Facts
The neighbour asked the Court to order that the wind farm be dismantled because the wind farm was not built in accordance with the planning permission in terms of the number, height and location of the turbines. He lived a kilometre away from the wind farm and admitted that the wind farm did not affect the enjoyment of his home, because there were intervening woodlands. However, he claimed that the wind farm impinged on his enjoyment of his surrounding farmland and the rural neighbourhood generally. Also, the fact that the wind farm caused distress to his neighbours concerned him greatly.
In response, the developer argued that the deviations from the planning permission were minor and immaterial. In each case, the developer had sought the approval of Cork County Council to the changes, which the Council gave. Some of the changes were due to the improvements in turbine technology, others due to the ground conditions on the site. The Council permitted the turbines to be moved by up to 20 metres. The developer argued that the turbines were substantially in accordance with the permission granted, and were therefore not an unauthorised development.
The Judge's decision
The Court was of the view that it was a "very significant feature of the present case" that the deviations from the permission had been cleared before the developer took any steps to install turbines. Mr Justice Peart said that: "The planning authority itself gave the [developer] the 'green light' so to speak, to proceed as they intended."
The Judge held that the conduct of the developer could not be criticised. The developer consulted the planning authority, and in so far as it needed or wished to deviate from the permission, it consulted in advance and achieved the agreement of the authority before proceeding. In these circumstances, the Court held that it would be manifestly unjust "to have the draconian machinery of [a planning injunction] brought into force against a person who behaved in good faith throughout".
Lessons
There were several other legal challenges to this wind farm, but it survived this one. The lesson for developers is to ensure that any deviations are considered and accepted by the relevant planning authority before the changes are implemented.
William Bailey v Kilvinane Wind Farm Limited, 27 September 2013, Mr Justice Peart
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