An Bord Pleanála

Inspector’s Report

Ref.: RL08. RL3351

Development: Whether remedial works to the foundations of 3 No. wind turbines, which are part of a larger wind farm (Coomacheo Wind Farm), is or is not development or is or is not exempted development.

Referred By: SSE Renewables Ltd.

Other Parties: County Council

Planning Authority: Kerry County Council

Location: Coomacheo Wind Farm, Clydaghroe Townland, Co. Kerry.

INSPECTOR: Robert Speer

Date of Site Inspection: 18th June, 2015

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1.0 INTRODUCTION

1.1 Please be advised that this referral should be considered in conjunction with the concurrent referral lodged under ABP Ref. No. RL04.RL3346 on the basis that both referrals are located on immediately contiguous sites and concern broadly similar works within the same wind farm development.

2.0 SITE LOCATION AND DESCRIPTION

2.1 The site in question is located in the rural townland of Clydaghroe, Co. Kerry, in the foothills of the Derrynasaggart Mountains, approximately 11.0km southwest of Millstreet and 11.5km south-southeast of Rathmore, and comprises the wider extent of the operational Coomacheo Wind Farm (the remainder of which is located on adjoining lands in Co. Cork) which consists of a total of 18 No. wind turbines. In this respect it should be noted that Turbine Nos. T18, T19 & T24 are located within the confines of the subject site whereas Turbine Nos. T1- T15 inclusive are situated in Co. Cork. The wider wind farm site is bisected by the Clydagh River whilst the surrounding landscape is dominated by commercial forestry plantations with extensive areas of blanket bog to the west, semi- improved grassland to the east, and enclosed pastoral farmlands at the lower elevations. There are also a number of other operational wind farms in the immediate vicinity of the site which comprise the Clydaghroe (2 No. turbines), Gneeves (11 No. turbines), Caherdowney (4 No. turbines) and Curragh Mountain (8 No. turbines) wind farms. Access to the site is obtained via Local Road No. L5226 which in turn links with the R582 Regional Road between and Millstreet.

3.0 THE QUESTION BEFORE THE BOARD

3.1 On 29th January, 2015 Fehilly Timoney & Company, on behalf of SSE Renewables, submitted a request to Kerry County Council for a declaration in accordance with Section 5 of the Planning and Development Act, 2000, as amended, to determine whether or not the carrying out of certain remedial works to 3 No. wind turbines at Coomacheo Wind Farm, Clydaghroe & Clonkeen Townlands, Co. Kerry, would constitute development which was exempted development. Subsequently, on 25th February, 2015 the Planning Authority issued a declaration which determined that the works in question were considered to constitute development which was not exempted development. Accordingly, pursuant to Section 5(3)(a) of the Planning and Development Act,

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2000, as amended, Fehilly Timoney & Company, on behalf of SSE Renewables, have now referred the matter to the Board for determination.

3.2 Having conducted a site inspection, and following a review of the submitted information, in my opinion, the question before the Board can be formulated as follows:

‘Whether the carrying out of remedial works to 3 No. wind turbines within the Coomacheo Wind Farm in the townlands of Clydaghroe & Clonkeen, Co. Kerry, is or is not development or is or is not exempted development’.

3.3 With regard to the specifics of the remedial works under consideration, an in- depth description of same is set out in Section 2.2 of the document entitled ‘Submission for Section 5 Declaration for Remedial Works at 3 No. turbines and Ancillary Works at Coomacheo Wind Farm, Clydaghroe & Clonkeen, Co. Kerry’ which was submitted to the Planning Authority on 29th January, 2015. However, the principle aspects of the works involved can be summarised as follows:

- The disconnection of selected turbines from the wind farm electrical circuit and the temporary removal of the existing unit substations for storage during the works period. - The sequential removal of the hardcore ballast deposited over the existing turbine bases in order to gradually expose same. - The preparation of the turbine bases (including the use of hydro- demolition) to accept a series of reinforced concrete collars in 3 No. phases. - The use of large concrete ‘Kelly’ blocks to counterweight the phased removal of the hardcore ballast in order to provide stability to the turbines during the works. - The repair of the individual turbine foundations through the injection of grouting into any existing cracks in the plinth and base, the installation of further reinforcement re-bar, and the phased pouring of new concrete collars atop the existing base. - The reinstatement of the removed hardcore material over the newly reinforced turbine bases and the adjacent hard-standing area. - The replacement of the unit substations and the reconnection of the turbines to the wind farm circuit.

3.4 Ancillary works include the establishment of a works compound on an existing hard-standing area at the Garrow substation and the implementation of

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assorted ‘best practice’ construction management measures i.e. drainage works / controls etc.

3.5 In addition to the foregoing, it is proposed to undertake re-grading works in the vicinity of Turbine No. T19 given that a slope stability analysis has identified the northern and eastern banks at this location to be unstable. In this respect it is proposed to place the sand / gravel component of the extracted material in a suitable depression at the hard-standing area adjacent to Turbine No. T18 with the remaining disturbed peaty material to be taken off site by licensed contractors.

4.0 RELEVANT PLANNING HISTORY

4.1 On Site: PA Ref. No. 04/3152. Was granted on 16th November, 2004 permitting John Creedon permission to develop a wind farm to include 2 No. wind turbines and service roadways at Clydagroe, Clonkeen, Co. Kerry.

PA Ref. No. 06/4894. Was granted on 22nd March, 2007 permitting Airtricity Developments (Ireland) Ltd. & Coillte Teoranta permission to construct a 110kV substation compound and associated site works. The proposed development makes provision for the installation of a proprietary treatment system and percolation area. All at Cummeennabuddoge, Co. Kerry.

PA Ref. No. 07/306. Was granted on 25th April, 2007 permitting John Creedon permission for the development of 1 No. wind turbine and a service roadway at Clydagroe, Clonkeen, Co. Kerry.

PA Ref. No. 10/1023. Was granted on 12th January, 2011 permitting the Electricity Supply Board permission to alter and extend existing 110kV station to include 1 No. new control building, an extension to existing control building, 1 No. 110kV transformer, associated house transformers and NER unit, HIS electrical switchgear, new internal service roadway, palisade fencing gateways and associated site works, all at Cummeennabuddoge, Killaha, Co. Kerry.

4.2 On Adjacent Sites (Co. Cork): PA Ref. No. 03/1997. Was granted on 25th July, 2003 permitting Airtricity Dev. Ltd. & Coillte Teoranta permission for a wind farm to include 17 No. turbines, 60m meteorological mast, 120KV substation, control building, fencing, compound & anc. works at Coomacheo, Co. Cork.

