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Wind farm operator suffering significant uncompensatable losses arising from stay on planning permission
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High Court, in planning and development judicial review proceedings, grants application by the operator of a wind farm (notice party) to remove a stay, pending the determination of proceedings, placed on its 'substitute consent' planning permission previously granted to it by the planning board, on the grounds that the greater risk of injustice lies in the continuation of the stay where the wind farm operator is suffering continued significant uncompensatable losses arising from the effects of the stay, and the decision of the planning board retains, at this juncture, a presumption of validity in favour of the planning permission previously granted.
Judicial review - application to remove stay placed on operation of wind farm pending determination of proceedings - stay granted at leave stage by High Court (Noonan J.) - decision by planning board to grant substitute consent for wind farm turbines of notice party - chronology of planning process from initial grant of planning permission in 2001 - onus of proof on applicants to establish that stay should be continued until determination of proceedings - test to be applied on whether to grant a stay in judicial review proceedings - balance of convenience - greater risk of injustice - applicant's family life adversely effected by operation of wind farm turbines - detrimental effect on applicant's stated faith in regulatory and justice systems - protection of status quo - significant adverse financial effects of continuation of stay - nature of noise pollution and the measures put in place to avert same - no undertaking as to damages granted by applicants - presumption of validity in board's decision - no works to be carried out if stay lifted - arguable case established by applicants - grant of substitute consent is prima facie valid, factor to be weighed by court - 'all due weight to consequences' for notice party if applicant unsuccessful in proceedings - applicants do not intend to return to family home near site until proceedings finalised - very nature of 'substituted consent' - significant ongoing uncompensatable loss of revenue as a direct result of stay - greater risk lies in continuing stay - damages not available to notice party - applicants' failure to discharge onus of proving the greater risk of injustice lies in lifting stay - notice party has established the greater risk of injustice lies in leaving stay in place - stay to be lifted pending determination of proceedings.
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