New Appeal: When does a deviation from planning permission render a development unauthorised?

WindFarm_largeIn this determination (Bailey v Kilvinane Wind Farm), the Supreme Court granted Kilvinane leave to appeal from the Court of Appeal’s order restraining the use of three wind turbines (which Kilvinane constructed in deviation from its planning permission) and an order to dismantle the turbines, which the COA stayed pending the decision in an application before An Bord Pleanala for substituted permission.

Background

In July 2000, Cork County Council granted Kilvinane planning permission for four wind turbines with rotor diameters of 57 metres. Kilvane later corresponded with the Council, in which the Council agreemeed to deviations from the details in the planning permission. In 2005 -2006, Kilvinane constructed three turbines, each of which was 20 meters from the position for which permission was granted and with rotor diameters of 58, 80 and 80 metres.

In 2013, the High Court refused Bailey’s application under s 160 of the Planning and Development Act 2000 for three orders: (1) restraining Kilvinane from operating the turbines; (2) that Kilvinane take down and remove the turbines; and (3) that Kilvinane return the land to its original condition.

Here, the COA allowed Bailey’s appeal. Hogan J stated:

100. It is inherent in the doctrine of good faith as a general principle of law that any party seeking to avail of that principle should show appropriate regard for the rights of third parties who might reasonably be affected by their actions. There is nothing at all to suggest that either the developer or, for that matter, the Council official in question gave any consideration to this issue. In such circumstances no sensible developer could reasonably suppose that a planning authority could informally sanction such deviations from location and rotor diameter without a formal assessment of the potential planning and environmental impact of these changes and especially their potential effects on third parties.

Kilvane sought leave of the Supreme Court to appeal that decision. Granting leave, the Court determined that the case raised a matter of general public importance and certified two questions:

(a) What is the nature and extent of the deviation from the permitted development which crosses the materiality threshold, so as to render the development an unauthorised development and what criteria should a court apply in determining where the threshold lies?

(b) What are the implications of the involvement of an official of the planning authority for the area in which the development is taking place in representing to the developer that a particular deviation from the development, as authorised by the planning authority or the Board, will not render the development an unauthorised development and, in particular, should a court have regard to such a pre-development representation or statement in determining whether the deviation is material so as to render the development unauthorised?

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