Clueless!

headuparse

Irish rural communities have been opposing wind farms, and pylons before that, for the better part of a decade. This has involved community groups gathering funds through church collections, cake sales, and the like. There are numerous tales of hardship where communities have had to beg, borrow and steal every penny they can get in order to fund a judicial review application. And yet, in November 2016, an elected “representative” in our Dail (the Irish parliament) can ask a question like this:

“I thank Dr. Kelly for her presentation and her staff for coming before the committee. There are a few things I wish to ask. I notice that An Bord Pleanála generally tries to make a decision on an application in 15 or 16 weeks. The one thing that stood out was the number of wind farm applications that were receiving refusals. I know that may be down to the court case and the court judgement, but there certainly seems to be many of them judging by the presentation Dr. Kelly made.

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Increasingly, members have residents coming to us and asking about the judicial review process. We all tell them that it is a very costly affair and that they cannot afford to deal with it. That is a big problem. Do we have a rough idea of what a judicial review costs? I know it probably depends and varies, but I would like to get a rough idea. We have had some cases in which people have been requesting it.”

What is even richer is that he asks his equally clueless colleagues rather than getting off his arse and researching the matter himself. Did he even think of leaving his constituency office and approaching the community group?

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God help us. ‘Cute hoors’ indeed. Is it any wonder that the voters have lost faith with the system and elect a Trump?

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When the Boot is on the other Foot

 

 

Section 50 of the Planning and Development Act of 2000 (PDA 2000) is possibly one of the most unpopular sections when it comes to community organisations who battle big business, particularly wind farm developers. This is due to the fact that Section 50 limits their rights of redress against bad planning decisions to judicial review only.

 

As explained in previous blogs, the grounds of review are necessarily more limited and narrow than the grounds of appeal. With a judicial review, one is not able to challenge the decision itself (the merits) – in other words, “I think you are wrong”. The applicant is limited to challenging the procedure followed in reaching that decision, as opposed to the decision itself. The only challenge that is allowed against the decision itself is on the grounds of unreasonableness or irrationality, where essentially you have to show that the decision made is so crazy that only a lunatic could have made it (the so-called “Wednesbury Test”).

 

What however is good for the goose is good for the gander. If the planning authority is successfully overturned on review, they are expected to live with that decision. Accordingly, the planning authority’s scope of appeal is extremely limited:

Section 50(f)(i) of the PDA 2000 says that the decision of the review court is final, with only an extremely limited ground for appeal:

“The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”

In other words, where a decision of An Bord Pleanala (ABP) is successfully challenged on review, ABP can only appeal that judgment to the Supreme Court if the High Court allows it to appeal. The High Court will only do that if it considers that its appeal raises points of law of “exceptional public importance”.

 

 

The facts

In the original case of Kathleen Connolly v An Bord Pleanála [2016] IEHC 322 (14 June 2016) a wind farm developer made a planning application to Clare County Council for a wind farm consisting of a number of turbines and associated works. The application was refused by the Council, and the wind farm developer appealed to ABP.

 

As is its usual procedure, the ABP appointed an inspector to prepare a report. The Clare County Council (following Kathleen Connolly’s submissions) had expressed concern about issues regarding habitat protection, the risk of water pollution, as well as issues concerning the assessment of noise and environmental effect, and the inspector was briefed accordingly.

 

The ABP also called on the developer to submit further specific information and revisions. This was by a notice issued in terms of Section 132 of the PDA 2000, which allows the ABP, in its absolute discretion, to request documents of any party to an appeal against a planning decision.

 

The wind farm developer supplied this additional information to ABP. Without giving proper reasons for its decision, and without giving the person who had successfully prevented the planning permission a proper chance to inspect these documents and formulate a reply, the ABP reversed the refusal and granted planning permission for the wind farm.

 

Judge Barrett of the High Court found against the ABP on review. The judge held that when making a decision, the ABP must provide

complete, precise and definitive findings and conclusions of a degree of specificity sufficient that a party minded to seek judicial review of such determination can turn readily to the particular observations, reasoning and conclusions contained in its decisions”.

In other words, the ABP must explain its decision and the reasons therefor in clear detail so that if a person wants to challenge that decision, they know and understand exactly what reasons they need to challenge and why. Similarly, if the ABP rely on any “particular report or text”, that report or text must be identified properly so that a challenger can read it and familiarise themselves with its contents. The ABP did not do so in this case and therefore the ABP was in contravention of ss.177V(1) and 172(1J) of the PDA 2000.

 

The ABP were clearly not happy campers, as this meant that a potentially huge wind farm was going down the drain, and so they appealed Judge Barrett’s decision. However, –  and this is where the fun starts  –  in order to be allowed to appeal, they had to convince Judge Barrett that their points of appeal raised points of law of “exceptional public importance.

 

Needless to say, they failed miserably.

 

Judge Barrett was ruthless as he destroyed ABP’s groundless arguments with surgical precision.

 

He opened his attack with a left-right combination which must have left ABP bleeding from the nose:

 

“That a point of law may relate to a matter of some private significance does not suffice to convert it into “ a point of law of exceptional public importance ”, even where the party claiming such a point to arise is a public body. Moreover, a point of law of exceptional public importance is, by its nature, not just a point of law of public importance (itself a difficult enough hurdle to jump) but of a degree of public importance that is exceptional (a still higher hurdle to be vaulted). In this last regard, the court cannot but note that in the within case it is claimed that the court’s judgment of 14th June last raises up to seven points of law of exceptional public importance; in Aherne & ors v. An Bord Pleanála & ors [2016] IEHC 536, a very recent s.50 judgment that issued while the text of the within judgment was being finalised, some six points of law of exceptional public importance were claimed to arise (all of which were rejected by the court in that case). That two judgments would be contended to raise, between them, some thirteen points of law of exceptional public importance suggests, at the very least, that there is something of a yawning chasm growing between bar and bench as to the true nature of exceptionality.”

 

Ouch!  Real meaning: “Just because it’s important to you , doesn’t necessarily make it important to anybody else. ABP, stop wasting our time”.

 

The ABP argued that Judge Barrett’s decision in Connolly contradicted a number of previous findings of the High Court. The judge dispatched that attack with a backhand slap:

 

“Far from presenting some divergence in case-law, the court expressly concluded, at para. 29 of its judgment of 14th June, that it saw nothing in, inter alia, the decision in Balz, “that would cause it to depart from or vary the reasoning applied, or conclusions reached, in this judgment” . The court remains of that view.”

 

Oooh!  Real meaning: “Did you even read those cases?

 

The ABP then asked what procedure needed to be followed when it did not agree with all or part of its Inspector’s report (which seems to be happening with increasing frequency):

“It is not entirely clear to the court that these are truly points of law; the questions seem to involve the An Bord Pleanála seeking direction as to its practices and procedures. But insofar as these questions do raise points of law as to the applicable obligations, those have been answered clearly in the court’s judgment of 14th June last. Section 172(1J) is plain in its meaning and effect; no cause for certification arises. The court will, therefore, decline to certify Questions [1] and [2].”

 

Oooff!  Real meaning: “Why are you asking me how to do your job?”

 

The ABP then asked the judge what would be the legal consequences of it carrying out an inadequate screening assessment in terms of Section 177U(6) of the PDA 2000?

“Section 177U(6) is clear in meaning and purport. It requires that An Bord Pleanála record and give notice of a positive screening for appropriate assessment. An appropriate assessment done without recording and notifying the screening determination is not done in accordance with law. Thus it does not seem to the court that there is any point of law arising: the statutory duty arising is clear, and there is an abundance of case-law on the consequences of breach of statutory duty. The court will therefore decline to certify Question [3].”

 

Ow!  Real meaning: Can you read?

 

Clearly desperate at this stage, the ABP then put forward a number of very confusing and contradictory questions, and the judge, clearly at the end of his tether, dealt with them all in one fell swoop:

 

“There is nothing uncertain about the obligations presenting for An Bord Pleanála in this regard: they are clearly set out in European law and in the decisions of Sweetman and Kelly, which were applied by the court in its judgment of 14th June. Indeed, to the extent that there is any issue arising in this regard, and the court does not consider that there is, it would arise (if it arose, and it does not) from those earlier decisions, not from the court’s decision of 14th June.”.

 

Ugh!!  Real meaning: “Now you’re just taking the piss!”

 

For too long now ABP have been making decisions without clear explanations as to what they considered in coming to their decision, and their deductive reasoning employed in reaching that decision, particularly when it appoints an inspector and then ignores his report. This judgment is a clear message from the High Court that this type of carry-on will no longer be tolerated.

 

Well done Judge Barrett. Respect!

 

 

“And it’s a left hook, a right hook, another left / right uppercut combination, and ABP is down, it’s down!”

 

“It’s all over, the ref has stopped the fight.”

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Spain anger over ‘energy poverty’ deaths

granny

An aspect of the renewable energy policy that governments choose to ignore – the rapidly increasing price of electricity and carbon fuels, with the people who need them most being unable to afford what many would regard as a fundamental necessity.

