Appeal granted as turbines built in ‘material’ deviation from the planning permission
The Court of Appeal has ruled a local man is entitled to orders requiring the dismantling of three wind turbines at Kilvinane, Co Cork, due to their being built in “material” deviation from planning permission.
A stay applies on those orders, and other orders restraining operation of the turbines, pending a decision by An Bord Pleanála shortly on an application by Kilvinane Wind Farm Ltd, made in May 2014, for substituted consent for the development as constructed.
If the board grants substituted consent, the developer can apply to have the restraining and dismantling orders lifted.
In those circumstances, the case, brought by local resident William Henry Bailey against KWF Ltd, has been adjourned to April 6th. Mr Bailey had appealed the High Court’s refusal to grant the dismantling orders.
Giving the three-judge appeal court’s decision, Mr Justice Gerard Hogan said two of the three turbines have blade lengths of 90m, 23m more than the permission specified, and all three were built some 20m away from locations specified in the permission.
These were not “trifling” breaches but had consequences in terms of visual impact and noise for people living in the immediate vicinty and there were also relevant planning considerations.
The public interest in ensuring alternative non-carbon based energy sources are brought to the market cannot give this, or any other wind farm, “a licence to breach the planning laws”, he said. There is a public interest in ensuring those laws are adequately enforced and judicial failures to make mandatory orders may “dilute” effective enforcement.
While KWF and its principal Leonard Draper argued they had relied on assurances from planners in Cork County Council the deviations from the permission were not material, the circumstances in which those assurances were given had some “curious, even unsettling aspects”, he said.
These included a letter from the council containing the assurances, dated October 3rd, 2006, was date-stamped April 18th, 2011, on the planning file.
An executive planner had also noted the file made available to her did not include correspondence or drawings from the developer submitted to the council on July 6th, 2006, concerning the change in location or increase in blade length, he said.
The planner who signed the October 2006 letter on behalf of the council had, after his retirement, performed consultancy work for KVF “on this very issue”, the judge added.
While it was true the developer had contacted the council about the changes to the turbines, there was nothing to suggest the developer, or the planning officer contacted, had any consideration for the rights of others who might be affected by their actions, he said. No sensible developer could reasonably suppose such deviations could be “informally sanctioned”.
Another reason for granting the dismantling order was that, three years after An Bord Pleanála ruled the turbines were unauthorised development, KWF continues to operate the wind farm “in a highly profitable manner”.
Such considerations were sufficient to negative the argument the developer had acted reasonably and in good faith, he ruled.
Mr Bailey, a retired chartered engineer, has lived in Kilcasan, about 1km from the wind farm site, for some 23 years. His home is among 28 dwellings in the vicinity of the site. Other residents provided sworn statements making complaints, including noise and “flicker shadow” from the turbines.
Mr Bailey claimed the three turbines did not conform with a July 2002 permission of An Bord Pleanála. KWF’s separate judicial review proceedings disputing the planning board’s 2012 finding, that the turbines as constructed were unauthorised, was “parked’ pending Mr Bailey’s case and, said Mr Justice Hogan, appeared to have been “all but abandoned”.
The 2002 permission was for four turbines with a hub height of 65m and rotor diameter of 57m. Three turbines were built with with the fourth deferred pending KWF getting additional capacity on the national grid. One of the turbines built had a hub height of 55m and rotor diameter of 58m while the other two had a hub height of 60m and rotor diameter of 90m.
Mr Draper said the turbines were relocated to give stronger foundations and the larger blade turbines were the only ones approved and available within the time required for the financial close of the project. He also argued Cork County Council was at all times fully aware of the planned modifications, considered those were not material and did not need a fresh planning application, The project cost some €5.7 million, employs three people and provides energy for 3,000 homes, he said.