The End of Community: Wind Farms — The Law is my Oyster

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 […]

via The End of Community: Wind Farms — The Law is my Oyster

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An Bord Pleanala

Thank you for coming to this webpage to help us prevent the erection of 12 wind turbines at Knockamona, Drumhills, Dungarvan that will link with the x8 wind turbines already up at Woodhouse, Keereen.
As you know the ones at Woodhouse have already indelibly scarred the pristine landscape of the DrumHills.
This is an area of outstanding natural beauty and the Drumhills is a protected ridge-line in the Waterford County Development Plan, it is surrounded by Special Areas of Conservation and Special Protection Areas for Birds.
Here’s what we please ask you to do :
1. Send an Submission letter to An Bord Pleanala (ABP) at : 64 Marlborough Street, Dublin 1 , D01V902
2. Include your name & address at the top of the letter.
3. Include the Planning Authority & reference number for the proposed Knockamona Wind Farm by Ecopower : Waterford City & County Council, Ref 14600109
4. Include APB’s reference Number : PL93.244006
5. Include the development description & site location: Erection of x12 wind turbines, overall height up to 126.6metres. x1 metrological mast up to 80metres with wind measuring equipment attached, access roads, electrical sub-station compound, equipment and control building and ancillary work. The application is for ten years. The location is Knocknaglogh Lower,  Barranastook Upper, Knockamona/Woodhouse, Tinakilly/ Monageela / Kilatoor, Dungarvan, Co Waterford.
6. In your own words make reference to some/all of the points of planning law, we have included some examples of points to be included below:
7. Retain a copy of your submission letter for your own records.
8. Include your €50 submission fee.
9. Post in time for 18th March deadline (post by Tue 15th).
We cannot thank you enough for helping us in this way.
With thanks from the families of Knockamona and Woodhouse who will have to suffer the consequences of having to live a neighbour’s to these 600ft structures that will effect our sleep and health.

Some examples of points to be included.

PLEASE USE YOUR OWN WORDS TO MAKE SOME OF THE POINTS BELOW – IT’S IMPORTANT THAT EACH AND EVERY SUBMISSION IS DIFFERENT.

Use your own words to explain the overwhelming impact on the landscape – we have the example of Woodhouse, Keereen close at hand to show how utterly monumental that will be, how you will see the wind farm, where the turbines will be visible from, the importance of the cultural heritage to the area and how that will be destroyed or marred by the new industrial infrastructures that are higher than the Spire in Dublin, the significance of St Declan’s Way as a long distance walk and how that has already been compromised by the Woodhouse turbines, the chaos experienced by the local communities during the construction, and of course the disturbance of noise and the visual impact and how the rotation of the blades is disorientating.

Emphasise the community memory entwined in the landscape which is swept away.  The turbines will have a devastating impact on the heritage Villages & Towns of Aglish, Villierstown, Cappoquin, & Dungarvan. Mention the sustainable future of this area lies in protecting its unspoiled landscape character and peaceful environment. More than #200Groups across the country have united to help preserve our landscape.

Description of Development: Erection of x12 wind turbines, overall height up to 126.6metres. x1 metrological mast up to 80metres with wind measuring equipment attached, access roads, electrical sub-station compound, equipment and control building and ancillary work. The application is for ten years.

ENVIRONMENTAL IMPACT STATEMENT (EIS):

The application is invalid from the outset as the Planning authority as the competent authority has already decided that the original EIS submitted by the developer in June 2015 is inadequate.  This is a fundamental issue of principle.  The Planning authority must perform its role to protect the landscape and the communities that live in it.  It should not have accepted a revised EIS from the developer in September 2015.

The implications of the O’Grianna Judgement are that the Environmental Impact Assessment must consider the totality of the overall project but that cannot happen in the light of a fragmented planning application which does not include the Haul route and the Grid connection therein.  If the grid connection is an integral part of the development that is the understanding from the O’Grianna judgement then it must form part of the same application in order to facilitate the EIA as the two processes are aligned.  The EIA must take place within the operational framework of the planning process and within this framework the planning application and the development proposal considered in the EIS must be synonymous.

