The Supreme Court has agreed to hear a claim that certain parts of a Co Waterford-based wind farm as built were not authorised by its planning permission and it amounts to an unauthorised development.
The appeal concerns the operation of an 11-turbine wind farm at Ballyduff in Co Waterford by Barranafaddock Sustainable Electricity Limited.
The proceedings have been brought by local residents, who claim the wind farm amounts to an unauthorised development and should be shut down.
A panel of three Supreme Court judges agreed to hear the appeal after finding that the action raised issues of general public importance that require clarification from the court.
The operator secured planning permission from Waterford City and County Council to operate the wind farm in 2011.
In its application the operator said the turbines were to have a rotor blade diameter of 90 metres.
In 2013 the operators’ consultants made a submission to the planning authority to modify the heights of three turbine hubs and increase the rotor blades from 90 to 103 metres in diameter.
The tip heights on the turbines remained the same height as included in the 2011 permission.
It is claimed that in reply to the submission, the local authority sent a letter to the operator stating “noted and agreed” but did not give express acknowledgement that the council had agreed to the rotor diameter increase.
The turbines were built and became operational in 2015.
Following complaints by the residents, the council referred the matter to An Bord Pleanála.
The board held that the increase in diameter was not exempted development and did not come within the scope of the planning permission granted.
The local residents brought High Court proceedings seeking to restrain the operation of the turbines on he grounds they constituted unauthorised development.
Mr Justice Garrett Simons held that some of the turbines as built were not authorised by planning permission and made an order restraining the use of said turbines.
Court of Appeal
That decision was appealed by the operator to the Court of Appeal (COA) which found in the company’s favour.
Arising out of the COA’s decision, the residents applied to have matters that they claim are of public importance raised in the proceedings determined by the Supreme Court.
The application to the Supreme Court was opposed by the wind farm operator.
In a written determination, a three-judge Supreme Court, comprised of Ms Justice Iseult O'Malley, Ms Justice Marie Baker and Mr Justice Seamus Woulfe, said the action raised matters of public interest regarding aspects of planning laws.
It was in the public interest to obtain further clarity on these matters, the court ruled.