Skip to main content
Normal View

Seanad Éireann debate -
Tuesday, 14 Jun 2022

Vol. 286 No. 2

Planning and Development (Amendment) (No. 2) Bill 2022: Committee Stage (Resumed)

SECTION 12
Question proposed: "That section 12 stand part of the Bill."

I welcome the Minister of State, Deputy Noonan.

This section has to do with the definition of "exceptional circumstances". My amendment suggesting definitions has not been successful. Ahead of Report Stage, I urge the Government to define the term further or to recognise the points I have raised. In European Court of Justice rulings, exceptional circumstances were clearly intended to exclude anything that could create an incentive, reward, encouragement or new practice as regards planning. Exceptional circumstances are meant to be rare.

This legislation has not been justified. We already have mechanisms for substitute consent in exceptional circumstances, but the Bill makes it easier for developers to access the process for seeking substitute consent, as all the power to initiate it will go to them. It will no longer be something that, for example, local authorities can initiate. There will also be rewards for those who have failed to apply planning processes properly, in that a developer who has not applied for planning permission for a development in the proper way and consequently needs to seek substitute consent will be allowed to attach a new application for a brand new development, not only on that site, but on adjoining sites without having to go through the original process or without the adjoining sites being materially linked to the development for which the substitute consent is being sought. A brand new development of a different kind on an adjoining site will be able to go straight to An Bord Pleanála, effectively skipping planning processes at local authority level. By contrast, someone developing a site who has previously had a development that did not have proper consents will have to go through a longer process than those who are seeking substitute consent. By this I mean that the process for a new development by a developer who did not get proper consent at the time and now needs substitute consent is shorter than that for a developer starting from scratch on a site. This is perverse incentive. In a series of bad dissections of our planning system, this might be the moment where we jump the shark into something that is so ludicrous that we are directly rewarding those who have breached practices. This provision is at high risk of not meeting the requirements set out in the European Court of Justice ruling, which made it explicitly clear that there should be nothing that creates any kind of encouragement of these practices.

I have sought to bring amendments on this, which I will discuss here if I have the opportunity, but will also bring more on Report Stage. We should be monitoring to ensure these cases do become exceptional. What will be exceptional? Would that be one, two or three decisions a year? Could it be 20 decisions by An Bord Pleanála? If more applications go through this route than previously or there is an increase in people attaching their planning applications alongside other applications for substitute consent, that would be a new trend rather than exceptional circumstances.

This is not in line with EU law. It is not in line with the rulings. It is a massive overreach. The fact that this is being done right now, and that we would make An Bord Pleanála the first point of arbitration for planning decisions from applicants who, by the very nature of it, have failed to apply proper processes in the past, at a time when An Bord Pleanála is under examination due to a number of its practices, is incredible. It is not only bad legislation but a very bad time to bring this bad legislation through.

I am coming to this debate from the last session. The whole point of substitute consent is to seek regularisation and to protect the environment. It is a key point that the developer in a parallel application must show bona fides. The substitute consent application is assessed as per the section 177K criteria for exceptionality. I hope that clarifies the matter. The Senator mentioned she might bring some other elements on Report Stage so I wanted to give that clarification.

I support the Minister of State. The section is quite clear. Senator Higgins spoke about exceptionality. If I am reading it right, this would put the onus on the planning authority or the board to consider both the past and present requirements applicable to a development. Our language must be judicious in how we speak about matters of planning. How do we know this is in breach of EU law? Who is to say that? Let us be clear in what we are trying to do here. There is an obligation on developers to fulfil or adhere to this regulation. The board is independent in its decision-making. The Senator may look at me but An Bord Pleanála is independent of all of us, whether we like it or not. She may well laugh at me but I have not yet, in my 18 years as a public representative dealing with appeals, submissions or objections to An Bord Pleanála or dealing with the planners in Cork city or county councils, questioned its bona fides. It is very independent and extremely fair in how it handles its business. There may be examples in the public domain at the moment but that is a different matter. In the main, we have to be fair about the independence of An Bord Pleanála and the way in which it does its business.

The Senator asked about EU law. There were specific rulings relating to previous regimes. I believe we are not satisfying those and that we are at risk. That is why I referenced those other components because those have been attached in this legislation. To be clear, we had a regime for substitute consent already. This legislation is not bringing that in. Of course there should be mechanisms for regularisation. However, this legislation will mean local authorities will no longer be able to require developers to seek substitute consent and developers who wish to seek substitute consent will no longer have to seek High Court leave to do so. This short-circuits the process so it will be a direct choice following a meeting with An Bord Pleanála. It is a direct choice at that point for the developer if it wishes to seek substitute consent. There is a shift of the power. This is not about whether there should be processes for substitute consent. Of course there should. There are many very reasonable instances where people do not realise something and they make mistakes and there should be mechanisms to regularise that. The question is what the process for substitute consent will be. I do not believe this is an appropriate process. It is a step backwards from the process we currently have.

Question put and declared carried.
SECTION 13

I move amendment No. 9:

In page 8, to delete lines 30 and 31.

I will withdraw this amendment because I have a concern about its placing. I believe I made a mistake. I will be coming back to this issue, specifically the matter of how the board might be satisfied about the assessments required for development, that is, the environmental impact assessment and appropriate assessment. I will be bringing an amendment on Report Stage on the appropriate mechanisms for the board to be satisfied.

Amendment, by leave, withdrawn.

Amendments Nos. 10 and 11 are related and may be discussed together.

I move amendment No. 10:

In page 9, line 14, to delete “and”.

