Donegal County Council has secured a High Court order prohibiting further development of a wind farm at a site that was the subject of a large bog slide that had “significant environmental consequences”.
Mr Justice David Holland’s order restrains Planree Limited and Mid-Cork Electrical from finishing their “largely complete” 19-turbine project on primarily blanket bog in Cashelnavean, Co Donegal, until further court order.
The development entities can apply to vary or discharge the order, which came in enforcement proceedings issued by the local authority, he said.
The judge said Planree and Mid-Cork Electrical came to accept multiple deviations from their 2018/2019 planning permission constitute unauthorised development. He said they have agreed to apply to An Bord Pleanála for substitute consent to regularise the status of the deviations, but argue this could take some years given processing backlogs.
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He said the parties agreed the wind farm works caused or at least contributed to the occurrence of a November 2020 bog slide but that those works conformed with permission. Both sides also agreed there is no evidence that the slide was caused by the developers’ negligence or the planning deviations, he said.
In seeking to prevent the injunction, the developers submitted that between 90 and 95 per cent of the groundworks are complete, with turbine and rotor installation the primary outstanding works. They contended they should be allowed to build out the remaining authorised elements of the wind farm and to operate it pending the board’s decision on their substitute consent application.
The companies argued the court can only injunct unauthorised parts of the development and cannot injunct the completion and operation of the project.
The council asked the court to restrain all further works until, at least, the outcome of the substitute consent process.
Mr Justice Holland preferred the council’s analysis and held that the unauthorised development at issue consists, because of 25 material deviations, of the entire wind farm and not each or all of the deviations. He also found he has jurisdiction to restrain further works pending at least pending regularisation of the planning status.
The developer contended any deviations were for practical or pragmatic reasons or better environmental protection, the judge said. In granting the developer permission to apply for substitute consent, An Bord Pleanála’s inspector said that “many of the deviations identified only came to light on forensic analysis [...] and it can be expected that similar issues would arise at other large scale development sites”.
Mr Justice Holland said the integrity of the planning and environmental law systems “weighs heaviest” in this case of all the factors in paly and favour granting the injunction. He did not see that the “undoubted public interest in wind energy” weighs “much at all” in favour of exercising his discretion against making the order.
Mr Justice Holland said the developers submitted a report of a civil and environmental engineering expert to the EPA estimating that in the November 2020 incident about 86,240m³ of peat slid, of which about 65,740m³ entered a river and ended up on nearby European-protected sites, “causing significant environmental damage”.
The facts demonstrate repeated occurrence of peat slides on the site despite due care being taken by the developers and this being a site for which previous environmental screening anticipated no such events, he said.
The slide had “significant environmental consequences”, and the developers pleaded guilty in June 2022 to the pollution of the Shruhangarve and Mourne Beg streams due to it, said the judge. The developers effected a considerable remediation programme under supervision of the Environmental Protection Agency (EPA) and Donegal County Council, he added.
The EPA and the council accepted the developers had acceptably remediated the slide and its effects, while experts hired by the developer found last October that the site and its peat are stable.
The judge said An Bord Pleanála need be in no way affected by his decision, whose purpose is to ensure that it is the board, not him, who decides the issues arising in the substitute consent application.
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