The Supreme Court said it would stay its order quashing planning permission for the Cleanrath windfarm only if the developer undertook not to operate the windfarm while An Bord Pleanála considered an application for leave to seek substitute consent. The developer was given seven days to provide that undertaking; otherwise, the order of certiorari would be made.
The ruling, delivered by Justice Donal O’Donnell on 5 May 2020, followed the court’s December 2019 decision that the Board’s grant of permission was invalid. The court had found that the Board could reject the applicants’ arguments about windfarm noise guidelines, but could not dismiss them as irrelevant. The defect was the Board’s, the judge said, and was not encouraged by the developer.
The case concerned permission granted in 2017 for 11 turbines at Bear na Gaoithe, County Cork. By December 2019, the developer had built most of a nine-turbine windfarm, omitting the turbine closest to the applicants’ dwelling. The developer said it had completed the final turbine and other site works after the court’s judgment, and that the windfarm had been commissioned.
The developer sought a stay while pursuing substitute consent, arguing that an immediate quashing could put its eligibility for the State’s REFIT 2 renewable-energy support scheme at risk. Its director said the merged Cleanrath and Derragh project represented almost €72 million in investment and that losing the scheme’s guaranteed price through 2032 would have severe commercial consequences. The applicants disputed parts of the developer’s evidence, including claims about noise reduction from changes to the project.
Justice O’Donnell accepted that quashing the permission could put REFIT 2 eligibility at risk and that losing the support could cause serious financial harm. He said the court had jurisdiction to stay or postpone an order, but that doing so after a finding of invalidity was exceptional. He also said the evidence did not establish that the windfarm needed to operate during the Board’s process or what harm a temporary shutdown would cause the developer.
The judge gave significant weight to the developer’s decision to complete work after the adverse judgment, without first asking the court for clarification or a stay. He said continued operation would leave the applicants in effect in the position they would have been in had they lost the appeal. The proposed stay therefore came with the condition that the developer not operate the windfarm pending the Board’s decision on leave. The parties were given liberty to apply, and the judge urged the Board to expedite the process where possible.
The judgment set out the court’s proposed terms and the seven-day opportunity to give the undertaking. It did not report whether the developer later provided it or whether the Board granted leave or substitute consent.