We respectfully submit that the applicant’s submission of a revised EIS raises significant legal issues in regard to validity. The EIS and the planning application have to be aligned in terms of the description and extent of the actual development.   The Board in issuing the correspondence of the 28th July 2015 and the section 132 Notice had already determined the matter that the EIS was defective and inadequate and that they could not complete an Environmental Impact. If the Board were to consider such a revised EIS it would be ultra vires the scope of their authority in considering the subject appeal as the grid connection is not included as part of the planning application. Similarly the applicant has no legal authority to undertake road improvement works to the Haul Road.  The existing local road network is inadequate to function as a haul road.

 

GRID CONNECTION AND PROJECT SPLITTING:

The grid connection application, which must form an integral part of the overall development, cannot be viewed or considered in isolation.   As it does not and cannot form part of the revised application and it is not exempt development therefore the original reason for refusal by Waterford County Council remains in relation to project splitting.

The proposed grid connection does not form part of the proposed development application and is not included with the red line application site boundary.  The grid connection does not form part of the planning application and cannot at this juncture as it would comprise a material change to the nature of the development application

The assumptions by the developer that the grid connection works can be agreed with the Area Engineer invalidate and undermine the entire approach of the planning process and the protection of local communities and the environment.

The grid connection comprises development and is not exempt development by reference to the Planning and Development Act 2016 Section 5 and the revised class 26 and class 27 of the Planning and Development Regulations 20o1 as amended.

In light of the decision in O’Grianna, a developer seeking planning permission, must ensure that all works that will form part of the overall project, that is the wind turbines and grid connection are included in its planning application to avoid having its planning permission quashed for falling foul of the requirements of the EIA Directive to assess the “whole project”.

The location of the proposed development is not proximate to the National  Grid and does not satisfy the requirements of the policy objective of the development plan to minimise the length and visual impact of Grid connections.  The proposed development would therefore materially contravene policy INF 26 of the development plan to minimise the length and visual impact of National Grid connections.

 

HAUL ROUTE and PUBLIC ROADS: 

The outline by the developer of proposed works on public roads is based on a false assumption that the developer has legal rights and authority to carry out works to the public roads.

The relevant planning authority has no such right to grant permission for such works except in the context of a planning application and in the context of having secured the relevant legal consent  from all of the landowners along the route.

The ownership of the public road resides with the landowners on either side of the public road as defined in the relevant case law.  The relevant road authority has rights of maintenance but do not own the road.  Certainly the applicant has no rights to interfere or undertake any works upon the public road.

It should be remembered that the Council refused planning permission for the subject development and there is no legal consent for a planning application for such works on the public road.

 

NATURA IMPACT STATEMENT:

There are pathways from the proposed site to the SAC in the vicinity.  These are both via streams draining to the SAC and via bird flight of annex1 species over the site.

The river Colligan is a very important salmon and sea trout river, this fact is not mentioned and the mitigation measures do not cross reference the Natura Impact Statement or Inland Fisheries Ireland which is the statutory body operating under the Department of Communications, Energy and Natural Resources established under the Fisheries Act 2010 whose objective is the protection and conservation of inland fisheries resources.

There is a risk of collision of eight protected bird species of conservation interest from within 6 conservation sites, with the turbine blades.  It is possible that the protected bird species use the site for commuting between migrating sites or nearby roosting or foraging sites.

The NIS outlines the species in table 15, (S 6.4.12.3.1 page 98 NIS) which includes whooper swans, which we highlighted, were at risk in our appeal submission.

“There is a potential for collision involving large close flying flocks of coastal species in misty or foggy weather conditions over the proposed site.  There is potential for migrating coastal species such as whopper swan and light bellied Brent goose flying over the proposed Knocknamona site between migrating sites.  Coastal species such as curlew and golden plover often roost and forage in inland sites.”

The rationale for discounting the significance of the impact of bird collision on the basis that there are no known regular flight paths across the site is not sustainable.  Firstly the observed flight path of the curlews and the kestrel was in the direction of Turbines T10 and T7 and possibly T6 whereby rotor blades extend over 50m from the turbine structure there is therefore observed flight.

The Freshwater pearl mussel and the White clawed crayfish are species of qualifying interest for the Blackwater River SAC.

The survival of the Freshwater pearl mussel is under threat and many of the populations are note reproducing and will ultimately disappear if rehabilitative action is not taken.”(S 6.4.7.1 NIS)

 They are found in the substrate of the riverbed, the sand grave and cobbles where good oxygen exchange occurs.    The Fresh Water Mussel requires very high quality rivers.  They are sensitive to fine silt, which may cause heavy mortalities.

