Dromada Windfarm (ROI) Ltd v Cremins
| Jurisdiction | Ireland |
| Judge | Mr Justice Mark Sanfey |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] IEHC 417 |
| Court | High Court |
| Docket Number | [Record No. 2021/3588P] |
[2023] IEHC 417
[Record No. 2021/3588P]
THE HIGH COURT
JUDGMENT of Mr Justice Mark Sanfey delivered on the 14 th day of July 2023 .
. This case concerns an issue in relation to high voltage cables servicing the plaintiff's windfarm which have been laid in the grass verge alongside a public road which abuts the defendant's land. The plaintiff now accepts that the cables are in fact laid on ground which is the property of the defendant. Put at its simplest, the main issue this Court has to decide is whether orders should be made preventing the defendant from interfering with the cables, and allowing them to remain in situ – in which case the plaintiff accepts that the defendant would be entitled to monetary compensation for what is in effect a trespass on his land – or whether the court should order the plaintiff to remove the cables, which the plaintiff submits would result in it incurring a wholly disproportionate loss in circumstances where it alleges that the cables do not interfere with the defendant's present use of the land in any material way.
. The cables were laid in or about 2009. The question of trespass by the plaintiff on the defendant's land was first raised by solicitors acting on the defendant's behalf in November 2016. The trespass was denied by the plaintiff, and this led to proceedings entitled “The High Court, Record No. 2017/8323P, between Denis Cremins plaintiff and Dromada Windfarm (ROI) Limited defendant” (‘ the 2017 proceedings’) being issued by the defendant. These proceedings were not progressed by the defendant. However, the defendant from June 2019 onwards mounted what could justly be described as a campaign of correspondence, mainly with the plaintiff's parent company, in which he threatened to remove the cables himself, repeatedly pointing out to the plaintiff that if injuries or fatalities occurred as a result, such occurrences would be the responsibility of the plaintiff or its parent.
. Prolonged correspondence and meetings between representatives of the plaintiff and the defendant did not resolve the matter, and ultimately the present proceedings were issued on 5 May 2021. There was an immediate application for an interim injunction, the court (Allen J) granting an order which effectively restrained the defendant from interacting with the cables. An interlocutory order in the same terms was made on 18 May 2021 by Allen J with the acquiescence of the defendant, who represented himself in court.
. Mr Cremins delivered a document that he drafted himself on 31 August 2021 by way of response to the plaintiff's statement of claim. It is effectively a defence and counterclaim, in which he seeks orders for the removal of the cables and damage for “interference with my land”. The court must now decide what is to be done with the cables, and what consequences must flow from them either remaining where they are, or being removed.
. Fortunately, there was no material dispute between the parties as to the facts of the matter, although it will be necessary to set them out in some detail, so that the exercise of the court's discretion can be seen in context. Likewise, the parties are generally agreed as to the legal principles which govern the dispute. There is however major divergence between the parties as to the inferences to be drawn from the facts, and as to the appropriate course of action the court should take.
. The plaintiff is a company incorporated in the State, and is part of the SSE group of companies. The plaintiff is one hundred percent owned by SSE Renewables Wind Farms (Ireland) Limited which is one hundred percent owned by SSE Renewables Holdings Limited. That company is in turn a subsidiary of SSE plc. The court was told in evidence that SSE entities operate 26 windfarms in Ireland.
. The defendant is a farmer and, together with his wife Sheila Cremins, is the registered owner of lands comprised in folio 3305F County Limerick (‘ the lands’). The defendant acquired the lands in or around 2006.
. The plaintiff is the operator of Dromada Windfarm (‘ the windfarm’), which comprises of 19 turbines and ancillary developments located at lands at Clash South, Athea, County Limerick. Planning permission was obtained for the windfarm in 2004, but on the basis that twenty-three wind turbines would be erected, along with the substation, including a control building, the construction and upgrading of site entrances, site tracks and associated works. Permission was subject to 17 conditions.
