Bailey v Kilvinane Wind Farm Ltd

CourtSupreme Court
JudgeClarke J.,MacMenamin J.,Laffoy J.
Judgment Date17 June 2016
Neutral Citation[2016] IESCDET 79
Date17 June 2016

[2016] IESCDET 79



Clarke J.

MacMenamin J.

Laffoy J.

RESULT: The Court grants leave to the Respondent to appeal to this Court from the Court of Appeal.
1. Jurisdiction

This determination relates to an application by Kilvinane Wind Farm Limited (hereafter referred to as the Applicant), the respondent in the High Court and the respondent in the Court of Appeal in the underlying proceedings, for leave to appeal under Article 34.5.3° of the Constitution from a judgment of the Court of Appeal (Finlay Geoghegan J., Irvine J. and Hogan J.) delivered on 16th March, 2016. The order appealed against was made on 6th April, 2016 and was perfected on the same day.


As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.


The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

The proceedings in the High Court were brought under s. 160 of the Planning and Development Act 2000 (the Act of 2000) by William Henry Bailey (hereafter referred to as the Respondent), a litigant in person, as applicant against the Applicant seeking orders:

(a) restraining the Applicant from using or operating three wind turbines erected at a wind farm located in County Cork,

(b) directing the Applicant to take down and remove the three turbine towers and,

(c) directing the Applicant as far as possible to restore the lands on which the said turbine towers were erected to a condition prior to the commencement of the construction of the said turbines.

Following a hearing in the High Court and the delivery of a judgment by Peart J. on 27th September, 2013 ( [2013] IEHC 509), by order of the High Court dated 7th November, 2013 and perfected on 13th November, 2013 it was ordered that the Respondent's application pursuant to s. 160 of the Act of 2000 stood refused.


The Respondent brought an appeal from the judgment and order of the High Court to the Supreme Court by notice of appeal dated 2nd December, 2013. That appeal was transferred by the direction of the Chief Justice dated 29th October, 2014 to the Court of Appeal. The appeal was heard by the Court of Appeal and judgment was delivered by Hogan J. on 16th March, 2016 ( [2016] IECA 92).

3. The order appealed against

The order appealed against is the order of the Court of Appeal dated 6th April, 2016 wherein it was ordered, inter alia, that –

(a) the appeal be allowed and the order of the High Court be set aside; and

(b) that the turbines in issue be dismantled by the Applicant, with a stay on the order to dismantle pending the determination of An Bord Pleanála (the Board) on a substituted consent application referred to in the order and for a further period of eight weeks from the date of such determination.


The ‘substituted consent application’ referred to in the order of the Court of Appeal was an application made by the Applicant to the Board following the grant by the Board of leave to apply for ‘substitute consent’ under Part XA of the Act of 2000. In the judgment of the Court of Appeal it is recorded (at para. 37) that that application was made on 14th October, 2015 and that, at the date of the hearing of the appeal in the Court of Appeal, that application was still outstanding. In the Applicant's application for leave to this Court the Court was informed that the Board had indicated a ‘revised decision-date of 20th April, 2016’. In a response by letter dated 9th June, 2016 from the Applicant's solicitors to an inquiry from the Registrar of this Court as to the status of the application to the Board, the Court was informed that the Board has not yet made a decision on the application for ‘substitute consent’ and has not formally specified the date before which the Board intends that the application be determined.

4. The contentions of the parties

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the Applicant suggests that the constitutional threshold for leave to appeal has been met. However, in order to put the Applicant's submissions in context, it is necessary to outline some of the factual matters which underlie the Applicant's appeal, which matters are succinctly outlined in section 4 of the Applicant's application for leave.


The underlying facts relevant to this determination are the following:

(a) The Applicant obtained planning permission for the development of the wind farm from the Board on 19th July, 2000. The planning permission required that the development be carried out in accordance with the plans and particulars lodged with the Applicant's application as amended, which included that the three turbines would have rotor diameters of 57 metres each.

(b) Mr. Leonard Draper, a director and shareholder of the Applicant, had discussions and correspondence with the planning authority, Cork County Council, in respect of proposed deviations from the terms of the planning permission during the period of 2005 and 2006. The Applicant states that the nature of these discussions and correspondence is summarised in the judgment of the Court of Appeal (at paras. 10 to 18).

(c) While planning permission had been obtained for four turbines, only three (described in the judgment of the Court of Appeal as T1, T3 and T4) have been erected. They were constructed between October 2005 and June 2006.

(d) The three turbines deviate from the plans and particulars lodged with the planning authority in the following respects:

(i) as regards rotor diameter, T1 measures 58 metres, T3 measures 80 metres and T4 measures 80 metres; and

(ii) as regards the final location of each of the three turbines, T1 was built 20m east of the original position, T3 was built 20m south west of the original position and T4 was built 19m north of the original position.

(e) Two subsequent applications for planning permission were refused by the Board. The Board also made a determination pursuant to...

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