The reliance on the Construction and Environmental Management Plan to deliver mitigation  is unrealistic given the scale of the excavation works, Excavation of 29,421m3 soils and Excavation of 25,075 m3 rock and flies in the face of the precautionary principle.

Having regard to the imperative need to protect and improve the water quality of waterways in the vicinity of the site and the need to ensure rehabilitative action for the Fresh water pearl mussel and the need to improve the conservation status of the white –clawed crayfish and having regard to the requirement of the Habitats Directive to avoid destruction of annex 1 species

There are substantive grounds that the proposed development would have a negative impact on the integrity of a European site and would further pose an unacceptable risk for an annex 1 bird species of collision with the turbines.

 

 LOCAL LANDMARKS:

While it is stated that none of the bridges are designated protected structures the bridges BC2 over the tributary of the River Colligan, BC3, over tributary of River Brickey and BC4 at Ballintaylor, BC6, River Brickey BC7 and BC8 River Brickey and BC9 River Brickey all appear as very attractive stone arch bridges that form a network of such bridges over the tributaries of the Brickey and the Colligan.

These bridges form landmarks of real beauty that are a connected network along the river that contribute significantly to the landscape character of the area.

The public have no way of protecting them or knowing the extent of the impact.  However it is clear even from a visual assessment the bridges are susceptible to works for the grid connection or where they may be along the Haul route.

 

TYPE OF TURBINES:

The failure to specify the details of the nature and description and design of the turbines is a fundamental failure in the description of the development project and is not tenable given the scale of the development and the requirement in law for the submission of an EIS.

 

IMPACT ON LOCAL SCHOOL:

Glenbeg School is located on the L2022 – 2 miles outside Dungarvan Town in the townland of Glenbeg on the designated haul road route. It is approx. 5 miles from the proposed Knocknamona Wind Farm site.

A lot of children living in Dungarvan attend this rural school – hence the reason the traffic on the L2022 comes from all directions and is very busy during school periods.  The portacabins supplement school accommodation and are located adjacent to the road.

The use of this local road as a haul road would have a devastating impact on traffic safety and safe access to the school by the children and their families.  It would generate a major land use conflict between an established community educational use and the proposed use of the road as a haul road for the wind farm.  The narrow width of the road effectively means it cannot serve both uses.   The haul road will serve large wide loads, and heavy traffic, concrete etc.   The road is very narrow.  There is no median white line and there is inadequate width to allow passage of heavy traffic and normal traffic at the same time.  The haul road and heavy traffic associated with the construction time table will impose accessibility constraints which would have significant implications for accessibility to the school and would create a degree of social severance which is unacceptable for a school use.

The proposed development would endanger public safety by reason of traffic hazard and obstruction of road users and in particular would adversely impact and obstruct access to the local Glenbeg School.

 

SHADOW FLICKER:

The further assessment of shadow flicker identifies 5 residential properties, which could experience shadow flicker located within 1km of the proposed wind turbines.  The mean minutes per day ranged from 23 minutes to 19minutes per day.   While the Board has referred to the DoEHLG Guidelines 2006 in respect of appropriate Shadow Flicker criteria it is important to highlight that Shadow Flicker was one of the issues addressed in the Review of the Wind Energy Guidelines 2006.  It is widely accepted that the DoEHLG 2006 Wind Energy Guidelines are out of date and related to wind turbines which were not expected over 125m means that the 2006 Guidance is no longer appropriate.

While Section 5.12 of the 2006 Wind Energy Guidelines suggested that Shadow Flicker  should not exceed 30 hours per year or 30 minutes per day[1] this guidance has been reviewed and the guidance of the Draft Guidelines 2013 is to effectively eliminate shadow flicker.

The Draft Wind Energy Guidelines, which were published in 2013 by the DOEHLG, proposed elimination of shadow flicker within a zone of 10 rotor diameter lengths from the turbine.  In this case the zone would be 1.25km from the turbines and would encompass additional dwellings.  Therefore in the context of the more up to date Draft Wind Energy Guidelines 2013 the predicted shadow flicker for H 1,H2 and H14, H14 and H16 would require to be eliminated by redesign or turbine shut down.

