The King’s Highway issue has been raised in a legal case that is a shining example of the problems between developers and opponents of wind farms, writes Michael Clifford.
Who owns the King’s Highway? The question might appear redundant in this Republic, but it is the latest to be asked in the perennial struggle around wind farms in rural Ireland.
The issue of the King’s Highway has been raised in a case that is a shining example of the challenges and problems that are arising across the State between developers and those who see the farms as a major imposition on their lives.
As is often the case in contentious issues, the problems are greatly exacerbated by political inertia.
Ballycumber Wind Farm consists of six turbines and is located near the village of Tinahely in south Wicklow. Planning permission for the development, which is owned by a consortium including local businessmen, was granted in 2013.
Permission was granted by Wicklow County Council and confirmed following a third party appeal to An Bord Pleanála.
As with such developments right across the State, the prospect of a wind farm caused some consternation with locals, citing in particular noise and shadow flicker issues.
In late 2014, a High Court judgment opened up a new front in the battle between developers and those who object to wind farms. The Ó Grianna judgment concerned a case taken in objection to a wind farm in Co Cork (see panel).
The court held that planning permissions for windfarms had to include the potential environmental impact of any electricity grid connection.
Prior to that, planning permission was required only for the turbines. Now the business of connecting the turbines to the national grid had to be taken into account in a single planning application.
This changed the rules for developers. Further homework would have to be done for submissions, and planning applications expanded to include connection to the grid, which sometimes could involve travelling distances of dozens of kilometres to connect up.
There was also a problem for those developments that had received planning permission before the judgment, such as Ballycumber. How would it now move forward taking the judgment into account?
The solution for Ballycumber was to receive a planning exemption from Wicklow County Council to lay the cables to connect to the grid.
This exemption was granted under Section 5 of the Planning and Development Act 2000, which provided for certain works to be exempt at the discretion of the local authority. In April 2015, Wicklow County Council granted a section 5 for the wind farm’s grid connection works.
Then earlier this year, with the turbines up and ready for action, work began on the grid connection. The council advertised the expected road closures. In total, there were 63 objections, nearly all of which questioned the legality of the works that were being undertaken.
Work began on 8 August and was immediately met with resistance in the form of the South Wicklow Wind Action Group (SWWAG). Eight objectors stood in front of a JCB preventing it getting down to business.
The gardaí were called and work suspended. The following Friday, the developer, Ballycumber Wind Farm, went into the High Court seeking an injunction to stop the protestors interfering with the work. The court was told that failing to proceed could cost the developer €3.1m.
Then the legal process got complicated. The SWWAG told the court that it was countering the claims by the developer with their own claim that the works were illegal.
This is where the King’s Highway comes in. The group is submitting that consent is required from the landowners adjoining the road to undertake any works below surface level.
This arises from an ancient statute that allowed the king and his subjects to have the right to “Pass and repass over property on which the public road is laid”, but crucially gives neither any right of tenure on property beneath the road.
The SSWAG believes that this right has never been properly asserted and should apply to the developers of Ballycumber Wind Farm.
This is the case that is to be made in relation to ownership and trespass, but is likely to be disputed with reference to more recent laws such as the 1927 Electricity Supply Act (amended in 1999) which does confer the right to access to the road.
All of these issues will be thrashed out when the matter returns to court on December 5. In the meantime, work on the grid connection has been suspended.
The other prong of attack on the planning front from SSAWG concerns the Section 5 exemption granted by Wicklow County Council.
One of the local residents has brought judicial review proceedings claiming the council was incorrect in granting the section 5, and that in any event the granting of it did not follow correct procedures as laid out in the law in question. That hearing is scheduled to open on January 22 next.
As with dozens of other proposed wind farms, this one is being forced to take the long road to completion.
From the point of view of those who oppose wind farm development in their areas the general approach appears to be one of sustained attrition in the hope that eventually plans are abandoned.
This involves a campaign stretching into years requiring serious time and the acquisition of, in some instances, major stress and financial cost. It also inevitably leads to a hardening of attitudes towards the whole concept of wind energy.
From the developer’s point of view, the nature of the planning laws is a major bugbear. A spokesman for the Irish Wind Energy Association said that no comment would be made on any matter before the courts.
“However the recent high profile case involving the proposed Apple data centre for Galway has brought into the public domain many of the issues that wind farm developers have been dealing with for a number of years,” he said.
“There are deep rooted issues related to planning in Ireland that need reform. This is not unique to wind energy.
“In our view, Ireland is going to continue to face long, drawn out legal cases on planning unless a more streamlined process is put in place.
“This is not about restricting anyone’s legal rights, it is about balancing those rights in the planning system with the need for investment in critical infrastructure for the economy as a whole and ensuring decisions can be made in an efficient and transparent manner.”