The Supreme Court has dismissed an appeal by seven residents over the operation of a wind farm in County Waterford, ruling that the planning authority had agreed to the turbines’ 103-metre rotor diameter in 2013.
The appellants had sought an order under section 160 of the Planning and Development Act 2000 to restrain operation of the turbines as unauthorised development. The High Court had found in their favour and restrained their use pro tem. The Court of Appeal reversed that decision, and the Supreme Court has now dismissed the residents’ appeal.
The wind farm, operated by Barranafaddock Sustainable Electricity Limited in the townland of Ballyduff, received planning permission in 2005. A 2011 permission for modifications contemplated a 90-metre rotor diameter. A condition required details of the proposed turbines, including design, height and colour, to be submitted to and agreed with the planning authority before work began.
In a 2013 compliance submission, the operator included a schematic showing a 103-metre rotor diameter. The planning authority’s December 2013 letter said “Noted and agreed” under the heading for that condition. The Supreme Court held that the schematic had been expressly referenced in the submission and made the proposal sufficiently clear for the authority to understand and agree to it. The turbines were built with 103-metre rotors and became operational in 2015.
The residents also argued that the compliance decision should be open to challenge because it was not preceded by an environmental impact assessment screening and breached EU environmental assessment requirements. The Court held that section 50 required a challenge to the validity of the planning authority’s decision to be brought by judicial review, generally within eight weeks, with a possible extension subject to statutory conditions. The residents had not sought judicial review or an extension of time. The Court concluded that they could not challenge the decision on EU law grounds in the section 160 proceedings.
A separate 2018 referral to An Bord Pleanála had resulted in a section 5 decision that the turbine alterations were development and not exempted development. The Supreme Court held that section 5 did not give the Board jurisdiction to decide whether development was authorised under a planning permission. It interpreted the Board’s statement about the alterations falling outside the permission as part of its reasons, not its operative decision. The Court therefore did not decide whether a purported section 5 finding on unauthorised development would bind the High Court in section 160 proceedings.