Tá fáilte roimh an Aire Stáit ar ais go dtí an Teach seo. In January 1998, two applications for wind farm developments from two separate developers, Saorgus Energy Limited and B9 Energy Services Limited, were made to Galway County Council, seeking permission to erect 46 wind turbines on three sites in the locality of Derrybrien. Permission was granted to Saorgus for 46 turbines in March 1998. In the same month, B9 was granted permission to erect 23 turbines. In all, 69 turbines were to be erected in the area of Derrybrien. Local residents appealed the decisions to An Bord Pleanála but the local authority's decision was upheld by the board.

In 2000, Saorgus applied to Galway County Council for a further 25 turbines, which would bring its total to 71. Initially, Galway County Council refused permission but on appeal the developers were granted planning permission for these developments. In consequence, Saorgus leased an 850 acre site at Derrybrien and construction commenced in October 2003. There was then a landslide of peat causing environmental damage to the site at Derrybrien when the contractors were constructing the wind farm. Huge amounts of peat were dislodged and slid across the site, polluting a local river and resulting in the death of 50,000 fish.

The landslide meant that 450,000 tonnes of peat, which is a lot of peat, was spread over an area of 25 ha which is more than 50 acres. That resulted in an enormous movement of 250,000 tonnes of material in a downwards direction. That disaster led to An Bord Pleanála refusing substitute consent to the ESB subsidiary. The wind farm capacity that was affected by that refusal of substitute consent was 59.5 MW which is a substantial development especially when we consider that the island overall has a generating capacity of 5,600 MW. It was not some small-pocket development but a substantial one.

In October 2004, ESB International and Ascon, a construction company, were prosecuted and fined at Gort District Court for allowing polluting matter to enter the head waters of the river and derisory fines of €1,250 were imposed on each company. In 2005, the following year, the European Commission announced it would prosecute Ireland in the European Court of Justice in respect of these issues. This was probably as a result of a direct intervention by environmentalist volunteers at European level.

In 2019, the State was fined €5 million over its failure to comply with EU legislation that might have prevented the landslides linked to the construction of a wind farm in 2003. This fine has since been increased to €17 million. The fine in question was largely due to the State's failure to carry out an environmental impact assessment on the site, as was required by European law for a development of that kind. The ESB then lodged a substitute consent application under the amended planning law through a remedial environmental impact assessment report in June 2020 to regularise the project's planning status. Later, An Bord Pleanála decided not to grant substitute consent for the development.

The situation now is that 70 turbines in the Slieve Aughty Mountains must be removed after 20 years of controversy. The site has already cost the Irish taxpayer €17 million in fines and now this badly needed infrastructure must be removed in its entirety. The rather futile obligation is being cast on the ESB and the developers to try to reinstate the site to the state it was in prior to the landslide. In other words, the matter is to be remedied. The reason that substitute consent was not granted was because it was effectively impossible to do so in the circumstances that I have described.

I would like to place a number of reflections on the record. First, our planning laws were grossly inadequate insofar as polluting the river ended up with €1,250 fines - virtually equivalent to the fine for not paying for a television licence or for a motoring offence. Second, the Irish State has had to pony up €17 million to the European Union by way of penalties instead of having a statutory regime which could have approached the matter on the basis of redress consisting of the developers having to share the cost of the fines in question. There should also be an estimate as to whether the actual demolition of the wind farm and the reinstatement of the site is environmentally justified. We now have what I and the movers of this amendment consider to be a wholly unjustified situation where more damage will be done to the environment, valuable resources will be wasted and badly needed wind energy infrastructure will be decommissioned and destroyed,all to make a point that at the very beginning an environmental impact assessment should have been carried out.

I wonder whether Ireland is unique in this and whether this would happen in any other European state. I wonder whether the powers that be would not have found some solution to impose upon the people - who made the original mistake of not seeking an environmental impact assessment - the burden of remediation while retaining the development. I wonder about the absence of proportionality that 20 years after all this was done - we are now in 2022 and the work was carried out in 2003 - somebody would actually ask where the common sense in all this is. Is the environmental tail wagging the environmental dog in the sense that a purist view of this is being allowed to produce a result which flies in the face of what most people would consider to be proportionate and common sense?

Our amendment proposes to amend section 13 to provide that as part of the process of consideration of a substitute consent application, there should be "an independent review of the environmental, financial and community impact of the existing development or the decommissioning of the existing development on the lands under consideration." It is not very much to ask that in addition to the retrospective look-back aspect which is currently enshrined in law, somebody should actually consider the practicalities, proportionality and reasonableness of requiring a development to be nullified and reinstatement of the site - insofar as that could ever be done.

I understand that the Minister of State and his departmental officials are in the sad position of having been advised that there is nothing we can do at this point. We cannot go to Europe on our knees and say, "Look we've paid our fines. This won't happen again. We've amended the law." There is a positive environmental advantage in keeping this wind generation facility in place especially in a country which is making - I hope the Minister of State does not take this as a barbed political point - slow enough progress in substituting renewable energy generation for non-renewable fossil fuel sources of energy at a time when according to all the prognostications we will fail to meet our 2030 targets. We are trying to electrify the country and to drive a revolution in our energy requirements. However, as a result of a failure to carry out an environmental impact assessment between 1999 and 2003, we are actually destroying alternative energy facilities at great cost.

Nobody has yet put a figure on the cost there will be in demolishing this facility. I am not competent to say whether the turbines can be re-erected anywhere else. Nobody has come out clearly and said they can be shifted somewhere else or even that the mechanical infrastructure can be saved. I am deeply sceptical, however, about the environmental sense of attempting to wipe out this facility on the basis of a historic error of this kind. I will put on the record I do not believe there was mala fides at any point in the whole process. I do not believe people said, "We have an obligation to do that but Europe can get lost. We are going to cut a corner here." I do not believe the ESB and the planning authority would do that or that An Bord Pleanála at the time, when it approved these additional facilities, consciously decided to breach European law.