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PA Ref. No. 06/10251. Was granted on 24th November, 2006 permitting Coillte Teoranta & Airtricity Developments Ireland Ltd. permission for alterations to 110Kv substation compound to serve permitted wind farm development of 17 No. wind turbines to include increase in size of substation compound and alterations to layout, increase in size of control building and installation of septic tank, at Coomacheo, Millstreet, Co. Cork.

PA Ref. No. 07/4177. Was granted on 16th April, 2007 permitting Airtricity Ltd. permission for 3 No. borrow pits for the provision of stone for site road construction within the adjoining wind farm, all at Curracahill, Caherdowney, Adrivale, Co. Cork.

PA Ref. No. D/205/15 / ABP Ref. No. RL04.RL3346. Application by Fehilly Timoney & Company, on behalf of SSE Renewables, for a declaration in accordance with Section 5 of the Planning and Development Act, 2000, as amended, as to whether or not the carrying out of certain remedial works to 15 No. wind turbines at Coomacheo Wind Farm, Coomacheo, Millstreet, Co. Cork, would constitute development which was exempted development. On 9th March, 2015 this declaration was subsequently referred by Cork County Council to the Board for a determination and a decision in this regard is presently pending (N.B. This referral should be considered concurrently with the subject referral).

4.3 On Sites in the Immediate Vicinity (Co. Cork): PA Ref. No. 99/0616 / ABP Ref. No. PL04.111211. Was granted on 15th September, 1999 permitting Gillian Kelly permission for a 15.6 MW wind farm to incl. 13 turbines, 45m high measuring mast, control building, hard standing areas, compound, access roads, signs & anc. site works, at Gneeves, Co. Cork (N.B. A third party appeal against this decision was subsequently withdrawn).

PA Ref. No. 03/6585. Was granted on 29th March, 2004 permitting SWS Energy Services permission for modifications to wind farm permitted under Reg. No. N/99/0616 to include increasing the turbine height from 44m to 65m, at Gneeves, Millstreet, Co. Cork.

- PA Ref. No. 08/5636. Was granted on 1st July, 2008 permitting SWS Natural Resources Ltd. an ‘Extension of Duration’ for the completion of wind farm (13 No. turbines) granted under pl. reg. no. 99/0616 and modified under pl. reg. no. 03/6585.

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- PA Ref. No. 13/4566. Was granted on 24th May, 2013 permitting SWS Energy Ltd. an ‘Extension of Duration’ for the completion of wind farm (13 No. turbines), extension of duration to permission granted under Planning Reg. No. N/99/0616, modified under Planning Reg. No 03/6585 and which received an extension of duration under Planning Reg. No. 08/5636.

PA Ref. No. 04/188. Was granted on 16th August, 2004 permitting the SWS Group permission for an extension to wind farm permitted under reg. no. N/99/0616 to consist of 4 No. wind turbines (hub height 65m, blade tip 91m), construction of, and extension of, internal site tracks and associated works. All at Gneeves, Millstreet, Co. Cork.

PA Ref. No. 04/1355. Was granted on 2nd June, 2004 permitting SWS Energy Services permission for a change in access route for wind farm permitted under Reg. No. N/99/0616 at Gneeves, Caherdowney, Co. Cork.

PA Ref. No. 13/5717. Was granted on 3rd September, 2014 permitting SWS Energy Ltd. permission for an extension to existing Gneeves Wind Farm (Planning Refs. 99/0616, 03/6585, 04/1355, 04/0188, 08/5636, 13/4566). The proposed extension will comprise of 3 No. turbines (each with a maximum tip height of 91m), a borrow pit, new internal access roads, upgrading of existing internal access roads, underground cables, an extension to the existing substation building with a wastewater holding tank and ancillary works. All at Gneeves, near Millstreet, Co. Cork.

4.4 Other Relevant Files: ABP Ref. No. RL23.RL2384. Was determined on 30th January, 2007 wherein the Board held that works carried out in relation to the existing telecommunications mast consisting of (1) the reinforced concrete strengthening structure and (2) the attachment of additional antennae at ESB Mast, Clonmel Road, Cahir, Co. Tipperary, was development and was not exempted development.

ABP Ref. No. RL27.RL2592. Was determined on 22nd June, 2009 wherein the Board held that (a) a domestic extension and (b) works of repair and renewal to a dwelling known as ‘Rose Cottage’ at Brockagh, Glendalough, Co. Wicklow, were exempted development.

ABP Ref. No. RL13.RL2786. Was determined on 23rd March, 2011 wherein the Board held that the laying underground by the Electricity Supply Board and/or its agents of circa 1.5 kilometres of 38kV cable forming part of a proposed grid

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connection to connect a planned renewable energy wind farm at Glenmore East, Co. Limerick, to a location in the townland of Glenquin, Monagea, Co. Limerick, was exempted development.

ABP Ref. No. RL88.RL2891. Was determined on 23rd December, 2011 wherein the Board held that the alterations to the turbines of the wind farm as constructed, Planning Register Reference Number 01/0980, An Bord Pleanála Reference Number PL 04.127137, at Kilvinane and Garranure, Ballinacarriga, Dunmanway, Co. Cork, was development and was not exempted development.

ABP Ref. No. RL09.RL3080. Was determined on 25th April, 2014 wherein the Board held that the construction of new steel electricity pylons in new locations along the route of the existing Maynooth-Ryebrook 110kV electricity line at a height of 0.5 to 1 metre higher than the existing pylons at Maynooth-Ryebrook 100kv line, Co. Kildare, was development which was exempted development.

ABP Ref. No. RL11.RL3074. Was determined on 14th August, 2013 wherein the Board held that works comprising the construction of agricultural stables at Derrycloney, Mountmellick, Co. Laois, was development which was not exempted development.

ABP Ref. No. RL09.RL3081. Was determined on 25th April, 2014 wherein the Board held that the renewing and altering of the existing Maynooth-Ryebrook 110kV overhead electricity transmission line at Maynooth-Ryebrook 110kv line, Co. Kildare, was development which was exempted development.

ABP Ref. No. RL09.RL3113. Was determined on 25th April, 2014 wherein the Board held that the erection of a temporary 110 kV electricity transmission line at Easton, Leixlip, Co. Kildare, was development which was exempted development.

