Krikke v Barrannafaddock Sustainability Electricity Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 06 December 2019
• Neutral Citation: [2019] IEHC 825
• Date: 06 December 2019
• Docket Number: 2019/55/MCA
• Court: High Court

IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT AND IN THE MATTER OF AN APPLICATION

BETWEEN

RONALD KRIKKE

PIA UMANS

SEAN HARRIS

CATHERINE HARRIS

PATRICK KENNEALLY

CAROLINE KENNELLY

KENNETH GEARY

APPLICANTS

AND

BARRANAFADDOCK SUSTAINABILITY ELECTRICITY LIMITED

RESPONDENT

[2019] IEHC 825

Garrett Simons

2019/55/MCA

THE HIGH COURT

Planning & development – Wind turbines – Declaration that alterations to blades outside scope of planning permissions – Application for s 160 “Injunction” – Planning and Development Act 2000

Facts: The respondent was the operator of a wind turbine farm in Waterford and had received planning permission as part of the build process. The turbines as built did not conform with the grant of permission, and a declaration was made under s 5 of the Planning and Development Act 2000 to that effect. The applicants now sought an order under s 160 of the Act, to address the breach.

Held by the Court, that the application would be granted. The respondent was estopped from making arguments which had already been determined by An Bord Pleanála, but would be afforded an opportunity to regularise the planning issues around the turbine. In the interim, an order would be made preventing operation of the turbines.

JUDGMENT of Mr Justice Garrett Simons delivered on 6 December 2019

INTRODUCTION

1 This matter comes before the High Court by way of an application pursuant to Section 160 of the Planning and Development Act 2000 ( “the PDA 2000”). Section 160 is intended to provide a summary procedure whereby breaches of the planning legislation can be brought before the court expeditiously. The procedure is colloquially described as an application for a “planning injunction”. The procedure is available to “any person”, and benefits from special costs rules under Part 2 of the Environment (Miscellaneous Provisions) Act 2011.

2 The principal legal issues which fall for determination in the present case all concern the interaction between the respective competences of local planning authorities, An Bord Pleanála and the courts. In particular, an issue arises as to the weight, if any, which must be given to a Section 5 declaration in subsequent enforcement proceedings. An issue also arises as to the legal status of a decision made by the local planning authority purporting to agree points of detail pursuant to a planning condition.

3 The facts of the case are straightforward. The respondent is the operator of a wind farm (hereinafter “the Developer”). The wind farm is located in the townland of Ballyduff, County Waterford. The relevant planning permission had authorised the erection of wind turbines of a particular scale and dimensions. In the event, wind turbines of a different scale and dimensions have been erected instead. The principal distinction between the “as permitted” and the “as built” turbines is that the rotor blade diameter has increased from 90 metres to 103 metres. This deviation is said, by the Developer, to have been compensated for by a reduction in hub height, which has the consequence that the overall tip height has remained at the permitted level of 125 metres.

4 An Bord Pleanála has since made a declaration pursuant to Section 5 of the PDA 2000 to the effect that the alterations to the turbines, including the length of the rotor blades, do not come within the scope of the planning permission. The Applicants contend that the Developer is precluded by the existence of this Section 5 declaration from reagitating before this court an argument that the “as built” turbines are authorised by the planning permission. In response, the Developer seeks to rely on an earlier decision, namely the decision of the planning authority to “agree” points of details in respect of the wind turbines. This earlier decision was made pursuant to a condition of the planning permission which left over points of detail, including the design, height and colour of the turbines, for agreement with the planning authority. It is said that neither the Applicants nor this court is entitled to look behind this decision in circumstances where same has not been challenged in judicial review proceedings.

5 The Developer has advanced a number of other arguments for saying that there has been no “unauthorised development”, and contends, in the alternative, that relief should be refused as a matter of discretion.

