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Developer precluded from “reagitating” argument that wind turbines were authorised by planning permission
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High Court grants an order restraining the operation of wind turbines for the time being but does not make an order for their removal, on the grounds that: (a) the declaration by An Bord Pleanála that the alterations to the turbine do not come within the scope of the planning permission precludes the respondent from reagitating the argument that the as built wind turbines are authorised by the 2011 planning permission; (b) the narrow interpretation which the court was invited to give to the declaration by the respondent was entirely artificial and would have been contrary to the well-established principles governing the interpretation of planning decisions; (c) the declaration made by An Bord Pleanála should be treated as binding on the respondent, and as conclusive of the question of whether or not the as built wind turbines come within the scope of the 2011 planning permission; (d) even if the Court was incorrect as to the binding nature of the declaration, there was a material deviation in the as built wind turbine when compared to the proposed turbine and consequently there was a requirement for an application for planning permission; (e) the decision-letter cannot be read as “agreeing” to an increase in rotor diameter in circumstances where the respondent did not expressly request agreement to this increase; (f) the decision-letter could not have agreed to the increase as no environmental impact assessment or screening process was carried out; and (g) the respondent should be afforded an opportunity to regularise the planning status of the wind turbines.
Application for a "planning injunction" - Section 160 of the Planning and Development Act 2000 ("PDA 2000) - s. 5 of the PDA 2000 - the respondent is the operator of a wind farm - relevant planning permission had authorised the erection of wind turbines of a particular scale and dimension - wind turbines of a different scale and dimensions were erected instead with the rotor blade diameter being increased from 90 metres to 103 metres - it was a condition of the planning permission that the development would be carried out in accordance with the plans and particulars lodged with the application as amended on various dates - An Bord Pleanála made a declaration pursuant to s.5 of the PDA 2000 that the effect of the alterations to the turbine do not come within the scope of the planning permission - An Bord Pleanála decided that the deviation from the permitted blade length was development and not exempted development - this determination was not challenged by the respondent by way of judicial review - an enforcement notice was issued in March 2019 - the respondent instituted separate judicial review proceedings to challenge the validity of the enforcement notice - in January 2019 the respondent applied for leave to apply for substitute consent - An Bord Pleanála refused leave to apply in August 2019 on the basis that it was not necessary to obtain substitute consent - the validity of this decision was challenged by the respondent and another party in separate judicial review proceedings - An Bord Pleanála is not opposing those judicial review proceedings on the very narrow ground that the Board’s records of the decision-making process are inadequate whether the change in turbine type represents unauthorised development - whether the finding by An Bord Pleanála that the increase in the length of the rotor blades does not come within the scope of the planning permission granted is binding on the parties - whether the s. 5 declaration give rise to a form of issue estoppel which precludes the respondent from reagitating the argument which it had lost before An Bord Pleanála to the effect that the deviations are within the scope of the planning permission - whether the as built turbines come within the scope of the planning permission - whether An Bord Pleanála had authorised the change to the wind turbine by allegedly agreeing to compliance in its decision letter - which factors are relevant to the exercise of the court’s discretion - the respondent should be given an opportunity to regularise the planning status of the wind turbines - an order restraining the operation of the wind turbines granted - the respondent given liberty to apply, on seven days’ notice to the applicants, to have this order vacated in the event that An Bord Pleanála makes a decision to grant leave to apply for substitute consent.
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