William Bailey v Kilvinane Wind Farm Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 27 September 2013
• Neutral Citation: [2013] IEHC 509
• Court: High Court
• Date: 27 September 2013

[2013] IEHC 509

THE HIGH COURT

Record Number: No. 166 MCA/2012

Bailey v Kilvinane Wind Farm Ltd

[2013] IEHC 509

Between:

William Bailey

Applicant

And

Kilvinane Wind Farm Limited

Respondent

PLANNING & DEVELOPMENT ACTS 2000 S160

PLANNING & DEVELOPMENT ACTS 2000 S5

DUBLIN CORPORATION v MCGOWAN 1993 1 IR 405

ALTARA DEVELOPMENTS LTD & CROSSAN v VENTOLA LTD UNREP O'SULLIVAN 6.10.2005 2005/2/219 2005 IEHC 312

SWEETMAN v SHELL E & P IRELAND LTD & ORS 2007 3 IR 13

Planning and Development- Practice and procedure- Injunction- Wind turbines- Wind farm- Unauthorised development- Prejudice- Mandatory order- Planning and Development Act 2000

Facts: The applicant sought a mandatory injunction pursuant to s. 160 Planning and Development Act 2000, as amended, requiring the respondent to cease operating a wind farm on its lands. The respondent had applied for planning permission for wind turbines. The applicant sought the cessation of the development of a wind farm and the removal of turbines. The applicant and his family lived one kilometre from the respondent”s wind farm. He alleged that the development was unauthorised within the meaning of the Planning Acts.

Held by Peart J. that the Court would refuse the application. An order pursuant to s. 160 would be draconian. The applicant was not adversely affected by this development to a significant degree. He suffered only very limited prejudice.

1 In these proceedings the applicant, who is not legally represented, seeks a mandatory injunction pursuant to s. 160 of the Planning and Decvelopment Acts 2000 - 2011 requiring the respondent to cease operating a wind farm on its lands, to remove it and reinstate the lands on which the development has been constructed, on the basis that it constitutes unlawful development. While a planning permission was granted to the respondent in 2002 by Cork County Council, the applicant contends that the wind turbines on the wind farm have been erected in contravention of that planning permission. He is fortified in that view by a certain decision of An Bord Pleanala ("the Board") obtained on foot of a s. 5 reference made on appeal to the Board by neighbours of the applicant, Mr and Mrs O'Brien, which I shall refer to in some more detail in due course. I shall set out a brief chronology of events leading up to the present application.

Background:

2 On 28th February 2001 the respondent applied for planning permission for 5 wind turbines to be constructed on lands owned by Leonard Draper, who is a director of Kilfinane Wind Farms Limited. This application was under Planning Ref. 01/980. At a later stage during the application process this figure was revised down to 4 turbines with hub height of 65 metres and rotor span of 57 metres, giving a total height of 93.5 metres. According to the respondent, the application was indicative only in relation to the type of turbine to be used.

3 That application was granted by the planning authority, but the decision was appealed to the Board, which in turn granted planning permission for 4 turbines by Decision dated 19th July 2002:

4 In March 2003 the respondent wrote to Cork County Council to inquire if the blade length of the turbines could be increased, resulting in a total height of 100 metres. The proposal was that the blade length on each turbine would increase from 28.5 metres to 35 metres. A wire frame drawing accompanying the request in fact showed a proposed hub height of 110 metres.

5 On the 23 May 2003 the Cork County Council wrote confirming that there was no objection to the proposed blade length increase.

6 There was a delay in the commencement of construction because, according to Mr Draper, a connection to the national grid did not become available until 2006. He says that by the time the respondent came to acquire turbines for the commencement of this project in 2005 the turbine models available differed from those which had been available when planning permission was applied for in 2003. Accordingly, on 10th August 2005 the respondent wrote to Cork County Council seeking approval for a modification in the turbines from those requested in 2003 to turbines of lower hub height (65 metres down to 60 metres), but increased blade length (35 metres to 40 metres). This would result in the turbines being the same height of 100 metres as proposed in 2003, but lower than the 110 metres indicated by the wire frame drawings just referred to. The County Council again stated in reply that they had no objection to the proposed alterations.

