Thursday 29 September 2016

Court orders dismantling of three wind turbines due to 'material' deviation from planning permission

Tim Healy

Published 16/03/2016 | 19:59

Wind turbines
Wind turbines

A COURT has ordered the dismantling of three wind turbines Co Cork due to their being built in "material" deviation from planning permission.

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Local resident William Henry Bailey brought the case against Kilvinane Wind Farm Ltd (KWF), operators of the turbines at Kilvinane.

His home is among 28 dwellings in the vicinity of the site where residents have complained of noise and "flicker shadow" from the turbines.

The wind farm cost some €5.7m, employs three people, and provides energy for 3,000 homes.

The Court of Appeal ruled Wednesday (March 16) he was entitled to orders that they be dismantled.

However, a stay applies on the orders, and other orders restraining operation of the turbines, pending a decision by An Bord Pleanala shortly on an application by KWF, made in May 2014, for substituted consent for the development as constructed.

If the board grants substituted consent, the developer can apply to have the restraining and dismantling orders lifted.

In those circumstances, Mr Bailey's case has been adjourned to April 6.

Mr Bailey had appealed the High Court's refusal to grant the dismantling orders.

Giving the three-judge appeal court's decision, Mr Justice Gerard Hogan said the matter was not about "trifling" breaches of permission.

It had consequences in terms of visual impact and noise for people living in the immediate vicinity and there were also relevant planning considerations.

While KWF and its principal Leonard Draper argued they had relied on assurances from planners in Cork County Council the deviations from the permission were not material, the circumstances in which those assurances were given had some "curious, even unsettling aspects", he said.

An executive planner had noted the file made available to her did not include correspondence or drawings from the developer submitted to the council concerning the change in location or increase in blade length, he said.

The planner who signed the October 2006 letter on behalf of the Council had, after his retirement, performed consultancy work for KWF "on this very issue", the judge also said.

While it was true the developer had contacted the council about the changes to the turbines, there was nothing to suggest the developer, or the planning officer contacted, had any consideration for the rights of others who might be affected by their actions, he said.

No sensible developer could reasonably suppose such deviations could be "informally sanctioned", he said.

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