Supreme Court agree to hear claim windfarm is operating outside planning permission conditions

The three-judge court ruled that it in the public interest to obtain further clarity on the case.

The Wind turbines at Ballyduff Upper, Co Waterford. Picture: Eddie O'Hare

The Supreme Court has agreed to hear a claim that certain parts of a Co Waterford-based windfarm as built was not authorised by its planning permission.

The appeal concerns the operation of an 11-turbine windfarm at Ballyduff in Co Waterford by Barranafaddock Sustainable Electricity Limited.

The proceedings have been brought by local residents who claim the windfarm amounts to an unauthorised development and should be shut down.

A panel of three Supreme Court judges agreed to hear the appeal after finding that the action raised issues of general public importance that require clarification from the court.

The operator secured planning permission from Waterford City and County Council to operate the windfarm in 2011.

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In its application, the operator said the turbines were to have a rotor blade diameter of 90m.

In 2013, the operators' consultants made a submission to the planning authority to modify the heights of three turbine hubs and to increase the rotor blades from 90m to 103m in diameter.

The tip heights on the turbines remained the same height as included in the 2011 permission.

In reply to the submission, it is claimed that the local authority sent a letter to the operator stating "noted and agreed", but did not give express acknowledgement that the council had agreed to the rotor diameter increase.

The turbines were built and became operational in 2015.

Following complaints by the residents, the matter was referred to An Bord Pleanála by the council.

An Bord Pleanála held that the increase in diameter was not exempted development and did not come within the scope of the planning permission granted.

The local residents brought High Court proceedings seeking to restrain the operation of the turbines on the grounds they constituted unauthorised development.

Mr Justice Garrett Simons held that some of the turbines as built were not authorised by planning permission and made an order restraining the use of said turbines.

That decision was appealed by the operator to the Court of Appeal (COA), which found in the company's favour.

Arising out of the COA's decision, the residents applied to have matters that they claim are of public importance raised in the proceedings determined by the Supreme Court.

The application to the Supreme Court was opposed by the windfarm operator.

In a written determination, a three-judge Supreme Court, comprised of Ms Justice Iseult O'Malley, Ms Justice Marie Baker, and Mr Justice Seamus Woulfe, said the action raised matters of public interest regarding aspects of planning laws.

It was in the public interest to obtain further clarity on these matters, the court ruled.