The High Court has refused an application by William Bailey to stop Kilvinane Wind Farm Limited operating its wind farm, remove three turbines and reinstate the land. Mr Justice Michael Peart said it would be premature to order that drastic relief while related judicial review proceedings remained unresolved.
Bailey brought the case under section 160 of the Planning and Development Acts, arguing that three turbines were built in different locations and with longer blades than Cork County Council’s 2002 permission allowed. He sought a mandatory injunction requiring the operation to cease and the turbines to be removed.
The company said it had consulted the council before construction about changes to turbine dimensions and locations, and proceeded after receiving confirmation that the proposed variations were acceptable. The court noted that the council had given the company the “green light” before installation. It was not satisfied that Bailey’s concerns about the provenance of a 2006 letter were sufficiently grounded to disregard the letter’s existence.
The dispute followed a 2011 decision by An Bord Pleanála, on a reference brought by Patrick and Claire O’Brien, that the turbines as built fell outside the original permission and were development that was not exempt. The company challenged that decision by judicial review. Separate challenges concerning the refusal of later planning applications to replace or add turbines were also pending. The court did not determine those challenges or decide whether the turbines were unauthorised.
In refusing relief, the judge also considered that Bailey acknowledged his home was not significantly affected, although he said his enjoyment of surrounding farmland was diminished. The judge observed that the wind farm had operated for about five years before complaints about the alleged deviations arose and concluded that ordering removal at that stage would be disproportionate and premature.
The court’s decision was to refuse Bailey’s section 160 application. It did not resolve the underlying planning compliance dispute or determine what should happen if the pending litigation later went against the company.