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Supreme Court refuses Derrybrien appeal

THE Supreme Court has refused, on grounds including it does not make “futile orders”, to declare that planning decisions relating to a windfarm development on a mountain site at Derrybrien did not permit deforestation of more than 115,000 trees.

The site was the scene of a massive bog slide in October 2003 when nearly half a million tonnes of peat and debris was displaced, causing considerable damage to the surrounding area and pollution to a nearby fishing river.

Following a 2008 decision of the European Court of Justice that Ireland had not fulfilled its obligations under a 1985 EU Directive related to assessment of the effects of certain public and private projects on the environment, a local residents group appealed in 2009 against the 2005 refusal of the High Court to grant injunctions stopping the deforestation.

The Chief Justice said, while the Supreme Court was prepared to approach the appeal “on the assumption the planning permission did not cover or extend fully to deforestation”, the court was satisfied it was appropriate to exercise its discretion to refuse the declaration sought.

In a 2008 High Court judgement, Mr Justice Declan Budd found, based on evidence from reports to the planning authorities, it was not weather conditions but rather construction work done at the behest of Gort WindFarms Ltd that caused the 2003 bog slide.

In her earlier and separate High Court decision of June 2005, Ms Justice Elizabeth Dunne refused to grant Derrybrien Development Society Ltd, involving a number of local residents, an injunction preventing the deforestation.

The judge ruled Environmental Impact Statements attached to various permissions for the 71 turbine windfarm envisaged the removal of the forestry and it was not unauthorised.

Also in June 2005, the society sought judicial review of the decisions by Galway County Council to extend permissions for the windfarm. Those proceedings later settled on terms including a €265,000 payment to the society by the windfarm.

An appeal against Ms Justice Dunne’s 2005 refusal of the injunction halting deforestation was initiated by the society in 2009 and heard by a five-judge Supreme Court in October 2014. It delivered judgement last Friday.

Giving the court’s unanimous decision, the Chief Justice, Ms Justice Susan Denham, said, while issues related to planning law and EU law were among those raised in the appeal, it was an appeal against the refusal in 2005 of an injunction.

The time which had passed since then, the fact the residents did not file an appeal until 2009 and that the windfarm has been operating at Derrybrien since 2006 were relevant factors, she said.

The delay in filing this appeal until 2009 raised a query as to the bona fides of the society in this appeal, she said.

There was no doubt of the bona fides of the respondents – Saorgus Energy Ltd, Coillte Teoranta and Gort Windfarms Ltd – who acted at all times in the belief they were in accordance with the planning permission, she said.

If the court was to decide in this appeal the issue of the adequacy of the permission, the windfarm had no responsibility for any inadequacy, she said. For “clarity”, she added, the court was prepared to approach the appeal on the assumption the permission did not cover or extend fully to deforestation.

The forest has been cleared and the windfarm has been operating since 2006, she said. There was “an element of futility” in seeking an order to restrain deforestation and the court “does not make futile orders”. There was also no clear response from the society to queries from the court as to whether re-afforestation was being sought.

In the circumstances, the court was exercising its discretion under Section 160 of the Planning Acts to refuse the orders sought.
During the appeal, lawyers for the residents argued a breach of the 1985 Directive, which was designed to prevent catastrophes such as the 2003 bogslide, “cannot simply be ignored”.

The respondents argued the windfarm became fully operational in January 2006, had brought “only good”, including employment, to the area and they had acted at all times in good faith.

Costs issues will be decided later

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