The High Court refused the plaintiffs’ applications for discovery in all five categories that remained disputed in their case against ESB Wind Development Limited over the Woodhouse windfarm.
Ms Justice Creedon’s judgment, delivered on 15 June 2018, dealt with a discovery motion in plenary proceedings seeking damages for alleged nuisance, negligence and breach of statutory duty. The plaintiffs also seek declarations and orders concerning the windfarm’s operation. Those underlying claims were not decided in this ruling.
The plaintiffs say noise, shadow flicker and visual impact affect their use and enjoyment of their homes and lands. They also allege that the windfarm’s design or operation departed from planning permissions. The defendant disputes those claims and says the windfarm operates in substantial compliance with its permissions. The court said questions about compliance were matters for trial and did not determine them on this motion.
The five disputed requests sought documents about the windfarm’s design; correspondence with the Minister for Energy, Environment and Climate Change; correspondence with the Commission for Energy Regulation; public information and consultation procedures; and agreements with landowners and related works.
The judge refused each category because the plaintiffs had not shown that the requested documents were relevant and necessary for the fair disposal of the case or for saving costs. For the design request, the court also refused an attempt made at the hearing to add documents about the selection of the land, saying the plaintiffs were confined to the category in their motion. The court found no particular pleading about the windfarm’s specific design that justified discovery and noted that planning material and expert reports were available on the public planning file or on affidavit.
The court found the request for ministerial correspondence went beyond the issues pleaded. It also refused the regulator correspondence request, while noting that the defendant had offered, without prejudice, to provide specified construction authorisations and electricity generation licences, including amendments or revisions.
The request about public consultation was refused in part because the plaintiffs’ alleged participation, through Olivia Coughlan, had not been pleaded as the basis for answering the defendant’s allegation of acquiescence. The court considered the category too widely drawn to meet the relevance and proportionality tests. The request for land agreements and works documents was also refused; the court accepted the defendant’s argument that the category was not relevant or necessary to the issues then before it.
The parties had already agreed discovery in other categories. The ruling addressed only the remaining disputed requests; it did not make findings on liability, nuisance, planning compliance or the relief that might be granted at trial.