the time of planning and this element can be dealt with via a separate application subsequent to the application for the wind farm itself.

Essentially Justice Peart quashed the decision of An Board Pleanala to grant permission on the basis of ‘project splitting’, which is a recognised term for dividing up the true extent of a development. The grid connection for the proposed wind farm was considered to be an integral part of the project and the wind farm could not be dealt with as a stand-alone project in respect of EIA.

This decision could yet be appealed.

An Bord Pleanala have refused permission for 11 no. turbines in Ardglass, East Cork, by Order dated 2nd December 2014. The turbines would have measured 156m (the Spire in Dublin is approx. 120m). A number of sources have quoted these turbines as being the tallest on-shore turbines proposed in Ireland.

The Board refused permission having regard to:
(a) the Cork County Development Plan 2009- 2015,
(b) the Wind Energy Guidelines 2006,
(c) the number, scale and height of the proposed turbines,
(d) the location of the site in a quiet rural elevated upland plateau, and
(e) the lack of significant landscape features in the area,
stating that they were not satisfied that on the basis of the documentation submitted that the proposed development, by reason of the open and exposed nature of the receiving landscape, and by reason of proximity to noise sensitive receptors, would not result in serious injury to the visual and residential amenities of the area.

The Board was also not satisfied that the planning application would not have a significant adverse impact on the ecology of the area, including protected species, and that insufficient information was contained within the file to allow it to conduct a screening for Appropriate Assessment.

Finally, the Board also considered that Read the rest of this entry »

Recently, there have been a number of judicial reviews sought to quash decisions by An Bord Pleanala to grant permission for wind farms, including cases where the Board’s inspector recommended a refusal of permission.

Roscommon
The High Court quashed an An Bord Pleanala decision to grant permission for a large wind farm development in Roscommon following a judicial review taken by local residents. The High Court ruled that An Bord Pleanala’s appropriate assessment did not meet the requirements of the Habitats Directive.

Clare
The High Court recently granted leave for residents in west Clare to seek a judicial review of the An Bord Pleanala decision to grant permission for four 85-metre high wind turbines in the Milltown Malbay area of Co Clare. Leave has been granted on multiple grounds including failure to carry out a proper Environmental Impact Assessment (EIA) and Appropriate Assessment (AA).

Cork
A couple in Cork have been granted leave from the High Court to seek a judicial review to quash An Bord Pleanála’s decision to grant permission to Cleanrath Windfarm Ltd to construct 11 turbines up to a height of 126m.

Laois
Laois wind awareness group, People Over Wind, have been granted leave to appeal an An Bord Pleanála ruling in the High Court, over the approval of an 18 turbine windfarm proposed on Coillte owned land in Cullenagh.

These judicial reviews, although very expensive to take, should hopefully provide a degree of clarity concerning some of the primary issues concerning windfarm development as many would argue that the national planning guidelines are quite vague and open to a wide range of interpretation.

An Bord Pleanala have granted planning permission to Coillte Teoranta for an 18 turbine windfarm near Ballyroan village in County Laois, despite significant local objections, the Council refusing permission, the Board’s inspector recommending refusal and concerns raised by the Department of Arts, Heritage and the Gaeltacht regarding protected species.

Laois County Council had refused permission on the basis of the inadequacy of information received in the EIS and the potential impact on Natura 200 sites.

The An Bord Pleanala Inspector recommended refusal on the basis of visual impact arising from excessive quantity and overall height of the turbines, the overbearing impact on the residents of in the vicinity and the absence of detailed information showing haul routes.

The Board however granted permission noting Read the rest of this entry »

Eamon (Ted) Kelly, chairman of the Wind Turbine Action Group South Roscommon is seeking a Judicial Review of an An Bord Pleanala decision to grant planning permission for two wind farm developments in County Roscommon. The Judicial Review is being sought on the basis that An Bord Pleanála failed to specify why it approved permission for the wind farm close to special areas of protection and conservation in Co Roscommon, when two of its own inspectors recommended permission be refused.

Leave for a Judicial Review has to be granted by the High Court in the first instance and this was obtained by the action group in November 2013. A Judicial Review of a decision by a planning authority focuses on the procedures involved in arriving at the determination rather than the decision itself. As such it is generally accepted that there is a very high bar to win any such review. However, Judicial Reviews are also very expensive and therefore they tend only to be taken when there are very strong grounds for argument.

The Development Contribution Guidelines for Local Authorities January 2013 have been updated in relation to renewable energy development. Authorities are encouraged to consider reduced or no charges in respect of a renewable energy development which is not supplying electricity to the national grid including small scale renewable energy developments generating energy primarily for onsite usage e.g. for domestic, agricultural, small industry and educational purposes.