“If a suitable shadow flicker prediction model indicates that there is potential for shadow flicker to occur at any particular dwelling or other potentially affected property, then a review of site design should take place involving the possible relocation of one or more turbines to explore the possibility of eliminating or substantially reducing the occurrence of potential flicker. Following such a review, if shadow flicker is not eliminated for any dwelling or other potentially affected property then measures which provide for turbine shut down to eliminate shadow flicker should be clearly specified.”

The assessment of shadow flicker and the impacts arising therefore do not comply with the more up to date guidance proposed in the Draft 2013 Wind Energy Guidelines.

 

PUBLIC NOTICE FROM THE DEVELOPER:

It goes on to state that the application and the revised proposals may be inspected at the Council offices.

There are a number of difficulties with this notice:

  • It is seriously misleading in that it implies the haul route and the grid connection revised proposals form part of the application.  This is a reasonable interpretation that a member of the public would understand from the description set out in the notice.
  • The grid connection although extensive sections comprise excavation works comprises development and is not exempt development by reference to the 2016 Planning and Development Regulations as highlighted earlier.
  • The grid connection passes through third party lands and public roads for which legal consent from the owners of the land and from the owners of the land on either side of the public road is a mandatory requirement and this has not been agreed or forthcoming.  In this regard the Council do not own the public road they have the right to maintain the road.
  • The grid connection requires works to bridges, culverts.
  • The Haul route requires works to bridges, road widening, roundabouts, removal of hedgerows, verges
  • Technically site notices should be erected at all locations where haul road works or grid connection works are to take place,that is on every bridge at every junction as part of the planning application.
  • The public cannot be properly informed of works taking place along a grid connection route of possibly 14km length by reference to a site notice some 14km distant from the actual works and the properties affected.

All of these works separately and cumulatively require planning permission as there is no exemption for the developer to undertake such works and they do not form part of the subject application.

The Freshwater pearl mussel and the White clawed crayfish are species of qualifying interest for the Blackwater River SAC.

The survival of the Freshwater pearl mussel is under threat and many of the populations are note reproducing and will ultimately disappear if rehabilitative action is not taken.”(S 6.4.7.1 NIS)

They are found in the substrate of the riverbed, the sand grave and cobbles where good oxygen exchange occurs.    The Fresh Water Mussel requires very high quality rivers.  They are sensitive to fine silt, which may cause heavy mortalities.

 

MUST FAVOUR LANDSCAPE POLICIES:

There is no provision in the development plan for generalised policies in relation to energy infrastructure to override the development plan zoning objectives of the area for agriculture use or for protection of the landscape character of the area.  The developer has simply not dealt with the development plan land use conflicts arising from the proposed development.

 

PRECEDENCE:

In this regard the recent decision of the Board in regard to Appeal Reference: PL93.245211 for wind turbine development at Ballymacarberry in County Waterford sets a precedent and is relevant to the subject case.

The Board in that case wisely refused permission for sound planning reasons that the development would impact detrimentally on the environmental quality and scenic landscape of the area.

“Notwithstanding the location of the site within a preferred area for wind energy in the Waterford County Development Plan 2011 – 2017, it is considered that the proposed development, by reason of its height and extent, would constitute a visually dominant feature in a vulnerable scenic landscape, as outlined in policy 6.2 of this Plan, and would interfere with the character of the landscape which it is considered necessary to preserve.

In deciding not to accept the Inspector’s recommendation to grant permission, the Board noted the inherent conflicts between the wind energy policies and the policies relating to landscape and scenic routes, as set out in the County Development Plan, and considered that, in this particular location, the proposed development would, if permitted, become a dominant feature and impact detrimentally on the environmental quality and scenic landscape of the area.”  Appeal Reference:PL93.245211

The reasons cited for the refusal of permission in the recent case at Emlagh Co Meath ref. 17.PA0038 are also relevant to the subject case.  In that instance the Board decided:

“it is considered that a wind farm of the scale, extent and height proposed would visually dominate this populated rural area, would seriously injure the amenities of property in the vicinity, would interfere with the character of the landscape and would not be in accordance with the overall development objectives of the Meath County Development Plan 2013-2019. Furthermore, it is considered that the proposed development would not align with the Wind Energy Development Guidelines as this guidance document did not envisage the construction of such extensive large scale turbines in an area primarily characterised as a hilly and flat farmland landscape and in such proximity to high concentrations of dwellings. The proposed development would, therefore, be contrary to the proper planning and sustainable development of the area.

