Will Waterford City and County Council really initiate enforcement proceedings against a wind farm in breach of planning laws? asks Special Correspondent Michael Clifford.
The ruling by An Bord Pleanála that a wind farm in Co Waterford may have to be dismantled throws up a number of issues about the future of wind farm development.
Yesterday, the Irish Examiner reported on the ruling that Barnafaddock Wind Farm in West Waterford is a development that does not have planning permission.
The local authority, Waterford City and County Council (WCCC), has told this paper that it will “immediately commence enforcement action”, inferring that the 11-turbine farm will have to be dismantled. The matter only came to a head through the persistence of local residents who were disturbed at the level of noise pollution.
Complicating the whole issue was the emergence of correspondence that showed the local authority had given the nod for the longer blades without referring the matter to the planning process.
So now, it would seem, WCCC, which told the developer to shoot ahead with the longer blades, is demanding that the farm be dismantled because the blades are too long.
WCCC is talking tough, but whether Barnafaddock is dismantled remains to be seen.
A case with eerie similarities arose in West Cork more than a decade ago and it might give an indication of how things will develop in west Waterford. It also suggests the disturbing possibility of a pattern in local authorities in cases like this.
The other feature from the West Cork case was that it involved an expensive legal odyssey, the bill for which was footed by public money.
Kilvinane is a wind farm located a few miles from Dunmanway. Planning permission was received in 2002 for a four-turbine operation, although only three were actually built. The problem was that the blade lengths on two of the turbines were 90m, which was 27m more than allowed for in the planning permission. The turbines themselves were also located 20m away from their designation location. This was a significant deviation for a number of residents in the 28 homes which are in the vicinity of Kilvinane.
As with Barnafaddock, the deviations from planning permission were only discovered through investigations by a resident, a retired engineer, Bill Bailey.
As with Barnafaddock, the developer of Kilvinane Wind Farm (KWF) had received assurance from the local authority that the alterations could be made without reference to the planning process.
This assurance was provided in a document dated October 3, 2006. The planner who signed the document subsequently retired and did consultancy work for KWF on the whole issue of planning for the wind farm.
A later Court of Appeal ruling found this “unsettling”, along with the fact that “the letter from the council dated October 3, 2006 which contains the assurances is date stamped April 18, 2011”. By April 2011, the legal odyssey was under way.
As with Barnafaddock, the matter of the extended blades came before An Bord Pleanála. Similar to this week’s case, the board ruled in 2011 that the longer blades in Kilvinane did not have planning permission. Despite that ruling, the wind farm continued in business.
Cork County Council did not initiate enforcement proceedings. This week Waterford City and County Council told the Irish Examiner it would be initiating enforcement proceedings “immediately” in relation to Barnafaddock. It remains to be seen the extent of the resolve of WCCC in that regard, or whether a suitable accommodation can be reached with the developer.
Back in West Cork, the battle by local residents went all the way to the High Court when Mr Bailey brought an action demanding that the wind farm without planning permission be dismantled.
In 2014, the High Court threw out his case. He appealed and two years later the Court of Appeal ruled in his favour.
By then, however, KWF had applied for “substitute consent”, which is form or retention planning permission. That was granted in March 2017.
The following month, a local couple, Clare and Patrick O’Brien, went to the High Court seeking to quash the substitute consent order.
In December last year, the High Court dismissed their case. Fifteen years after it was initially awarded planning permission, and 11 years after the council gave KWF the nod to install longer blades, everything was regularised.
It would appear to be the case that the longer blades are not acceptable when applying for planning permission. But in some cases, it may be the case that if you go ahead and build them, the planning permission will retrospectively come.
In all likelihood, the owner in Barnafaddock — currently investment group Blackrock — will apply for a retrospective order to leave well enough alone now that the thing is built.
How that will be handled by both WCCC and the planning board will be interesting.
The similarities between the two cases throws up concerns about both regulation and enforcement. Both involve a local authority adopting an attitude to developers that is neither transparent nor fair to those who would perceive their interests to be in conflict with those of the developer.
If wind energy is to be regarded as a vital source of renewable energy then confidence in the whole system is vital.
Currently, that confidence is sadly lacking in many rural areas and with good reason.
- by Michael Clifford, Irish Examiner