Press release
European Commission confirms closing of Derrybrien infringement case
From Department of Housing, Local Government and Heritage
Published on
Last updated on
From Department of Housing, Local Government and Heritage
Published on
Last updated on
The European Commission has confirmed that daily fines being applied against the State in relation to the Derrybrien windfarm in Co Galway will cease.
The Department of Housing, Local Government and Heritage has received a response confirming that the Commission consider that, on foot of the An Bord Pleanála’s decision of 4 February 2022 to refuse substitute consent, Ireland has taken all measures necessary to ensure compliance with the judgment.
Once the final instalment of daily fines is paid, Commission services will initiate an internal process to propose to the College of Commissioners to close this file. This final instalment of daily fines covers the period 13 November 2021 to 4 February 2022. The final sum due to be paid is €1,245,000.
The exact details in relation to the future of the site in terms of decommissioning and site restoration is a matter for Galway County Council and the owner of the site to address, noting the planning enforcement role of the County Council as the relevant planning authority.
The Derrybrien wind farm development has been the subject of European Commission infringement proceedings pursuant to infringement case 2000/4384 and judgements of the Court of Justice of the European Union in cases C-215/06 and C-261/18.
This CJEU case C-261/18 relates to Ireland’s non-compliance with a prior judgment in case C-215/06 from July 2008, specifically the non-compliance of a development consent for a wind farm in Derrybrien, Co Galway with the environmental impact assessment (EIA) Directive. The wind farm is owned and operated by a subsidiary company of the Electricity Supply Board (ESB).
The judgment in the present CJEU case C-261/18 was issued on 12 November 2019, with a lump sum fine of €5 million, as well as an ongoing fine of €15,000 per day, from the date of the judgment until the terms of the judgment are complied with.
ESB's subsidiary company submitted a substitute consent application to ABP in August 2020.
An Bord Pleanála issued its decision, refusing substitute consent, on 4 February 2022.
On 16 March 2022, ESB decided to cease operations at the Derrybrien wind farm permanently, and it is understood that ESB is preparing to decommission the wind farm in line with regulatory and legal requirements.
Planning legislation specifies that a development that has been refused substitute consent is deemed to be an ‘unauthorised development’ by primary legislation. Galway County Council, as the relevant planning authority, has a planning enforcement role in accordance with sections 154 and 177O(5) of the Planning and Development Act.
On 30 May 2022, DHLGH officials wrote to the Commission, to seek to close out the related infringement case against Ireland on the basis of the Board’s decision to refuse permission for the wind farm, which unauthorised development is now an enforcement matter for the relevant planning authority.
A further letter issued to the Commission on 23 September 2022, to emphasise that the enforcement process initiated on foot of the decision by the Board to refuse substitute consent is an entirely separate process to the retrospective EIA process required in order to comply with the CJEU judgments and reiterated the State’s position that compliance with the judgment has been met and daily fines being applied against the State.
The response received from the Commission on 1 February 2023, confirms that the Commission services consider that the decision of An Bord Pleanála of 4 February 2022 to refuse substitute consent, Ireland has taken all measures necessary to ensure compliance with the judgment in case C-215/06.
Once the final instalment of daily fines is paid, Commission services will initiate an internal process to propose to the College of Commissioners to close this file.