In deciding not to accept the Inspector’s recommendation to grant permission, the Board considered that, notwithstanding the provisions of the National Renewable Energy Action Plan, and other national and European Union policies in support of renewable energy development (including wind), the impacts of this very large development on the substantial local residential population, and the impacts of the proposed development on landscape and cultural heritage, would not be acceptable in this location. The Board further considered that the number and height of the proposed turbines would significantly exceed the landscape’s “medium potential capacity” to accommodate wind farm development as set out in the Landscape Character Assessment of the Meath County Development Plan 2013-2019. “

We hereby request the Board to uphold the decision of the Planning Authority to refuse planning permission.


 

ABP react.

ABP sent this letter to Ecopower yesterday (28/7/15)… Drumhills-ABP-Ecopower

It is an interesting letter.

Ecopower have been asked to give the route corridor for the grid connection. The infrastructure will be handed over to the ESB when completed it will have to be designed, verified, and approved by them. All by 21st September. If it can be presented satisfactorily it will be significant new information which will require a further 5 week consultation period. ABP are lost as the proposed turbines are on a visually vulnerable ridge-line an cannot be granted in any case; the developer won’t see sense as it is on Coillte lands, what a mess.

ABP require this information in order to properly carry out an EIS, they do this as they have been instructed by the courts to do so following a recent court case taken by a community group trying to protect their homes.

Community groups in Cork, Roscommon, Donegal, Meath, Laois, Mayo, Wexford, Kilkenny, Kerry, Clare, Limerick, Kildare, Waterford and other Counties are rewriting wind guidelines as the legislature sits on its hands. They are doing this by getting the courts to implement planning law correctly. This is highly undesirable as communities have begun defending themselves by evicting developers who ‘consult’ with them in devaluing their homes. The situation is in need of leadership.

 

UK Wholesale Power Falls to £46/MWh

NOT A LOT OF PEOPLE KNOW THAT

By Paul Homewood

image

http://www.powerengineeringint.com/articles/2015/01/bad-news-for-coal-as-wholesale-power-prices-boost-uk-gas-generation.html

PEI report:

UK wholesale power prices dropped to a two-year low on Monday 5th January, representing good news for gas generators.
The
ICIS Power Index (IPI) is now just £46.316/MWh, the cheapest since July 2012 and while that is good news for the gas sector, it’s not so good for coal power generation.
For
generators, the falling power price is influenced by lower fuel prices – but gas prices have fallen more than power over the last year, so gas-fired power generation is more profitable.


Pylons

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The ESB has insurance against EMF

The Law is my Oyster

bigstock-Swearing-an-oath-with-fingers-39094954-310x233

Two fundamental principles of insurance law

When it comes to insurance, even those who are naturally inclined to tell porkies are forced to tell the truth.

The first principle of insurance law is uberrimae fidei, which is interpreted to mean “the utmost good faith”. Essentially this means that both parties to an insurance contract must be upfront and completely truthful in their dealings with each other. The failure by either side to be truthful means that the insurance policy can be refused. If the insurer was not completely truthful about the contents of the policy on sale, for example, the insured will be entitled to a refund of premiums paid and perhaps damages; whereas if the insured is not completely truthful, the insurer can repudiate the policy and refuse to pay out compensation for the damage or loss to the thing that has been insured.

Unlike other…

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Banks Refuse to Lend for Properties Neighbouring Wind Farms

STOP THESE THINGS

mortgage Giant fans next door? No deal …

Wherever giant fans have gone up – or are threatened to go up – neighbouring homeowners are finding that the value of their properties is being slashed in half – if they can find a willing buyer at all.

Scottish real estate agents trying to sell homes situated anywhere near giant fans are finding the task almost impossible, one of them, Iain Robb stating that:

“Properties next to sites where a planning application for a windfarm has been lodged are virtually unsellable.” (see our post here)

A while back we covered a report on the impact giant fans have on Australian rural property prices – put together by highly experienced property valuer, Peter Reardon. Reardon compiled a 30-page dossier on the impacts of wind farms on adjoining or nearby rural farms and found that having fans as neighbours led to discounts…

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2014, the year in review.

2014, the year in review..