Senator Higgins talked about the necessity of preventing people from riding roughshod over European law and then benefiting from it, but if it all comes down to two fines of €1,250 and the obligation now cast, in effect, on nationally owned entities to spend more money on demolishing all of this structure, where is the common sense in all this? What are we trying to achieve? Is Europe trying to say to us we were very naughty in 2003, An Bord Pleanála should have insisted on an EIA then, should not have done X, Y and Z, and should not have granted the appeals in question? There comes a time in virtually every aspect of human affairs when we cannot put the toothpaste back in the tube. That is what this decision by An Bord Pleanála and the fact we cannot go to Europe to ask it to just take a common sense view of the matter means. We are now stuck with a statutory outcome from An Bord Pleanála and the destruction of very valuable infrastructure in an utterly futile effort to remediate that which is irremediable in any event.

To go back to the matter of the landslide, or turf slide or bog slide, that took place, presumably the developers did not foresee that was likely to happen. Presumably, if they had foreseen the risk of that happening, they would have taken steps to prevent it. I do not know what the engineering steps would have had to be, but presumably they would have done earthworks, earth removal works, or installation works in a different way, or taken precautions to insert pilings or whatever, to prevent an event of this kind from happening. We are now in the utterly ridiculous situation, having spent €17 million paying penalties to the European Union, of destroying extremely valuable infrastructure and pretending we will remediate that site at whatever cost will eventually fall on the community.

I fully accept the need for EIAs. In this case, I do not believe there was ever a conscious decision to circumvent the requirement for an EIA or that An Bord Pleanála was party to such circumvention. It seems to me, therefore, that in circumstances such as these in future, we should not merely take a look at the wrong that was done but also look at the extent to which it is proportionate and in conformity with common sense, the good of the environment and the good of the community to take a different course rather than refusal of a substitute consent. Whatever steps have to be taken to ensure that, in this case, the significant cost to the Exchequer, and the cost that will be borne by whoever has to pay the bill for attempting to remove all this, should not be borne by the community but should somehow be levied on the profits that would arise from Derrybrien, if the wind farms were left intact. It is in that spirit that I move this amendment.

The Minister of State is welcome to the House. I do not intend to go back over what my colleague has so eloquently put together regarding Derrybrien. I visited the site, was driven around it and walked part of it. Even with the best will in the world, there is absolutely no way of returning Derrybrien to what it was pre-development. There is just no possibility of that. There are 25 km of roads there, fibre optic cables are running from turbine to turbine, and there is an entire information technology system that manages each one of the turbines. Indeed, those who manage the turbines and the engineers who look after them can activate a turbine from their homes. They do not have to be on site but can monitor those turbines from home. As my colleague, Senator McDowell pointed out, there are 70 turbines producing 1% of the entire electricity needs of the country. The site itself is now in pristine condition. The area where the mudslide took place is totally overgrown and nature has recaptured it. Incidentally, it is not the first bog slide there ever was in this country and, in some cases, no development had taken place so it is a bit of a nonsense to totally blame the development in Derrybrien.

At present, two turbines per day are allowed to be turned on for a short period to ensure they do not seize. I understand there is interest from as far away as Africa, Denmark and Finland in these turbines, which will ultimately be sold for scrap because that is all they are. Yet, these turbines are almost 99% efficient when they run. The area they are in makes an ideal nature reserve. It is the sort of place where there could be a greenway, while the turbines are active. We could have a nature reserve there. To prevent turf cutting there in future, what should happen is those who own bogs on the site should be paid an annual sum of €1,000, €1,500 or €2,000 a year for the next ten or 20 years to compensate them for the loss of their turf.

The people I spoke to locally have no problem with Derrybrien. I started to think about how we got to where we are. The analogy I will give concerns the bus stop for Corrandulla village, which was identified by Transport for Ireland. It made perfect sense. A bus stop was going to be put at a certain spot on the map until somebody actually drove the distance. It was 10 km form Corrandulla. No pensioner was going to walk 10 km to get the bus into Galway. What happened was that a decision was made at a desk. Nobody on the ground went to see what was happening. Similarly, in Derrybrien, one officer from the planning authorities went on site and was supportive of it. Nobody else has gone there. None of the people in Europe who put on the pressure to have this mattered considered by the European Court of Justice visited the site and none of them has seen the site. No one from the European Court of Justice has come to the site so nobody knows what is going on there.

We talk about planning laws. That is what this is all about. If there is an attempt to dismantle Derrybrien, I will be the first person to put in an objection under planning laws because we cannot remediate. The foundations for individual turbines have to go through bog down to hard ground. In some cases, that is several metres. How do we pull out several metres of concrete and replace it with turf? How do we do that? How do we take out 25 km of road and replace it with the turf that used to be there? How do we take out the fibre optic cables? The national grid that is feeding into that site has to be taken out of it.

One resident in Loughrea told me that there is a hospital and a few nursing homes in the area. The resident wondered why, surely to God, Derrybrien could not be used to generate the electricity and give it to the hospital and nursing homes for nothing. I think the amendment that we have put forward addresses some of those issues. I have spent a lot of time on the Committee on European Union Affairs over the last seven or eight years. There was a lot of talk in Europe about subsidiarity and trying to bring decision-making back to the individual member states. Then we get decisions like this. Is it any wonder that people are turned off the European idea when there are bureaucrats in Brussels, Strasbourg or wherever making decisions about something they have never seen, based on one environmental incident? My colleague is right to state that the fines that were imposed on the contractors at the time were ludicrous. They were absolutely ridiculous. The State picked up €17 million of the cost.