6 The Developer, whilst maintaining the formal position that the change in turbine type is authorised by the planning permission, has, nevertheless, made two attempts to obtain development consent retrospectively in respect of the “as built” turbines. First, the Developer made an application for leave to apply for “substitute consent” under Part XA of the PDA 2000. The application for leave was refused by An Bord Pleanála by decision dated 13 August 2019. This decision is now the subject of judicial review proceedings before the High Court. These judicial review proceedings have been taken by all of the Applicants herein. The parties informed the court last week (28 November 2019) that the judicial review proceedings are not being opposed by An Bord Pleanála, but that there is likely to be a dispute as to whether the matter should be remitted to the Board. This matter is listed for hearing in the Commercial List this morning (6 December 2019).

7 Secondly, the Developer had made an application for retention planning permission to the local planning authority pursuant to Section 34(12) of the PDA 2000. This application had been submitted to Waterford City and County Council on 4 October 2019. This application has since been withdrawn in early November 2019.

STRUCTURE OF THIS JUDGMENT

8 This judgment is structured as follows. The factual background to the dispute will be set out in more detail under the next heading below. This chronology will include more recent events, such as the decision on the part of An Bord Pleanála to refuse leave to apply for substitute consent.

9 The legal issues will then be addressed in the following sequence. First, the legal status of the Section 5 declaration will be considered. This will be the lengthiest part of the judgment. This is because there is a significant body of case law in relation to Section 5, and it is necessary to examine same in some detail. Secondly, the court will consider de novo the question of whether the change in turbine type represents unauthorised development. This exercise is carried out on a de bene esse basis. Thirdly, the legal status of the planning authority's purported agreement to the compliance submission will be considered. Fourthly, the factors which are relevant to the exercise of the court's discretion will be addressed. Finally, the principal conclusions of the court will be summarised at the end of this judgment.

FACTUAL BACKGROUND

THE PLANNING PERMISSIONS

10 An Bord Pleanála granted planning permission on 22 November 2005 for the development of a wind farm. (Reg. Ref. 04/1559) (“ the 2005 planning permission”). The planning application had initially sought permission for the erection of twelve wind turbines. It seems, however, that revised plans and particulars were subsequently submitted, and one of the proposed turbines was omitted and the scale and dimensions of three of the turbines were reduced.

11 The development is of a type which is subject to the requirements of the Environmental Impact Assessment Directive (2011/92/EU) (“the EIA Directive”). This is because the proposed development exceeded the threshold for a mandatory environmental impact assessment (“EM”) under Schedule 5 of the Planning and Development Regulations 2001. As such, the planning application had to be accompanied by an environmental impact statement (“ EIS“), and An Bord Pleanála was required to carry out an EIA as part of its decision-making.

12 The planning permission, as granted by An Bord Pleanála, allowed for the erection of eleven wind turbines and other associated development. More specifically, the planning permission authorised the erection of eight wind turbines with a hub height of 80 metres and a blade length of 40 metres (equivalent to a rotor diameter of 80 metres), and a further three wind turbines with a hub height of 60 metres and a blade length of 40 metres (equivalent to a rotor diameter of 80 metres). The two sets of wind turbines would have had an overall tip height of 120 metres and 100 metres, respectively.

13 The following two conditions of the 2005 planning permission are relevant to the issues which arise in these proceedings.

1. The development shall be carried out in accordance with the plans and particulars lodged with the application, as amended by the revised information received by the planning authority on the 3rd day of February, 2005, the 22nd day of February, 2005 and the 27th day of May, 2005, except as may otherwise be required in order to comply with the following conditions. For the avoidance of doubt, this permission relates only to 11 number turbines only with the layout of the turbines as that received on 27th day of May, 2005.

Reason: In the interest of clarity.

3. Prior to commencement of development, details of the proposed turbines and associated structures, including design, height and colour shall be submitted to and agreed in writing with the planning authority. The wind turbines shall be geared to ensure that the blades rotate in the same direction. In default of agreement, the matter shall be referred to An Bord Pleanála for determination.

Reason: In the interest of visual amenity.

14 The first condition had the legal effect of confining the permitted development to that as set out in the revised information received by the planning authority, i.e. the scale and dimensions of three of the turbines had been reduced. The third condition has since been replicated in a subsequent decision of the planning authority (2011) which...