NOT A LOT OF PEOPLE KNOW THAT

By Paul Homewood

H/Ts Joe Public/Wolsten

image

http://www.bbc.co.uk/news/world-europe-38024374

From the BBC:

Spain’s economy may be recovering, but the recent deaths of a 12-year-old girl and an 81-year-old woman in house fires are reminders of the hardship that millions of households still face in the country’s deep-rooted crisis.

View original post 596 more words

Posted in EirGrid; Insurance; Law; Cancer; EMF | 1 Comment

How the Council Spends Our Money — Citizens Against Corruption

Congratulations to the Four Angry Ladies on starting this site, and asking questions that most are too scared to ask.

I would ask two more:

  1. The link between the Comeragh Community Development Group and BSB Energy has already been established. It would be interesting to know what the link between BSB Energy and the hydro station company and/or the Waterford Energy co-op company is? Do the same names appear again and again?
  2. Given that the 105000 euro was public money, did the construction job of the road go out to public tender in terms of public procurement law? For example, the documentation records that on 14 July 2014 CCDG paid Eddie Cunningham Plant Hire the sum of €7933.65. That job should have been put out to tender in terms of the public procurement for services law, or else there could be a perception by the tax-paying public that there is a danger that this becomes “jobs for the boys”.

The other legal aspect that needs to be mentioned is that bogs have recently been the subject of a new EU legal initiative.

The Climate Change Strategy recognises the role of peatland habitats as carbon stores and the significant carbon releases as a result of degradation.

In addition, the Environmental Liability Directive (2004/35/EC) is about preventing and remedying environmental damage. It aims to hold operators whose activities have caused environmental damage financially liable for remedying this damage, and it aims to hold those whose activities have caused an imminent threat of environmental damage liable for taking preventive actions. This most certainly applies to both the WCCC and the CCDG.

Finally, the National Biodiversity Plan recognises that wetlands are of special importance to biodiversity in Ireland. The biodiversity plan mentions that all significant drainage, including initial drainage and maintenance drainage, will require assessment of its implications for biodiversity, and particularly for wetlands. This most certainly applies to the ancient bog in the Mahon Falls valley.

Clearly there are laws that have been broken. The question is – who will enforce this law?

 

We all share wonderful memories of the Mahon Falls – as children going for walks with our parents, as teenagers meeting that special someone in the carpark, and until recently, as grandparents taking their grandchildren along the beautiful path to the Falls themselves. But that beauty has been badly damaged by a deep scar running […]

via How the Council Spends Our Money — Citizens Against Corruption

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Facts and Figures

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My blog yesterday aroused a huge amount of interest. People expressed shock and surprise at the news that a company cannot be forced to declare a dividend. It is not always fun being the bearer of bad news but I would rather inform my community about what they need to hear, than keep them in the dark by telling them only what they want to hear. As was said more than once at the Monday meeting: we must deal in facts and figures, not spin or hoopla.

 

The other query that I received was asking me where I got my figures concerning the Templederry wind farm that I presented in my talk on Monday. I got them from the company documents that I received from the CRO. If you want to see the whole document, click on the link below:

templederry-windfarm-limited-financial-statement-2015

 

I would like an accountant or auditor to look at the whole document and give us an easy-to-understand explanation on exactly what it means. I am not qualified to do that, and I can only show what I see, without offering any interpretation of what I see, as that is not within my expertise.

My first opinion was that the “community” wind farm was in fact owned by another holding company. The reason I said that is because that is what the CRO document said. Here is a scan of that particular section:

director-remuneration

I also said that despite the shareholders not receiving a red cent, the Directors had been paid, as they are legally entitled to be. You can see that in the above scan, and it also appears earlier in the document, on the previous page:

wages-templederry

Finally, and this was the one that upset the most people, the question of profits and their distribution to shareholders. This is the section that I showed on Monday night, and it says “profit for the year”.  I take that to mean a profit was made by the wind farm? I know that if it was a loss, it would appear in brackets. People have taken this to mean that despite the wind farm making a profit in both 2014 and 2015, the community did not receive a cent.

 

Are these people correct in their interpretation? When people asked me that on the phone, I was careful to say that I did not know, as that is not in my expertise, which is what I also said on Monday night. Again, I would ask that an accountant or auditor please write in my comments section and explain to us what this means. Were there profits of over half a million euro made by the end of 2015?

 

reconciliation-templederry

 

DISCLAIMER: I am not an accountant or auditor. I simply read what was in front of me and others have done the same. If I have somehow misinterpreted these documents, I will hold my hand up and apologise, and I will print a full retraction and apology on this blog. This is about the facts. This is not some sort of vindictive witch-hunt.

I eagerly await the comments of those more qualified than I.

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The Public Meeting in Rainbow Hall

turbines-on-copper-coast

The turnout at last night’s meeting in Rainbow Hall was huge – well over five hundred people (and we have signed lists to prove that, RTE News). The meeting ended with a very resounding, and unanimous, rejection of the proposed plans of BSB Energy to build an industrial wind farm in Waterford’s World Heritage Site, the Copper Coast.

I am unused to speaking in front of such a huge crowd, so I was very nervous, and I fluffed my lines:  I forgot to introduce myself, I forgot to establish my qualifications and credentials, and I forgot to tell people that despite being a blow-in, I love my adopted country and my community with every fibre of my person. That last remark was meant to be aimed at a particular individual but it didn’t matter as he was too spineless to attend, despite being a major investor in the scheme. I noticed that he did send his lackey to take notes.

In my presentation I was deliberately talking to the investors (standing up all along the back wall) and people who were thinking of investing in BSB Energy. Anyway, just in case these people did not quite get my message, I will repeat the main points again:

A share is a device used by companies to generate funding. You hand them your money and in return you get a share certificate to the amount of your investment. As BSB are issuing shares valued at one euro each, the maths is easy: 100 euro gets you one hundred shares, ten thousand euros gets you ten thousand shares, and so on.

This is why the concept of “free shares” is a contradiction in terms. If shares are used by a company to produce income, why would a company hand out shares without getting money in return? The answer is obvious – the company never intends on paying out dividends on those shares (or it might pay out a few cents on the shares when the complaints start getting too loud – essentially paying a little money for lots of ‘good’ publicity). Unless you can sell them to some other unfortunate, those free shares are not worth the paper they’re printed on.

For those of you who have actually bought shares, the picture is not much rosier. As you have handed over money, you have now invested in the company’s fortunes. Unlike a public company on the stock exchange, where the share value might go up or down depending on the performance of the company, in a private company like BSB the share value is a constant – it keeps its ‘face value’. The only way the ordinary shareholder will make more money is where the company pays a dividend to shareholders, otherwise your investment remains static and in fact loses its value as you are not earning interest on that amount.

What a lot of people do not realise is that a company does not have to declare a dividend. There is no law that forces them to do so, and a shareholder is not entitled to go to court to force a company to declare a dividend. It is entirely a choice of the company if, and when, they declare a dividend, and for how much. A company might be making millions but they do not have to hand over a cent to the shareholders.

I am not making that up – the law is clear:

Usher, in Company Law in Ireland (1996, Sweet and Maxwell) states at p. 87:-

“… the general meeting (of shareholders) cannot force the directors to pay an interim dividend (article 117) or to recommend a final dividend (article 116) …”

The leading Irish case on this is Ryanair v. Aer Lingus [2011] IEHC 170, where the High Court made it clear that a company cannot be forced by its shareholders to pay a dividend:

“[17] The balance sheet which goes before an annual general meeting should contain the profit and loss account, a report by the directors and the auditor’s report. Section 158 of the Companies Act 1963 requires that the directors’ report must state the amount (if any) which they recommend should be paid by way of dividend. The directors’ report for the year ended the 31st December, 2010 states:-

“The directors do not propose the payment of dividends in respect of the year ended the 31st December, 2010.”

When these words are considered in the light of s. 158 of the Act of 1963, it seems clear to me that they are a recommendation by the board to the annual general meeting that no dividends be paid in respect of that year. A dividend does not become payable unless it is declared by one of the organs of the company. While the Companies Act 1963 does not specify which organ of the company should declare a dividend, it is usual for the articles of association to provide that it is to be declared by the company in a general meeting and it is not to exceed such amount as is recommended by the directors. That is precisely what is provided for in article 111 of the articles of association. I accept the submissions of the defendant that the directors have recommended to the members that no dividend be paid and that the first of the proposed resolutions by the plaintiff seeks to circumvent article 111. This is not permissible. The company was entitled to refuse to put this resolution before the annual general meeting since it was not within the power of the members by ordinary resolution to declare a dividend which exceeded the amount recommended by the directors. In this case, the directors were recommending no dividend.”

What this means is that you might have paid a lot of money to buy a lot of shares, but if the company does not declare a dividend, your investment does not increase in value. The only way you can make a profit then is to sell your shares to some other sucker for a profit. Good luck with that – to say that the community is hostile and angry is an understatement!

The proof of the pudding is the Templederry experience. Despite being launched seventeen years ago, the community has not seen a single return on their investment. This is despite the fact that Templederry Windfarm Limited declared a profit of over half a million euro at the end of the 2015 financial year. The community (“ordinary”) shareholders of the wind farm have not received a red cent.

