Showdown at Drumhills

Ecopower Developments Limited have applied to the Waterford City/County Council to build 12 wind turbines in the area known as the Drumhills. The Planning File reference is 14600109. Already there is a flood of objections to this latest episode of government-sanctioned environmental terrorism, which includes the terrorising of local residents being forced to suffer the noise and flicker of these monsters.

The recent local elections saw Labour take a thorough beating which was a clear message from the citizens of this country that Labour were regarded as sell-outs to the ‘big-business-at-all-costs’ mentality of their Fine Gael masters. From a Waterford perspective it was more of a reaction to Minister Rabbitte and the GridLink project, and those councillors who were returned to serve on the Waterford Council were under no illusion as to the ferocity of the feelings of local residents to pylons and wind farms.

Despite that strong message from the Waterford electorate, certain councillors are now showing their true colours by claiming that they cannot reject this application by EcoPower because the County Development Plan allows the building of wind farms. Let us examine this argument put forward by these councillors before we accuse them of speaking with forked tongues.

Section 9 of the Planning and Development Act of 2000 obliges the Council to make a development plan. This is mandatory. However, there is no mention in this section as to what must go in that plan. The section simply says that in making the plan the Council “shall have regard” to certain things, and “shall take into account” other things. These words confer discretion on the Council. The Minister is mentioned in subsection 6:

“(6) A development plan shall in so far as is practicable be consistent with such national plans, policies or strategies as the Minister determines relate to proper planning and sustainable development.”

The phrase ‘in so far as is practicable’ again confers discretion on the Council to differ with national policy if they feel that this is contrary to the specific interests of the County, and the residents of the County. This has been interpreted to apply on a case-by-case basis. The development plan must be consistent with national policy as a whole but clearly the Council has discretion to differ from national policy in specified circumstances where that national policy would be harmful to the interests of the County, like building a wind farm in a visually vulnerable area for example. In other words, the Council cannot prohibit wind farms as such, but they can say where they should be located.

Section 10 of the 2000 Act deals with the content of development plans and says the Council must ensure certain things, including “the conservation and protection of the environment”, “the integration of the planning and sustainable development of the area with the social, community and cultural requirements of the area and its population” and “the preservation of the character of the landscape”. The Section does not mention that the Council is obligated to make the Minister happy or the wind industry profitable.

Sections 11 to 14 are not relevant to this discussion, but Section 15 deals with the ‘General duty of the planning authority to secure the objectives of the development plan’. In other words, can the Council be forced (by the Minister or EcoPower) to build wind farms?

In the Supreme Court decision ( see the judgment of McCarthy J.) of A-G (McGarry) v Sligo County Council [1991] 1 I.R. 99 it was considered whether, like any contract, a member of the community should be able to enforce compliance with the terms of a development plan under a type of specific performance. Can the Council be forced to carry out the contents of the development plan? The Supreme Court held that the contents of a development plan are framed in terms of “objectives”, which by nature are aspirational. In other words, they are more along the lines of a wish-list, rather than a ‘we must’ list. The fact that something is mentioned in a development plan is not a guarantee that it will be carried out.

The Court also pointed out that the phrase “within its power” can be read as a limitation on the duty, insofar as it recognizes that there might be practical reasons that a certain goal cannot be achieved – like the ruin of a famously beautiful skyline admired by thousands of tourists, for example.

The Supreme Court also held that although the Council cannot be forced to do specific things in the development plan, the duty under this section can be used to stop the Council from allowing planning permission for a development that is in material contravention of the development plan – like damaging the environment or causing extreme distress to local residents, for example.

Therefore the argument that a Council, or the individual councillors on that Council, have no choice but to simply rubber-stamp the development of wind farms is a lot of rubbish, and must be rejected with the contempt it deserves.

If a councillor votes in favour of the Drumhill wind farm, he or she is doing so because they want to, and not because they have to.

Councillors, it is time for you to stand up and be counted. It is time to reflect the wishes of the voters who put you there in the first place. In case you have forgotten, that’s called democracy.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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2 Responses to Showdown at Drumhills

  1. Pat Swords says:

    This raises an interesting issue elsewhere, in particular the Westmeath County Development Plan. As Neil knows (he assisted on it) a Communication was lodged with the UNECE Compliance Committee in respect of Ireland and the implementation of the renewable programme. A year after the Convention entered into force, namely September 2013, this became possible; the Department have their worries about such an occurrence:

    http://www.environ.ie/en/Publications/Environment/Miscellaneous/FileDownLoad,35053,en.pdf

    Anyhow the Communication was reviewed at the extremely busy Compliance Committee meeting this July and the Committee came back requesting a few clarifications in advance of its meeting later this September. In relying to those I was updating the section on Article 7 of the Convention, which dealt specifically with the Westmeath County Development Plan. The Convention requires “Each Party shall ensure that in the decision due account is taken of the outcome of the public participation”. Simple and easy to understand. Have a look at the final decision on Westmeath below:

    http://www.environ.ie/en/Publications/DevelopmentandHousing/Planning/FileDownLoad,38448,en.PDF

    God knows the amount of effort a huge number of citizens in Westmeath made in raising extremely valid matters for consideration, not least in relation to legal failures. So where does public participation feature in the above, not to mention any evidence of ‘due account’ being taken?

    So clearly an illegal act has occurred, which is the clear intention of the authorities will be carried forward into subsequent planning decisions. Order 84 of the Rules of the Superior Courts provides a facility for Judicial Review, which has to be initiated within three months from the date when grounds for the application first arose. There is no sign to date that Westmeath County Council is considering initiating a Judicial Review of what is a clear breach of the rights of its citizens.

    What’s going on here – we pay these people and that comes with a rule of laws. Clearly the Irish State, a glorified banana republic, is a State inside a State, which has nothing to do with us the lackeys who finance it. It’s a long process, but fortunately one can turn to UNECE – let’s see what happens over time.

  2. Peter Sweetman says:

    If a councillor votes in favour of the Drumhill wind farm, he or she is doing so because they want to, and not because they have to.
    The decision on a planning application is an executive function

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