Krikke v Barranafaddock Sustainable Electricity Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Mr. Justice Woulfe
• Judgment Date: 03 November 2022
• Neutral Citation: [2022] IESC 41
• Court: Supreme Court
• Docket Number: Supreme Court Record No. 2021/133

Between/

Ronald Krikke, Pia Umans, Sean Harris, Catherine Harris, Patrick Kenneally, Caroline Kenneally and Kenneth Geary

Appellants

and

Barranafaddock Sustainable Electricity Limited

Respondent

[2022] IESC 41

O'Donnell C.J.

Charleton J.

Woulfe J.

Hogan J.

Murray J

Supreme Court Record No. 2021/133

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Planning permission – Unauthorised development – Planning and Development Act 2000 s. 160 – Appellants seeking to restrain the operation of certain wind turbines – Whether the wind turbines constituted unauthorised development

Facts: The appellants, Mr Krikke, Ms Umans, Mr Harris, Ms Harris, Mr Kenneally, Ms Kenneally and Mr Geary, appealed to the Supreme Court against a decision of the Court of Appeal (Donnelly J; Costello and Collins JJ concurring) delivered on the 30th July, 2021, which allowed the appeal of the respondent, Barranafaddock Sustainable Electricity Ltd, against the judgment of the High Court (Simons J) which was delivered on the 6th December, 2019, and his order made on the same date. The High Court judge decided that certain wind turbines “as built” were not authorised by planning permission, and were therefore unauthorised development, and he made an order pursuant to s. 160 of the Planning and Development Act 2000 restraining the use of the turbines pro tem. The appellants referred to the legislative framework governing “points of detail” conditions, and the Supreme Court’s consideration of the scope and validity of such conditions in Boland v An Bord Pleanála [1996] 3 I.R. 435. They noted that the Planning Act and Regulations do not prescribe how points of detail conditions are to be implemented, and how it appears that there is no obligation to publicise the process other than (since amending legislation in 2018) to record any agreed points of detail in the planning register. They submitted that the whole point of leaving over points of detail is that the detail must be specified in the compliance process; in the first instance, that requires clarity and precision from the developer if the compliance process is to be treated as incorporating the compliance detail into the permission. The appellants referred to the conclusion of Donnelly J in the Court below that the question of whether a particular development as carried out comes within the scope of the planning permission, i.e. whether it was authorised, is not an issue that the planning bodies have jurisdiction to decide under s. 5 of the 2000 Act. They submitted that this conclusion is incorrect, for the reasons outlined in the judgment of the trial judge at paras. 63-105, and they highlighted certain authorities which they said led the trial judge to his alternative conclusion that An Bord Pleanála did have such jurisdiction. The appellants stated that this case presented two aspects of “collateral attack”; firstly, the absence of a challenge to the 2013 decision of the planning authority on the points of detail proposal on EU law grounds such as EIA in late 2013, and secondly, the absence of a challenge to the subsequent s. 5 decision. It was submitted that the approach of the Court below produced the bizarre result that a party who participated fully in the s. 5 process was not bound by the outcome of same, but a party who had no opportunity to participate in the compliance process was nevertheless bound by its outcome.

Held by Woulfe J that the increase in rotor diameter was agreed in writing with the planning authority pursuant to condition 3 of the 2011 permission. He held that the appellants could not challenge the validity of any such a decision or act by the planning authority on EU law grounds, in the light of s. 50 of the 2000 Act. He held that the s. 5 decision should be construed as not extending to a determination of unauthorised development, and therefore it was not necessary for him to decide whether any such purported determination would have been binding on the High Court on a subsequent s. 160 application.

Woulfe J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 3rd day of November 2022

Introduction

1 . This appeal provides yet another example of the complexities of our planning laws and of how difficult it is often in practice to apply this corpus juris. Once again the Court is required to confront – although, perhaps, in the end not necessarily determine — the vexed question of how the power given to An Bord Pleanála by s. 5 of the Planning and Development Act 2000 (as amended)(“the 2000 Act”) to determine whether a particular development amounts to development (and, if so, whether such development can be regarded as exempted development) can be aligned with the jurisdiction of the courts to grant an injunction restraining unauthorised development under s. 160 of the 2000 Act.