5.0 RELEVANT CASE LAW

5.1 Ratheniska Timahoe and Spink (RTS) Substation Action Group and Environmental Action Alliance Ireland v. An Bord Pleanala: 2014 JR 340: 5.1.1 This case related to the Board’s decision to grant approval for a development comprising electricity transmission infrastructure and associated works (the Laois – Kilkenny Reinforcement Project). The specific grounds of the application for a judicial review of the Board’s decision and the seeking of an order of certiorari to quash same are lengthy and include the alleged failure of

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the Board to carry out, and record, a proper environmental impact assessment, in addition to its failure to carry out a proper appropriate assessment pursuant to Article 6 of the Habitats Directive, and the action itself instead was ultimately dismissed. However, in the context of the subject referral, I would draw the Board’s attention to Paragraph 130 of the judgement of Mr. Justice Robert Haughton wherein he stated that it was reasonable for the Inspector and the Board, in the context of assessing any likely “significant effect” when screening the proposed development for the purposes of appropriate assessment, ‘to assume that best practice construction management techniques would be adopted to prevent any deterioration of water quality within or upstream of the River Nore SPA’.

5.2 Rossmore Properties Ltd. and Kilross Properties Ltd. v. An Bord Pleanala: 2014 JR 320: 5.2.1 This case related to the Board’s determination of ABP Ref. Nos. RL09.RL3080, RL09.RL3081 & RL09.RL3113 wherein it had held that the works in question constituted development which was exempted development. More specially, the case concerned the decision by the Board that on consideration of the submitted Stage 1 screening assessment there was no reason to suggest that the works in question would have any significant effect on an identified Natura 2000 site in light of its qualifying interests and thus a Stage 2 Appropriate Assessment was not required. The specifics of the application for a judicial review of the Board’s decisions in relation to ABP Ref. Nos. RL09.RL3080 & RL09.RL3081 included the assertion that an appropriate assessment had not been carried out, however, these decisions were ultimately upheld by the High Court and leave to appeal was refused. The judgement itself provides some useful commentary as regards the difference between ‘likely’ and ‘potential’ effects in terms of screening for the purposes of appropriate assessment. More notably, the judgement also concerns the standard to be applied in screening for appropriate assessment and, in particular, it was held that the Board was entitled to take account of the implementation of best work practices in determining that there would be no significant effect on the SAC in question. In his judgement Mr. Justice Hedigan stated that ‘Where the mitigating factor in question is an intrinsic part of the work to be carried out it makes no sense that [the Board should not take it into account]’. The Court also noted the ruling in respect of Harte DC v Secretary of State for Communities and Local Government as follows: – ‘If certain features (to use a neutral term) have been incorporated into that project, there is no sensible reason why those features should be ignored at the initial, screening, stage merely because they have been incorporated into the project in order to avoid, or mitigate, any likely effect on the SPA’.

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N.B. The subject referral has also made reference to the following legal cases and the relevance of same is set out in the submitted documentation:

- McCabe v. Coras Iompair Eirean (2006) IEHC 356 - ReadyMix v. An Bord Pleanala (2009) IEHC 533.

6.0 GROUNDS OF REFERENCE

6.1 The grounds of reference have been examined and may be summarised as follows:

• The Planning Authority has upheld the premise that the remedial works in question come within the scope of Section 4(1)(h) of the Planning and Development Act, 2000, as amended, and in this respect it is emphasised that the proposed works are for the maintenance and improvement of the existing permitted wind turbines. Furthermore, whilst the works will be carried out to the exterior of the turbines, they will primarily occur below ground level, and although there will be a minor change in the ground profile at each of the turbines on completion of the works, this will not have a material impact on the visual appearance of either the turbines or adjacent development. • Whilst the individual wind turbines are separated from each other and represent 3 No. discrete structures, it is appropriate to consider them in unison in the context of the subject referral. • The referrer can see no reason to alter its position that the proposed remedial repair works come within the scope of Section 4(1)(h) of the Planning and Development Act, 2000, as amended, • The provision of the temporary site compound at Garrow, including offices, welfare facilities, machinery, equipment and other ancillary structures associated with the proposed repair works, constitutes exempted development pursuant to Classes 16 & 17 of Part 2 of the Planning and Development Regulations, 2001, as amended. All these structures will be removed on completion of the works and the site restored to its pre-repair condition. • The minor drainage protection works, including the minor adjustment of existing permitted drains and swales, constitutes exempted development pursuant to Class 3 of Part 3 of the Planning and Development Regulations, 2001, as amended.

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• Section 4(4) of the Planning and Development Act, 2000 (as amended by Section 17(a)(i) of the Environment (Miscellaneous Provisions) Act, 2011) states the following:

‘Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required’.

In this respect it is submitted that in his assessment of an earlier referral made under ABP Ref. No. RL09.RL3080, the reporting inspector considered that any requirement for an Appropriate Assessment did not remove the exemption status attributable to works under Section 4(1)(h) as follows:

‘. . . the need for appropriate assessment does not remove any exemption that might apply if the proposed development was to be adjudged to be exempt under either Section 4(1)(g) or 4(1)(h) . . .’

Notably, the Board’s subsequent decision confirmed the foregoing observation in relation to Section 4(1)(g) and thus it is submitted that the same logic holds for the exempted status afforded by Section 4(1)(h).

• In its assessment of the subject referral, the Planning Authority would appear to have affirmed that an ‘Appropriate Assessment’, and any requirement for Environmental Impact Assessment, in respect of development considered to be exempt under Section 4(1)(h) of the Act, does not alter the said exemption status. In this regard it is noted that the Planner’s Report states the following:

‘This implies that exemptions available at sections (4)(1)(b) to (h) inclusive and sections 4(1)(j) and (k) hold even if the proposed development requires EIA or AA’.

Having indicated an understanding of Section 4(4), the Planner’s Report subsequently makes an interpretation of the ‘spirit’ of the legislation before concluding that a ‘Stage’ Appropriate Assessment is required and that the proposed works should not therefore be considered to constitute exempted development. These findings are rejected on a number of grounds, namely:

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- That the works envisaged in Section 4(1)(h) are restricted to ‘works of a minor nature’. - That the works qualifying as exempted development could never require an Appropriate Assessment, or perhaps an Environmental Impact Assessment. - That the works required in the subject case actually require the preparation of an Appropriate Assessment (‘Stage 2’).

• It is considered to be inconsistent of Kerry County Council to firstly confer the status of exempted development on the subject works under Section 4(1)(h) and then to suggest that the statutory terms associated with that section of the Act somehow, and uniquely to this development, do not apply. • The terms of Section 4(1)(h) do not specify that works must be of a minor nature nor does the Planning and Development Act, 2000, as amended, define ‘minor works’. Furthermore, case law, including McCabe v. Coras Iompair Eirean (2006 IEHC 356) & ReadyMix v. An Bord Pleanala (2009 IEHC 533), has established that works qualifying under Section 4(1)(h) can be of a very substantial nature.