This was confirmed by Paul Kenny of Tipperary Energy Agency, the advisors to both the Tipperary wind farm and the proposed BSB wind farm:

“As with all windfarms, the dividends to the shareholders (in Templederry’s case, individuals and the local community co-operative), is paid after a significant portion of the loans are repaid, which has not happened yet, neither the co-operative, directors or shareholders have received any dividend, but it will commence in due course.”

There is nothing illegal in this as the company does not have to declare a dividend. But that is cold comfort to the people who were hoping for a return on their investment, or the people who have to live next to these monsters, as we heard last night.

Similarly, there is nothing illegal in the fact that the directors of the Templederry Wind Farm paid themselves a salary every year (amounting in total to 27000 euro in 2014 and 28023 euro in 2015). They are entitled to do that, but again the legality of that is cold comfort to the investor who has received nothing for seventeen years.

The next step in the process for the communities opposing the proposed BSB wind farm is their consultation on Wednesday. Please attend that session and ask all the questions about anything you need to know, and record their answers for use in your submissions to the County Council, should the need arise.

Details of these questions and other information can be found on the Mahon Valley Against Turbines Facebook page.

Just to remind people what will happen to our community if this wind farm goes ahead, I received the following from Paddy Ryan, a resident in Templederry:

This ‘new’ idea of ‘Community Windfarms’ is a really bad one. I know people around Templederry who wanted to ‘invest’ in this but were kept out of the loop because some locals wanted it all for themselves, he’s really glad now as the local people are up in arms with those who fought to get these into the area. There’s no longer the community of neighbours left and children are being sent to ‘other’ schools so that they don’t have to interact with each other because of the decisions their parents made all those years ago.
The information about these Industrial Generators wasn’t as available back then as it is now and some people used to think it was a good idea, myself included, what could be better than availing of a natural resource but there’s nothing natural about these huge monstrosities on our landscape. They’re noisy, they’re killing off wild birds in their thousands, they’re causing low-land flooding with all the cement used in the upland hills, tearing through the land, removing the wild vegetation and forestry that used to soak up the rain.
My ESB bills have doubled in the last 10 years, and now companies see the subsidies drying up so they’re pawning them off as some sort of community advantage.
These people will stop at nothing to make money and they care not one bit for the communities who are left to try to live with the consequences of their actions.
The Copper Coast is one of the most outstanding areas of natural beauty in the South East of Ireland and is only becoming recognised by our tourists. I understand people in the area need to make a living and are inclined to take advantage of every opportunity but this isn’t an opportunity for local people, this is another scam from big business.
People need to be more aware of the consequences.”

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Please Save the Copper Coast!

notice-of-meetingThe Copper Coast in County Waterford, Ireland is a UNESCO World Heritage Site of breathtaking natural beauty. It is hard to imagine that anybody would want to build an industrial wind farm right in the middle of it, but apparently such individuals do exist.

Please attend the public meeting in Rainbow Hall, Kilmacthomas, at 8.00 p.m. this evening, and tell us what you think.

And for those of you who think it offers a great financial opportunity to “make a few pound”, this is what Paul Kenny of Tipperary Energy Agency (who advise on setting up ‘community’ wind farms) had to say of the “model” community wind farm in Templederry, which was launched seventeen years ago (in 1999) and has been producing for four years (since 2012) :

“As with all windfarms, the dividends to the share holders (in Templederry’s case, individuals and the local community co-operative), is paid after a significant portion of the loans are repaid, which has not happened yet, neither the co-operative, directors or shareholders have received any dividend, but it will commence in due course.”

That is a nice way of saying that after waiting for seventeen years to see a return on their investment, the good people of Templederry have yet to see a red cent.

8.00 p.m.. Monday 14 November 2016 (today)

Rainbow Hall, Kilmacthomas, County Waterford.

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Enough Already!!!

me

 

A certain individual has been going around my community spreading particularly malicious rumours about me. For a while it was a pathetic joke, but it has to stop now.

 

One of the malicious lies being spread by this individual is that I have been behind a number of personal attacks on the Facebook page of Comeragh Against Pylons. I resigned as the CAP page administrator in October 2015 and anyone who says otherwise is a liar. The fact that this individual was present at the meeting at which I resigned, and that he was present when another committee member was appointed to replace me, is a puzzle to me. The CAP page very kindly publishes my blog when I submit it to them, but apart from that, I have been concentrating my energies elsewhere, fighting the wind industry and their cronies.

 

One of the things I have been involved with is supporting Declan McGrath in his application to An Bord Pleanala to stop the continued construction of the illegal road that has destroyed an ancient bog in the Mahon Falls valley . Many of you know Declan and his wonderful books on the Comeraghs. He knows more about our area than anybody else I know, and his love for the beauty of our country is infectious. In addition to helping Declan, I have always been suspicious that the road was put in to permit heavy vehicles to access the privately-owned hydro-electric plant, but that is a personal opinion only, and so far I have not been able to uncover any proof to link the two. If anybody has any information on that, I would love to hear from you.

In any event, the destruction of the ancient bog and many of the beautiful trees that once grew there angered me so much that I made an FOI request for all the documentation between the Comeragh Community Development Group and the Waterford County Council regarding the use of public money to finance this illegal development (it is illegal as the area is a Special Area of Conservation that requires planning permission and a comprehensive EIS, none of which exist). That documentation makes very interesting reading indeed, with the same names appearing again and again. If anybody wants a copy of those public documents, feel free to contact me.

 

The names of these same individuals have again appeared in my investigation of the proposed community wind farm by BSB, and I do not think that it is a coincidence that the frequency of the personal attacks on me and my family have increased dramatically since I published my blog on the proposed community wind farm that intends putting turbines in a UNESCO World Heritage Site.

 

I was a solicitor for five years, and a barrister for ten years, where I tried to do as much good for people that I could manage, and my ex-clients will vouch for that. Despite this individual calling me “a blow-in who should go back to South Africa”, I have now lived in this country for almost fifteen years and have worked as a lecturer at WIT where I do the best for the students that I teach. My reputation is therefore not only important to me, but to all the people that rely on me. I have also made many good friends in a community that I love and I intend to live out my years right here.

 

It is for that reason that I am sending a message out to those who would seek to blacken my name: “Enough already!”

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LAUGH, or go mad.

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The End of Community: Wind Farms

 

A press release that has been met with sharply divided opinions was released by the BSB energy group:

BSB propose community wind farm for County Waterford
BSB Community Energy Ltd. (BSB) is a limited company established by a substantial number (50+) of local people in the Bunmahon, Stradbally and Ballylaneen area of the county to promote a ground-breaking wind energy project which will be 100% community owned.
The project is striving to become only the second 100% community owned wind farm in Ireland, the other is in Templederry, Co. Tipperary. It is widely acknowledged in the wind renewables industry that the future of wind in Ireland will be dependent on communities taking control of these projects and this is exactly what BSB is striving to achieve. While a community wind farm is still a business, it is owned by the community and therefore the community will reap the rewards that this business generates.
Paddy Power, Chairman of BSB Community wind energy said “This is an opportunity for the communities of Ballylaneen, Stradbally and Bunmahon to take a positive step to reduce our carbon emissions as well as a €60m investment in our parish that will give a massive boost to local communities for generations to come. Wind Turbines need to be treated as something that brings benefits to a community and should not be feared. BSB is aware that noise and shadow flicker might be of concern to the community. Therefore, the turbines proposed are set back a minimum of 500m from residences and are using the latest technology to mitigate against these concerns. The Environmental Impact Statement being prepared by Jennings O’Donovan our consulting engineers will address these concerns in detail.
BSB propose to build an 11 turbine windfarm, producing up to 33MW of electricity, which is the equivalent of powering up to 17,300 homes (equivalent to approx. half of all homes in Waterford City and County). During the construction phase, employment will be created on a local, regional and national level.
BSB propose to provide the following benefits to the community;
1. FREE shares to community clubs, groups, schools and churches (Est at 80K per annum*)
2. Free shares in trust to a community fund for strategic community projects. (Est at 80K per annum*)
3. A FREE share for every property in the parish.
4. FREE shares with an equivalent dividend of an average electricity bill to every dwelling house within 1Km of each turbine.
5. Save a fund (approx. €10 million*) during the life of the wind farm that will provide the community an opportunity to finance another renewable energy project in the future.
Paddy Power said “It’s taking a long time to bring this project to this stage and finally we can now bring our proposed project to the wider community for consultation. Nobody has ever invested this sort of money in our community before or are likely to again. This is your windfarm and your opportunity to get behind this project.”
Community consultation will take place in the Barron Hall, Stradbally on Wednesday 16th November from 3:00pm to 8:00pm. Following feedback, it is expected that BSB will make a formal planning application within 6 weeks to Waterford County Council.
*Estimates given are based on potential revenues achieved with an 11 turbine windfarm and subject to change pending on number of turbines constructed, energy & carbon price fluctuations and power purchase agreements.

 

Let’s take a closer look at these claims:
“BSB Community Energy Ltd. (BSB) is a limited company established by a substantial number (50+) of local people in the Bunmahon, Stradbally and Ballylaneen area of the county to promote a ground-breaking wind energy project which will be 100% community owned.”

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It would be very interesting to see the list of names and addresses of these “local people”. I know of at least two of the major investors in this project whose family homes are a considerable distance away from the BSB parishes although they do have property in the parish. What qualifies you as “local”?

