The Status of the Wind Energy Guidelines

windfarms-next-to-house

“I am as anxious as anybody else to have these new guidelines put in place as the current guidelines are not fit for purpose.”   (Denis Naughten, Minister for Communications, Climate Change and Environment, Dail, 06/10/2016).

 

Finding space for wind farms

The wind farm applications might have slowed a bit, but they are still coming in. In a small country like Ireland, the obvious question is: where should they go? Ireland’s rural landscape is somewhat different from the ordered settlement of our European neighbours. In places like Germany, Holland and France, residences are restricted to designated settlement areas, both urban and rural. In Ireland, rural homesteads are scattered far and wide, for a variety of historical, economic and social reasons. The practical implication of this scattered rural population is that it is difficult to site a wind farm without it turning somebody’s home into a house of horrors.

 

For this reason the issue of ‘setback’ guidelines (governing the required clearance between dwelling and wind turbine) has caused a heated political debate. The wind farm developers, working hand-in-hand with their government buddies, understand that if the setback distance is increased from its current recommended limit of 500 metres, this would disqualify a large proportion of the Irish countryside as permitted sites for wind farm development. The fact that the current guidelines are still those originally released in 2006, when wind turbines were a lot smaller and less powerful than the current monsters, is proof of who is pulling the political strings in this country. This is coupled with the fact that Ireland’s renewable energy policy relies almost exclusively on wind energy. ~Which came first, the chicken or the egg?

 

What can be done? My suggestion is that we get the 2006 Guidelines discredited and disregarded for the outdated nonsense they are.

 

The 2006 Wind Energy Guidelines

The Wind Energy Guidelines were released by the Department of the Environment, Heritage and Local Government in 2006.  The beginning of the Introduction to these Guidelines (which surprisingly does not have a title page) states:

1.1 Purpose and Status of Guidelines

These Guidelines offer advice to planning authorities on planning for wind energy through the development plan process and in determining applications for planning permission. The guidelines are also intended to ensure a consistency of approach throughout the country in the identification of suitable locations for wind energy development and the treatment of planning applications for wind energy developments. They should also be of assistance to developers and the wider public in considering wind energy development.

The Department originally issued guidelines in September 1996 to planning authorities on wind energy development. These guidelines supersede the 1996 guidelines and are one of a series of guidelines aimed at assisting planning authorities in the exercise of their functions

The Minister of the Environment, Heritage and Local Government issues these guidelines under Section 28 of the Planning and Development Act, 2000,”.

 

Section 28 of the Planning and Development Acts 2000-2015 (the “PDA 2000 Act”) provides:

“The Minister may, at any time, issue guidelines to planning authorities regarding any of their functions under this Act and planning authorities shall have regard to those guidelines in the performance of their functions.” (my emphasis).

 

In other words, when the council first considers an application for planning permission for a windfarm, and when the ABP consider an appeal against the granting or refusal of that planning permission, they must both “have regard to” the Wind Energy Guidelines.

 

 

The Quasi-Judicial Role of the ABP

 

When performing this function the ABP is performing as a quasi-judicial tribunal, bound by the principles of natural justice, or the broader and more flexible principle of “fairness”.

The so-called First Principle of Natural Justice is audi alteram partem and translates to mean ‘hear the other side’ or ‘let the other side be heard’. Essentially it means that both sides of a dispute must be given equal opportunity to present their version of events or, in the administrative sense, it means that if an administrative decision is to be made which in some way affects your rights, you should be allowed to make representations to the decision maker before the decision is made, and the decision maker must consider your representations before making their decision.

Although tribunals like the ABP are not as strictly governed by procedure as a court of law would be, they cannot be unfair to the people that make representations to it. Everybody must be given a fair opportunity to state their case, and the ABP must consider those representations properly and carefully.

There should therefore be nothing to stop a party or even an observer from leading evidence to show that the 2006 Guidelines are outdated and are also based on research that has been discredited. If the ABP insisted on following the wind energy Guidelines after hearing this evidence, their decision would be irrational and therefore open for judicial review.

