The High Court has lifted a stay that had prevented the operator of a three-turbine wind farm in County Cork from operating it while a judicial review proceeds against An Bord Pleanála’s grant of substitute consent.
In a judgment delivered on 24 July 2017, Ms Justice Costello said the applicants, Claire O’Brien and Patrick O’Brien, had not shown that the stay should remain in place. She concluded that the greatest risk of injustice lay in continuing it. The ruling concerned only the interim stay; it did not decide the merits of the judicial review or uphold the Board’s decision against challenge.
An Bord Pleanála granted substitute consent on 2 March 2017 for the wind farm as built, including the dimensions and locations of three existing turbines at Kilvinane. The consent treated the development as authorised, subject to its conditions. The O’Briens obtained a stay when they were granted leave to seek judicial review in April 2017. The wind farm operator, Leonard Draper, then applied to have that stay lifted.
The O’Briens said turbine noise had disturbed their sleep and affected their family’s health and wellbeing. They had moved from their family home in February 2015 and continued to live about 1.5 kilometres from the nearest turbine. They said noise still affected them at their home and farm, and that operating the turbines would renew those problems. The judge acknowledged their distress but noted that they did not intend to return to the family home while the proceedings were pending.
Draper argued that the Board had considered noise impacts and imposed a noise condition, and that lifting the stay would require no new construction. He also identified lost electricity revenue and continuing costs. The judgment recorded an average monthly electricity revenue of about €54,600, as well as a €700,000 loan personally guaranteed by Draper and his wife. The applicants disputed the evidence of financial losses.
Applying the test for interim relief in judicial review, the judge gave weight to the substitute consent’s presumption of validity, the absence of irreversible works, and the operator’s ongoing losses, which could not be recovered from the applicants. She gave no substantial weight to the wind farm’s earlier unauthorised operation, explaining that substitute consent is intended to regularise qualifying unauthorised development. She stressed that this did not mean the court condoned the earlier conduct.
The judicial review was listed for hearing on 31 October 2017. The stay was lifted pending its determination; the judgment made no final ruling on whether the substitute consent was lawful.