Court puts stay on order quashing permission for windfarm development

Stay applies until An Bord Pleanála has decided the developer’s application for a substitute planning consent

Source: Irish Times 6th May 2020.

The Supreme Court has put a conditional stay on an order overturning permission for a wind farm development in Co Cork.

The stay applies until An Bord Pleanála has decided the developer’s application for a substitute planning consent, made after the court found an earlier permission from the board was invalid.

The stay is conditional on the developer not carrying out any further works on the development pending the board’s decision.

Because the invalidity of the permission and need for the substitute consent application was “entirely due to a flawed procedure adopted by the board”, there was a strong case for expediting the substitute consent procedure so far as possible, Mr Justice Donal O’Donnell said.

Klaus Balz and Hanna Heubach brought the judicial review challenge over their concerns about the impact of the proposed 11-turbine development by Cleanrath Wind Farm Ltd close to their home at Bear na Gaoithe, where they operate a horticultural business.

Last December, a five-judge Supreme Court found the board’s permission was invalid because the board had erred in failing to consider submissions from the couple concerning developing knowledge about noise impact from turbines. The couple had argued the Wind Energy Development Guidelines 2006 were out of date and their revision had been proposed in a 2013 consultation document of the Department of the Environment.

The Supreme Court held that an evidence-based submission that statutory guidelines still in force are out of date was not an irrelevant planning consideration and the board should have addressed that submission and given reasons for not accepting it.

After that judgment, the matter was adjourned to allow the sides make submissions on consequential orders, including whether the matter should be remitted to the board for reconsideration.

Cleanrath opposed remittal and instead applied immediately to the board for leave to seek substitute consent for the development. A decision on that application was anticipated early this month but may be delayed by the Covid-19 pandemic.

Having heard submissions during a remote hearing on April 24th on consequential orders, the court ruled on those and, in a judgment delivered electronically on Tuesday, gave its reasons for its ruling.

Giving the judgment, Mr Justice O’Donnell noted the sides clashed over whether the court should grant stays on an order quashing permission and on works to progress the development.

The developer had provided “limited” evidence to support its claims that refusing a stay on the finding the permission was invalid would have “catastrophic” consequences for its eligibility for the State’s Refit2 support scheme for renewable energy generation, he said.

It also provided “tenuous” evidence to support the alleged necessity for completing, after the December judgment, one turbine and allowing the wind farm to be commissioned. It was difficult to avoid concluding the developer decided to “press on” in the belief it would be in a stronger position in fact and perhaps in law if it did so.

While the developer was undoubtedly frustrated after two permissions of the board had been overturned, windfarms are substantial developments, he said. “Substantial enterprises should be expected to respect the adjudications of the court.”

Taking the developer at its word, its primary concern was that refusing a stay on the decision quashing permission could lead to it losing eligibility under the Refit2 scheme. On the other side, the couple would not be directly affected whether or not the developer got access to the Refit2 scheme.

Balancing the competing factors, the court would stay its order quashing permission pending the substitute consent decision on condition the developer undertake not to operate the windfarm pending the board decision, he said.

The developer had not adduced sufficient, if any, evidence of the need to grant a stay allowing works on the windfarm continue pending that decision but the continued operation of the windfarm does affect the couple in “a real way”, even if the developer contends that adjustments it has made may reduce the impact of the noise at their dwelling.