The Supreme Court has put a conditional stay on an order overturning permission for a wind farm development in Co Cork.

The stay applies until An Bord Pleanála has decided the developer's application for a substitute planning consent, made after the court found an earlier permission from the board was invalid.

The stay is conditional on the developer not carrying out any further works on the development pending the board’s decision.

Because the invalidity of the permission and need for the substitute consent application was “entirely due to a flawed procedure adopted by the board”, there was a strong case for expediting the substitute consent procedure so far as possible, Mr Justice Donal O’Donnell said.

Klaus Balz and Hanna Heubach brought the judicial review challenge over their concerns about the impact of the proposed 11-turbine development by Cleanrath Wind Farm Ltd close to their home at Bear na Gaoithe, where they operate a horticultural business.

Noise impact

Last December, a five-judge Supreme Court found the board’s permission was invalid because the board had erred in failing to consider submissions from the couple concerning developing knowledge about noise impact from turbines. The couple had argued the Wind Energy Development Guidelines 2006 were out of date and their revision had been proposed in a 2013 consultation document of the Department of the Environment.

The Supreme Court held that an evidence-based submission that statutory guidelines still in force were out of date was not an irrelevant planning consideration and the board should have addressed that submission and given reasons for not accepting it.

After that judgment, the matter was adjourned to allow the sides make submissions on consequential orders, including whether the matter should be remitted to the board for reconsideration.

Cleanrath opposed remittal and instead applied immediately to the board for leave to seek substitute consent for the development. A decision on that application was anticipated early this month but may be delayed by the Covid-19 pandemic.

Judgment

Having heard submissions during a remote hearing on April 24th on consequential orders, the court ruled on those and, in a judgment delivered electronically on Monday, gave its reasons for its ruling.

Giving the judgment, Mr Justice O’Donnell noted the sides clashed over whether the court should grant stays on an order quashing permission and on works to progress the development.

The developer had provided “limited” evidence to support its claims that refusing a stay on the finding the permission was invalid would have “catastrophic” consequences for its eligibility for the State’s Refit2 support scheme for renewable-energy generation, he said.

While the developer was undoubtedly frustrated after two permissions of the board had been overturned, wind farms are substantial developments, he said. “Substantial enterprises should be expected to respect the adjudications of the court.”