THE COURT OF Appeal has found that planning deviations render an entire wind farm development “unauthorised” and has upheld an order secured by Donegal County Council stopping works at the site, where a bog slide occurred four years ago. 

The court ruled today that the appeal brought by Planree Limited and Mid Cork Electrical Limited against restraints imposed on them by the local authority preventing further development was to be “wholly dismissed”.

Last April, the council secured the High Court order under Section 160 of the Planning and Development Act 2000, prohibiting further development of the wind farm at Meenbog, Cashelnavean, Co Donegal, that was the subject of a large bog slide with “significant environmental consequences”.

Mr Justice David Holland’s order restrained the appellants from finishing their “largely complete” 19-turbine project on primarily blanket bog at Cashelnavean.

The judge said the companies also agreed to apply to An Bord Pleanála for ‘substitute consent’ – to regularise the status of what were “multiple” deviations from the planning permission – but had argued that this could take some years given processing backlogs.

The judge said the parties agreed the wind farm works caused or at least contributed to the occurrence of the bog slide but that those ground works conformed with permissions granted. Both sides agreed there was no evidence that the slide was caused by the developers’ negligence or the planning deviations, he said.

The developers submitted that between 90 and 95 per cent of the groundworks were complete, with turbine and rotor installation the primary outstanding works.

The companies appealed the order halting further development, arguing that they should be allowed to complete the remaining authorised elements of the farm and to operate it, pending the board’s decision on their substitute consent application.

In the Court of Appeal judgment delivered today, Ms Justice Nuala Butler said Planree and Mid-Cork Electrical had come to accept there were “multiple deviations” from their planning permission for the site.

The judge said that an issue in the appeal was the extent to which the portion of the development built in conformity with the permission could remain authorised, separately from the presence of unauthorised elements in the overall development.

Ms Justice Butler said that in her view the existence of the unauthorised works “renders the development, in its entirety, unauthorised”.

The judge said the farm, as constructed, is an unauthorised structure, as the planning permission “does not authorise what is currently in situ on the ground”.

“There may be exceptional cases where a developer can clearly demonstrate that the unauthorised works are severable from the balance of the development but this is manifestly not such a case,” said the judge.

The judge said the appellants claimed that there was a risk of insolvency if they were not permitted to proceed with even a limited form of the development and that they relied on the importance of State policy regarding the generation of renewable energy.

Ms Justice Butler said the developers’ argument that in the absence of planning permission it would lose its eligibility for a Refit scheme, upon which they depended to secure a return on their investment, “no detail, or evidence” had been provided supporting the claimed insolvency risk.

The judge said that for an appeal against the High Court decision to be made in the appellants’ favour, “a real injustice” must be shown but this had not been done in this case.

The judge said she would “dismiss the appeal on all grounds” and uphold the High Court decision.

The judge said that because the appellants had been “wholly unsuccessful” in the appeal, it seemed appropriate to her to order costs in favour of the council, but granted permission for written submissions in objection.

The judge said it was not appropriate that the court comment on the substitute consent application which was before An Bord Pleanála for determination.