. When planning permission was obtained, it was on the basis that three of the 23 permitted turbines would be constructed on lands now owned by the defendant and the defendant's wife, pursuant to a lease arrangement. In that regard, the plaintiff's predecessor in title had entered into an option agreement (‘ the option agreement’) with the previous owners of the lands for the construction of part of the windfarm on their lands, and those lands were included in the planning application on that basis.
. The defendant acquired the lands in folio 3305F subject to the option agreement for the construction of the turbines and in knowledge of that agreement. When purchasing the lands, the defendant entered into an agreement to be bound by the terms and conditions of the option agreement.
. It was contended by the plaintiff, and in fact confirmed by the defendant in his evidence before the court, that he has significant experience of dealing with windfarm developments and entering into commercial arrangements regarding the use of lands for windfarm turbines. The defendant has been involved in litigation with another windfarm operator, apparently in relation to the proper construction of an option agreement relating to other lands owned by him. This case was heard in this Court and on appeal in the Court of Appeal. While it appears that Mr Cremins was unsuccessful in those outings, he acknowledged in cross-examination during the hearing that he told Mr Ciaran Maguire, a representative of the plaintiff who spent some time in negotiation with Mr Cremins, that he had obtained compensation of €4m from one windfarm and €6m from another windfarm.
. The Athea holding of the defendant consists of approximately 150 acres, 50 of which are afforested and the remaining 100 of which have no particular use or function at the moment. It is some significance to note that Mr Cremins resides at some distance from the Athea holdings in Knocknagoshel, Co. Kerry.
. The option agreement expired in or around May 2007, but negotiations continued between the plaintiff and the defendant with a view to putting a new lease option in place. However, no agreement was reached, and the windfarm was constructed without the intended three turbines on the defendant's lands being constructed before planning permission expired.
. The windfarm has been operational since February 2010 and supplies electricity to the national grid pursuant to contractual arrangements which exist between the plaintiff and EirGrid. This is done via 110 KV high voltage cables which connect the windfarm to the national grid.
. Mr Ciaran Maguire is onshore wind operations manager of SSE Renewables. Mr Maguire swore the grounding affidavit on behalf of the plaintiff for the interim and interlocutory injunction applications, and gave evidence on behalf of the plaintiff before this Court. Mr Maguire indicated in evidence that he has overall responsibility for the 26 windfarms in Ireland owned by SSE entities. In his evidence to the court, Mr Maguire referred to maps and photographs of the area in question. His evidence was that cables connecting nine of the windfarm's turbines to the national grid pass along a section of the public road. He stated that approximately 3km of cable was laid adjacent to the public road, and that 250m of this distance was at or outside Mr Cremins' lands [Transcript, Day 2 pp 12–13].
. The road is a small rural road with a grass verge on either side. The photographs show that Mr Cremins' land is fenced off with wire and fence posts. From this “fence” the grass verge extends to the edge of the road, and the evidence of Mr Maguire was that the cable was laid between the “fence” and the edge of the road. One might have thought that the “fence” erected on Mr Cremins' lands marked the boundary of those lands, and that therefore cable laid in the grass verge between the fence and the roadway would not have impinged upon those lands. However, as we shall see, the plaintiff now accepts that the cables are in fact laid in ground which belongs to Mr Cremins. The evidence of Mr Maguire is that the plaintiff had originally intended running the cables through the defendant's lands, but when the defendant refused to agree commercial terms to allow the three turbines to be built on his lands, the plaintiff took the decision to lay the cables in the grass verge alongside the public road.
. By letter of 9 February 2009, Limerick County Council wrote to Roadbridge Limited, a contractor which had applied for a road opening licence to facilitate the installation of the cables, indicating that the Council had no objection providing there was compliance with an attached list of conditions. The application form indicates the exact location of the proposed opening as “CoolEast/Clash South, Dromada, Athea, County Limerick”, and suggests that the length over which the cables were to be installed was in excess of 3,000m, with 2,630m of cabling to be installed in a “grass verge”. The average depth of the pipe was expressed to be 1.5m.
. Mr Maguire stated that the thinking in relation to running the cable alongside a road was that a road was an “ideal avenue to run a cable along…the road was an artery through the...
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