ESB planning application to cost State €15,000 per day

Taxpayers must fund €15,000 a day in fines to the EU while State company ESB proceeds with a planning application that may no longer be legally valid, it has emerged.

ESB confirmed yesterday that it intended seeking substitute consent – a form of planning retention – for Derrybrien wind farm in Co Galway, even though the Supreme Court ruled earlier this month that substitute consent was invalid under EU environmental law.

An ESB statement said that in June, Galway County Council had directed it to seek substitute consent for Derrybrien from An Bord Pleanála. Consequently, it is proceeding with this application. The State energy company did not comment on the Supreme Court finding.

The State faces fines of €15,000 a day to the EU as ESB did not complete an environmental impact assessment for Derrybrien when it sought planning permission for the wind farm at the beginning of the century.

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The Department of Housing, Planning and Local Government paid a €5 million fine to Brussels following the EU Court of Justice ruling on this issue in November last year.

This found that the State had failed to comply with the original European court ruling in 2008 that the Republic had failed in its obligations under EU law by not requiring the ESB to carry out an environmental impact assessment of Derrybrien.

The department confirmed that the fines continue to mount at the rate of €15,000 a day or €5.475 million a year.

It also said that that the EU could shortly issue a demand for whatever sum is due to date if it finds that the State has not yet complied with the European court’s November ruling. “No notification letter for the daily fine [€15,000] has yet been received,” the department said.

It noted that complying with the EU court ruling required the ESB to get substitute consent and said that officials were studying the implications of the Supreme Court ruling for this process.

Its statement also noted that Covid-19 had slowed work on this, while the ESB had to address issues raised by individuals with rights to cut turf on the Derrybrien site, before submitting its application to An Bord Pleanála.

Substitute consent allows organisations, “in exceptional circumstances”, to retrospectively seek permission from An Bord Pleanála for projects that should have had their environmental impact assessed before getting planning.

Friends of the Irish Environment argued this week that the 20-year-old law creating substitute consent in the first place had left the State facing millions of euro in fines.

A landslide during the construction of Derrybrien wind farm in 2003 sent tonnes of peat sliding into a nearby river, killing an estimated 50,000 fish and damaging an area of special conservation.