 

The evidential status of the 2006 Guidelines

Is it possible for the ABP to argue that they must obey the Wind Energy Guidelines?

Guidelines were included for the first time in the definition of ‘statutory instrument’ in the Interpretation section of the 2005 Interpretation Act. With reference to this, Dodd has the following to say:

“A guideline is a statement or other indication of policy or procedure the purpose of which is to influence or control a particular course of action. The ordinary meaning of guideline has a non-binding connotation – its purpose is to guide, as opposed to direct, the person at whom it is aimed.”

(Dodd, D. Statutory Interpretation in Ireland (2008) Tottel Publishing, Dublin, at 11).

 

In the body of the 2006 Guidelines the following introduction appears:

“Guidelines offer advice to planning authorities on planning for wind energy through the development plan process and in determining applications for planning permission. The guidelines are also intended to ensure a consistency of approach throughout the country in the identification of suitable locations for wind energy development and the treatment of planning applications for wind energy developments. They should also be of assistance to developers and the wider public in considering wind energy development.

The Department originally issued guidelines in September 1996 to planning authorities on wind energy development. These guidelines supersede the 1996 guidelines and are one of a series of guidelines aimed at assisting planning authorities in the exercise of their functions.

The Minister of the Environment, Heritage and Local Government issues these guidelines under Section 28 of the Planning and Development Act, 2000, which requires both planning authorities and An Bord Pleanála to have regard to them in the performance of their functions. Planning authorities are also required under Section 28 to make copies of the guidelines available for inspection by members of the public.”

 

Given the nature and content of the language used, I do not think that anyone can seriously argue that the Wind Energy Guidelines are mandatory and must be followed.

 

The phrase “have regard to” contained in the PDA 2000 Act, with reference to ministerial guidelines, has been considered a number of times by our courts, with uniform results.

 

In McEvoy v Meath County Council [2003] 1 I.R. 208, the High Court held that  guidelines are not binding, and that planning authorities were free to depart from  guidelines for “bona fide planning and development reasons”

 

I would argue that the avoidance of the distress and ill-health caused to occupants of a home that is situated near a wind farm is a bona fide planning and development reason.

 

Another High Court judgment that came out in the same year as McEvoy was Evans vs ABP. (Unreported, HC, 7 November, 2003), where it was argued that the ABP “did not take adequate account of government policy on housing density” as set out in the applicable ministerial guidelines.

Kearns J. followed the reasoning of the McEvoy judgment:

“… I accept the respondent’s submission that non-recitation of Guidelines in the reasons does not mean that proper consideration was not given to the   Guidelines… [T]he phrase, ‘have regard to’ in a planning context is permissive in nature and creates an obligation to consider something rather than to follow or slavishly adhere to something. The statutory obligation to ‘have regard to’ means precisely that, no more and no less In the present case I would also find that and hold that the applicant has not produced any evidence that the respondent failed to have regard to the Guidelines and there does not appear to me to be any substance in this part of the applicant’s challenge”.

 

The challenges in both the McEvoy and Evans cases were the fact that the planning authority had in some way deviated from the ministerial guidelines. What is relevant to this discussion is that the court confirmed that the phrase “have regard to”, means exactly that: the guidelines must be considered, but not necessarily followed, when to do so would not amount to good planning and development policy.

 

Brophy v An Bord Pleanála [2015] IEHC 433.also dealt with the situation of a County Development Plan not following ministerial guidelines. Here the High Court went even further, saying that the provisions of a County Development Plan blew the guidelines out of the water:

“I consider however, that in the case of a conflict between the general provisioins contained in relevant guidelines and a specific provision contained in a planning policy, that the latter must prevail.”

 

Finally, the judgment of O’Grianna v An Bord Pleanála [2014] IEHC 632 is famous for its finding on “project splitting”, but the applicants also sought, less successfully, to overturn a decision of the ABP to dismiss their appeal against the decision of the local authority to grant permission for the erection of wind turbines near the applicants’ residences. This case was not about the County Development Plan, and the court concentrated on the Wind energy Guidelines themselves, as opposed to comparing them with the CDP. Most importantly, one aspect of that case dealt with the consideration by the inspector in his report (which the ABP adopted) of the 2006 Wind Energy Guidelines (in respect of noise emitted by windfarms).

