The High Court has ordered the operation of nine Barranafaddock wind turbines to stop temporarily after finding that their 103-metre rotor diameters exceeded the 90 metres allowed by planning permission.
Mr Justice Garrett Simons ruled on 6 December 2019 that a 2018 declaration by An Bord Pleanála prevented the developer, Barranafaddock Sustainability Electricity Limited, from arguing again that the altered turbines were authorised by the 2011 permission. The Board had declared that the increase in blade length was development and was not exempted development. The company had not challenged that declaration by judicial review.
The judge also considered the planning permission independently, in case his conclusion about the declaration was overturned on appeal. He found the 13-metre increase in rotor diameter was material. The permission allowed a 90-metre diameter; the turbines were built with a 103-metre diameter, while their overall tip height remained within the permitted maximum.
The developer argued that Waterford County Council had approved the turbine design in a December 2013 letter stating “Condition 3 Noted and agreed.” The court rejected that argument. The developer’s compliance submission had not expressly asked the council to approve a 103-metre rotor diameter, and the letter did not say that it had. The judge also found the council could not use a condition allowing agreement on design details to authorise a change beyond the permission’s scope. He said the proposed change required planning permission and environmental screening.
The application was brought under Section 160 of the Planning and Development Act 2000 by seven applicants: Ronald Krikke, Pia Umans, Sean Harris, Catherine Harris, Patrick Kenneally, Caroline Kennelly and Kenneth Geary. The ruling concerns the first nine turbines, not the three additional turbines built under a separate 2013 permission.
The judge declined to order the turbines’ immediate removal, giving the developer a further reasonable period to seek to regularise their planning status. But he ruled that operation should not continue uninterrupted while that process was pending. The order restrains operation for now. The developer may apply, on seven days’ notice to the applicants, to have the order lifted if An Bord Pleanála grants leave to apply for substitute consent. The judgment does not decide whether that leave will be granted or whether substitute consent will ultimately issue.
The developer’s earlier application for leave to seek substitute consent had been refused by the Board in August 2019, and that refusal was under challenge in separate judicial review proceedings. A separate retention-permission application to Waterford City and County Council, submitted in October 2019, had been withdrawn.