Ronald Krikke and Others v Barranafaddock Sustainable Electricity Ltd

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Donnelly
• Judgment Date: 30 July 2021
• Neutral Citation: [2021] IECA 217
• Docket Number: Record No.: 2019/511

Between/

Ronald Krikke and Others

Plaintiff/Appellant

and

Barranafaddock Sustainable Electricity Limited

Defendant/Respondent

[2021] IECA 217

Costello J.

Donnelly J.

Collins J.

Record No.: 2019/511

THE COURT OF APPEAL

Planning and development – Unauthorised development – Planning and Development Act 2000 – Appellant appealing against the decision to make an order restraining the operation of certain wind turbines – Whether the respondents were precluded from contending that the change in rotor diameter of the turbines constituted unauthorised development

Facts: The appellant, Barranafaddock Sustainable Electricity Ltd (the developer), appealed to the Court of Appeal against the decision of the High Court (Simons J) to make an order under s. 160 of the Planning and Development Act 2000, as amended, restraining the operation of certain wind turbines. As identified by the developer, the issues arising on the appeal were: (i) whether the decision of An Bord Pleanála on the s. 5 reference conclusively determined the question of whether the “as built” turbines constituted unauthorised development; (ii) whether the respondents, Mr Krikke and others (the applicants), were precluded from contending that the change in rotor diameter of the turbines constituted unauthorised development in circumstances where this was agreed and approved by the planning authority on foot of the compliance submission submitted by the developer; (iii) subject to the answer to issue (ii), whether the change in the rotor diameter of the as built turbines constituted a material or immaterial variation from what was permitted by PD 11/400; (iv) whether, in the event that the Court concluded that the change in the dimensions of the turbines constituted unauthorised development, the Court should make an order restraining the operation of the wind farm pending the outcome of the application for substitute consent to An Bord Pleanála.

Held by Donnelly J that the fourth issue did not arise and could not be answered in the abstract. She concluded that the decision-making function of An Bord Pleanála (or a planning authority) under s. 5 does not extend to making declarations in respect of “unauthorised development”. She held that there may be aspects of the decision of An Bord Pleanála to which a court hearing a s. 160 application will have regard and accord due weight because it represents the decision of an expert body with decision making powers on planning matters. She held that the second issue was the most central to the disposal of this appeal. She held that it was no answer to reliance on s. 50 by the developer, for the applicants to assert that it was beyond the powers of the planning authority to agree the revised drawings/technical specifications of the turbines; that section required the challenge to be taken by way of judicial review within the time frame provided for in s. 50(2). She held that those time limits could have been extended if the conditions set out in s. 50(8) were met. She held that the issue of the validity of the planning decision i.e. the compliance decision taken in purported reliance on s. 34(1) of the Act, was not up for challenge within the s. 160 proceedings. She held that the court’s enforcement jurisdiction under s. 160 is predicated on there being unauthorised development and an unchallenged planning decision must be treated as valid by the court hearing the application. Although it was not necessary to consider whether the change in the rotor diameter of the “as built” turbines constituted a material or immaterial deviation from what was permitted by the planning permission, she did so as it may be in the interests of the parties to have the resolution of the Court of Appeal on this issue also. She concluded that it would have been appropriate to remit this matter to the High Court so that the High Court could resolve the conflicts of evidence as to the materiality of the changes based upon the general principles/issues she had identified. She held that there was no need to make such a remittal in light of the findings she had made in respect of the other issues.

Donnelly J held that the appeal would be allowed.

Appeal allowed.

JUDGMENT of Ms. Justice Donnelly delivered on the 30 ^th day of July, 2021

I. Introduction

1 . This is an appeal against the decision of the High Court (Simons J.) to make an order under s. 160 of the Planning and Development Act, 2000 as amended (hereinafter “the Act of 2000”) restraining the operation of certain wind turbines. Section 160(1) provides that where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the court considers necessary to ensure, as appropriate, inter alia, that the unauthorised development is not carried out or continued or that it is carried out in accordance with the planning permission or any condition attached thereto.

