The Supreme Court held that a stay on an order requiring a Waterford wind farm operator to stop using certain turbines should not have been granted on the balance of justice. But it left the stay in place while the developer’s substantive appeal proceeds in the Court of Appeal.
The dispute concerns turbines built with rotor blades 103 metres in diameter, although the planning application specified 90 metres. In December 2018, An Bord Pleanála declared that the alterations were development, were outside the planning permission and were not exempt development. The developer did not challenge that declaration.
In December 2019, the High Court found that the turbines were unauthorised and ordered the developer to switch them to standby mode. It also declared that the permission did not authorise turbines of the size built, and that the planning authority could not approve the change. The order allowed the developer to seek to have it lifted if the Board granted leave to apply for substitute consent.
The Court of Appeal stayed the order pending the developer’s appeal. It cited arguable appeal grounds, the developer’s potential financial losses, its good faith and third-party impacts. The residents appealed that stay to the Supreme Court.
Writing for the Supreme Court, Ms Justice Iseult O’Malley rejected the residents’ argument that stays in enforcement cases under section 160 of the Planning and Development Act should be assessed under a separate test. The usual principles for stays pending appeal apply, including the need to minimise the risk of injustice. She agreed that the developer had an arguable ground concerning the legal effect of the Board’s declaration, and said the complex legal issues were not suitable for assessment before a full hearing.
However, the Court said the Court of Appeal had given insufficient weight to the planning context, the High Court’s reasoned findings and the public interest in preventing a developer from profiting while operating development found to lack permission. The High Court had also designed its order to allow for possible regularisation, so the shutdown might have been short-lived. Assessing financial loss on the assumption that the appeal would take a long time overlooked that possibility, Justice O’Malley said.
She concluded that she would not have granted the stay, and that the residents had succeeded in their appeal in principle. The Supreme Court nevertheless declined to interfere with the stay already in place. It cited the early hearing of the substantive appeal, changes affecting the substitute-consent application and a July 2020 ruling that found aspects of the statutory procedures inconsistent with the EU environmental impact assessment directive. The Supreme Court left any further steps to the Court of Appeal after it decides the substantive appeal.