The Court of Appeal has allowed an appeal by Barranafaddock Sustainable Electricity Limited against a High Court order restraining the operation of nine wind turbines at Barranafaddock Wind Farm, in Ballyduff, County Waterford. The court held that the residents’ challenge to the planning authority’s 2013 compliance decision could not be made through enforcement proceedings under section 160 of the Planning and Development Act 2000.
The dispute concerned turbines built under a 2011 planning permission. The permission provided for a 90-metre rotor diameter, while the turbines as built had a 103-metre diameter. Their hub height was reduced, and their maximum tip height did not increase. Waterford City and County Council had marked the developer’s compliance submission “Noted and Agreed” in relation to a condition covering turbine details.
In 2018, An Bord Pleanála ruled on a council referral that the blade-length deviation was development and was not exempted development. The Court of Appeal said the Board’s statutory role under section 5 did not extend to deciding whether development was unauthorised because it fell outside an existing permission. Its decision was relevant and could be given due weight, but the court hearing a section 160 case had to determine unauthorised development itself.
The Court of Appeal found that the 2013 compliance decision did agree to turbines with the dimensions shown in the submitted schematic, including the increased rotor diameter. It held that the decision was made under the planning legislation and could be challenged only by judicial review under section 50, subject to the statutory time limits and the possibility of an extension in qualifying circumstances. The residents had not brought such a challenge. The court concluded that the compliance decision had to be treated as valid in the section 160 proceedings, leaving no basis to find unauthorised development for that application.
The court also considered, although it was not necessary to its decision, whether the change in rotor diameter was a material deviation from the permission. It said that question would require the High Court to assess conflicting evidence, so it did not decide the issue or remit it for determination. Nor did it decide whether an order restraining operation would otherwise have been appropriate pending the developer’s application for substitute consent. The appeal was allowed. The judgment said that if the parties could not agree costs, the issue should be listed for directions.