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Tipperary Energy Agency is the muscle behind this, and they are clearly not a charity. What is their financial stake in this?

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How is it possible then to be “100% community owned”? What does that even mean? BSB Community Energy is registered with the CRO as having a share capital of €100 000.00 comprising of 100 000 shares of €1 each. Does this mean that the two directors, Paddy Power and Harry Grey, will each get one share, along with 99998 other “local people”? Or will it be that a handful of people will own most of the shares (and the profits) and the community will be left with the crumbs under the table in return for a wrecked community?    bdb-energy-2  bdb-energy-1

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These are the sorts of questions that need to be asked.

 

“The project is striving to become only the second 100% community owned wind farm in Ireland, the other is in Templederry, Co. Tipperary. It is widely acknowledged in the wind renewables industry that the future of wind in Ireland will be dependent on communities taking control of these projects and this is exactly what BSB is striving to achieve. While a community wind farm is still a business, it is owned by the community and therefore the community will reap the rewards that this business generates.”

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The obvious question is that if these things are such a good idea, why, after more than 20 years of wind energy, is there only one in existence on the entire island? What the press release does not mention is that there have been a number of other similar projects and all have ended in failure (for example, Bere island, Cork and Cape Clear Island, Cork).

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To be fair, there are some other community owned projects but these are very small (for example, on the island of Inis Meain of the Aran islands – three small turbines (225kW) and Burtonport, Donegal – one 660kW turbine). These are owned by the locals and meet local electricity needs in their search for energy independence.

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The other issue of concern is that I have done extensive searches for information on the benefits to the good people of Templederry and I came up with nothing. No mention of any new sportsgrounds, parks, playgrounds, clinics, school buildings, community halls, etc. paid for by the profits from the wind farm. Have there been any profits? Have there been any tangible benefits to the entire community?

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These are the questions I would ask.

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“Paddy Power, Chairman of BSB Community wind energy said “This is an opportunity for the communities of Ballylaneen, Stradbally and Bunmahon to take a positive step to reduce our carbon emissions as well as a €60m investment in our parish that will give a massive boost to local communities for generations to come. Wind Turbines need to be treated as something that brings benefits to a community and should not be feared. BSB is aware that noise and shadow flicker might be of concern to the community. Therefore, the turbines proposed are set back a minimum of 500m from residences and are using the latest technology to mitigate against these concerns. The Environmental Impact Statement being prepared by Jennings O’Donovan our consulting engineers will address these concerns in detail. “

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It is remarkable that a project that claims to be community-based is planning to erect giant turbines within 500 metres of people’s houses when even the current Minister for energy has publicly admitted that this is an inadequate distance. Extensive research has shown that ‘inadequate’ is putting it mildly – he is the Minister after all – such a short distance is downright dangerous.

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History has also shown us that these are not community projects at all, as they tend to decimate communities with the in-fighting and a massive drop in property prices. As the multi-award winning documentary “Windfall” so clearly illustrated, communities have been devastated by the arrival of wind farms owned by either locals or the community themselves. Indeed, two prominent residents (and local employers) in the BSB area have already announced that they will take their five children out of the local school (probably resulting in its closure) should the BSB wind farm go ahead. They will most certainly not be the last prominent residents to vote with their feet.

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The following quote, describing a split community in Maine over a proposed community wind farm, has been replicated all over the world, including France, Germany and Denmark – the so-called ‘leaders’ in community wind farming:

“About 27 people spoke at the meeting, many of them familiar faces to anyone who has been to one of these meetings. The speakers were split almost evenly in each camp, as was the crowd.
If there’s one thing that was markedly different from previous meetings, it was the way that the crowd itself was divided, both physically and ideologically.”

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To describe these ventures as community projects is simply not true – they are driven by a few self-serving individuals who very often are not in close proximity to the proposed site and therefore do not stand to be directly affected by the turbines, but reap the profits. To offer to pay somebody the equivalent of their electricity bill in exchange for having their lives wrecked and their home (and most valuable asset) rendered worthless is deeply cynical, to say the least.

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As for carbon reducing – I would hardly describe the BSB area as a high carbon production zone, given its predominately rural locality – cow farts are a much bigger problem. On the other hand, massive steel turbines with mind-boggling amounts of concrete and cement needed to build their foundations are the product of huge CO2 emissions, never mind the contamination of the groundwater and the impact on the surrounding fauna and flora; and of course, the poor wretches that will have to live next door to these monsters.

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“BSB propose to build an 11 turbine windfarm, producing up to 33MW of electricity, which is the equivalent of powering up to 17,300 homes (equivalent to approx. half of all homes in Waterford City and County). During the construction phase, employment will be created on a local, regional and national level.”

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If this is a local community project, why is it necessary to produce enough electricity to power over 17000 homes? Why not just one medium-sized turbine to power homes in the BSB parishes (the achievement of energy independence being the goal, rather than lining the developer’s pockets)?

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What exactly will those jobs be and how long will they last? The turbines and supporting infrastructure are not manufactured locally, they will not be transported by local companies and once wind farms are up they pretty much run themselves. So what are these jobs going to be?

These are the questions that need to be asked.

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And finally, all those free shares, geared to make even an opponent’s eyes light up at the prospect of free loot. Firstly, one must decide whether you will make enough money to buy a new house elsewhere, when your own home becomes impossible to live in and impossible to sell, meaning you are trapped in a literal madhouse. Secondly, let’s look at the Templederry experience: launched in 1999, planning permission in 2003, grid connection agreement in 2007, started producing in 2012. Profits – who knows when?Hardly a ‘quick buck’ then – what is the use of “free” shares when they are not producing income? Thirdly, when mention is made of millions, what percentage of that is earned by your paltry share certificate – usually a tiny fraction of nett income, whittled down to nothing after tax. Is the money worth sacrificing your community?

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“Another community wind energy project in the pipeline at present is that at Templederry, Co. Tipperary where two wind farms are planned: a small fully community owned farm with three 1.3MW turbines and another of 40MW to be owned by a group of local farmers”.
(taken from “Catch the Wind – The Potential for Community Ownership of Wind Farms in Ireland”).tocatchthewind

It must be noted that the Templederry community aspect is a very small wind farm, but it was joined by a much larger commercial wind farm as part of the deal. The fact that the large commercial farm is owned by local farmers hardly makes it a “community project”!

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Even the wind energy supporters are not that upbeat about community wind farms. For example, in its publication, “Catch the Wind – The Potential for Community Ownership of Wind Farms in Ireland”, the Renewable Energy Partnership came to this conclusion after discussing the relatively few community wind farms in Ireland:

“Meitheal na Gaoithe was set up as a co-operative to promote the development of wind and other renewable energies in ways that will allow farmers, communities and other groups to retain the financial and social benefits of wind farms in their areas. It provides information and support to its members and highlights issues at national and EU level.
Until the end of 2003, Meitheal na Gaoithe held numerous workshops around the country supported by the Renewable Energy Information Office and involving international experts. In spite of high levels of participation the workshops were discontinued. Meitheal na Gaoithe’s chairperson, Tommy Cooke, says that the organisation took this step because of the losses that small and medium-sized wind farm developers had experienced as a result of failed planning applications and unsuccessful feasibility studies.
For example, projects that had succeeded in gaining planning approval were now at serious risk because they could not get Power Purchase Agreements, he added.
This meant that the developers were not able to apply for grid connections and their projects were impossible to finance. Meitheal na Gaoithe estimated that approximately €4 million had been lost by small and medium-sized developers to date with at least €1 million being lost on failed planning applications.
‘Small-scale community wind energy developments may have public support and are important for the development of positive public attitudes towards the technology however the actual mechanisms to deliver these projects have failed. The policies that operate to support small-scale renewable energy development are weak and favour large developers. In spite of the setbacks, we are determined to ensure that the benefits of renewable energy are made available to the rural communities’ Mr. Cooke added.

Apart from those minor objections – sure, it sounds like a grand idea.

Posted in BSB Community Energy Ltd, Dr Sarah Laurie; Steve Cooper; Bob McMurtry; Alun Evans, EU Renewable Energy 2020 Target, Irish Farmers Association; IFA; wind farm contracts, The Spokes of the Wheel; wind farms; Ireland; Windfall, Wind Farm Contract, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten, Wind Turbine Syndrome; Professor Alun Evans, Wind Turbines: Esen Fatma Kabadayi Whiting | Tagged , , , , , , , , , , , | 38 Comments

Important ECJ Ruling on the SEA Directive

sunrise-sea

 

An important decision has been handed down by the European Court of Justice on the definition of “plans and programs” in the SEA Directive.

 

What is an SEA?

An SEA (Strategic Environmental Assessment) is essentially an environmental impact assessment. However, what distinguishes an SEA from an ordinary EIA is that an SEA should intervene much earlier in the decision-making process, and also it targets government plans and programs as well as policies and legislation, as opposed to individual projects (which is where the ordinary EIA comes in).