Furthermore it should be explicitly stated in all planning authority development contribution schemes that options for waivers, either full or partial, do not apply to proposed renewable energy developments primarily delivering energy off site (for sale), whether for use in Ireland or for export to another market.
Authorities should also ensure that their schemes distinguish proportionately between large and small-scale. For example, it would be inappropriate to charge the same flat rate charge to a 6kW wind turbine as it would for a 3MW turbine.

An Bord Pleanala have overturned the decision of Offaly County Council to grant permission for 10 wind turbines south of the village of Cloghan in County Offaly. This decision is of significance given the large-scale wind farm proposals envisaged for the county and the wider midlands area. The decision is also significant as it highlights that the visual impact on open landscapes, such as bogland which is widespread in the midlands, is a material consideration in terms of wind farm development.

The applicant had applied for permission for 10 wind turbines on a site of 15.8 hectares owned by 7 different landowners. Each turbine would have a hub height of up to 110 metres and rotor diameter of up to 120 metres, with an overall maximum tip height of up to 170 metres. Associated site development works were also proposed. The predominant use in the area is for peat purposes, including cutover bogs for commercial purposes and agricultural lands.

The Planning Authority decided to grant planning permission for the proposed development subject to 18 no. conditions including the restriction of the height of the turbine to 110m hub and rotor of 120m.

The decision was appealed Read the rest of this entry »

An Bord Pleanala have overturned the decision of Clare County Council to refuse a 10 year permission for a 5 turbine windfarm at Moneypoint Generating Station on the north shore of the Shannon Estuary. Each wind turbine will have an overall maximum dimension of 152 metres, comprising a tower 95-100 metres high, with a diameter of about four metres at the base, to which three blades of 52-55 metres length will be attached.

The Council had refused permission based on the inadequacy of the Natura Impact Statement submitted by the applicant (ESB Wind Developments Ltd).

The Board took the NIS submitted with the appeal into consideration along with their own Appropriate Assessment screening and determined that the proposed development, on its own or in combination with other plans or projects, would not adversely affect the integrity of a European site in view of the site’s conservation objectives.

The Inspector had recommended the omission of one turbine but, after studying the Environmental Impact Statement, additional information, technical reports including that of the Senior Executive Chemist together with submissions received from the applicant, the Board did not consider that there was a specific environmental risk arising from piling of ash as indicated for Turbine 1 given that this is inert and is located outside the engineered landfill area. Consequently, the risk of environmental pollution to the Special Area of Conservation would be negligible.

Permission was granted subject to 14 conditions including a 25 year lifetime; cumulative shadow flicker arising from the proposed development, shall not exceed 30 minutes in any day or 30 hours in any year at any dwelling; fitting turbines with appropriate equipment and software to control shadow flicker at dwellings and a wind farm shadow flicker monitoring programme to be submitted to the planning authority for written agreement.

The draft Revisions to the 2006 Wind Energy Development Guidelines are now out for consultation with submissions being sought by February 21st 2014.
The revisions are quite specific focusing on noise and shadow flicker with the remainder of the guidelines to remain unchanged.
The revised noise and shadow flicker sections of the Wind Energy Development Guidelines being put out for public consultation today proposes;

The setting of a more stringent absolute noise limit (day and night) of 40 decibels (dB) for future wind energy developments. This limit is an outdoor limit, in general the reduction of noise levels between the outside of a dwelling and inside would be approximately 10 decibels.

A mandatory setback of 500 metres between a wind turbine and the nearest dwelling for amenity considerations.

A condition be attached to all future planning permissions for wind farms to ensure that there will be no shadow flicker at any dwelling within 10 rotor diameters of a wind turbine. If shadow flicker does occur, the wind energy developer or operator will be required to take necessary measures, such as turbine shut down for the period necessary, to eliminate the shadow flicker.

The guidelines are intended to finalised next year.

Pat Swords is a name that could become a name synonymous with wind farm development in this country in the coming weeks.  Mr. Swords, a chemical engineer and lay litigant has taken a High Court case against the Department of Energy, Communications and Natural Resources which could potentially have significant implications for wind farm development in the country.

Mr. Swords is seeking to have the National Renewable Energy Action Plan annulled.  He argues that the State has shown bias in favour of wind energy over other forms of renewable technology and, furthermore, that the State has breached European law by adopting plans without considering the views of the public.

Essentially Mr. Swords is relying on the terms of the Aarhus Convention which enshrines public participation in decision making when all options are open rather than presenting a fait accompli to the public where they have no real input. His argument is that proper consultation of the NEAP was not carried out.

Mr. Swords has some standing as he already obtained a ruling from the UN’s Aarhus Compliance Committee that Ireland had failed to give its residents a proper say in the National Renewable Energy Action Plan (NREAP). They determined that there was insufficient information to inform a reasoned decision and insufficient time given to deliberate and protest if necessary.  He has brought this ruling to the High Court.