 

The High Court followed the reasoning in McEvoy by holding that the ABP did not have to “slavishly follow” the guidelines. In other words, the Court recognised that planning authorities should be allowed the flexibility to depart from the guidelines in the interests of good planning. The court confirmed that the failure to follow the guidelines to the letter did not constitute a material departure from the guidelines.

 

 

The issue of controverting evidence

In the law of evidence we talk about the “weight” or “probative value” of evidence. This is a fancy way of asking how good is that evidence in the sense of helping to discover the truth. If the weight of evidence is high, it is valuable and useful as a means of discovering the facts and the truth of the matter. If the weight is low, that evidence is useless and should be disregarded.

 

Punch and James have recently conducted exhaustive research into the area of wind turbines and their impact on human health, in a mammoth effort that is easily the most comprehensive and methodologically sound body of research in this area.

 

They conclude that current setback distances are woefully inadequate:

“Most ordinances specify a distance of twice the base-to-blade tip height, roughly 900 feet, while others arbitrarily specify slightly longer distances such as 1,500 feet or 0.5 km. Most of the reported health symptoms have been observed at distances much greater than these setback distances. One can deduce, therefore, that setbacks intended to protect physical health from mechanical or other traumatic failure of a wind turbine component are not adequate to protect general health and well-being.

While terrain, weather patterns, number and size of turbines, and the turbine array itself can influence the ILFN emitted from IWTs, the two major factors are turbine size and distance from the receiver. Distance is the only practical means of achieving acceptable sound levels, as controlling the noise through the erection of barriers or enclosures near the source or receiver are not feasible or effective. Because infrasound is involved, closing windows, insulating buildings (including residences), and sleeping in basements are not normally helpful in attenuating the noise, and there is less likelihood that the emissions will be masked by wind at ground level.” (at page 27)

 

What this means is that there is now a large body of expert evidence, with a very high “weight”, that the current setback distance of 500 metres, as contained in the 2006 Wind Energy Guidelines, is totally inadequate to protect residents and their occupants from serious physical harm in the event of mechanical failure and its aftermath (fire or shredding) and from psychological / mental harm through loss of sleep, dizziness and migraines, to name but a few of the symptoms that have been exhaustively recorded by the authors.

 

Given the strength of the research mentioned above, coupled with the fact that the 2006 Guidelines are based on outdated and now largely discredited research: for example, Dr. Sarah Laurie has trashed most of the Australian research that the Irish government keeps trotting out.

 

 

Grounds for review

One of the grounds to take ABP on judicial review is “unreasonableness or irrationality” (which is a nice way of saying only a mad person could have made that decision|).

 

It is a tough one to prove, as the courts do not like to call people mad, and the so-called ‘Wednesbury Test’ of unreasonableness or irrationality demands that the challenged decision ‘flies in the face of fundamental reason and common sense’.

 

However, if you read the judgment that created the test, the original test was formulated as follows:

“It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223).

In other words, one should disregard that which has little or no weight /probative value, whilst one must take into account that which has high weight /probative value.

 

To have the right to reverse an ABP decision, the High Court would have to find that the ABP, when it made its decision, took into account factors that ought not to have been taken into account, or failed to take into account factors that ought to have been taken into account, or the decision was so unreasonable that no reasonable authority would ever consider imposing it.

 

Surely this test is fulfilled if the ABP simply follow the 2006 Wind Energy Guidelines, and ignore the compelling evidence that the 2006 Guidelines are useless and no longer fit for purpose, when even a fool can see that the wind farm is too close to people’s homes?

 

I would argue that ABP must ‘have regard to’ the 2006 Wind Energy Guidelines, declare them worthless and not worth the paper they are written on, and put them into the bin. Any other decision is surely a sign of madness.

 

If the ABP reject the 2006 Wind Energy guidelines, this will give the government the kick up the arse it needs to publish new, and fair, guidelines or perhaps even actual legislation.