Unlike the case of McCabe v. Coras Iompair Eirean, the subject works do not involve the substantial replacement or reconstruction of the existing structures, but merely the completion of remedial repairs to the underground foundations of the turbines. The necessity for these repairs is simply as a result of a systematic defect that has occurred at all of the turbine bases within the wider Coomacheo Wind Farm. Whilst it is acknowledged that wind turbines are substantial features and that the repair / maintenance of same will usually require significant labour, mobilisation and works activity, this should not deprive the owner / operator of the benefit of the relevant statutory provisions.

• The Planning Authority has accepted that there will be no material change to the visual appearance of the turbines and that the works in question are only for repair / maintenance purposes. It would also appear to have agreed that any requirement for Appropriate Assessment would not affect the exemption status. Therefore, the Planning Authority should have concluded that the proposed works are exempted development thus ensuring that the permitted turbines, upon their repair, can continue to

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function in the context of the proper planning and sustainable development of the area. • The Board will be aware that the basis for planning legislation in respect of Appropriate Assessment and Environmental Impact Assessment derives from European law. This requires that certain plans and projects are obliged to prepare prescribed environmental and ecological / habitat assessments. These obligations remain whether or not a particular development is exempt from requiring planning permission under Section 4 of the Planning and Development Act, 2000, as amended. There are indeed many types of developments or projects which require the preparation of Appropriate Assessment and / or Environmental Impact Statement which do not require the type of planning permits from a planning authority set out in Section 132 of the Act. It is respectfully suggested that if the Board were to determine that an Appropriate Assessment is required in respect of the subject works, this could be prepared and submitted under the terms of Section 132 of the Act and submitted as part of the definition of the works proposed. • The original submission to the Planning Authority included an ‘Appropriate Assessment Screening Statement’ which examined that nature of the proposed works and the construction methods associated with same. This included sections of the Construction Environmental Management Plan which indicated how measures would be put in place, as required, to avoid contamination or adverse impact to the river network associated with the adjacent Killarney National Park, MacGillycuddy’s Reeks and Caragh River Catchment cSAC. The screening exercise thus concluded that there would be no direct or indirect impacts as a result of the proposed works following the implementation of ‘best practice construction methods’. • The Appropriate Assessment screening exercise undertaken by the Planning Authority expressed concern with regard to the hydro-demolition process and the associated production of wastewater and in this respect it should be noted the subject submission has been accompanied by supplementary information on the proposed hydro-demolition activity, including the timing and scale of the operation, together with the volume of wastewater and how this will be managed on site. It is also notable that the process will only be in operation for a short period of time at each turbine and that wastewater will be treated prior to discharge to remove sediment and balance pH. Furthermore, these additional details have been examined in the context of the appropriate assessment screening report and an addendum to same has been provided. More, notably, the supplementary information provided does not alter the conclusion of the

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AA screening that the works will have no direct or indirect impact on the adjacent designated sites. • It is suggested that the proposed hydro-demolition is within the envelope of ‘best practice construction methods’. In this respect whilst it is accepted that the distinction between what is ‘best practice’ and what is a ‘mitigation measure’ can prove difficult, it is submitted that the management of wastewater during construction activities is a normal part of such operations. The developer can think of few situations where the discharge of wastewater of the type produced into any stream etc. could be considered to be acceptable or accord with responsible best practice construction methods.

The judgement in the recent case of Rossmore Properties & Anor v. An Bord Pleanala & Ors. [2014 IEHC 557] has helped to shed some light on the relationship between ‘best practice construction methods’ and mitigation measures with Mr. Justice Hedigan indicating that where mitigation measures are an intrinsic part of the project in question, they may be taken into account in the Stage 1 screening process. Accordingly, it is submitted that the measures to be deployed with the hydro-demolition operation to control and eliminate the discharge of sediment etc. and to balance pH are an intrinsic part of the construction activity and thus should be considered in the Stage 1 screening.

• The established technology being used to treat process water from the hydro-demolition activity will have no direct or indirect impact on the qualifying interests of the adjacent Killarney National Park, Macgillycuddy’s Reeks and Caragh River Catchment cSAC or other adjacent Natura 2000 sites and is an intrinsic part of the construction works. • It is considered that Section 4(4) of the Planning and Development Act, 2000, as amended, does not remove the exemption status afforded to works that qualify under Section 4(1)(h) of the Act. • The specific features of the proposed repair works accord with the statutory planning exemptions set out in Section 4(1)(h) of the Act. The proposed works therefore constitute development which is exempted development. • The proposed site compound at Garrow substation is exempted development under Classes 16 & 17 of Schedule 2 of the Planning and Development Regulations, 2001, as amended.

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N.B. This submission also sets out the background to the subject referral and includes supplementary information on the proposed hydro-demolition process.

7.0 RESPONSES TO REFERRAL

7.1 Response of the Planning Authority: No further comments.

8.0 RELEVANT LEGISLATION

8.1 The Board received this reference on 24th March, 2015 and therefore the Planning and Development Act, 2000, as amended, and the Regulations made thereto apply.

Planning and Development Act, 2000, as amended: Section 2(1) of the Act defines “works” as follows:

“works” includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal and, in relation to a protected structure or proposed protected structure, includes any act or operation involving the application or removal of plaster, paint, wallpaper, tiles or other material to or from the surfaces of the interior or exterior of a structure.

Section 3(1) of the Planning and Development Act, 2000, as amended, states the following:

“Development” in this Act means, except where the context otherwise requires, the carrying out of any works on, in, over or under land or the making of any material change in use of any structures or other land.

Section 4(1)(h) of the Act states that the following shall be exempted development for the purposes of the Act:

‘Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures’.

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Section 4(2) of the Act states that the ‘Minister’ may by Regulation provide for any class of development to be exempted development for the purposes of the Act.

Section 4(4) of the Act states the following:

‘Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required’.

Section 177U(9) of the Act states:

‘In deciding upon a declaration or a referral under section 5 of this Act, a planning authority or the Board, as the case may be, shall where appropriate, conduct a screening for appropriate assessment in accordance with the provisions of this section’.

Planning and Development Regulations, 2001, as amended: Article 6 (1) of the Regulations states the following:

‘Subject to article 9, development of a class specified in column 1 of part 1 of Schedule 2 shall be exempted development for the purposes of the Act, provided that such development complies with the conditions and limitations specified in column 2 of the said Part 1 opposite the mention of that class in the said column 1’.

Article 9 (1) of the Regulations states as follows:

‘Development to which article 6 relates shall not be exempted development for the purposes of the Act –

(a) If the carrying out of such development would –

(i) Contravene a condition attached to a permission under the Act, or be inconsistent with any use specified in a permission under the Act . . .

(iii) endanger public safety by reason of traffic hazard or obstruction of road users . . .