2 . While I gratefully adopt the much fuller statement of facts contained in the judgment which Woulfe J. has just delivered, the essence of this case may nonetheless be summarised as follows.

3 . The respondent (“Barranafaddock”) was granted a planning permission on 23rd November 2011 by Waterford County Council as planning authority (“the Council”) to modify an existing planning permission in respect of a wind farm at Ballyduffy, Co. Waterford, for which permission had originally been granted in 2005 so that the blade diameters of the wind turbines might be increased. The original development was subject to the requirements of what is now the Environmental Impact Assessment Directive (2011/92/EU) (“the EIA Directive”) and An Bord Pleanála was required to (and did, in fact) carry out an EIA as part of its decision-making in 2005.

4 . The key feature of the November 2011 permission was that the wind turbines were now to have an increased rotor blade diameter of 90 metres. By a decision dated 23rd November 2011, the Council decided to grant planning permission, albeit that this permission was subject to two particular conditions. Condition 1 of the 2011 permission provided that the development was to be carried out in accordance with the plans and particulars lodged with the application, save where amended by the conditions attached to the permission. The critical provision was, however, condition 3 of the 2011 permission, which provided that prior to the commencement of development, that details of the proposed turbines and associated structures, “including design, height and colour”, were required to be submitted to and agreed with the Council. It does not appear that any EIA was carried out as part of the Council's decision-making process in November 2011.

5 . Planning consultants retained by Barranfaddock made a compliance submission to the Council in November 2013. The submission included details as to the proposed height of the turbines, but the document also referred to schematic details of the turbine arrangement proposed being included in Appendix B. A drawing in Appendix B of that submission showed a schematic of a wind turbine and this indicated that the rotor blades would in fact have a diameter of 103 metres.

6 . In December 2013, the Council addressed the consultants' submission. So far as condition 3 was concerned, the decision-letter merely stated “Noted and agreed”. This was administrative brevity to the point of taciturnity. It was striking that there was no analysis of the merits of this application to modify the original planning permission, nor did the Council indicate that it was thereby (apparently) agreeing to an increase in the rotor diameter of the turbine blades from 90 metres to 103 metres. It is, however, only proper to record that the tip height of the turbine blades (that is, at the highest point reached by the tip of a blade) was not altered, as the height of the turbine hubs was lowered so that the tip height remains as permitted by the 2011 permission. The turbines became operational in 2015.

7 . The appellants are local residents who were unhappy with the nature of the modified planning permission thus granted in November and December 2013. In response to complaints brought by the appellants and, indeed, others, residing in the general locality, the Council made a referral to the Board pursuant to s. 5 of the 2000 Act in May 2018. The question referred was whether the deviation from the “permitted blade length of…90 metres diameter…to the constructed blade length of …103 metres diameter” was or was not development, or, if it was development, was or was not exempted development.

8 . Following the preparation of an inspector's report in August 2018, the Board ultimately ruled on the s. 5 request in December 2018. Given its importance to this appeal, it is necessary to set out the terms of this particular ruling:

“ AND WHEREAS An Bord Pleanála has concluded that –

(a) the erection of the turbines comes within the scope of the definition of development contained in s. 3 of the Planning and Development Act 2000,

(b) the alterations to turbines, including the length of the rotor arm/blades, do not come within the scope of the permission granted,

(c) there is no provision for exemption to the said alterations to turbines in either s. 4, as amended, of the said Act or Article 6 of the Planning and Development Regulations 2001, and

(d) therefore, the construction of the wind turbines as currently erected on site including the alterations to the rotor arms/blades is development and is not exempted development.

NOW THEREFORE An Bord Pleanála, in exercise of the powers conferred on it by s. 5(4) of the 2000 Act, hereby decides that the deviation from the permitted blade length of 45 metres (90 metres in diameter) to the constructed blade length of 51.5 metres (103 metres in diameter) in relation to permission granted under planning register reference number PD11/400 for modifications to a windfarm at Barranafaddock Wind Farm, County Waterford is...