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.
This entry was posted in Academic Research; Peer-Review Process; Medical Journals, An Bord Pleanala; appeal; interested parties, Dr Sarah Laurie; Steve Cooper; Bob McMurtry; Alun Evans, EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, Framore Limited, Green Party; Ireland; Eamonn Ryan; Cormac Manning, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Ministerial Responsibility; Liability; Negligence; cardiovascular, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten, Wind Turbine Syndrome; Professor Alun Evans and tagged , , , , , , , , , , , , , . Bookmark the permalink.

5 Responses to The Status of the Wind Energy Guidelines

  1. corcglas says:

    Minutes of Council Meeting
    Cork County Council
    12 September 2016
    Item 22/9-1 Wind Farms Guidelines
    Proposed by Councillor D. O’Grady, Seconded by Councillor M. Mullane

    Resolved:
    “That this Council calls on Minister Coveney to:
    (a) issue fresh draft guidelines on wind farms that reflect recent international best practice as enforced in Germany and Poland;
    (b) hold a public consultation on these guidelines, and,
    (c) enact enabling legislation that includes set back distance of ten times the tip height for wind turbines.”

    Members made the following points:-
    • The height of wind turbines is increasing;
    • There needs to be a revision of the guidelines taking into account best international practice;
    • There should be a set back distance of ten times the tip height of wind turbines;
    • This should be discussed by the Planning SPC;
    • Set back distance is determined by height of pylon;
    • County Development Plan is only giving us areas where turbines are allowed;
    • 40% renewable energy needs to be produced by 2020;
    • Communities need to be included.

    The Chief Executive said that the Council’s Development Plan recognises national Guidelines, therefore this is a national issue. It was agreed to write to the Minister.

  2. Pat Swords says:

    Neil – Good points above: One could also present this argument from a different perspective well established in EU law, which has interesting parallels. We all see the ‘CE mark’ around us, which is a declaration that the product, such as machinery, complies with the applicable EU Directives. This is a tiered approach; at the top are the ‘essential health and safety requirements’ defined in the Directives applicable to that product. Such as for machinery – ‘essential health and safety requirements’, which specify that the machinery must be stable and doesn’t restart in a dangerous manner after a power cut. At the next level are the standards produced by the European Standard organisations to provide all the technical information on how one designs and installs the machinery such that it is stable, doesn’t restart in a dangerous manner, etc.

    However, standards support, while regulations rule. This is a key principle, the manufacturer is free to come up with alternative solutions, provided he meets an equivalent level of safety. However, some of these standards are specifically harmonised to the relevant ‘essential health and safety requirements’ of the Directive. If you follow their technical guidance, there is a ‘presumption of conformity’, i.e. you don’t have to do more to demonstrate compliance.

    The ultimately goal, and the Manufacturer’s legal obligation, is that he meets ‘State of the Art’: As the Recital (introduction) to the Machinery Directive explains:

    • The essential health and safety requirements should be satisfied in order to ensure that machinery is safe; these requirements should be applied with discernment to take account of the state of the art at the time of construction and of technical and economic requirements.

    The EU Commission’s guidance on the Machinery Directive then explains:

    • The notion of “the state of the art” is not defined in the Machinery Directive; however it is clear from Recital 14 that the notion of ‘the state of the art’ includes both a technical and an economic aspect. In order to correspond to the state of the art, the technical solutions adopted to fulfil the Essential Health and Safety Requirements (EHSRs) must employ the most effective technical means that are available at the time for a cost which is reasonable taking account of the total cost of the category of machinery concerned and the risk reduction required.

    In essence there is a nice balance to be achieved between ‘gain’ when it goes well and ‘potential pain’ if it goes wrong – the classic balancing of relative merits. So if we go back to planning in Ireland, the legal obligation on the authority making the decision is repeatedly stated in the Planning and Development Acts as: ‘Proper Planning and Sustainable Development’. However, this is not defined anywhere in Irish legislation nor as far as I’m aware is it defined in any ‘case law’.