7 According to the respondent, when construction commenced on the site certain problems were encountered in relation to suitable ground conditions for the erection of the turbines. To address those difficulties and to satisfy the requirements and specifications of supplier of the turbines, the respondent wrote again to the County Council and asked what, if any, tolerance there was in relation to moving the site of the turbines somewhat from the precise locations shown on the grid-coordinates which were submitted with the planning application. The County Council stated that a tolerance of 20 metres from the original positions would be considered acceptable.

8 In the event 3 only of the 4 turbines for which planning permission was granted were constructed.

9 According to Mr Draper, turbine No. 1 ("T1") is smaller than that allowed in the planning permission since it has a reduced hub height of 55 metres instead of 65 metres, and a very slightly larger rotor span of 58 metres instead of 57 metres. Turbines T3 and T4 have a hub height of 60 metres and a rotor span of 80 metres.

10 On 5th July 2006 the exact grid coordinates of these turbines were furnished to the County Council, and once again the respondent sought confirmation that all was in order. On 6th July 2006 the County Council replied to confirm that it was happy with the grid locations and with the hub heights and blade lengths.

11 In October 2006 the wind farm was connected to the national grid, and continued in operation for several years without complaint from any party, either in relation to location, the size and scale of the turbines or the manner in which the wind farm operated, including noise.

12 On 12th November 2010, the respondent lodged a new planning application to permit it to replace T1 and T2 and to construct a further turbine (T5). This application has Planning Ref. 10/781.

13 In my opening paragraph I mentioned briefly a Section 5 reference by a Mr and Mrs O'Brien. This refers to a reference to the County Council under Section 5 which was lodged on 29th April 2011 by Patrick and Claire O'Brien. They referred to the as-built descriptions of the turbines in this new application 10/781, compared to the dimensions permitted under the original planning permission (01/980), and sought a declaration from Cork County Council pursuant to Section 5 as to whether or not the erection of the turbines (as built) was or was not development, and whether it was exempt development.

14 On 26th May 2011 the County Council notified the respondent, and presumably Mr and Mrs O'Brien, of its decision that the erection of the turbines was considered to be development, but that the modifications in relation to the turbines were not considered to be material, and therefore constituted exempted development. This decision was appealed to An Bord Pleanala in June 2011 by Mr and Mrs O'Brien. The respondent and the present applicant, William Bailey, submitted observations and submissions. The view of the Inspector was apparently that the materiality of any deviation from the planning permission was not a matter for An Bord Pleanala.

15 However, by its Decision on the 23rd December 2011 the Board decided that the deviations did not come within the scope of the permission granted, and that the development as constructed was development, and not exempted development. The respondent has instituted judicial review proceedings in respect of that decision, in which it is argued, inter alia, that the Board exceeded its jurisdiction by, in effect, determining that the development was unauthorised, and also that the Board failed to give any reason for its decision. Those proceedings have not been concluded by the time this matter came on for hearing before me.

16 On 7th November 2011 a further planning application was lodged by the respondent - Planning Ref. 11/676 in order to permit the respondent to replace turbines T3 and T4.

17 Ultimately on 8th November 2012, both of the said planning applications, namely 10/781 and 11/676 were refused by An Bord Pleanala. The inspector had apparently recommended refusal on the basis that the development was unauthorised development, even though he considered that as far as the merits were concerned the applications were acceptable, save as regards 'wind-take'. The Board agreed that it was precluded from granting the applications, but, according to the respondent, even though it seemed to agree with the inspector's views as to the merits of the applications, it refused on the merits as well, and even though it disagreed with its inspector in relation to the wind-take issue.

18 The respondent decided that it would seek leave to judicially review these refusals by the Board, and on 17th December 2012 leave was granted by the High Court. The decisions are challenged on the basis, inter alia, that the Board erred in concluding that it was precluded from granting the permissions for the new development, and also that the Board...