The State disputed Mr Swords claims arguing that the Aarhus Convention doesn’t apply as it had not been ratified at the time the NREAP was accepted by the European Commission in 2010. This was rejected by the Court on the basis that while Ireland did not ratify the Aarhus Convention until 2012, the European Union had ratified it in 2005. The Convention has now been ratified by Ireland.

If Mr. Swords is successful it could mean that the preparation of the NREAP will have to undertaken again, thus resulting in huge delays for those committed to large-scale windfarm development in the country, of which there are many.

An Bord Pleanla have ruled that a windfarm development for 32 turbines on boglands in Rhode, Co. Offaly constitutes Strategic Infrastructure Development.  This means that any planning application will be made directly to the Board rather than the Council.  This application would be in addition to the two well publicised windfarm developments in the Midlands (for energy export) and the recent Bord na Mona windfarm, all of which will involve applications directly to the Board.

‘Clean Energy Hub’ is Bord na Móna’s planned approach for the development of a number of linked wind farms in the East Midlands on cutaway peatlands coming out of peat production.  According to the Bord na Mona website the new green energy project will generate some 2GW of electricity when fully operational and create an export business of €1billion annual revenue for the State owned company.  It will involve the development of a number of separate wind farms that will be principally centred on the company’s extensive 20,000 ha of cutaway peatlands in East Offaly and West Kildare. The company has set a target of 2020 to bring this project on stream.  Bord na Móna has announced plans for an extensive Community Consultation Programme across the Midlands commencing in the coming weeks. The programme will see the company engage with local groups and stakeholders as it draws up its detailed planning applications in the coming months.  The announcement of the Bord na Mona project, along with the two private companies looking to established large-scale windfarms for energy export, means that the issue of windfarm development is to remain a hot topic of debate in the midlands for the foreseeable future.

In a move replicating motions which have been passed by Westmeath and Offaly County Councils, Kildare County Council Labour Councillors have tabled a motion which seeks to vary the county development plan to include new policy restrictions on wind farm development.

The following motion in relation to wind farm development has been tabled:

“Councillors Browne, Byrne, Purcell, McGinley and Wall

That the council vary the Kildare County Development Plan 2011-2017; 18.9 Energy and Communications and 18.9.1 Wind Energy Proposals, to include the following:

–          A minimum set-back from a residence of 10 times the height of the turbine, where the turbine exceeds 100 metres. 

–          Any proposal must show consideration for its impact on indigenous industries within the county and any impact, if any, such a proposal might have.

–          Any proposal must consider the potential impact on the health and welfare, if any, of those living in the vicinity of the proposed development.”

This motion will come before the Full Council at the Council meeting on Monday 21st October.

‘South Kildare Against Spin’, a local group who have formed to tackle proposed new wind farm development in the south of the county, have urged support for the Labour Party Motion and have called on all members of Kildare County Council, irrespective of party affiliation, to support the above motion stating that:- Read the rest of this entry »

The Minister for Energy, Pat Rabbitte, T.D has announced that he has instructed his officials to develop an overall policy and planning framework which will guide An Bord Pleanála when considering any proposals for wind energy export projects.

The framework which will be based on a Strategic Environmental Assessment, will be prepared over the coming twelve months and will provide an opportunity for all stakeholders including local authorities, potential project developers and local communities to be consulted and have an input into the national policy for wind export.

Minister Rabbitte commented “As I have previously said, a clear national planning policy context for Renewable Energy Export is essential for An Bord Pleanála (ABP) in assessing and determining individual strategic projects. The framework we will develop will provide an opportunity to integrate relevant EU Directive requirements – Strategic Environmental Assessment and Appropriate Assessment under the Habitats Directive – in the context of developing a new national framework”

The Minister added that any renewable energy export strategy would also depend on the conclusion of an Intergovernmental Agreement that would ensure such exports were in the interests of both Ireland and Britain. “By the end of this year we hope to make an agreement with the British side. By this time next year we will be finalising a planning framework that will give confidence and certainty to all stakeholders. In the autumn of 2014, therefore, project promoters will be able to submit proposals to ABP in the knowledge that there is a clear framework for decisions”.

Given the well documented large scale projects looking to set up in the midlands this new policy looks to be very timely.

 

West Coastal Windpower Ltd had proposed a 45-turbine windfarm involving 126 metre high turbines, nearly double the height of Liberty Hall.  The application constituted strategic infrastructure development and was made directly to An Bord Pleanala.

There were a significant number of objectors to the proposed development and An Bord Pleanala held an oral hearing to discuss the proposal in detail.