    So for both machinery and planning, we have these respective legal concepts to be complied with, i.e. ‘state of the art’ and ‘proper planning and sustainable development’. For machinery, harmonised standards support the demonstration of compliance and the justification for a manufacturer affixing the CE mark, while for planning, guidelines support the validity of the decision. So what happens when a standard goes ‘out of date’; well the same EU Commission’s guidance on the Machinery Directive makes it clear:

    • “Ageing” of a standard: Presumption of conformity granted to machinery complying with harmonized European standards can prove delicate if a standard becomes obsolete. If a manufacturer is clearly aware of this obsolescence, we can only encourage him to depart from the standard and be guided by the state of the art and good engineering practice in his industry.

    So now things are getting interesting! Does ‘proper planning and sustainable development’ have the equivalent of machinery’s ‘essential health and safety requirements’? Well of course it does, it just so happens that our Irish legislator has, guess what, chosen to define diddly squat in this regard.

    However, things are different in European environmental law, which in many respects flows from UNECE Treaty provisions. So of course compliance with the ‘Environmental Impact Assessment (EIA)’ Directive is one such planning related ‘essential requirement’. Then if a project is part of a much bigger plan / programme, there is a requirement at that level for ‘Strategic Environmental Assessment (SEA)’, while running through all of these is the principle of effective public participation. In particular, how public participation has to flow through a ‘tiered decision-making’ process, starting at the plan / programme level and moving through to the later project level. As Neil points out, there is a clear principle that ‘both sides be heard and adjudicated on’. As to how this should happen in practice, the excellent UNECE Maastricht Recommendations advise:

    http://www.unece.org/index.php?id=41803

    So what happens if somebody tries to bypass one of these ‘essential requirements’ of EU planning law and bring in arbitrary planing guidelines, lacking in proper analysis and effective public participation (sounds familiar)? Belgium is divided into Flanders and French speaking Wallonia. The Wallonia administration tried to bring in new wind energy guidelines dealing with noise, etc. The wind group there affiliated to EPAW took them to Court, it ended up in the highest Belgian Court, who referred it to the European Court of Justice (ECJ). In the ECJ an Advocate General reviews the documentation and issues a ‘legal opinion’, which rarely differs to what the actual trial judges later decide. So this ‘legal opinion’ from Advocate General Kokott is out and the final decision is imminent. Note: She is a lady judge not to be trifled with:

    http://www.julianekokott.de/index.php/en/curriculum-vitae

    As usual her legal opinions are very clear and precise:

    http://curia.europa.eu/juris/document/document.jsf?text=&docid=181661&doclang=EN

    “55. Moreover, restricting the application of the SEA Directive to measures embodying a comprehensive and coherent approach would encourage authorities to circumvent the obligation to carry out an assessment by splitting such comprehensive measures into a number of part measures each of which, considered in isolation, would not be comprehensive and would not therefore require an assessment. As the Commission submits, however, the Court has already rejected such practices aimed at circumventing the EIA Directive. (30) That position must also apply in relation to the SEA Directive.”

    In other words, you can’t bypass the ‘essential requirements’ of EU planning law by coming up with arbitrary ‘guidelines’, you have to follow the defined procedures. As she then advised, as to how the ECJ should conclude, with respect to the referral from the Conseil d’État (Council of State, Belgium)):

    “An order containing various provisions on the installation of wind turbines, including measures on safety, inspection, site restoration and financial collateral as well as noise levels set by reference to town and country planning zones, which prescribe at least part of the framework for the grant of administrative development consents for installations referred to in Annex II(3)(i) to Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment must be classified as a ‘plan or programme’ within the meaning of Directive 2001/42.”

    In other words, if you want to have guidelines to be used for prescribing elements of downstream planning decisions, then they have to go through the proper Strategic Environmental Assessment procedures, with its associated public participation, before adoption. So no matter what our wonderful politicians and administrators bring up in the next few months in the way of new guidelines, they are not legally sound as they do not fulfill the requirements of ‘proper planning’. As for the existing ones, these are clearly out of date, not fit for purpose and don’t meet proper planning, not least as this Strategic Environmental Assessment should have been done years’s ago before the whole plan / programme was set rolling.

  3. Pingback: The Status of the Wind Energy Guidelines | ajmarciniak

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