The UNECE Protocol on Strategic Environmental Assessment (the Protocol on SEA) establishes clear and transparent procedures for integrating environmental and health considerations into national development plans, programmes and legislation in such potentially polluting economic sectors as agriculture, energy, industry, transport, regional development, land use, waste management or water management. The Protocol on SEAs is an international agreement under the auspices of the United Nations Economic Commission for Europe and provides a legal framework for SEA procedures across countries that have joined the agreement.

The Protocol was negotiated in 2003 to complement the Convention on Environmental Impact Assessment in a Trans-Boundary Context (the ESPO Convention). The protocol is in force since 2010 and is open to all member states of the United Nations and it is similar to the European Union’s directive on SEAs, Directive 2001/42.

 

An SEA is a step-by-step procedure that, when properly carried out, should provide analysis and communicate environmental and health considerations related to different planning options. These considerations are collected in consultation with relevant authorities and the public so that decision makers can compare all the pros and cons of each planning option.

The beauty of an SEA (when done properly) is that it intervenes early enough in the decision-making to prevent irreversible effects and costly mistakes due to bad planning The SEA should also improve transparency and public trust in decision-making.

Preparing a plan or program follows a number of steps that have logical links with the SEA procedure. Therefore it’s more effective to integrate an SEA into planning instead of doing first one and then the other. This saves time and keeps down additional costs for the planning procedure.

Any cost or delay that might arise from the SEA is easily outweighed by the benefits an SEA will bring when a policy enjoys public trust and is properly thought out (are you listening, Minister?).

 

Screening

The SEA process should start with a screening. This determines if an SEA is actually needed. The protocol on SEA provides the criteria for this if the answer is yes.

The Resource Manual to Support Application of the UNECE Protocol on Strategic Environmental Assessment provides practical examples and explanations on the SEA process.

In Chapter A3 it provides assistances in determining whether an SEA is required. This is important to understand when we consider the ECJ judgment later:

“8. A number of questions are asked about any candidate plan or programme, or a modification to a plan or programme (see para. 23), to determine whether an SEA is required under the Protocol, beginning with the following:

􀁸 Is the sole purpose of the plan or programme to serve national defence or civil emergencies, or is it a financial or budget plan or programme? If so, no SEA is required.

􀁸 Is the plan or programme being prepared for agriculture, forestry, fisheries, energy, industry including mining, transport, regional development, waste management, water management, telecommunications, tourism, town and country planning or land use? If not, SEA is not automatically required (unless it sets the framework for the future development and consent of projects and if it is likely to have significant environmental effects according to article 5).

  1. If the answer to the first question is no and to the second it is yes, then two more questions are asked:

􀁸 Does the plan or programme set the framework for future development consent for projects listed in annex I to the Protocol?

􀁸 Does the plan or programme set the framework for future development consent for any other project listed in annex II to the Protocol, and does the relevant project require EIA under national legislation?

  1. If the answer to either of these questions is yes, then normally an SEA is required under the Protocol. However, if the plan or programme determines the use of a small area at a local level or is a minor modification to a plan or programme (art. 4.4), an SEA will be required only if the plan or programme is likely to have significant environmental effects according to article 5.”

The Manual continues a few pages later:

“20. We first need to consider how plans and programmes may be identified. It is clear that the name is not a sufficient indication: what is called a plan or programme may not be one within the definition used by the Protocol and so the Protocol would not apply to it.

  1. Similarly, plans and programmes are not always named as such: policies, projects, guidelines and strategies are some of the many labels attached to plans and programmes. An open mind is necessary at first when deciding what is a plan or programme. Here are some pointers derived from the EC Guide:

􀁸 Recognize the wide scope and broad purpose of the Protocol.

􀁸 Consider the extent to which an act is likely to have significant environmental effects.

􀁸 Consider any formal statement that goes beyond aspiration and sets out an intended course of future action.

􀁸 Examples of plans include:

o A document that sets out how it is proposed to carry out or implement a scheme or a policy

o Land use plans and development criteria

o Waste management plans

o Water resource plans

o Transport plans.

􀁸 A programme may comprise a set of projects in a given area, for example, a scheme for regeneration of an urban area, comprising a number of separate construction projects.

  1. It is not necessary to differentiate between plans on the one hand and programmes on the other: the Protocol treats them identically.

  2. The Protocol also applies to modifications to plans and programmes. A good example of such a modification is where an existing land-use plan is revised regularly (perhaps every five years); the preparation of the revised plan would usually be subject to SEA. It is possible that a modification to a plan or programme for minor reasons (for example, changes to individual projects that do not significantly change the environmental effects of the plan or programme) may be exempt from SEA on these grounds but, as always, such an exemption should be examined carefully. In any case, the fundamental test is whether the modification is likely to have significant environmental effects.

  3. A modification to a plan or programme may lead to significant environmental effects not yet assessed. Such effects may arise because of the nature of the modification or because of a change in the state of the environment.”.

 

What should an SEA contain?

The protocol on SEAs specifies the required content for the report:

􀁸 Scoping and the environmental report (Article 6).

􀁸 Public participation (Article 8).

􀁸 Consultation with authorities.

􀁸 Transboundary consultations.

􀁸 Decision

􀁸 Monitoring.

 

Detailed consideration of these are beyond the scope of this blog but readers can read the Manual for a relatively accessible explanation of all these components.

 

The judgment: Patrice D’Oultremont and Others vs Région Wallonne (Case C-290/15)

The Wallonia government issued an Order on 13 February 2014 which dealt with the building and operation of wind farms in the region, including the measuring and limitation of magnetic, noise, light, and shadow flicker. This Order was issued without any form of environmental impact assessment or public consultation.

On 21 February 2013, the Wallonia Government adopted a ‘reference framework’, which was later amended in July of that year, setting out recommendations for the installation of wind turbines in the Wallonia Region. That document included a map (which was named a “benchmark map”) which was intended to provide a framework for the planning and implementation of the Wallonia Region’s wind-turbine program. That map was the subject of an environmental impact assessment.

A public inquiry was organised in all the municipalities of Wallonia from 16 September to 30 October 2013. The documents made available to the public during that inquiry included the reference framework, the benchmark map and the environmental impact assessment.

In the meantime, the Wallonia Government adopted the Order of 13 February 2014.

It was this Order that was challenged by the applicants, on the basis that it was not subjected to an SEA (impact assessment and a procedure involving public participation).

The Wallonia Government argued that the Order was not a “plan or program” for the purposes of the Directive (and the UN Protocol). They argued that the provisions of the Order were “dissociated” from the reference framework and the mapping of zones for the installation of wind turbines, and that that this fact deprived the order of “programmatic content in terms of setting a framework for wind-power generation”, and therefore it fell outside the definition. In other words, they argued that whilst the map might be a ‘plan or program’, the Order was not.

The ECJ rejected such a narrow interpretation of “plans or programs”, adopting instead a purposive interpretation, by looking at the overall objective of the SEA Directive and Protocol.

“39. “… the delimitation of the definition of ‘plans and programmes’ in relation to other measures not coming within the material scope of Directive 2001/42 must be made with regard to the specific objective laid down in Article 1 of that directive, namely to subject plans and programmes which are likely to have significant effects on the environment to an environmental assessment (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C 41/11, EU:C:2012:103, paragraph 40 and the case-law cited).

40     Consequently, given the objective of Directive 2001/42, which is to provide for a high level of protection of the environment, the provisions which delimit the directive’s scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly …”.

The Order was prepared and issued by a regional government, and it concerned the administration of an aspect of the energy sector:

“44. It is also common ground that the Order of 13 February 2014 concerns the energy sector and that it helps to define the framework for the implementation, in the Walloon Region, of wind farm projects which form part of the projects listed in Annex II to Directive 2011/92.”

The Court also found that the failure to designate a specific geographical area did not remove the order from the definition of “plans or programs”:

“45     As for the term ‘plans and programmes’, whilst it is true that it must cover a specific area, the fact nonetheless remains that it is not apparent from the wording of either Article 2(a) of Directive 2001/42 or Article 3(2)(a) of that directive that those plans or programmes must concern planning for a given area. It follows from the wording of those provisions that they cover, in the wider sense, regional and district planning in general.”

 

The Court made it clear that devious packaging (calling everything a “Guideline” for example?) will not allow governments or regional authorities to escape the provisions of the SEA Directive:

“48     Furthermore, as the Advocate General stated in point 55 of her Opinion, it is necessary to avoid strategies which may be designed to circumvent the obligations laid down in Directive 2001/42 by splitting measures, thereby reducing the practical effect of that Directive …” .

49     Having regard to that objective, it should be noted that the notion of ‘plans and programmes’ relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment …”.

50     In the present case, it should be noted that the order of 13 February 2014 concerns, in particular, technical standards, operating conditions (particularly shadow flicker), the prevention of accidents and fires (inter alia, the stopping of the wind turbine), noise level standards, restoration and financial collateral for wind turbines. Such standards have a sufficiently significant importance and scope in the determination of the conditions applicable to the sector concerned and the choices, in particular related to the environment, available under those standards must determine the conditions under which actual projects for the installation and operation of wind turbine sites may be authorised in the future.”

 

The final ruling of the ECJ was that the Order of the Wallonia government did indeed fall within the definition of “plans and programs”.