2 . Barranafaddock Sustainable Electricity Limited (hereinafter, “the developer”) operates a wind farm in the townland of Ballyduff, County Waterford. The wind farm comprises twelve turbines in associated development. I will sketch some of the salient features of the planning history; a more complete picture is set out in the judgment of Simons J. found at [2019] IEHC 825. Three of those turbines were constructed in accordance with the grant of planning permission made under Register Ref. 13/32 (“PD 13/32”). Nine turbines were constructed in purported compliance with the grant of planning permission made under Register Ref. 11/400 (“PD 11/400”). The order of the High Court concerns these nine turbines. The respondents to this appeal (hereinafter, “the applicants”) are all people living within the immediate vicinity of the wind farm.

3 . At issue in the case is the authorisation of the turbines under PD 11/400. That grant authorised the erection of wind turbines of particular scale and dimensions. PD 11/400 was in fact a modification of an earlier grant of planning permission (“PD 04/1559”) which permitted eleven wind turbines to be built with eight wind turbines having a hub height of 80 metres and a rotor blade diameter of 80 metres and a further three wind turbines with a hub height of 60 metres and rotor blade diameter of 80 metres. The development proposed in PD 04/1559 was accompanied by the required mandatory environmental impact assessment (EIA). That permission had specified an exact hub height and blade diameter. No tip height (being the highest point that the turbine will reach to include the rotor blades) had been mentioned, though it was easily ascertained from the hub height and the rotor blade dimension. Under the modification by PD 11/400, the hub height of the three 60 metre turbines was increased to 80 metres and the blade length of all eleven turbines was to be increased from 40 to 45 metres (the equivalent of a rotor diameter of 90 metres). No maximum tip height of the turbines was specified, but by adding the rotor length to the hub height the maximum tip height could have been no more than 125 metres. PD 11/400 was granted subject to twenty conditions, the most relevant of which were conditions 3,7 and 10.

4 . Condition No. 7 of PD 11/400 established the limits of shadow flicker permitted. Shadow flicker is produced when the rotating blades pass between the observer and the sun. Condition No. 10 regulated the extent of the noise levels permitted. A particular point of contention is Condition No. 3. Condition No. 3 stipulated that “prior to the 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…”

5 . Following a compliance process, described in more detail below, with the planning authority Waterford City and County Council (WCCC), the wind turbines actually constructed (“the “as built” turbines”) differed in scale and dimension to that stated in the planning permission. Only nine turbines, instead of eleven turbines were constructed under PD 11/400. The hub height was reduced by 6.5 metres to 73.5 metres. The rotor blade diameter increased from 90 metres to 103 metres, an increase of about 14.4%. The overall tip height did not increase. The result of this is that the swept path of the blade area (the area of the circle swept by the rotor blades: π r ²) increased by 31%. Each turbine is now a more squat structure but with the turbine blades longer and therefore reaching closer to the ground.

6 . As part of the compliance process, on the 21 ^st October, 2013, the planners acting on behalf of the developer Fehily Timoney & Company (FTC), met with WCCC the planning authority. The first issue considered was the operational life of the project. It was indicated that a modification of the planning permission was required to extend the life of the project and this was subsequently granted. The notes of the meeting indicate that the project was under significant time pressure to meet the deadline for completion and if a planning application was required it could jeopardise the entire project. The reduction in the number of the turbines was also discussed and WCCC confirmed that they would not be issuing enforcement orders to construct omitted turbines. Furthermore, there is a reference to the preferred turbines and the one which they are choosing which is “GE model and the turbine height will not exceed the permitted height.” The WCCC representative raised concerns that the noise profile of the selected turbines should be equivalent or less than the “permitted” arrangement.

7 . On the 6 ^th November 2013, FTC wrote to WCCC enclosing their compliance submissions in...