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(vii) consist of or comprise the excavation, alteration or demolition (other than peat extraction) of places, caves, sites, features or other objects of archaeological, geological, historical, scientific or ecological interest, the preservation, conservation or protection of which is an objective of a development plan or local area plan for the area in which the development is proposed or, pending the variation of a development plan or local area plan, or the making of a new development plan or local area plan, in the draft variation of the development plan or the local area plan or the draft development plan or draft local area plan . . .

(viiB) comprise development in relation to which a planning authority or An Bord Pleanála is the competent authority in relation to appropriate assessment and the development would require an appropriate assessment because it would be likely to have a significant effect on the integrity of a European site,

(viiC) consist of or comprise development which would be likely to have an adverse impact on an area designated as a natural heritage area by order made under section 18 of the Wildlife (Amendment) Act 2000’.

Part 1 of Schedule 2: Exempted Development – General: Class 16:

Column 1 Column 2 Description of Development Conditions and Limitations The erection, construction or placing Such structures, works, plant or on land on, in, over or under which, or machinery shall be removed at the on land adjoining which, development expiration of the period and the land consisting of works (other than shall be reinstated save to such mining) is being or is about to be, extent as may be authorised or carried out pursuant to a permission required by a permission under the under the Act or as exempted Act. development, of structures, works, plant or machinery needed temporarily in connection with that development during the period in which it is being carried out.

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Class 17:

Column 1 Column 2 Description of Development Conditions and Limitations The erection, construction or placing Such accommodation shall be on land on, in, over or under which, or removed at the expiration of the on land adjoining which, development period and the land shall be (other than mining) is being, or is reinstated save to such extent as may about to be carried out, pursuant to be authorised or required by the any permission, consent, approval or permission, consent, approval or confirmation granted under the Act or confirmation granted under the Act or any other enactment or as exempted any other enactment. development, of temporary on-site accommodation for persons employed, or otherwise engaged, in connection with the carrying out of the development, during the period in which it is being carried out.

Part 3 of Schedule 2: Exempted Development – Rural: Class 3:

Column 1 Column 2 Description of Development Conditions and Limitations Works relating to the construction or maintenance of any gully, drain, pond, trough, pit or culvert, the widening or deepening of (None) watercourses, the removal of obstructions from watercourses and the making or repairing of embankments in connection with any of the foregoing works.

9.0 ISSUES AND ASSESSMENT

9.1 Preliminary Evaluation: 9.1.1 Having conducted a site inspection, and following a review of the available information, in my opinion, it is clear that there are a number of issues which

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must be taken into consideration in assessing the subject referral and in determining whether or not the works in question constitute development which is exempted development.

9.1.2 At the outset I would refer the Board to Section 3 of the Planning and Development Act, 2000, as amended, which defines “development” as the carrying out of any works on, in, over or under land, or the making of any material change in the use of any structures or other land. Having regard to Section 2 of the Act wherein “works” are defined as including ‘any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal and, in relation to a protected structure or proposed protected structure, includes any act or operation involving the application or removal of plaster, paint, wallpaper, tiles or other material to or from the surfaces of the interior or exterior of a structure’, in my opinion, it is clear that the proposed remedial works involve the carrying out of ‘works’ through either an act of ‘excavation’, ‘construction’, ‘alteration’ or ‘repair’ and therefore constitute development. Accordingly, having established that the subject works constitute development within the meaning of the Act it is necessary to ascertain whether or not they can be considered to be exempted development.

9.1.3 At this point, I would advise the Board that in reviewing the subject referral it is clear that there are two distinct elements to the ‘remedial works’ in question given that the principle component of same concerns the ‘repair’ of the concrete base / foundation of the existing wind turbines whereas the remainder of the works, including the development of a temporary on-site compound intended to facilitate the ‘repair’ works, is essentially ancillary to the primary activity. Accordingly, whilst I propose to assess each of the foregoing aspects of the ‘remedial works’ in turn, I would emphasise that they are intrinsically linked to one another.

9.2 The Principle ‘Repair’ Works: 9.2.1 With regard to the actual ‘repair’ works, from a review of Schedule 2 of the Planning and Development Regulations, 2001, as amended, it is clear that there is no express provision within same which would specifically allow for the works in question to constitute exempted development, however, it has been asserted by the site owner / occupier (i.e. SSE Renewables) that said works would qualify for an exemption pursuant to Section 4(1)(h) of the Act which refers to ‘Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external

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appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures’. Therefore, in view of the foregoing, it is necessary in the first instance to consider if the proposed repair works would amount to the ‘maintenance’, ‘improvement’ or ‘other alteration’ of the existing wind turbines.

9.2.2 The specifics of the repair works are detailed in Section 2.2 of the document entitled ‘Submission for Section 5 Declaration for Remedial Works at 3 No. turbines at Coomacheo Wind Farm, Clydaghroe & Clonkeen, Co. Kerry’ which accompanied the initial request for a declaration received by the Planning Authority on 29th January, 2015 and a synopsis of same is set out in Section 3.0 of this report. In this respect I would advise the Board that whilst the wider works will involve various supporting operations such as the interim disconnection of the selected turbines from the wind farm electrical circuit, the temporary removal of the existing unit substations for storage during the works period, and the lowering of the water table, the detailed repair works to the turbine bases themselves employ a very specific design format which will follow a carefully planned sequence in order to ensure the stability of same during the remedial works. In summary, this detailed design will entail the following:

- The phased partial excavation / removal of the hardcore ballast deposited over the existing turbine bases in order to progressively expose same; - The preparation of the turbine plinth through a process of high-pressure water jetting known as ‘hydro-demolition’ in order to expose the aggregates thereby providing for a roughened surface which will allow for the future pouring of a concrete inter-layer section to ‘key’ with the existing base; - The injection of grouting into any existing cracks in the plinth and base and the installation of further reinforcement re-bar; - The pouring of the new concrete inter-layer section; - The arrangement of ‘Kelly’ concrete blocks on top of the inter-layer of concrete to stabilise the base; - The further phased partial excavation of the base with the subsequent preparation of the exposed plinth surface followed by the pouring of a second portion of the inter-layer of concrete and the arrangement of additional concrete blocks; - The completion of the partial excavation of the base with the subsequent preparation of the exposed plinth surface followed by the pouring of the third and final portion of the inter-layer of concrete. At this point the ‘Kelly’

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concrete blocks will be repositioned to the outer edge of the turbine base with any surplus blocks to be removed; - The pouring / installation of the first reinforced concrete collar around the inner circumference of the turbine base followed by the necessary displacement and partial removal of concrete blocks; - The pouring / installation of a second reinforced concrete collar followed by the necessary partial removal of concrete blocks; - The pouring / installation of a third and final reinforced concrete collar followed by the removal of the remaining concrete blocks; and - The cessation of dewatering works and the subsequent reinstatement of ballast material, re-location of the unit substation atop the new concrete section, and re-connection of the turbine to the wind farm circuit.