“On those grounds, the Court (Second Chamber) hereby rules:

Articles 2(a) and 3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment must be interpreted as meaning that a regulatory order, such as that at issue in the main proceedings, containing various provisions on the installation of wind turbines which must be complied with when administrative consent is granted for the installation and operation of such installations comes within the notion of ‘plans and programmes’, within the meaning of that Directive.”

 

Conclusion

What does this mean in Ireland, particularly in respect of the Wind Energy Guidelines?

Whilst the Guidelines might fulfil all the criteria set out by the Court, it might be argued that the final judgment is more restrictive than the AG’s Opinion as it talks about “various provisions on the installation of wind turbines which must be complied with when administrative consent is granted for the installation and operation of such installations”. (my emphasis).

Some might argue that because Guidelines are not mandatory, and must simply be “had regard to”, that they do not fulfil the criteria for a “plan or program” and would not therefore require an SEA.

On the other hand, when one looks at the broad interpretation given to “plan or program” by the Manual on the Protocol, our wind energy guidelines fit most comfortably into that definition (bearing in mind the Manual is a Guide, and not a definitive finding).

I look forward to your comments in that regard.

Posted in NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten, Wind Turbine Syndrome; Professor Alun Evans | Tagged , , , , , , , , , , , , , , , , , , , | 6 Comments

Private wind farms are exempt from AIE requests for information

print money

 

An interesting decision was handed down by Peter Tyndall, the Commissioner for Environmental Information, as to whether a private wind farm (“Wexwind”) fell within the definition of “public authority” for the purposes of the AIE Regulations, and was therefore bound to respond to AIE requests. This was the question posed in the matter of Francis Clauson and Wexwind Limited (CEI/16/0007).

 

Francis Clauson (“The applicant”) relied on paragraph (c) of the definition of “public authority” found in Article 3(1) of the Regulations:

“(c)      any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),

and includes-

(i)         a Minister of the Government,

(ii)        the Commissioners of Public Works in Ireland,

(iii)       a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),

(iv)       a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),

(v)        the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),

(vi)       a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii)      a company under the Companies Acts, in which all the shares are held-

(I)         by or on behalf of a Minister of the Government,

(II)        by directors appointed by a Minister of the Government,

(III)       by a board or other body within the meaning of paragraph (vi), or

(IV)      by a company to which subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information”.

 

 

The applicant argued that as the wind farm is in the business of wind energy generation, that this activity relates to the environment. Moreover, the applicant argued that this activity is a public service as it was dependent on state subsidies. Finally, the applicant argued that Wexwind did not have genuine autonomy in the way it provided a public service relating to the environment, as decisive control was exercised by state regulators (the CSE) and market operators (EirGrid and ESB).

.

Accordingly the applicant argued that Wexwind’s activities meant it fell squarely within the definition (c) of a “public authority”.

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Strong arguments on the face of it, but the Commissioner did not agree, relying heavily on the Fish Legal decision and adopting a particularly narrow view of the mechanisms of the REFIT scheme.
 

Fish Legal and Emily Shirley v Information Commissioner and Others (C-279/12)

Here the Court of Justice of the European Union considered the meaning of “public authority” under article 2(2)(c) of Directive 2003/4 (equivalent to paragraph (c) of the definition of “public authority” contained in the AIE Regulations). The Court set out the standard of control under article 2(2)(c), ruling that:

“Undertakings… which provide public services relating to the environment are under the control of a body or person falling within Article 2(2)(a) or (b) of Directive 2003/4, and should therefore be classified as ‘public authorities’ by virtue of Article 2(2)(c) of that directive, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field.”

 

The European Court of Justice provided illustrative examples of decisive influence, stating at paragraph 69:

“The manner in which such a public authority may exert decisive influence pursuant to the powers which it has been allotted by the national legislature is irrelevant in this regard. It may take the form of, inter alia, a power to issue directions to the entities concerned, whether or not by exercising rights as a shareholder, the power to suspend, annul after the event or require prior authorisation for decisions taken by those entities, the power to appoint or remove from office the members of their management bodies or the majority of them, or the power wholly or partly to deny the entities financing to an extent that jeopardises their existence.”

 

 

Fish Legal also describes the type of legal framework that would govern the public functions of a sub-article (c) body, stating at paragraph 71:

 “If the system concerned involves a particularly precise legal framework which lays down a set of rules determining the way in which such companies must perform the public functions related to environmental management with which they are entrusted, and which, as the case may be, includes administrative supervision intended to ensure that those rules are in fact complied with, where appropriate by means of the issuing of orders or the imposition of fines, it may follow that those entities do not have genuine autonomy vis-à-vis the State, even if the latter is no longer in a position, following privatisation of the sector in question, to determine their day-to-day management.”

 

The judgment in Fish Legal must be criticised for this interpretation in an economy and commercial market that is not heavily regulated, being a capitalist economy still reliant on laissez-faire principles. The exception to this is where public monies are involved. Here stricter controls are exercised and these should be recognised as an exception to the norm, and not the norm itself. To say that everybody in business is subject to various forms of control is an oversimplification and has no logical basis when it is used to prevent members of the public accessing information from enterprises that rely on public monies, often for their very existence.

 

The Commissioner also relied on the judgment of the United Kingdom Upper Tribunal in Fish Legal v Information Commissioner [2015] UKUT 0052 (AAC), which found that “autonomy has to be judged not by reference to absolute liberty, but against the normal background radiation of the constraints that limit the freedom of action for every business”.

 

Again, a repeat of an oversimplification of our very complex economy. Although it does consist of regulated industry, it is completely dominated by large multinationals who don’t give a jot for controls, as they have no dependence on public monies, and are therefore effectively unregulated. Accordingly, to say that  “every business” is limited in the way that public utility companies are limited is just nonsense.

 

Accordingly, as he relied heavily on the Fish Legal judgment, the Commissioner decided that despite Wexwind operating in a regulated environment subject to licensing (the CER) and a controlled market (SEMO), these were constraints that limit the freedom of action for every business and were not sufficient to classify Wexwind as a public authority.

 

 

The REFIT Scheme

Possibly the applicant’s strongest argument was the fact that Wexwind, like all wind farms, was reliant on the subsidy scheme and therefore on public money, and this should be enough to include it under paragraph (c) of the definition.

The Commissioner had an answer to that. Wexwind and other farms like it did not directly receive the subsidy, but rather ‘indirectly benefitted’ from it:

“Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources creates targets for renewable energy usage for European Union member states. In order to meet these targets, the Department of Communications, Energy and Natural Resources operates a number of REFIT schemes. The REFIT schemes employ a price support mechanism, whereby electricity suppliers are paid a guaranteed price for qualifying renewable energy purchases from electricity generators. REFIT is funded by the public service obligation (PSO) levy paid by electricity consumers. Under the REFIT scheme, renewable energy generators do not receive payments, but can benefit indirectly from the availability of REFIT support, as the purchase of renewable energy by suppliers can be contracted on more favourable terms as a result of the subsidy.”

 

In receipt of public monies

Again, this is where the Commissioner and I part ways. If the Commissioner applied a purposive approach to interpreting the definition, the fact that Wexwind benefitted from public monies should be enough to bring it within the definition, as without the REFIT scheme the wind farms would not have bothered to even go into business – they are there to make profit, not save the planet.

 

However, on a strict literal reading of the definition, the Commissioner is correct – there is no mention of benefitting from public monies, and the emphasis of the definition is on the control aspect. The Fish Legal judgment has likewise given a very narrow interpretation of the concept of control, despite the fact that utility and other such companies rely for their very existence on subsidies which are provided by taxes and levies, not just what the customer pays on the monthly bill.

 

An opportunity missed. It would not be worthwhile to take the Commissioner on review because his reasoning is perfectly correct and logical, albeit narrow. Unfortunately, narrow-mindedness is not a ground for review, as it does not “plainly and unambiguously flies in the face of fundamental reason and common sense.”

 

A good try, Francis. You can‘t win em all!

Posted in Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty | Tagged , , , , , , , , , | 1 Comment

Science Is In Deep Trouble, New Paper Shows — Watts Up With That?

‘Fraudulent research makes it past gatekeepers at even the most prestigious journals’ London 31 October: A new report published by the Global Warming Policy Foundation reveals the extent to which current policy-making is reliant on untrustworthy peer-reviewed research, much of which cannot be replicated and “may be simply untrue”. click on the image above to […]

via Science Is In Deep Trouble, New Paper Shows — Watts Up With That?

Posted in EirGrid; Insurance; Law; Cancer; EMF | Leave a comment

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.

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 | Tagged , , , , , , , , , , , , , | 5 Comments

Well done, Val!!

val-martin

Congratulations to Val Martin, who took on An Bord Pleanala in the High Court and won.

This amazing achievement is testimony to the fact that it is possible for a person, with no formal legal training, but with bucketloads of planning knowledge and guts, to take on the State apparatus in the High Court and win.

 

Here is the story in Val’s own words:

“In 2009, the predecessor to Raragh developments applied for planning permission for a wind farm at Kingscourt. Cavan 09/270, It supplied an Environment Impact Statement (EIS) (of sorts). Despite objection from 38 households the Local Council granted permission and it was appealed to ABP. They carried out a sort of EIA and granted planning permission.  As the developer did not know details of the cables at the time, a specific condition was that the planning permission did not include the connecting cables.

