The Court of Appeal found that three Kilvinane wind turbines were unauthorised because their locations differed materially from the 2002 planning permission and two had larger rotor diameters than permitted. It proposed orders restraining their operation and requiring their dismantling, but invited the parties to make further submissions on the precise terms. The proposed dismantling order would be stayed pending the planning authority’s decision on Kilvinane’s application for substituted consent.
William Henry Bailey appealed after the High Court refused his application under section 160 of the Planning and Development Act 2000. He had sought orders requiring Kilvinane Wind Farm Ltd to dismantle the turbines, arguing that they were built in different locations and with larger rotors than An Bord Pleanála had approved.
The Court of Appeal held that each turbine was 19 to 20 metres from its permitted location. It found this a material deviation given the potential effects on nearby residents, including noise, sightlines and shadow flicker. Turbines T3 and T4 each had a 90-metre rotor diameter, 23 metres greater than permitted; the court found that increase material. T1’s rotor diameter was one metre greater than permitted, which the court considered immaterial. The court nevertheless found all three turbines unauthorised because of their locations.
The court rejected the argument that Bailey lacked sufficient interest or that the case should be refused because the local authority had not taken enforcement action. It said Bailey was a nearby neighbour whose enjoyment of his farm and countryside was affected. It also found that the turbines’ deviations were not trivial and that informal assurances from a planning official could not reasonably displace the rights of third parties to participate in the planning process.
The court proposed an order restraining the use of T1, T3 and T4, with liberty for Kilvinane to apply to have it vacated if the Board granted consent for the turbines as built. It also proposed an order requiring their dismantling, stayed while the Board determined Kilvinane’s substituted-consent application. The judgment expressed no view on the merits of that application. The parties were invited to make further submissions before the orders’ precise terms were finalised.