O'Brien v an Bord Pleanála

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date24 July 2017
Neutral Citation[2017] IEHC 510
CourtHigh Court
Docket Number[2017 No. 336 J.R.]
Date24 July 2017

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

BETWEEN
CLAIRE O'BRIEN

AND

PATRICK O'BRIEN
APPLICANTS
AND
AN BORD PLEANÁLA
RESPONDENT
LEONARD DRAPER
NOTICE PARTY

[2017] IEHC 510

Costello J.

[2017 No. 336 J.R.]

THE HIGH COURT

COMMERCIAL COURT

Environment, Construction & Planning – S. 50 of the Planning and Development Act 2000 – Erection of wind farms – Substitute consent – Vacation of stay – Balance of justice

Facts: The applicants were granted leave to seek judicial review of the respondent's decision to grant substitute consent to the notice party for a wind farm and also a stay until the determination of the application for judicial view. The notice party had now come to the Court for lifting of the stay. The matter had already been litigated at the Supreme Court wherein the Supreme Court had granted a stay on the restrained use of turbines until June 2017. The applicants favoured the continuation of the stay as it had impaired their quality of life and forced them to move their house at some other place. The notice party claimed that it had implemented all the measures as notified by the respondent concerning the appropriate level of noise at dwelling places and prepared a compliance monitoring programme. The applicants asserted that the substitute consent was given for limited purposes of authorising the existing turbines and not for the erection of new turbines.

Ms. Justice Costello vacated the stay. The Court held that the primary onus of proof for proving that greater injustice lied in lifting the stay had rested upon the applicants and they failed to discharge that proof. The Court noted that the notice party would suffer significant and ongoing loss of revenue as a result of the stay and exhibited documentation in relation to that which included the loan agreement and the cost of carrying the turbines. The Court noted that the notice party had implemented the compliance measures and took steps to rectify the situation that had existed earlier. The Court opined that an application for the vacation of the stay must be judged on the parameters of grant of an injunction application and the Court should determine the risk of injustice being caused to the parties.

JUDGMENT of Ms. Justice Costello delivered on the 24th day of July, 2017
1

On the 24th April, 2017 Mr. Justice Noonan granted the applicants leave to seek judicial review of a decision of An Bord Pleanála dated the 2nd March, 2017, granting the notice party substitute consent for a wind farm at Garranure, Kilvinane and Carrigeen, Ballynacarriga, Dunmanway, County Cork and that the decision be stayed until the determination of the application for judicial review or until further order. He granted liberty to apply on 48 hours notice to either vary or discharge the stay.

2

On the 2nd March, 2017 An Bord Pleanála ('the Board') granted the notice party substitute consent pursuant to s. 177K of the Planning and Development Act 2000 as amended ('the Act') in respect of the wind farm as constructed at the lands at Kilvinane as to the dimensions and location of the three existing wind turbines.

3

The notice party applied to lift the stay granted by Noonan J. so that it may operate the wind farm pursuant to the substitute consent pending the determination of these judicial review proceedings. The applicants opposed the application. The matter was heard by me on the 18th July, 2017, and this is my decision on the application.

Background
4

The background to the application is complex and goes back to an initial grant of planning permission for the wind farm at Kilvinane in 2002. On the 16th March, 2016 the Court of Appeal in proceedings entitled Bailey v. Kilvinane Wind Farm Ltd [2016] I.E.C.A. 92 delivered a detailed judgment in respect of proceedings brought by Mr. Bailey pursuant to s. 160 of the Act against the wind farm operated by the respondent in those proceedings. I do not propose to repeat the facts therein set out though I reproduce a chronology of the event as follows:

26

th September, 2001 Cork CC ('the Council') decides to grant planning permission for wind farm

19

th July, 2002 An Bord Pleanala ('the Board') grants planning permission for wind farm.

23

rd May, 2003 Council writes confirming it has no objection to proposed blade length increase.

29

th August, 2005 Council writes to Notice Party indicating it has no objection to modification.

13

th June, 2006 Wind farm connected to the National Grid.

3

rd October, 2006 Council writes to Notice Party indicating that revised turbine locations and blade length extensions are acceptable.

8

th November, 2006 Wind farm commences commercial operations.

10

th November, 2010 Notice Party lodges new planning application to replace turbines and construct further turbine.

21

st June, 2011 Council decides to grant planning permission for further development.

26

th May, 2011 Council determines Applicants' Section 5 reference – erection of turbines constitutes exempted development on the basis that modifications are not material.