In 2015, the developer applied to extend the period of operating time for the wind farm until 2020. He stated that an EIS has been provided with the first application and Cavan Co. granted the application stating that an EIA had been done in 2010.  In May 2015, the developer applied for a declaration under Section 2 of the PDA to declare the 5.5 km of underground cables to the ESB sub-station in Kilnalun, Co. Meath to be development and exempted development.     Cavan Co. Council referred it to ABP (No.RL . 02. 3369).

On the 3rd May, 2016, the Board stated that it was a “development”  and “an exempted development”.  This would have allowed the whole work to go ahead.

I took a judicial review No 2016/460/JR acting as a lay litigant (presenting the case myself). I claimed that the underground cabling was not a “development” but a “project” and accordingly it could never be classed as an exempted development.  I cited the O’Grainne judgment and its ratio decidendi (binding part of the judgment) where the Judge said “In truth I have already concluded the wind farm and cabling are one project”.    I cited a few European cases which proved that a project can be split into phases and that the 2nd or subsequent phases must be assessed under the EIA Directive. In other words, when deciding whether its environmental effects are acceptable, it must be assessed with the cumulative effects of the entire project, and not just the phase currently under consideration.

The Board and the wind farm developer opposed me. They served me with a cart load of documents and I simply wrote in the legal submission that the High Court has no role to play in assessing planning applications, but must confine itself to the law alone.    The Board Lawyers, Philip Lee and Co. caved in and the developer’s lawyers did too.    The Barrister for the Board arrived in Court No 1 before Judge McGovern and said “this is the man who beat Board Pleanala” in a good humoured way.  There was no need for the 2-day trail which had been allocated.

The Judge said he would quash the decision of the Board and award me costs.  

 

Should anyone want copies my case and legal argument, just ask and I will send to you as hard copies. I acknowledge the help of Pat Swords, David Malone, Owen Martin, Francis Clauson, committee chairman Mike Muldoon, Dublin solicitor (and friend) George McGrath , campaigners all over the country and neighbours at Kingscourt for their encouragement.

 

Essentially the law is:

1) projects cannot be developments.

2) Projects can be split but all information known should  be provided at each phase.

3)   Projects cannot be processed under the PDA alone.

4) The PDA (part X) is the vehicle for processing an EIA.

5) One major cop,  well spotted by David Malone and used by me is that Article 2(4) of the EIA Directive allows for exemption a project from an EIA in exceptional circumstances.   If this is done government must inform the EU Commission and comply with a number of conditions which are very strict.  I think this would cover situations like where there is some sudden and unforeseen important event where development would have to be done without submissions for the public.   An international summit or the like.  This is the only way a project can be exempted.

The developer’s lawyers indicated that they did not want to remit the application to the Board. I do not know if they will now apply for an EIA for the cables and planning permission, that is for another day.

Regards

Val Martin”

 

Well done Val.  Respect!

 

an-bord

Posted in An Bord Pleanala; appeal; interested parties, Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, High Court; Judge Caroline Costello; John Callaghan; Leave to Appeal, High Court; Judicial Review; Appeal on the merits; judicial discretion, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Law; High Court; Leave To Appeal; Environment, Legal Costs; Access to Justice; Courts, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector, Val Martin | Tagged , , , , , , | 11 Comments

Extensive Research on Wind Turbine Noise

Government Ministers are constantly bewailing the lack of research, or claiming to be abreast of the latest research, into the damage caused to humans by wind turbine noise.

 

Jerry Punch and Rick James have finally managed to publish their mega-review on the damage caused to humans by wind turbines:
 
And
 

In Ireland, may I suggest that Minister Naughten has a lot of reading to do?

Posted in Academic Research; Peer-Review Process; Medical Journals, Dr Sarah Laurie; Steve Cooper; Bob McMurtry; Alun Evans, EirGrid; Insurance; Law; Cancer; EMF, Ministerial Responsibility; Liability; Negligence; cardiovascular, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten, Wind Turbine Syndrome; Professor Alun Evans, Wind Turbines: Esen Fatma Kabadayi Whiting | Tagged , , , , , , , , , , , , | 4 Comments

Ministerial Responsibility and Liability

The ongoing scandal concerning the deliberate downgrading of what used to be Waterford Regional Hospital in favour of Cork raises interesting legal questions, particularly regarding the liability of a Minister for the actions of his own department, and in this instance, the omissions of the Minister himself.

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For those of you who have not followed the story, it was revealed last week that a senior HSE official downgraded the risk rating of the out-of-hours cardio service at the Waterford hospital shortly before those figures were sent to an independent expert to determine whether Waterford Hospital needed another cardio unit. Not surprisingly, the expert answered that question in the negative, despite overwhelming evidence from the hospital staff, including cardiac surgeons, that another unit was desperately needed. Attempts under the FOI Act to gain the terms of reference issued to the expert have been blocked, with critical portions redacted.

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The plot thickened further when it was revealed this morning that in November last year the previous Minister of Health, Leo Varadkar, received a detailed report outlining that patients were at risk unless another cardio unit was immediately supplied at Waterford Hospital. Newspaper reports would suggest that Minister Varadkar, a medical person himself, put the report in a drawer somewhere and forgot about it:

 

Eighteen patients suffered heart attacks while on the cardiac waiting list at University Hospital Waterford (UHW) over the past five years.

The revelation came in a special report submitted to the Health Service Executive (HSE) and Department of Health last November in support of a plea for greater resources, including a second catherisation lab at UHW.

A key element of the audit, details of which were obtained by the Irish Independent, was the mounting concern of UHW doctors that waiting times for both inpatient and outpatient cardiac care had been steadily increasing since 2010.

The audit was also submitted to the former Health Minister Leo Varadkar.

The cardiac report submitted last year bluntly warned that some of the heart attacks in patients might have been avoided “if there was no waiting list, or a very short one, which pertains in other centres.”

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This blog has already suggested that Minister Harris should resign as he is individually responsible for the actions of officials in his department. But what about the liability of Leo Varadkar? Can the subsequent death of patients be laid at his door due to his failure to act on the very clear warning contained in the cardiac report of last November?

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Under the Public Service Management Act of 1997, cabinet ministers are responsible for the actions of government departments and offices. Members of the government are collectively responsible to Dáil Éireann for departments of state administered by them. This is why Minister Harris should resign for the unauthorized alteration of the risk register, apart from the parliamentary convention which demands the same – as outlined in the previous blog.

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Ministers have a duty to inform the Oireachtas of their actions (and omissions?) and parliamentary question time is the device used to ask the Minister those awkward questions about their performance and the performance of their department. This is really a political or democratic accountability, it does not mean they can be sued in court for their apparent negligence.

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Judge, Hogwood and McVicar, in their excellent article “ ‘The pondlife’ of executive agencies: parliament and informatory accountability”, Public Policy and Administration, 12, 2, pp. 95 – 115. (1997, 97) have identified five levels of ministerial responsibility:

“Redirectory responsibility, requiring that ministers redirect queries to the appropriate person dealing with a particular case or issue.” Does this mean that Minister Varadkar was, at the very least, under a duty to forward the cardiac report to the CEO of the HSE, with instructions to act?

“Informatory responsibility, requiring the minister to keep parliament informed of what is happening in his or her department.” It might be argued that Minister Varadkar should have informed the Oireachtas of the dire situation in Waterford Hospital, perhaps with a view of securing extra funding, if indeed his coffers were bare.

“Explanatory responsibility, requiring the minister to make further explanation, particularly in cases of once-off shortcomings or wrong doings.” It has transpired that of the eighteen patients who had heart attacks whilst on the Waterford waiting list, six subsequently died. Would the Minister care to comment?

“Amendatory responsibility, where a minister is convinced that more than an explanation is required, requiring correction, amendment or reparation.” One can only imagine how the Minister was not convinced, as early as November last year, that Waterford desperately needed additional cardio resources. One would also ask, with that knowledge last year, why did they bother to appoint Dr Herity to do his report (which was compiled on the basis of an amended risk rating and a gerrymandering of the population figures).

“Sacrificial responsibility, where a minister accepts an obligation to resign.” Whether Minister Varadkar, along with Minister Harris, should tender his resignation for omissions that occurred under his watch, is the million dollar question. Does it matter that the Minister now has another portfolio (ironically entitled “Social Protection”)? Should he be held accountable for his past actions or omissions?

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For us mere mortals, the law says that we need to owe somebody a duty of care before we can be held liable. If I perform an action or fail to perform an action, and this act or omission creates a dangerous situation, then I am liable for the foreseeable hurt caused by that dangerous situation. So if somebody warned me that a cardio unit was dangerously under-resourced and it was my duty and within my reasonable power to correct that, my failure to do so would mean I was liable for the dangerous situation that I allowed to continue. In other words, if the relatives of those six deceased patients could show that, but for my failure to act, their lives would have been saved, I would be liable for their deaths.

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The question is – can a Minister be held liable on the same basis as us mere mortals?

