Wind farm regulation cannot just be hot air

Sean and Catherine Harris with neighbour Kenneth Geary, left, at their home at Glenforan, Ballyduff Upper, Co Waterford. Picture: Eddie O’Hare

Enforcement proceedings against Barnafaddock Wind Farm raise serious questions around planning, the law and national policy on wind energy, writes Michael Clifford

The case of the Barnafaddock Wind Farm raises serious questions around planning, the law and national policy on wind energy.

As reported yesterday, Waterford County Council has issued enforcement proceedings on the 11-turbine farm based in Ballyduff Upper in west Waterford. The farm, completed in 2015, was built using 103m-diameter blades rather than the 90m specified in planning permission.

The issue only came to light following investigations by local people over what they considered to be excessive noise pollution. So far, so straightforward.

Last November, An Bord Pleanála ruled that it constitutes an unauthorised development. Now, the enforcement order has been issued and the developer has six months to comply with the planning permission.

As might be expected, the developer has applied to retain the structures. This is done through “substitute consent”, a form of retention planning permission required for projects that included an environmental impact statement (EIS). There is more at stake when an EIS is required.

However, Waterford City and County Council (WCCC) has confirmed it will not take enforcement action until An Bord Pleanála rules on the substitute consent. On the face of it, this is sensible. If the consent is granted, the requirement for enforcement dies.

A question does arise as to why the wind farm is allowed to continue operating — as an unauthorised development — until such time as the planning board rules on its status?

A spokesperson for WCCC told the Irish Examiner that no issues over health, safety or insurance arise in an unauthorised development. In the unfortunate circumstance where a claim on insurance might arise, the reaction from the insurer would be very interesting.

Apart from that though, it appears on the surface that this is a straight case of a developer doing its own thing and the local authority now laying down the law. Except, beneath the surface, a very different story emerges.

The developer — at the time of construction Element Power — was of the opinion that it had the go-ahead to use the longer blades. In the proceedings that led to the current enforcement order, engineers acting for the developer pointed out:

We refer to the compliance response of 2013 in which WCCC confirmed firstly that they noted the developer’s intent to install a 103m-diameter turbine and secondly that WCCC agreed that same was in compliance with the 2011 permission.

Invited to respond to this, WCCC remained silent. Effectively, the developer had received a “letter of comfort” from WCCC to install 103m blades, despite the planning permission allowing for 90m.

This tacit agreement was read by the developer as getting the go-ahead. The letter of comfort did not appear on the planning file. One size was on the public record, another agreed in correspondence.

Fast forward to 2015 and local people begin to investigate on foot of what they consider excessive noise pollution. Sean and Catherine Harris made a complaint through their solicitor.

WCCC contacted Element Power to check all was in order. In a response, seen by the Irish Examiner, a representative from Element Power emailed that the farm was in compliance with planning permission.

Among the points made to illustrate this was that “the turbines erected on site have a rotar diameter of 103m”.

As far as Element Power was concerned, this was in line with planning permission.

WCCC wrote back to the Harris’ solicitor to the effect that “following investigation including a site inspection that the planning authority is satisfied there has been no breach of the approved planning permission on site and as such the case has been closed.”

Yet when Ronald Krikke complained to WCCC the following year about the size of the blades he was told: “There has been no agreements between the wind farm and the council that constitute an aberration from An Bord Pleanála planning conditions.”

But there had been an agreement, documented at least twice in correspondence, between the developer and the council that the blade diameter was 103m and not 90m.

Now the issue has to be addressed. An Bord Pleanála, in dealing with the application to retain the structure, has an unenviable choice. If it agrees to retain the longer blade it makes a mockery of its own original decision to impose a shorter length.

If it says the farm must be dismantled it opens Waterford County Council to the possibility of a very expensive lawsuit.

While the board will undoubtedly decide purely on planning principles, the smart money says the wind farm will get a reprieve, irrespective of the concerns of local residents.

Local authorities, through their planning function, are charged with implementing successive governments’ pro-wind energy policy.

In terms of promoting clean renewable energy this policy is entirely sound. But implementing it in a country with a very high level of dispersed rural dwellings ensures major opposition.

In such a milieu, local authorities have an extremely difficult path to negotiate.

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