This amendment makes perfect sense. My real plea today, in seconding the amendment, is for the Government to take a step back and think about what we are doing. As my colleague stated, we cannot put the toothpaste back in the tube. There is no way on God's earth that Derrybrien can ever be returned to where it was. Why not turn it into a benefit to the nation? We are going through an international energy crisis and there are 70 turbines in Derrybrien that are switched off, sitting and waiting to rust away. It is absolute insanity. That is why we are moving this amendment. I hope the Minister of State will accept it. It makes perfect sense. It will allow situations like this to be appraised in a much better way.

I will speak briefly on the amendment. While there are aspects of amendment No. 11 that are constructive, I suggest it is important that there is like with like such that there is an independent review of the environmental impact, rather than just an assessment of the environmental, financial and community impact. A situation can be created whereby a good financial case outweighs concerns around the environmental impact. A compelling environmental case has been put and we should consider looking at one environmental impact alongside another environmental impact. However, when financial impacts are added in, there is the creation of a situation where like is not compared with like. There is a financial benefit, which is probably a financial benefit to companies generally speaking. As we have heard, they pay the small fines and the State pays the large fines when we fail to deliver on our environmental obligations. That financial benefit could be outweighing the environmental considerations. While the idea of having a wider frame on the environmental considerations, including the impact of decommissioning and rehabilitation and how that works, has some merit, I note that in this amendment the financial impact is placed alongside that.

Unfortunately, what makes this frustrating is that the EU was not suddenly being unreasonable. It signalled earlier that this was coming and it should have been acted upon. Ireland would make a more convincing case if we had shown that we have learned from the incident. Sadly, the message over the past few years, as I have seen, is that Ireland does not seem to have learned from it. Despite this case and despite the absolute waste of energy, time, infrastructure and everything that goes into a project wrongly situated or not planned properly, we have continued to say that perhaps we could save a bit of time by getting through the stages quickly, when we know that it makes for a longer and more expensive journey in the long run. A sign that we have not learned from the experience is that we are reading in the newspapers today that An Bord Pleanála - which, under this legislation, will be dealing with it all on its own - has one ecologist among their 60 inspectors. Of the 60 inspectors, whose advice is not always listened to, only one of them is an ecologist. How could Ireland be paying fines of millions of euro over the last few years and not be thinking that perhaps we could do with having a lot more ecologists and staff who can conduct environmental impact assessments in order that we do not dig ourselves into these holes in the future? Ireland had to be pushed by the European Court of Justice about not doing environmental impact assessments on peat extraction properly. In an 18-month period over the last few years, 1.5 million tonnes of horticultural peat were exported from Ireland. We know that large-scale industrial peat extraction simply was not being properly planned or subjected to environmental impact assessments. The EU gave out to us about forestry and how we were failing to complete environmental impact assessments for large forestry projects. I acknowledge that the Minister of State, Senator Hackett, has increased slightly the number of ecologists in that area. It is important. That is the solution, rather than hoping that fewer people will take appeals.

I sympathise with the idea of specific projects being looked at and the environmental impact and the environmental piece being looked at in the round. There is some merit in the kind of idea being put forward, as indicated by the language in amendment No. 11, as one of the considerations that might be taken into account. However, sadly, Ireland has not demonstrated and is not demonstrating in this legislation that it has learned from the experience and it will not repeat its mistakes. Another example of how we have not learned from it is apparent in the case law that I referenced. Senator Buttimer asked me about that. Specifically, in paragraphs 57 to 58 of the Commission v. Ireland, C-215/06, the original Derrybrien case, the Court stated that: "While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception." The Court highlighted, in paragraph 58, that a system of regularisation, such as that in force in Ireland at the time, "may have the effect of encouraging developers to forgo ascertaining whether intended projects satisfy the criteria" for prior assessment. That is why having like with like in the current proposals is important. If the Government wants to bring that in, the public consultation element and the rights of the public, under the Aarhus Convention, to be part of environmental decision-making are important. I am sure there are many members of the public, who, like Senator Craughwell, may make a very strong case from an environmental decision-making perspective that they believe something should be retained rather than removed and started again. The key is that there must a conversation about the environment and environmental decision-making. This legislation actually truncates the public involvement in that by skipping the local authority stage in respect of associated new developments. In that sense, it reduces the opportunities for public engagement in environmental decision-making. The approach of looking at the mistakes of the past to see how we can find the best possible way forward would be more convincing if it was actually accompanied by really strong measures that show a sea change and strong public involvement in an environmental discussion around issues like Derrybrien and many others. It is by strengthening and widening the environmental discussion that we can actually do more, rather than by truncating it again or trying to find ways to smooth out the process retrospectively and into the future.

I welcome the Minister of State to the House. I think it is particularly apt that the Minister of State, Deputy Noonan, is here, given his strong credentials in relation to the environment. I too recognise what Senator Higgins has spoken about in respect of the Aarhus Convention and the right of citizens to engage on environmental issues. I am always talking about it in the House. However, and I do not like using the expression, but we are where we are. Senators Craughwell and McDowell made the point that Derrybrien has been constructed and it is there. It is questionable but its removal may cause even more environmental damage. At the same time, there is an energy crisis, and there is potential for it to be used.

I am mindful that I went to see the site myself and I want to acknowledge the enormous work that Councillor Geraldine Donohue and her colleagues on Galway County Council have done. They are deeply concerned and have had extensive debate on this issue. I always like to apply subsidiarity, go to the ground and meet the people there and the public representatives on Galway County Council. You hear another story that way and you hear rational and reasonable explanations of the potential of it. It has been a difficult issue and people and their opinions and views on Derrybrien have evolved over time The common theme is that, regrettably, we are where we are. Mistakes have been made that should not have happened and it is important that we acknowledge that but we are where we are. It has the potential for an amazing set of biodiversity. It has fauna, plants and life and things have started to develop and grow there and it is an amazing space. I do not know if the Minister of State has been to Derrybrien but I would recommend anyone to go there and see how the land has a great ability to rehabilitate and revegetate itself, which has happened down there.