9.2.3 The stated purpose of these works is to address identified defects in the concrete base foundations at all of the turbines within the existing development and whilst there is apparently no immediate risk of foundation failure it has nevertheless been asserted that the aforementioned repair works are urgently required to halt further weakening and to enable the continued operation of the wind farm over its permitted lifespan.

9.2.4 Having considered the available information, in my opinion, it is readily apparent that the detailed repair works to the turbine bases effectively involve the strengthening of the existing foundations through the construction of a new concrete collar atop same. In this respect the Board may wish to give consideration to its previous determination of ABP Ref. No. RL23.RL2384 wherein it held that certain works to an existing telecommunications mast, which included the construction of a reinforced concrete strengthening structure over the original mast foundation, constituted development which was not exempted development, however, following a review of same, I am inclined to suggest that whilst parallels could be drawn between that referral and the subject works, there are notable differences which would seem to limit any direct comparison between the two sets of works. For example, the strengthening works referenced in ABP Ref. No. RL23.RL2384 would seem to have occurred over-ground and would also seem to have been more significant in terms of their relative scale and visual appearance given the site context. However, it is perhaps of greater relevance to note that the reporting inspector had concerns with regard to the scale of the works and would seem to have concurred with the Planning Authority’s initial assessment that the strengthening works could not be considered to amount to routine maintenance of the original mast foundation as they served to increase its structural capacity thereby allowing for the attachment of additional antennae to

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the mast structure. It is this aspect of ABP Ref. No. RL23.RL2384 which would seem to distinguish it from the subject referral in that the repair works presently under consideration, whilst serving to strengthen the existing turbine foundations, are not intended to support any additional weighting but are rather designed to address defects identified in the existing construction. Accordingly, it would seem reasonable to categorise the subject works as expressly comprising an act of ‘repair’. Therefore, it would likely follow that the works also amount to either the ‘maintenance’, ‘improvement’ or ‘other alteration’ of the existing wind turbines.

9.2.5 In my opinion, the carrying out of repair works can reasonably be construed as involving an act of maintenance and in this respect I would refer the Board to the definition of ‘maintenance’ as set out in the Collins English Dictionary which states that it comprises ‘the act of maintaining or the state of being maintained’. In further support of the foregoing, the Oxford English Dictionary defines ‘maintenance’ as ‘the process of preserving a condition or situation or the state of being preserved’ and ‘the process of keeping something in good condition’. Therefore, whilst I would concede that the subject works could not be construed as routine and are instead of a somewhat more exceptional nature, the accepted understanding of the term ‘maintenance’ does not necessarily require any such works to be of a routine or on-going nature but could also extend to include a single or one-off act of repair. In any event, I would further suggest that given the purpose of the works under consideration, the completion of same would most likely amount to works of ‘improvement’ to the structure of the existing turbines whilst they could also be reasonably construed as ‘other alterations’.

9.2.6 Having established that the ‘repair’ element of the proposed remedial works comprise the ‘carrying out of works for the maintenance, improvement or other alteration of any structure’ (i.e. the existing wind turbines) the question arises as to whether or not the said works would ‘materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures’. In this regard I would advise the Board that on completion of the repair works the excavated hardcore / ballast material will be re-laid over the newly reinforced turbine bases and the adjacent hard-standing area with the result that the finished ground level at the base of each of the turbines will be increased by approximately 500-750mm (with the finished floor level of the reinstated substations raised accordingly). In my opinion, given the site context, with particular reference to the fact that the proposed works will generally occur within an area of ground which has already been disturbed as a result of those excavations previously carried out as part of the original construction of the existing wind turbines, and the limited extent and

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scale of the proposed works within the wider wind farm development, I am inclined to conclude that the resulting change in the ground profile consequent on the proposed remedial works will be minor and that the visual impact of same will be de minimus. Furthermore, in light of the foregoing, I am satisfied that the aforementioned change in ground levels will not materially affect the external appearance of the existing turbines so as to render the appearance of same ‘inconsistent with the character of the structure or of neighbouring structures’. Accordingly, the ‘repair’ aspect of the proposed remedial works would seem to constitute exempted development pursuant to Section 4(1)(h) of the Planning and Development Act, 2000, as amended.

9.2.7 Whilst it would appear that the foregoing works would normally be considered to constitute exempted development pursuant to Section 4(1)(h) of the Act, it remains to be established whether or not the development in question would be subject to any restriction of that exemption and in this respect I would refer the Board to Section 4(4) of the Act (as inserted by the Environment (Miscellaneous Provisions) Act, 2011) which states that ‘Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required’ (N.B. In the interests of clarity, it should be noted that as the exemption in question is provided for under Section 4(1)(h) of the Act, it is not subject to any of the restrictions imposed under Article 9 of the Planning and Development Regulations, 2001, as amended). At this point it is of relevance to note that the implications of Section 4(4) in restricting the exemptions permitted under Section 4(1) of the Act were previously considered by the Board in its determination of ABP Ref. No. RL09.RL3080 wherein the reporting inspector concluded that ‘the need for appropriate assessment does not remove any exemption that might apply if the proposed development was to be adjudged to be exempt under either Section 4(1)(g) or 4(1)(h), because Section 4(4) only removes the exemption under Section 4(1)(a), (i), (ia) or (l) (as well as any exemptions under the regulations)’. More notably, whilst the Board Order states that the development works considered under ABP Ref. No. RL09.RL3080 came within the scope of Section 4(1)(g) of the Act, it also confirms that following consideration of the Stage 1 Screening Assessment for Appropriate Assessment prepared on behalf of the developer, the Board concluded that there was no reason to suggest that the minor works proposed would have any significant effects on the relevant Special Area of Conservation in the light of its qualifying interests and that a Stage 2 Appropriate Assessment would not be required before subsequently noting ‘the Inspector’s observation that a requirement for

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Appropriate Assessment does not, in any event, remove any exemption that might apply under section 4(1)(g) of the Planning and Development Act, 2000’.

