The recent High Court decision in Krikke and Others v Barranafaddock Sustainable Electricity Limited, in which Ivor Fitzpatrick & Co. Solicitors acted for the Plaintiffs, local residents, the Court ordered that 9 out of 12 wind turbines built contrary to planning permission, should be shut down and placed on stand-by mode.
The residents living in the immediate vicinity surrounding the wind farm at Barranafaddock, County Waterford are suffering serious negative impacts from noise and shadow flicker from this wind farm, and made numerous complaints to the local authority, particularly regarding noise. The local authority carried out an investigation of the wind farm and found that 9 of the 12 turbines built on the site had larger turbine blades and lower turbine hubs compared to the dimensions specified in the planning permission.
A section 5 referral was made by the local authority to An Bord Pleanála to determine if the changes between the as built turbines compared to the turbines specified in the planning permission constituted “development” under the Planning and Development Act 2000. The Board decided in December 2018 that the changes constituted development and were not exempted development. The developer did not challenge the Board’s decision by way of a judicial review.
The local residents issued proceedings in February 2019 under section 160 of the Planning and Development Act 2000, as amended, seeking the removal of the turbines and a cessation of the operation of the wind farm pending that removal. As part of the plaintiffs’ case, they relied on the Board’s decision that the changes constituted development.
In a hearing in the High Court before Mr. Justice Simons, the developer argued the changes in the turbines were agreed with the local authority in a letter issued in December 2013. This argument was already raised before the Board and was dismissed. The plaintiffs argued the decision of the Board must be upheld by the High Court and the Court consequently had to order that the wind farm was unauthorised.
On 6 December 2019, Mr. Justice Simons found the decision of An Bord Pleanála precluded the developer from arguing the turbines as built on site were authorised by the planning permission. He also held that:
- The developer was estopped from seeking to re-open the Board’s findings in circumstances where it had not challenged the Board’s decision.
- The planning permission did not authorise the erection of the wind turbines of the scale and dimensions actually built. In circumstances where the wind farm is subject to the requirements of the Environmental Impact Assessment “EIA” Directive, the proposed increase in the turbine blades constituted a “change” or “extension” of a permitted development which could only have been lawfully authorised by way of the making of an application for planning permission, which did not occur here.
- It was noted the developer should be afforded an opportunity to regularise the planning status of the wind turbines. The court made an Order pursuant to section 160 restraining the operation of the wind turbines pro tem (for the time being). If An Bord Pleanála grants leave to apply for substitute consent (the means of regularising a development that requires an EIA), the developer has liberty to apply to have the High Court order under section 160 vacated.
The developer has appealed the decision of Mr. Justice Simons in the section 160 proceedings to the Court of Appeal. The residents have cross appealed arguing that the Court should have ordered that not only should the wind farm be shut down but also that the turbines should be fully removed from the site because the development is unauthorised. The appeal is listed for hearing in June 2020.