I signed up to this with my colleagues and we are fiercely committed to it. It is not unreasonable for us to talk about an independent review and I do not see why the Minister of State would have a difficulty with that. It is independent of us and of politics and would be conducted by experts in the various fields on the environmental, financial and community impacts, which is really important, to see what we can do. Ludicrous and crazy fines have been paid and there has been long and protracted litigation with all sorts of expenses. If we were to start all over again we would say it should not have happened but we are where we are. The right course of action is to look at an independent assessment of the environmental impact as well as the financial impact. Whether we like it or not there have to be financial implications to these things too and they have been a huge part of the problem already. More importantly, there has been a community impact and that independent review and assessment of audit can be carried out in some sort of meaningful engagement with people because that is critically important and I am constantly arguing in here for the need for public participation in planning and the environment.

I know the Minister of State is fiercely committed to that too but I am also aware of his enormous commitment to alternative energy and to meeting our targets by 2030. We have the potential and - dare I say - the seed of something great. Maybe it came about in the wrong way but let us stand back and let us not make crazy, mad decisions. The people of Galway do not want that, and the more people learn and understand what Derrybrien is, the more they believe this is the right thing to do. For that reason I join with my colleagues in proposing this amendment because it is the right thing to do and it is not something we jumped into lightly. I want to again acknowledge the councillors on Galway County Council who engaged with and communicated with us and who expressed their views on Derrybrien.

I wish to make a couple of points. Senator Higgins made the point that sometimes people are not listened to. My understanding is that the planning officer who visited Derrybrien was highly supportive of the project. I did not speak to the lady myself so I cannot be 1000% certain of that but my understanding is that she was supportive, that she brought that view back to her bosses but that nobody was listening and nobody wanted to listen. The message came back that the environmental impact assessment had not been carried out, that was it, it was bad news and let us not touch it. The ESB gave the same message that it was bad news and let us not touch it.

My colleague, Senator Boyhan, is correct and Councillor Donohue invited me to come and look at the site. I went there and spoke to business people; people in Loughrea; and people in the surrounding area. I could only find two people who want this shut down. When we shut it down, I do not think they know what they want to do with it. It cannot be brought back to where it was; it is not possible. Bureaucrats somewhere have looked at the paperwork behind this project but none of them have visited it. If we are going to find ourselves subjected to massive fines, out of the €17 million we paid in fines surely to God they could have transported a few of them over to have a look at the site before they made a final decision on it. We are being caught in bureaucratic bind here.

It is not always the case that environmental and financial concerns are mutually exclusive. Sometimes they run hand in hand together and I do not accept the fact that by putting finance in there in some way we diminish what we are trying to do. It is about making sure that steps are taken, that they are taken in the correct manner and the entire perspective must be taken on board. We must not only look at the micro level but we must look at the macro level as well and see what is there. I can find nobody in the west of Ireland who wants anything to happen to Derrybrien other than for it to produce electricity, which is what it was built for.

I want to briefly respond to what Senator Higgins quoted from the judgment of the Court of Justice of the European Union. I fully accept that you cannot have a situation where people benefit from ignoring the law and they get a slap on the wrists and that is it. However, there has been a poverty of imagination as to how we should deal with the decision of the Court of Justice of the European Union. It was possible for us to enact special legislation to deprive the developers of the benefit, to take it into community or national ownership and to somehow extract any benefit whatsoever from the people who breached the law. By the same token we could compensate the community for the absence of compliance with the law by depriving those people of the benefit of it. I wonder whether anybody has asked if we can bring in a special Derrybrien Bill and state that this wind farm will be vested in X or Y, that the original developers will be deprived of the value of their investment and that the State, the community or Galway County Council will be the beneficiary of the commercial value of what has happened. The destruction of the wind farm could be avoided in this way.

Let us be clear about another matter. The Minister of State's party, the Green Party, is a champion of wind energy and there are ambitious programmes for offshore and onshore wind energy. Prior to the last election, every Member of this House was bombarded with what I consider to be misconceived propaganda against wind farms across the country. The propaganda purported that wind farms caused everything, from every disease and psychological trauma you could imagine to every damage to flying birds and all the rest that you could imagine. Looking at my in tray on my emails, I got tired of this constant bombardment from what I considered to be misconceived hostility to wind energy. Most of us would prefer to see all the turbines placed 40 miles out in the Atlantic, where we cannot see them, and most of us would prefer to have them on somebody else's mountains, hills or bogs but let us remember that the transformation that is envisaged by 2030 and 2050 is a process. I have mentioned toothpaste and tubes and there will be some damage to the environment. I have no doubt that in the next five or ten years somebody will come out and say that valuable migratory routes for this whale or that whale may or may not be endangered by offshore wind installations.

I have no doubt that this is going to happen, and I have no doubt that there are people who will find snails and all sorts of lichens and things like that on the sites of virtually anything that is done.

One must break eggs to make an omelette. In the context of the radical revolution to which the State has committed itself in the context of energy generation, the transformation in the kinds of energy we use, and the way in which it is generated, all of that is going to have some environmental consequences. One cannot, therefore, have the purist ideological view and say that because a breach of European law took place, there is absolutely nothing that the State can do about it. If this had happened somewhere in Spain, Denmark or elsewhere in Europe, I fancy that the relevant legislature would have responded by saying "Right, this is a real mess". We have had to pony up €17 million in fines. The courts have fined the perpetrators a total of €2,500, which is ridiculous. In these circumstances, rather than remediation and a refusal of substitute consent, there is a legislative route to deprive the developers of what they have done and, at the same time, not to just simply fly in the face of common sense by ordering the destruction of turbines and the entirely futile project of trying to return this bogland to the state it was in before. The bog slide happened before the development took place. I hope that somebody is listening to this.

