Bailey v Kilvinane Windfarm Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 16 March 2016
• Neutral Citation: [2016] IECA 92
• Docket Number: 2014 No. 1037
• Court: Court of Appeal (Ireland)
• Date: 16 March 2016

Finlay Geoghegan J.

Irvine J.

Hogan J.

BETWEEN/

WILLIAM HENRY BAILEY

APPELLANT

- AND -

KILVINANE WIND FARM LTD.

RESPONDENT

[2016] IECA 92

Hogan J.

2014 No. 1037

THE COURT OF APPEAL

Planning and development – Planning permission – Unauthorized development – Appellant seeking the dismantlement of three wind turbines – Whether appellant had sufficient interest in the proceedings

Facts: The appellant, Mr Bailey, sought orders pursuant to s. 160 of the Planning and Development Act 2000 requiring the dismantling of three wind turbines (T1, T3 and T4) owned and operated by the respondent, Kilvinane Wind Farm Ltd, on the ground that, as constructed, these turbines amounted to an unauthorised development as their location varied from and their dimensions exceeded that permitted by a planning permission granted by An Bord Pleanála (the Board) in July 2002. On the 27th September 2013, the High Court (Peart J) refused on discretionary grounds to make the orders sought and the appellant appealed to the Court of Appeal against that judgment. The respondent took issue with Mr Bailey?s standing to take these proceedings.

Held by Hogan J that, on any analysis of this issue for the purposes of considering the discretionary factors potentially affecting the exercise of the s. 160 jurisdiction, it was sufficient to state that as a neighbour who lives nearby and whose amenities are affected by the operation of the wind farm, Mr Bailey had a sufficient interest in these proceedings. Inasmuch as the High Court held that for the purposes of the exercise of the discretion conferred by the s. 160 jurisdiction the applicant did not have a sufficient interest in bringing these proceedings or that his motives for doing so might be somehow suspect, Hogan J believed that Peart J was in error. Hogan J found that the three turbines which were constructed represented unauthorised development having regard to the extent of the deviation from the 2002 planning permission in terms of (i) location and (ii) (save in the case of T1) rotor diameter size. Hogan J held that there was clear demonstrable evidence of interference by the turbines with the enjoyment by Mr Bailey, his family and other local residents of their property and other local amenities. Hogan J held that the case was indistinguishable from Morris v Garvey [1983] IR 319, noting that if the Court were to allow the private views expressed by a planning official in correspondence with the respondent regarding the materiality of the deviations from the planning permission to defeat the rights of the appellant, it would tend to undermine a pillar upon which the entire edifice of the planning process was erected, namely, the right of the third party objector; the reasonableness of any reliance placed on that letter from the official was wholly undermined by the absence of any consideration in that correspondence for the potential impact of any such deviation on the rights of third parties. Hogan J noted that, in the meantime, the respondent had continued to operate the wind farm in a highly profitable manner, even though it had been over three years since An Bord Pleanála ruled that the developments were unauthorised. Hogan J held that those considerations were sufficient to negative the argument that the respondent acted reasonably and in perfect good faith.

Hogan J held that he would reject the contention that the Court ought to refuse on discretionary grounds to make the s. 160 orders sought. He accordingly granted an order restraining the operation and use of the T1, T3 and T4 turbines with liberty to the respondent to apply to vacate the order if consent is granted by the Board for the turbines as constructed. Hogan J also made an order requiring the dismantling of those three turbines, however, that order would be stayed pending the outcome of the Board?s determination upon the respondent?s application for substituted consent, with liberty to the respondent to apply to vacate the order if consent is granted by the Board for the turbines as constructed.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 16th day of March 2016

1 This is an appeal from a judgment of the High Court delivered by Peart J. on 27th September 2013: see Bailey v. Kilvinane Wind Farm Ltd. [2013] IEHC 509. In these proceedings the applicant, Mr. Bailey, seeks orders pursuant to s. 160 of the Planning and Development Act, 2000 (?the 2000 Act?) requiring the dismantling of three wind turbines owned and operated by the respondent company, Kilvinane Wind Farm Ltd. (?Kilvinane?) on the ground that, as constructed, these turbines amount to an unauthorised development as their location varies from and their dimensions exceed that permitted by a planning permission granted by An Bord Pleanála (?the Board?) in July 2002. Mr. Bailey is a litigant in person.