7

th November, 2011 Notice Party lodges planning application to replace two turbines (T3 and T4)

23

rd December, 2011 Board decides on referral of Section 5 reference that the development did not constitute exempted development.

10

th January, 2012 Council refuses application to replace turbines T3 and T4

20

th February, 2012 Kilvinane Wind Farm Limited given leave to challenge Board's Section 5 decision by judicial review (proceedings adjourned generally on 11th December 2012).

14

th May, 2012 William Bailey institutes proceedings under Section 160.

6

th November, 2012 Board refuses application to replace turbines T3 and T4.

17

th December, 2012 Notice Party granted leave to challenge Board's decision refusing application to replace turbines T3 and T4; proceedings adjourned generally.

13

th November, 2013 Section 160 application refused by High Court.

2

nd December, 2013 Mr. Bailey appeals to the Court of Appeal.

27

th May, 2014 Notice Party applies for leave to apply for substitute consent.

February, 2015 Applicants move house.

21

st April, 2015 Board grants Notice Party leave to apply for substitute consent.

14

th October, 2015 Notice Party applies for substitute consent.

16

th November, 2015 Applicants make submission to Board.

16

th March, 2016 Court of Appeal delivers judgment and holds that turbines, as constructed, are unauthorised development. Order granted restraining operation of turbines. Order granted requiring dismantling of turbines stayed pending the outcome of the application for substitute consent.

17

th June, 2016 Kilvinane Wind Farm Limited granted leave to appeal to the Supreme Court.

3

rd June, 2016 Board requests submission of revised remedial EIS.

29

th July, 2016 Revised remedial EIS submitted to the Board.

16

th September, 2016 Applicants make further submission to the Board.

2

nd March, 2017 Board grants substitute consent.

22

nd March, 2017 Supreme Court vacates Court of Appeal Order; makes an order directing the dismantling of the turbines subject to an indefinite stay, an order restraining the use of the turbines for a period of three months; and adjourns the appeal generally with liberty to re-enter the proceedings to either vacate the orders made or proceed with the appeal.

24

th April, 2017 Applicants institute these proceedings and obtain a stay on the substitute consent order, until the determination of the application for judicial review or until further order.

29

th May, 2017 Proceedings entered into the Commercial List.

4

th June, 2017 Supreme Court refuses application by Mr. Bailey to restrain the operation of the turbines for a further period.

5

As of the 2nd March, 2017, the substitute consent granted by An Bord Pleanála permitted the operation for the wind farm at Kilvinane. The grant of the substitute consent meant that the stay granted by the Court of Appeal on its order directing the dismantling of the turbines and the restoration of the site was to continue for a period of eight weeks from that date with liberty to the parties to apply to the Court of Appeal or the Supreme Court within the eight weeks period in relation to the stay or to vacate the order of the Court of Appeal. This shows that the Court of Appeal was of the view that its order in relation to the s. 160 proceedings would be spent if substitute consent was granted by An Bord Pleanála. The stay for the period of eight weeks after the grant of substitute consent was to allow for any judicial review proceedings that might be brought in respect of the decision to grant a substitute consent.

6

On the 22nd March, 2017, the respondent's appeal in the s. 160 proceedings was listed for hearing before the Supreme Court. As the Board had granted substitute consent on the 2nd March, 2017, the Supreme Court vacated the order of the Court of Appeal and substituted an order of the Supreme Court which inter alia restrained the use of the turbines until the 21st June, 2017. Accordingly, under the terms of the order the Supreme Court as of the 21st June, 2017 the notice party was lawfully entitled to operate the wind farm pursuant to the substitute consent. It should be noted that the Supreme Court refused the application of Mr. Bailey to extend its order restraining the use of the turbines on the 14th June, 2017.

7

Thus it is the stay of Noonan J. granted on an ex parte basis when he granted leave to the applicants to seek judicial review of the decision of An Bord Pleanála of the 2nd March, 2017, alone which prevents the notice party from lawfully operating the wind farm in accordance with the substitute consent and the conditions therein set out.

8

Section 177O of the Act provides that a grant of substitute consent shall have effect as if it were a planning permission and where a development is...

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    ...1709-41cf-96e4- cb73f35f8e5a/ 2016_IEHC_705_1.pdf/pdf#view=fitH (xx). O'Brien v. An Bord Pleanála [2017] IEHC 510, [2017] 7 JIC 2401 (Unreported, High Court, Costello J., 24 th July, 2017). https://www.courts.ie/acc/alfresco/ c61bf4d0-4a94-44f3-b33a-f839f4f8f4d5/ 2017_IEHC_510_1.pdf/pdf#vie......
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