BY JACKIE KEOGH
A COURT of appeal has ordered the dismantling of three wind turbines at Kilvinane, east of Dunmanway, because they are considered to be in contravention of planning permission.
Mr Justice Gerard Hogan delivered his judgment in the Court of Appeal on March 16th.
The appellant, William Henry Bailey – who lives with his family just 1km from the Kilvinane Wind Farm – brought the case after the High Court refused, in September 2013, to grant a dismantling order.
Mr Justice Gerard Hogan ruled that the appellant was entitled to an order (under the Planning and Development Act 2000) requiring the respondent, Kilvinane Wind Farm Ltd, which is the owner and operator of the wind turbines, to dismantle the three turbines because they amount to ‘an unauthorised development as their location varies from, and their dimensions exceed, that permitted by a planning permission granted by An Bord Pleanála in July 2002’.
The 2002 permission was for turbines with a hub height of 65m and rotor diameter of 57m.
However, when they were built, one of the turbines had a hub height of 55m and rotor diameter of 58m, while the other two had a hub height of 60m and rotor diameter of 90m.
And all three of the turbines were built some 20m away from the locations specified in the planning permission.
The three-judge court held that these were not trifling breaches, but had consequences in terms of visual impact and noise for people living in the immediate vicinity.
Mr Justice Gerard Hogan also held that there was a public interest in ensuring that the planning laws are adequately enforced, and that judicial failure to make mandatory orders could dilute effective enforcement.
Kilvinane Wind Farm Ltd had argued that Cork County Council was at all times fully aware of the planned modifications and, therefore, did not require a fresh planning application.
But Mr Justice Gerard Hogan said no sensible developer could reasonably suppose such deviation could be informally sanctioned.
A stay has been put on the order made by the Court of Appeal and the case has been adjourned to April 6th.