2 In the High Court Peart J. refused on discretionary grounds to make the orders sought and the applicant now appeals to this Court.

3 Kilvinane itself is a small hamlet situated about 7km. east of Dunmanway, Co. Cork. The turbines are located in an irregularly shaped area of farmland consisting of about 43ha. Some farm buildings are also situated on the site. There are approximately 28 dwellings within the immediate vicinity of the site and the applicant's house (where he lives with his wife and extended family) is about 1km distant. Mr. Bailey has lived in that house for upwards of 23 years. Other local residents live somewhat closer to the turbines, albeit that Mr. Bailey is the sole applicant in these s. 160 proceedings.

The original planning permission of August 2001

4 The starting point for any consideration of the planning issues at the heart of this appeal commences in February 2001 when the original planning application for what was to be originally five turbines was lodged with Cork County Council. Planning permission for the construction of four wind turbines at Kilvinane was originally granted to the principal and director of Kilvinane, Mr. Leonard Draper, by the relevant planning authority, Cork County Council, on 29th September 2001. That decision to grant permission was then appealed by seven objectors (of which Mr. Bailey was one) to the Board. The Board subsequently granted permission (subject to conditions) on 19th July 2002.

5 The permission granted by the Board was in respect of four turbines with a hub height of 65m. and a rotor diameter of 57m. Condition No. 1 of the planning permission provides that:

?The development shall be carried out in accordance with the plans and the particulars lodged with the application as amended by the details received by the planning authority on the 9th day of August 2001, except as may otherwise be required to comply with the following conditions?

6 Only three turbines (which, for convenience, I shall describe as T1, T3 and T4) have in fact been erected. They were constructed between October 2005 and June 2006. The installation of a planned T2 was postponed pending the securing of additional capacity by Kilvinane on the national grid.

7 The dimensions of the turbine which were, in fact, constructed are as follows:

Height of Hub	Rotor Diameter
T1	55m.	58m.
T3	60m.	80m.
T3	60m.	80m.

8 It will be seen that the rotor diameter of T1 as it was constructed is only 1m. greater than that permitted by the terms of the 2002 planning permission, whereas in the case of both T3 and T4 the rotor diameters are in each cases 23m. greater than permitted. As we shall see presently, the final location of all three turbines following construction was somewhat different to that specified and described in the planning permission: T1 was now 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.

9 It would seem that for various reasons Mr. Draper was not entirely satisfied with the planning permission which he had actually received. At various stages since 2002 he has sought to have either the terms of the permission granted varied or modified in one way or another or, at least, that he be permitted to deviate to some degree from the terms of that permission by changing either the height of the hub or the dimensions of the rotors. To that end Mr. Draper has had frequent discussions with the planning authority, namely, Cork County Council, at various stages between 2003 and 2006.

Discussions with planning authorities

10 The first contact which Mr. Draper had with the planning authority appears to have been on 3rd March 2003 when he wrote to Mr. Gunkel of the planning department of the Council stating:-

?We would like to explore the possibilities of increasing blade tip height on my wind farm site.

The original hub height will remain the same at 65m., but the blade length will increase from 28.5m. to 35.m., an overall increase in blade tip height of 6.5m. My reasoning for this is to reduce noise level, being restricted to 40dba to nearest residence, most manufacturers have addressed this problem by using a variable speed machine with a longer blade length, this enables them to run at a slower speed and at the same time maintain maximum efficiency.?

11 There then followed an exchange of correspondence between the planning department and Mr. Draper in which the Council invited Mr. Draper to submit revised zone of visual interest mock-ups so that the potential visual impact on the landscape could be further assessed. This was done by Mr. Draper's engineering consultants, Fehily Timony, on 1st April 2003 when the latter firm sent on to Mr. Draper printouts of the wire frame views showing:-

?? Five turbine layout with 55m. hub height and 52m. blade diameter, as in the EIS.

? New four turbine layout with 65m. hub height and 90m. blade diameter.?

12 The planning office responded...