Legislation could be drafted and passed now to say that we are not going to knock this down, that we are going to dispossess the developers of the benefit of it, and that we are going to nationalise or communalise the facilities there in order to minimise the disruption of the environment that would be involved with further works at the site. This would help the much bigger, broader and more noble cause of reaching our energy targets in a sensible way.

I take on board what Senator Higgins said to the effect that we cannot reward people, that we cannot give people a slap on the wrist and that we cannot allow people to have the benefit of what they have done. However, we are the community and we are still a sovereign State. I do not believe that the European Court of Justice would rule it unlawful for Ireland to say that the community at large wants to dispossess the developers of their wind turbines and to preserve those turbines in situ on the basis that this is the best way to remedy the damage that has already been done to the environment and the damage that was done to the community by the circumvention, albeit innocent, I believe, by An Bord Pleanála and others by their failure to demand an environmental impact assessment.

In that spirit, I really believe there is a way out of this mess. There is a European Court of Justice decision and we cannot reverse that. There is the An Bord Pleanála decision from which there is no appeal unless somebody could bring a judicial review. I do not believe, however, that this is possible. There is the alternative route. While I may not be the Attorney General anymore, if I were, I would put my thinking cap on and I could draft legislation that would not impose an Alice in Wonderland piece of nonsense on us that would destroy infrastructure, which, as my colleagues have said, nearly everybody thinks should be there and generating electricity, simply to show that we should take European law seriously.

It is amazing how one’s mind works while sitting here listening to debate. I am not sure if the Minister of State is aware of EnergyCloud, which is operating in the north east at the moment, with the assistance of SSE Airtricity and a number of other electricity suppliers. EnergyCloud operates on the basis that wind turbines produce energy even when it is not required. In the north east, they have come together to provide free hot water by way of a retrofit to the water heating system of local authority houses. The people who get this are all living in social housing. They get a credit on their ESB bills of some €30 per month for consuming the electricity that has nowhere to go in the middle of the night.

What Senator McDowell said makes absolutely perfect sense to me. We have the capacity to generate electricity for 50,000 houses in Derrybrien. As a nation, we are strapped at the moment because of the rising cost of energy. We have a European energy crisis on our hands. Could we not, as Senator McDowell asked, put legislation in place that would allow these turbines to be taken into State ownership and provide free electricity to those who need it? We threw out €200 each off our ESB bills to me and everybody else who did not need it. Could we not use the energy coming to the 50,000 houses to provide free electricity to those living in social housing in the greater Galway area? Would it not make more sense to do this than to tear down something that is working perfectly, that is operating at about 90% or 99% efficiency all of the time and that has an extraordinary crew of engineers that look after it? Not one of those I met tried to save Derrybrien, because they had other areas they were looking at also. They just gave me the cold hard facts as to what was being produced there.

Senator McDowell has hit the nail on the head by suggesting that we step back from this, see if we can put legislation together and get it through this House as quickly as possible, not destroy a perfectly good generating system and not damage further what is already damaged by trying to put the toothpaste back into the tube.

I implore the Minister of State to take on board our amendment, and to take what has just occurred in this House back to the Cabinet to say, "Guys, can we sit down and take another look at this?" I ask the Minister of State to do that.

Given that the State has paid significant fines, there is a sense, be it in the context of the location or perhaps more in the dismantling of the turbines, that it should get be able to take from this. Senator McDowell's proposals are certainly very interesting and imaginative. If there was the prospect of nationalisation and community ownership of badly planned developments, it would be an example of a disincentive to poorly planned developments. It would probably be far more effective than accompanying fast-tracking of development as set out in the Bill. The proposal would be an example of the kind of imaginative solution that would create the context, we would hope, where it is an absolute exception that environmental standards are not set, and where they are not set the risk would not be carried by the environment or the public. The risk would be carried by the developers in that context, rather than there being the risk of benefit and the risk of perverse incentive. It is a very interesting example, and it is certainly the kind of thing that would encourage many developers to get ecologists in and environmental impact assessments done as early as possible. It is a very interesting proposal in that regard.

One does not have to wait until the future, I am saying it now: the migratory patterns of whales do matter. However, this does not mean that we do not do these things. It is a matter of how they are done. A whale's migratory pattern, by its nature, is time bound. In that context, there are issues as to what time of year you are leading off on building activity, seismic activity and sonar activity.

I say this as a member of the Joint Committee on Environment and Climate Action. Advocates from Wind Energy Ireland recently appeared before the committee and spoke extremely passionately about their desire for there to be more ecologists and environmental impact officers, as well as collected State data regarding the marine environment, in particular, so we do not have every single company going out and having to do a new data set but that we actually have useful national data in terms of our marine habitats that is available and reliable and can be used.

They also very interestingly, and this was not prompted by anyone in the committee, this is what they brought to us, wanted environmental NGOs to be better resourced in order that there was feedback and things came in early, and so that they had projects they could be confident would work because they are making huge investments. Again, that was the message from them.

I think there are some signs that industry has learned from Derrybrien in that regard. It would be better for the State to start offering the industry what it is actually looking for, which is more resources around the environmental impact assessment and more access to appropriate data, rather than the kinds of fixes we have become too used to in Ireland. I am not speaking specifically to the Derrybrien project now. I am talking about the possibilities under this legislation whereby instead of having two chances to catch a problem at local authority and An Bord Pleanála level, we may have a risk now that new projects on adjoining sites attached to any previous projects may only get one chance really to be caught. This is at An Bord Pleanála level which, again, is a board that has one ecologist among its 60 inspectors. We should actually listen to what the big wind energy producers told us in the committee what they want to see, which is a better process into the future - not just a quicker process but a better process because that is quicker in the long run.

