Judge warns applicants to avoid ‘do or die’ after wind farm challenge dismissed

A High Court judge has warned litigants to avoid the thrill of “a do-or-die scramble” to get the last seat out on the last helicopter out of Saigon when seeking to judicially review planning decisions.

Mr Justice Richard Humphreys made his comment when dismissing a residents’ group court challenge against a €175 million wind farm.

Mr Justice Humphreys dismissed the challenge by the Save the South Leinster Way Group and local resident Tara Heavey after finding that they were one day late in seeking to judicially review a planning permission granted by An Bord Pleanála for the 21-turbine wind farm at Castlebanny on a 1,434-hectare site.

Galway hurling manager and former Kilkenny captain Henry Shefflin was among those originally objecting to the wind farm’s construction, although he was not a named party in the court challenge. The site is mainly owned by Coillte to the east of the 10-time All Ireland winner’s native Ballyhale in southeast Kilkenny.

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Mr Justice Humphreys ruled the judicial review challenge was out of time, commenting: “The message to applicants is – try to avoid depleting the energy of the court with this sort of application and instead put in place some kind of margin for error, rather than living for the thrill of a do-or-die scramble to get the last seat on the last helicopter off the embassy roof in Saigon.”

In his ruling, Mr Justice Humphreys stated: “Knocking out an applicant who is a day out seems harsh. But that’s inherent in having any boundary rules on anything. We have not yet reached the utterly chaotic and subjective situation where there can be no fixed rules, only the chancellor’s foot.”

He added: “Any dividing line seems arbitrary for the person who is just on the wrong side of it. Time limits become meaningless and unworkable unless they are applied consistently – otherwise we end up with the paradox of the heap.”

He further stated “if an extra day is okay, what about two days? And so on ad infinitum. That’s not to say there can’t ever be legitimate excuses, but here we have a statutory test for extension, and the applicants don’t meet either limb of it.”

A spokeswoman for applicants FuturEnergy Ireland on Monday welcomed the High Court decision and said: “A review of the High Court decision is ongoing, and an assessment will now be made regarding what this means for the project and its pre-construction and commercialisation programme in 2024.”

The Castlebanny Wind Farm project developer, Springfield Renewables Ltd, is a joint venture initiative backed by ART Generation and FuturEnergy Ireland, made up of Coillte and the ESB.

Mr Shefflin’s objection was one of about 70 submissions lodged with An Bord Pleanála and in his original objection against the Castlebanny wind farm, he told the appeals board that “the residential amenity of my home would be irrevocably compromised by the construction and operation of this wind farm”.