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Alas, unfortunately not. Because of something called the Separation of Powers, the courts are not allowed to tell the Minister how to spend his budget – that is within the Minister’s discretion, which we gave to the Minister when we voted him in as a TD. So if a Minister decides to build a new cardio unit for his own constituents in Cork, thereby neglecting to build one for the citizens in Waterford, there can be no legal liability attached. All we can do in Waterford is try and vote the Minister out at the next election, unless he does the honourable thing and resigns. Moreover, when we do manage to vote some eejit out of his ministry, he is replaced by an ever bigger eejit.

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Aaah, the challenges of democracy.

Posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, lobbying; democracy; political process; general election, Ministerial Responsibility; Liability; Negligence; cardiovascular, University Hospital Waterford | Tagged , , , , | 2 Comments

The Minister Must Resign

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A convention is essentially a custom or tradition that has become so entrenched that it is obeyed almost as if it was a law.

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The convention of individual ministerial responsibility requires that a minister be personally answerable to the Oireachtas for the exercise of power. The convention arises out of the democratic principle that only elected officials, and not the public-service workers (“civil servants”) who assist them in formulating policy and administering programs, should be held accountable for the functioning of Government. In other words, the errant civil servant was not elected into the job, and therefore cannot be voted out. Accordingly, the Minister as elected official must “carry the can” and resign when he no longer deserves the public’s confidence because of maladministration on his watch.

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This means that if waste, corruption, or any other misbehaviour is found to have occurred within a ministry, the minister is responsible even if the minister had no knowledge of the actions. A minister is ultimately responsible for all actions by a ministry because, even without knowledge of an infraction by subordinates, the minister approved the hiring and continued employment of those civil servants. If misdeeds are found to have occurred in a ministry, the minister is expected to resign.

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In its traditional form, the convention even demands that a minister should face criminal charges for any criminal conduct under his watch.

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The principle is considered essential, as it is seen to guarantee that an elected official is answerable for every single government decision. It is also important to motivate ministers to closely scrutinize the activities within their departments. One rule coming from this principle is that each cabinet member answers for their own ministry in the Dail’s question time. The reverse of ministerial responsibility is that civil servants are not supposed to take credit for the successes of their department, allowing the government to claim them. Ministers are always very quick to poach this praise as their own, but this means they should be as quick to accept the axe when somebody in their department messes up.

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The issue has arisen with the scandal that has erupted over the handling of Waterford’s University Hospital and the refusal to provide the hospital with a second cardiac unit based upon an amended risk rating where it is apparent to even a non-medical layperson that such a unit is desperately needed.

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In case you do not know the story, I quote today’s Independent:

Gardaí are to be asked to investigate how a critical change in University Hospital Waterford’s (UHW) key risk rating assessment was made.

The alteration, which was made outside Waterford and without the knowledge of UHW clinicians, is feared to have been a critical component in the subsequent decision by an independent expert not to sanction an expansion of strategic cardiac services at Ardkeen.

The Waterford hospital now faces the loss of key cardiac services and potential funding to Dublin and Cork.

Campaigner and European Parliament candidate Kieran Hartley confirmed he is to lodge a formal complaint with Waterford gardaí today once he has obtained legal advice.

“This isn’t just an issue of public safety, though clearly it has huge significance in that regard,” he said.

“This also potentially amounts to deception because a critical public health document was changed without reference to the people responsible for compiling it.

“My understanding is that the person believed to have made the temporary data change did not have the authority to do it.”

Experts stressed that a risk rating is arguably the single most important data assessed for a hospital.

The hospital board said it was “appalled” at the temporary change in critical cardiac risk assessment data.

One medic said such a change was “absolutely unprecedented” and queried its timing.”

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It remains to be seen whether the DPP considers that the unauthorised alteration of the Risk Register was a criminal offence. If this is answered in the affirmative, then on a strict reading of the convention the Minister should face criminal charges. This is unlikely to happen, but at the very least the Minister should still bear political responsibility for the actions of senior officials in his Department.

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Today ministers frequently use ignorance of misbehaviour as an argument for lack of culpability, but I would argue that in the instance of Minister Simon Harris and the actions of his department, this is not applicable as the Minister acted directly upon the product of the malfeasance, namely the unauthorised tampering of the risk register. Whilst Minister Harris was not aware of this tampering, nonetheless he used the reduced risk setting to justify not providing Waterford with a second cardiac unit. This was not a malfeasance that was distantly removed from the Minister, it directly determined his actions and consequently he was under a higher duty to ensure the accuracy of the information upon which he acted.

Posted in University Hospital Waterford | Tagged , | 3 Comments

Will the Citizen have access to the legal profession? Not if the Big Corporations have any say about it!

One of the many reasons I did not join the legal profession here. Well said Tom, we need more like you in practice.

LegalEagleStar

I qualified as a solicitor in 1980. I had no connections in law at all and if it wasn’t for the endeavours of my late father, I couldn’t have pursued my legal studies. He worked hard to provide me with an education and without him and the support of my mother, I’d never have succeeded.

For the previous couple of years or so before qualifying, I had been influenced by Inge Clissmann and Aedan McGovern, both barristers and now Senior Counsel. Inge had got me involved with FLAC, the Free Legal Advice Centres which was run by law students who represented in Court, members of the public who couldn’t afford access to justice. Inge introduced me to the Ballymun Centre located in the basement of Padraig Pearse Tower, long since demolished. There we mainly dealt with family law issues and quite simply, we were overrun with the work. Overrun and…

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Posted in EirGrid; Insurance; Law; Cancer; EMF | 2 Comments

Food for Thought

global-warminmg

Scientists are always telling us to “accept nothing, challenge everything, ask for empirical proof”. Lawyers work by a similar creed – “do you have proof of that? If not, there is very little I can do for you”.

Well; bear that in mind when you read this little gem:

“The Big Lie – By Alex Epstein

On February 29, 2016

There is an oft-cited comment that 97 percent of climate scientists agree that there is global warming and that human beings are the main cause.

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First of all, this statement itself, even if it were true, is deliberately manipulative. The reason we care about recent global warming or climate change is not simply that human beings are allegedly the main cause. It’s the allegation that man-made warming will be extremely harmful to human life. The 97 percent claim says nothing whatsoever about magnitude or catastrophe. If we’re the main cause of the mild warming of the last century or so, that does not begin to resemble anything that would justify taking away our machine food.

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One of the main papers behind the 97 percent claim is authored by John Cook, who runs the popular website SkepticalScience.com, a virtual encyclopedia of arguments trying to defend predictions of catastrophic climate change from all challenges.

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Here is Cook’s summary of his paper: “Cook et al. (2013) found that over 97 percent [of papers he surveyed] endorsed the view that the Earth is warming up and human emissions of greenhouse gases are the main cause.”

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This is a fairly clear statement—97 percent of the papers surveyed endorsed the view that man-made greenhouse gases were the main cause—main in common usage meaning more than 50 percent.

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But even a quick scan of the paper reveals that this is not the case. Cook is able to demonstrate only that a relative handful endorse “the view that the Earth is warming up and human emissions of greenhouse gases are the main cause.” Cook calls this “explicit endorsement with quantification” (quantification meaning 50 percent or more). The problem is, only a small percentage of the papers fall into this category; Cook does not say what percentage, but when the study was publicly challenged by economist David Friedman, one observer calculated that only 1.6 percent explicitly stated that man-made greenhouse gases caused at least 50 percent of global warming.

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Where did most of the 97 percent come from, then? Cook had created a category called “explicit endorsement without quantification”—that is, papers in which the author, by Cook’s admission, did not say whether 1 percent or 50 percent or 100 percent of the warming was caused by man. He had also created a category called “implicit endorsement,” for papers that imply (but don’t say) that there is some man-made global warming and don’t quantify it. In other words, he created two categories that he labeled as endorsing a view that they most certainly didn’t.

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The 97 percent claim is a deliberate misrepresentation designed to intimidate the public—and numerous scientists whose papers were classified by Cook protested:
“Cook survey included 10 of my 122 eligible papers. 5/10 were rated incorrectly. 4/5 were rated as endorse rather than neutral.” —Dr. Richard Tol

“That is not an accurate representation of my paper . . .” —Dr. Craig Idso

“Nope . . . it is not an accurate representation.” —Dr. Nir Shaviv

“Cook et al. (2013) is based on a strawman argument . . .” —Dr. Nicola Scafetta

Think about how many times you hear that 97 percent or some similar figure thrown around. It’s based on crude manipulation propagated by people whose ideological agenda it serves. It is a license to intimidate.”

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This is not about being what opponents label “a global warming denier”. It is simply a plea to break away from the “groupthink” and research and investigate these things for yourself and come to your own conclusions. Look into the backgrounds of these so-called experts/prophets of doom and see where their money is invested, for example. You might be surprised, hopefully shocked.

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This idea that “if you are not with us, you are against us”, is bullshit, plain and simple. Consider both sides of the argument, study research methodologies, ask politically incorrect questions to politically correct people, come to a conclusion for yourself when you actually understand what the arguments are about. If you don’t understand it, don’t come to a conclusion, because that is not your conclusion, it is somebody else’s.

Posted in Academic Research; Peer-Review Process; Medical Journals, Dr Sarah Laurie; Steve Cooper; Bob McMurtry; Alun Evans, EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target | Tagged , , , , | 17 Comments