I came into this debate late but I have been listening to Senator McDowell. I appeal to the Minister of State to actually listen to Senator McDowell. He has significant experience in Cabinet having been Attorney General. When he speaks about these things, he tends to know what he is talking about. What he is saying makes absolute sense and perhaps the Minister of State might reflect on it. That is the idea behind this Chamber, which has successfully amended many pieces of legislation over the years.

I have been here more than 11 years now. I remember even in my first Seanad, when the Government had a whopping majority, Senator Sean Barrett at the time tabled many amendments that the Government accepted because they made absolute sense. Therefore, listening to Senator McDowell and, indeed, Senators Boyhan and Craughwell, speaking on this issue, I think they make much sense. I would appeal to the Minister of State to maybe reflect and take on board what they are saying and buy into the ethos of what the Seanad Chamber is, which is a Chamber that improves legislation and often results in clouds of common sense coming down to situations that may not have been shrouded in common sense before.

Before I come back in on the scripted response, I will raise a couple of quick points. Senator McDowell is always a rock of sense and he always makes sensible points. Specifically, I will not make any reference to the Derrybrien case particularly. It is subject to an ongoing planning enforcement and I am not going to give any feedback specifically in relation to it. I will just say that the Irish State is engaging separately on it with the European Commission regarding the fines. I think we had somewhat conflicting approaches from Senators Higgins and McDowell around the issue. This proposed legislation is being designed to comply with the legal cases referred to by Senator Higgins. Separately, I think site remediation on projects like that is also an enforcement matter on which I cannot comment.

Comments were made by Senator Higgins regarding other elements that could impact negatively on the environment such as peat extraction and forestry. As an aside to this, the Attorney General is involved in a review of the Planning and Development Act 2000. The Minister, Deputy Darragh O'Brien, has initiated a review of An Bord Pleanála separately, so those are important processes.

I will note too that any relevant planning authority in a substitute consent case provides a report on a proposal to An Bord Pleanála. The planning authority's views are taken into consideration along with the public's views, and exceptionality is at the heart of the substitute consent process. The public are, therefore, fully involved. Senators Boyhan and Higgins both raised the issue of the Aarhus Convention and public participation, and I would agree. It is something about which I feel very strongly and that is something we should cherish. The ability of the public to be involved in such processes is critically important. The public are fully involved in the substitute consent process as per the Aarhus Convention.

The last point I will make is specifically in relation to the points that were made around offshore energy and the impact potentially on biodiversity. Development, be it wind energy or whatever it is, cannot be at the expense of biodiversity. That is why we have a Maritime Area Planning Bill and why we are bringing in marine protected areas. It is critically important that one cannot be at the expense of the other. Again, I welcome the contributions of all the Senators in relation to this.

Specifically then with regard to amendments Nos. 10 and 11 as tabled by Senators McDowell, Craughwell, Mullen, Boyhan and Keogan, which form part of the same suggested change to the operation of the Act, these proposed amendments to section 177E concern the application process for substitute consent and seek to include an additional clause to the effect that all applications for substitute consent must be accompanied by an independent review of the environmental, financial and community impact of the existing development, or the decommissioning of the existing development on lands under consideration. While I understand the reasoning behind the proposed amendments, I am opposing them. The suggested clause is superfluous with sufficient evidence already included as part of the independent planning process administered by An Bord Pleanála and of the various environmental impact reports that already form part of the substitute consent application.

Amendment put:
The Committee divided: Tá, 9; Níl, 19.

  • Boyhan, Victor.
  • Clonan, Tom.
  • Craughwell, Gerard P.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • McDowell, Michael.
  • Moynihan, Rebecca.
  • Wall, Mark.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Conway, Martin.
  • Davitt, Aidan.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Kyne, Seán.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Michael McDowell and Gerard P. Craughwell; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.

I move amendment No. 11:

In page 9, line 17, to delete “application.”,” and substitute the following:

“application,

(f) be accompanied by an independent review of the environmental, financial and community impact of the existing development or the decommissioning of the existing development on the lands under consideration.”.”.

Amendment put:
The Committee divided: Tá, 8; Níl, 18.

  • Boyhan, Victor.
  • Clonan, Tom.
  • Craughwell, Gerard P.
  • Hoey, Annie.
  • Keogan, Sharon.
  • McDowell, Michael.
  • Moynihan, Rebecca.
  • Wall, Mark.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Conway, Martin.
  • Davitt, Aidan.
  • Dolan, Aisling.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Kyne, Seán.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Michael McDowell and Gerard P. Craughwell; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.
Question proposed: "That section 13 stand part of the Bill."

I welcome the Minister of State back into the House.

I have already highlighted many of the issues of concern.

