This week’s ruling may lead to a dismantling of a Waterford wind farm, which is likely to have widespread repercussions for wind energy into the future, writes Michael Clifford.
Sometimes the organs of state can surprise. The Irish Examiner reported on Tuesday on the latest twist in the saga of a wind farm that could have widespread repercussions for wind energy.
An Bord Pleanála has rejected leave to appeal for “substitute consent” for Barranafaddock wind farm in west county Waterford. Substitute consent is effectively retention planning permission for a structure that requires an Environmental Impact Study.
For example, you build a shed without permission and you have to apply for retention planning.
You build a wind farm without permission and your route to salvation is substitute consent.
The outcome of the decision is that there is a real possibility the 12 turbine farm will have to be dismantled.
Barranafaddock is located in the hill country above the village of Ballyduff Lower, near the Cork-Waterford border. Nine of the 12 turbines are on private land, the remaining three on land owned by Coillte.
It was originally developed by Element Power but ownership has since changed hands numerous times, usually between international funds.
It began operation in 2015. Locals who were discommoded by noise pollution in particular, began to investigate the farm’s provenance and found that all was not as it was supposed to be.
The nine turbines on private land had permission to use blades with a 90m diameter. Those in operation had blades of 103m, leading to greater generation of wind for the developer and potentially a bigger noise problem for those in the vicinity.
For over a year these local people attempted to get Waterford City and County Council (WCCC) to sit up and take notice of what they said was now an illegal structure.
Sean and Catherine Harris and Ronald Kirke assembled a big, fat file on the whole venture and presented it repeatedly to the council as exhibit A for the prosecution.
Eventually, the council got cracking, confirmed the longer blades and asked ABP to sort it out under Section 5 of the 2000 Planning Act. The outcome of that was the planning board ruled last November that Barnafaddock Wind Farm was an unauthorised development.
WCCC issued enforcement proceedings — effectively warning the developer to correct matters or dismantle — but put a stay on it to see whether substitute consent would be granted, which would allow everybody to continue on as if nothing had happened.
On the face of it this appeared to be a case of a developer trying it on, installing longer blades than was allowed, and hoping that nobody would know the difference.
In reality, the case is far more complicated. Back in 2013, during the construction phase, the developer had informed WCCC that the longer blades were being used, and WCC gave that the nod. This was referenced in the ABP ruling on substitute consent.
“The exceptional circumstances in this case arise from the applicants reasonable understanding that consent for the constructed turbines with the longer blade length was in place on the basis that WCCC had accepted the applicants’ planning compliance submission of November 2013 prior to the construction of the wind farm,” the ruling stated.
“While it is not possible to make a definitive judgement on the applicants ‘belief’ concerning what could be built on site, there is no evidence on file that there was a deliberate or concerted attempt to circumvent planning laws.
"I would therefore be inclined to give the benefit of any doubt in this matter to the developer.”
Despite an inspector recommending that substitute consent be granted, the board rejected the application. For some observers this was a surprise as the case had all the appearance of once that would receive the retrospective stamp of approval.
The result is now that unless a judicial review of the decision is successfully taken, the wind farm will have to come down.
In that instance, there is a major likelihood that the wind farm developer will sue the council with the potential of a major pay-out of public money.
The travails of Barnafaddock Wind Farm highlight some issues that have repeatedly arisen as national policy on wind energy has run into major opposition at various points around the country.
In the first instance, WCCC appeared to have given the go-ahead for the developer to expand beyond the remit of the planning permission granted.
This may well have been simply an error but, as in any instance like this, those opposed to the wind farm tend to see conspiracy rather than cock-up.
Irrespective of that, the error was not spotted during or on completion of construction by the local authority through its role as building inspector. This could have been simply down to a lack of resources but again locals may not see it like that.
And finally, there is no doubt that once the matter was brought to the attention of WCCC, there was a lack of urgency in addressing it, certainly in the early stages.
All of these factors will be recognisable to others who have objected to wind farms. It will have done little to engender confidence in the planning system for these developments.