9.2.8 From a review of its determination of ABP Ref. No. RL09.RL3080, it would appear that although the Board seemingly concurred with the findings of the reporting inspector as regards his interpretation of Section 4(4) of the Act, it nevertheless considered it necessary to undertake a screening exercise which ultimately concurred with the developer’s Stage 1 Screening Assessment for Appropriate Assessment. Moreover, Section 177U(9) of the Act would seem to oblige the Board to conduct a screening exercise for the purposes of appropriate assessment in deciding upon a declaration or a referral under Section 5 of the Act. Therefore, in light of the foregoing, it would appear that there may be a degree of doubt as to the implications of Section 4(4) of the Act in that the need for appropriate assessment may serve to remove all those exemptions provided for under Section 4(1) of the Act. In this respect I am inclined to suggest that it was never envisaged that the majority of the exempted development set out in Section 4(1) of the Act would be of such a nature or scale as to give rise to any requirement for either appropriate assessment or environmental impact assessment (with the exceptions of Section 4(1)(a), (i), (ia) or (l) etc.), however, it would seem prudent to revert to Article 6(3) of the Habitats Directive wherein it is clear that ‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to Appropriate Assessment of its implications for the site in view of the site's Conservation Objectives’. Accordingly, in the interests of completeness, it is my opinion that it is necessary to screen the subject works for the purposes of appropriate assessment in order to ensure that the exemption conferred under Section 4(1)(h) of the Planning and Development Act, 2000, as amended, is not removed as a result of the need for Stage 2 Appropriate Assessment.

9.3 Appropriate Assessment: The Principle ‘Repair’ Works: 9.3.1 From a review of the available mapping, and the data maps from the website of the National Parks and Wildlife Service, it is apparent that whilst the lands in question are not located within any Natura 2000 designation, they are situated in close proximity to the Killarney National Park, MacGillycuddy Reeks and Caragh River Catchment Special Area of Conservation (Site Code: 000365) which lies approximately 1.45km north of Turbine No. T18. In addition, Turbine No. 19 is located approximately 750 northwest of the to Special Protection Area (Site Code: 004162) and 1.0km northwest of the Mullaghanish Bog Special Area of Conservation (Site Code: 001890).

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9.3.2 Having reviewed the available information, and following consideration of the ‘source-pathway-receptor’ model, it can be determined that particular consideration needs to be given to the likelihood of the proposed development to have a significant effect on the conservation objectives of the Killarney National Park, MacGillycuddy Reeks and Caragh River Catchment Special Area of Conservation both in terms of the potential for the disturbance of species of special conservation interest and also in light of the possibility of water pollution arising during construction works which could lead to a deterioration in water quality within the Natura 2000 site. At this point it is of relevance to note that the Killarney National Park, MacGillycuddy Reeks and Caragh River Catchment Special Area of Conservation has been designated as being of special conservation interest on the basis that it supports a wide variety of protected habitats and species, with particular reference to water-based species such as river lamprey, freshwater pearl mussel, and otter.

9.3.3 In screening the subject proposal for the purposes of appropriate assessment, I would refer the Board in the first instance to the ‘Appropriate Assessment Screening Statement for Remedial Works at Coomacheo Wind Farm, ’ that accompanied the initial application for a Section 5 declaration as submitted to Kerry County Council which concluded that no significant effects arising from the proposed works were likely to occur in relation to the Natura 2000 sites located within 10km of the works area and thus the submission of a Natura Impact Statement was not required. Section 3.1 of this report details that as the proposed works area is not located within any Natura 2000 site and will not require resources from any such sites, there is no direct loss of habitat within any conservation sites consequent on the proposed works. With regard to the likelihood of any indirect loss or deterioration of habitats (and species) within Natura 2000 sites, the screening assessment has chosen to focus on the potential for hydrological or water quality impacts such as increased siltation, nutrient release, contaminated run-off and / or dust arising from the proposed works. In this respect the Killarney National Park, MacGillycuddy Reeks and Caragh River Catchment Special Area of Conservation has been identified as the only Natura 2000 site with a hydrological link to the proposed works area through a network of open drains associated with the existing wind farm and surrounding commercial forestry, although it is subsequently noted that whilst some of these drains discharge surface water directly into nearby tributaries of the River Clydagh (which forms part of the Special Area of Conservation), others simply discharge to vegetated areas. The screening statement proceeds to state that the release of suspended solids associated with

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surface water runoff will be managed and controlled through standard good working practices, including the avoidance of works during prolonged periods of wet weather in addition to the use and on-going monitoring / maintenance of sediment barriers (e.g. silt fences / traps such as straw bales) at existing drains that lead into watercourses. It has also been asserted that the presence of vegetation within the open drains and intervening areas situated between the proposed works area / sediment barrier locations and the nearest watercourses will serve to intercept suspended solids. In addition, reference has been made to the 50m separation distance between the proposed works area / sediment barrier locations and the nearest watercourses, and to the relatively small scale of the works area and the short-term duration of same. Further ‘standard’ environmental controls to be deployed in order to protect the Special Area of Conservation from adverse hydrological or water quality impacts are detailed as including the following:

- The control of dust through the covering of delivery trucks, where required; - The dampening of roads during periods of dry weather; - The use of a road sweeper as needed; - The maintenance and management of all machinery related to the works in a designated area appropriately located away from watercourses / drains; - The use of bunded fuel tanks, fuel spill kits, drip trays and the licensed disposal of associated wastes as required; - The appropriate use and storage of chemicals; and - The siting of a raised and bunded concrete washout area within the hardstanding areas and the removal of concrete washings by a licensed contractor.

9.3.4 In relation to the potential for the disturbance or displacement of species of special conservation interest, the submitted Screening Statement has concluded that the only faunal species that could be impacted as a result of noise and / or visual cues associated with the proposed works would be otters within the watercourse sections of the Killarney National Park, MacGillycuddy Reeks and Caragh River Catchment Special Area of Conservation in addition to breeding hen harriers associated with the Mullaghanish to Musheramore Special Protection Area (N.B. It would seem that the potential for indirect impacts on other water-based species of special conservation interest is to be addressed through the aforementioned water management / environmental controls). The Screening Statement subsequently states that otters can be tolerant of human- related disturbance before noting that the proposed works area will be located at

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least 50m from the nearest watercourse and that existing conifer plantations will serve to screen the works area for the majority of the site whilst the works themselves will be largely confined to daylight hours when otters are generally less active. With regard to the hen harrier it has been submitted that although the Mullaghanish to Musheramore Special Protection Area was once regarded as a stronghold for same, there has been a significant decline over the last decade with only 1-2 No. breeding pairs confirmed in 2010 and none in 2014. It has also been suggested that the foregoing situation is unlikely to significantly improve in the short term (i.e. when the proposed works are to be undertaken) as the population dynamics involved are relatively complicated and not easily resolved in such a timeframe. In addition, it has been asserted that the absence of any nesting sites within or in close proximity to the existing wind farm site contributed to the decision of Cork County Council not to pursue compliance with Condition Nos. 18 & 33 of PA Ref. No. 03/1997 which required the submission of a post- construction bird survey and the implementation of a bird fatality monitoring programme.