On section 13, many of the amendments regarding section 177E of principal Act are matters of concern, including the mechanism that allows for pre-application consultations with the board on proposed substitute constitute applications. There is also a measure, which is a key change, where there would no longer be a need to apply for leave to seek substitute consent before entering the process. Again, we go from a situation whereby one has the courts as a filter in terms of whether applications met extraordinary criteria and so forth in terms of being allowed to apply for substitute consent. Instead, one now has a situation whereby developers can meet the board before having to take a risk. When the Minister for Housing, Local Government and Heritage spoke to us he mentioned this huge risk that developers take in seeking substitute consent. In fact, developers do not have to take that risk because before doing so they get to have a pre-application consultation with the board, although that is at the discretion of the board, on the proposed application. Developers get a sense of what might happen before taking the step to seek substitute consent. This is all in the context of another mechanism whereby local authorities could require an application for substitute consent. Again, the option whereby the substitute consent process could be initiated by a local authority has been removed. The initiation for the substitute consent process now sits with the developer but the developer can have a pre-meeting to get a sense of how things might be before taking a risk. I am unclear about the following. If we have situations where there are improper developments whereby a developer does not seek substitute consent, for example, if there is a pre-meeting with the board following which a developer chooses not to seek substitute consent, then it is not clear what mechanisms kick into place. What is the process in those situations? Do we move towards removal or demolition at that point if we are not trying to find a way forward in terms of substitute consent?

I am concerned about the amendments to section 177E in section 13. I am also concerned about the gaps in the process in terms of a lack of public mechanisms to initiate requirements for substitute consent. I do not know whether the Minister of State can inform me about what will be addressed or whether this will be addressed elsewhere. It is in that context that I oppose section 13.

There are two things of note. I have been informed by a text, which is an amazing thing, that Galway County Council, on 25 April 2022 passed a resolution on the following terms: "Galway County Council calls on the Government to direct the ESB to recommence operation of the Derrybrien wind farm and in doing so, provide whatever legislative requirements that are necessary to ensure it may not be legally contested.” That motion was proposed by Councillor Geraldine Donohue and seconded by Councillor Joe Sheridan. The idea of taking a legislative initiative is not just mine but also that of the local authorities involved. They share my view of the matter.

Obviously on Report Stage I cannot table the same amendment that we have just deal with. However, it is my intention to table an amendment that makes provision, as part of the whole structure of how we respond to a situation, where substitute consent would be required as matter of European law but has regard to the decisions of the Court of Justice of the European Union on this matter. Provision should be made by legislative initiative in the form of legislation where that legislation recites that undoing the development, so to speak, is disproportionate and would cause further damage, and where it is possible to deprive, by legislation, the wrongdoing developer of the benefit of non-compliance with European law some avenue must be opened so that instead of going through the process of simply demolishing, or attempting to demolish, the development that has occurred. I am not talking about giving the Minister the power to override it, but for the Oireachtas to deprive the developer of the benefit of the development but also to remove the possibility that the community and the environment will further suffer as a consequence of withholding a substitute consent so a different approach should be taken. I am putting it on the record that I intend, arising out of the debate, to table amendments along those lines to try to bring some reasonableness to all of this.

I appreciate very much the kind words that the Minister spoke. We are in a little paddle boat that is sailing towards the Niagara Falls on this matter and something will happen. Either this is going to be demolished or not. I fully appreciate what the Minister said, that there are enforcement proceedings either in being or that could be in being and there is a planning process that may or may not be required and he feels constrained in what he can say about these matters. However, common sense must have something to do with what we do in this country and in our Legislature. We must, if we can at all, prevent another environmental and financial disaster, and prevent further damage being done to the environment, because we had not the breadth of imagination to think of different legislative responses to the situation that has arisen in Derrybrien.

To clarify, in terms of section 13, Senator Higgins has withdrawn amendment No. 9.

Senator opposes the section.

I oppose the entire section. I know that I am being naive in my opposition to the section.

I am sure Senator McDowell will appreciate that I cannot comment on a specific area. Again, a substitute consent is an application for consent by a developer and a developer cannot be forced to launch a subsequent consent application.

Question put.

Will the Senators claiming the division please rise?

Senators Lynn Boylan, Alice-Mary Higgins, Lynn Ruane and Fintan Warfield rose.

As fewer than five Members have risen, I declare the question carried. In accordance with Standing Order 61, the names of the Senators dissenting will be recorded in the Official Report and the Journal of the Proceedings of the Seanad.

Question declared carried.
SECTION 14
Question proposed: "That section 14 stand part of the Bill."

This section amends section 177F of the principal Act, which sets out what is required in an environmental impact assessment report, EIAR. However, greater clarity and precision could be provided, particularly to ensure that the requirements are fully aligned with the environmental impact assessment directive. I am raising this in the context of the Court of Justice of the European Union, CJEU, ruling. I want to ensure that the EU's rules are being applied fully. I may seek to strengthen the clarity and precision around the requirements for an EIAR on Report Stage.

The Senator's opposition to this section concerns a technical drafting amendment in respect of remedial environmental impact statements as a result of the substantive changes being made by the Bill. I cannot accept the Senator's opposition to this group of amendments, which comprise technical amendments that are necessary as a result of the repeal of section 177D and ancillary provisions relating to a decision of the board on whether to grant leave to apply for substitute consent. The removal of the leave to apply stage when applying for substitute consent is one of the core elements of this proposed amending legislation. Therefore, I cannot consent to its removal, nor to the removal of any ensuing technical amendment elsewhere in the Bill.

I continue to oppose the section. The Bill makes changes to the leave to apply stage when applying for substitute consent. Some of the existing safeguards will no longer apply under the Bill.

Question put and declared carried.
Sections 15 and 16 agreed to.
SECTION 17
Question proposed: "That section 17 stand part of the Bill."

This section amends section 177L of the principal Act to reflect the repeal of section 177D on applications for leave. Section 177D, which is being repealed by section 21 of the Bill, provides for the decision of the board not to grant substitute consent. In its submission to the Joint Committee on Housing, Local Government and Heritage during pre-legislative scrutiny of the Bill, the Irish Environmental Network recommended amending the gateways that were in place under the previous legislation - there have been mechanisms for substitute consent, and this Bill is changing them - in sections 177B to 177D, inclusive.

Progress reported; Committee to sit again.
Top
Share