The An Bord Pleanala Inspector recommended that permission be refused for 4 no. reasons relating to  1) negative impact on residential amenity and tourism, 2) proximity to a river containing the freshwater pearl mussel, 3) impact on future bird populations in the area, particularly the Whooper Swan and 4) the proposal being contrary to the Wind Energy Strategy for County Clare which identifies the appropriate scale of development for such areas to be medium 6-10 turbines and too close to existing/permitted windfarms in the area.

The Board agreed with their inspector refusing permission on the basis of 3 no. reasons, with the Inspector’s recommendation regarding bird populations being the only reason omitted from the final order.

This decision brings into question the concept of strategic infrastructure development whereby speed of decision and some degree of certainty in terms of a decision (given the applicant is dealing with An Bord Pleanala directly) was to be expected. However in this instance the very principle of such a large scale development must surely have been raised in pre-planning discussions given the local authority strategy that was in place.  The applicant has now been left with an expensive bill to pay the Board and objectors.

An Bord Pleanala recently granted permission for a biomass combined heat and power plant and associated ash landfill in Co. Meath under the supposedly fast-track planning procedure for strategic infrastructure.  The application was lodged in May 2009 yet was only decided at the end of February 2013 – 3 years and 9 months later.  Whilst the nature of the application was quite complex from a planning perspective the question has to be asked if the strategic infrastructure procedure is doing its job given the lengthy timeline involved.  A nearly 4 year wait for a planning decision appears to completely undermine the very reason for introducing the procedure. There would also have been considerable time spent in the pre-planning phase before the application was even lodged, with the intention of trying to minimise the issues that will arise when the application is finally lodged for assessment.  Given the prevailing economic situation a system that delays any large-scale infrastructure developments by such a period must be examined in terms of its usefulness going forward.

Source:  http://pleanala.ie/casenum/PA0013.htm

An Bord Pleanala has upheld the decision of Cork County Council to grant permission for 14 wind turbines and associated development in the Ballyhoura Mountain Range (at the western foothills of the Galtee Mountains straddling the border of Co Cork and Co Limerick). Each wind turbine will have an overall maximum dimension of 126 metres, comprising a tower 80 -86 metres high with a diameter of about 4 metres at the base, to which three blades of 41 – 45 metres length will be attached.

Cork County Council granted permission but only for 20 years from the grant of permission. The Council also attached conditions requiring connection to the National Electricity Grid to the satisfaction of the Planning Authority; the proposal to use the existing infrastructure which is in place on the site; commissioning of the wind farm to be subject to an approved connection to the national electricity transmission grid and shall be subject to the prior grant of permission of the planning authority. There were two third party appeals and one first party appeal. Read the rest of this entry »

The Department of the Environment, Community and Local Government, in conjunction with the Department of Communications, Energy and Natural Resources, intends to undertake a technical update of the guidance on noise (including separation distance) and shadow flicker in the Wind Energy Development Guidelines 2006.

It is understood that a Private Members Bill is currently proposing increasing the setback from houses from 500 metres to as much as 2 kilometres to protect residential amenity.  This increased setback would restrict wind farm development to only a small portion of the country suitable wind farm development.

Comments are invited by the Department of the Environment, Community and Local Government on these aspects of the Guidelines before February 15th, 2013.

An application by EirGrid to construct a 40 kilometres power line (110 kilovolts) between Clashavoon and Dunmanway in West Cork has been approved by An Bord Pleanala despite significant local opposition and the advice of their own inspector to provide one third of the line underground.

The powerline included 227 number structures, comprising 198 number double woodpole structures, nine number braced woodpole structures, and 20 number steel tower structures.

An oral hearing into the application was held in November 2011 in the Macroom Castle Hotel.

According to the An Board Pleanala Inspector the proposed power line runs across the rural landscape of west Cork “in a transitional area between the lush rolling pastures of central Cork and the more exposed uplands characterising the area west of Macroom”.

The An Bord Pleanala Inspector agreed that the argument raised by some objectors in relation to excessive power provision relative to demand had substance.  However Read the rest of this entry »

A query came before An Bord Pleanala in as to whether the erection of a wind turbine at Kealfadda, Goleen, County Cork is or is not exempted development.

The planning authority noted that while such development is normally exempt under the Planning Regulations the restrictions on exemptions under Article 9 de-exempted the development because it is visible from a scenic route designated in the County Development Plan.  They declared that the turbine was not exempted development.

Article 9(1)(a)(vi) of the Regulations de-exempts development which would interfere with the character of a landscape, or a protected view in a development plan or even a draft development plan.

The An Bord Pleanala Inspector noted that the site is not located in a designated ‘scenic landscape’ but is visible from a number scenic routes designated in the Cork County Development Plan.  The key issue however Read the rest of this entry »