When Is A Wind Turbine In The Right Place At The Right Height?

M
Matheson

Contributor

Established in 1825 in Dublin, Ireland and with offices in Cork, London, New York, Palo Alto and San Francisco, more than 700 people work across Matheson’s six offices, including 96 partners and tax principals and over 470 legal and tax professionals. Matheson services the legal needs of internationally focused companies and financial institutions doing business in and from Ireland. Our clients include over half of the world’s 50 largest banks, 6 of the world’s 10 largest asset managers, 7 of the top 10 global technology brands and we have advised the majority of the Fortune 100.
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.
Ireland Real Estate and Construction

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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More