9.3.5 In terms of the likelihood for cumulative or in-combination effects, the submitted screening statement notes that the subject lands drain into the Killarney National Park, MacGillycuddy Reeks and Caragh River Catchment Special Area of Conservation via a network of open drains related to both the existing wind farm and surrounding commercial forestry. It further states that some of these drains discharge surface water directly into nearby tributaries of the Clygagh River which forms part of the SAC and the Laune River catchment. It proceeds to note that the most recent river water quality measurements for the closest section of the Clydagh River downstream of the existing wind farm indicate that it is of good to high status whilst assessments undertaken as part of the EU Water Framework Directive also suggest that it is presently of good status but is at risk of deteriorating when activities in the wider area are taken into consideration. The case is subsequently put forward that the main pressures as regards water quality in that section of the Laune catchment relevant to the Clydagh River relate to the risk of acidification, suspended solids, and eutrophication arising from surrounding forestry activities. Furthermore, it is submitted that as no elements of the proposed works are considered likely to impact on Natura 2000 sites in the first instance due to a number of factors, including the relatively small works area and the implementation of standard environmental management / control practices, there is no potential for impacts on the relevant Natura 2000 sites through cumulative or in-combination effects with other known plans or projects.

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9.3.6 Accordingly, on the basis of the foregoing, the Screening Statement has concluded that the proposed remedial works are not likely to give rise to any significant effects in respect of any Natura 2000 sites and thus a Natura Impact Statement is not required in this instance.

9.3.7 In its subsequent screening of the proposed remedial works for the purposes of appropriate assessment, and following consideration of the Screening Statement submitted on behalf of the developer, it would appear that whilst the Planning Authority accepted that the works in question were unlikely to have a significant effect on the Mullaghanish to Musheramore Special Protection Area in view of its conservation objectives, it was of the opinion that the proposed works did pose a significant risk to the Killarney National Park, MacGillycuddy Reeks and Caragh River Catchment Special Area of Conservation. In this respect I would refer the Board to the report of the Local Authority Biodiversity Officer which details a number of concerns as regards the potential hydrological / water quality impacts associated with the wastewater arising from the proposed hydro-demolition process. Accordingly, the Planning Authority concluded that the proposed works necessitated the preparation of a Stage 2 Appropriate Assessment and thus did not constitute exempted development.

9.3.8 In response to the foregoing determination that the subject works do not amount to exempted development, the developer has opted to refer the matter to the Board for further review. In this respect it is of particular relevance to note that the documentation which has accompanied the subject referral has sought to appease the concerns of the Planning Authority as regards the potential hydrological / water quality impacts of the proposed works by referencing the ‘Appropriate Assessment Screening Statement’ and by emphasising the ‘best practice construction methods’ which will be employed during the course of the works. The referral also includes some supplementary information on the proposed hydro-demolition process, including the timing and scale of the operation, together with the management of wastewater, whilst an addendum has been provided to the ‘Appropriate Assessment Screening Statement’ which concludes that the works will have no direct or indirect impact on the adjacent designated sites. It is further submitted that the proposed hydro-demolition process comes within the envelope of ‘best practice construction methods’ and that the management of wastewater during construction activities is a normal part of such operations.

9.3.9 Having reviewed the available information, it is apparent that the site owner / occupier has placed a considerable emphasis on the implementation of ‘best

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practice construction methods’ in arriving at the conclusion that the proposed remedial works are unlikely to give rise to any significant direct or indirect impacts on any of the identified Natura 2000 sites and thus the compilation of a Natura Impact Statement for the purposes of a Stage 2 Appropriate Assessment is not required. Accordingly, the question arises as to whether or not ‘best practice construction methods’ can be considered to form an integral part of the development in question or if they constitute a means of ‘mitigation’ which cannot be considered as part of the appropriate assessment screening process. In this regard I would refer the Board in the first instance to the judgement of Mr. Justice Robert Haughton in the case of Ratheniska Timahoe and Spink (RTS) Substation Action Group and Environmental Action Alliance Ireland v. An Bord Pleanala: 2014 JR 340, which concerned the Board’s decision to grant approval for a development comprising electricity transmission infrastructure and associated works (the Laois – Kilkenny Reinforcement Project), wherein it was held that it was reasonable for both the Inspector and the Board, in the context of assessing any likely “significant effect” when screening the proposed development for the purposes of appropriate assessment, ‘to assume that best practice construction management techniques would be adopted to prevent any deterioration of water quality within or upstream of the River Nore SPA’. This judgement provides some useful clarity as regards ‘best practice construction methods’ and would seem to lend credence to the site owner / occupier’s assertion that it is entirely permissible to consider the implementation of ‘best practice construction methods’ when screening a particular project for the purposes of appropriate assessment. Further support for the developer’s position can be derived from Rossmore Properties Ltd. and Kilross Properties Ltd. v. An Bord Pleanala: 2014 JR 320 which concerned the Board’s determination of ABP Ref. Nos. RL09.RL3080, RL09.RL3081 & RL09.RL3113 wherein it had held that the works in question constituted development which was exempted development. In his judgement in that case, Mr. Justice Hedigan stated that ‘Where the mitigating factor in question is an intrinsic part of the work to be carried out it makes no sense that [the Board should not take it into account]’. It was also noted that in the ruling in the case of Harte DC v Secretary of State for Communities and Local Government it was stated that ‘If certain features (to use a neutral term) have been incorporated into that project, there is no sensible reason why those features should be ignored at the initial, screening, stage merely because they have been incorporated into the project in order to avoid, or mitigate, any likely effect on the SPA’. Therefore, on the basis of the foregoing, it would seem that if the implementation of the various ‘best practice construction methods’ proposed to be employed by the developer during the course of the remedial works can be held to form an intrinsic part of the said works, then it is entirely reasonable to

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have regard to same in screening the development for the purposes of appropriate assessment. Accordingly, it remains to be determined if the construction techniques outlined in the submitted documentation can be considered to constitute ‘best practice’.

9.3.10 In assessing the precise nature of the construction methodology to be employed during the proposed remedial works, it is clear that whilst a specific design brief has been set out for the proposed works, the general nature of the works themselves is not particularly unusual and will involve typical working practices as regards the pouring of concrete etc. Similarly, whilst I would acknowledge that the Planning Authority may have some reservations as regards the use of hydro-demolition, it is my understanding that such systems are widely accepted for concrete removal and surface preparation throughout Europe and North America. Therefore, I am inclined to conclude that the proposed construction techniques comprise accepted ‘best practice’ and do not involve any overtly new, innovative or untested methodologies and thus can be reasonably considered to form an intrinsic part of the proposed remedial works.

9.3.11 Accordingly, following a review of the available information, whilst I would acknowledge the concerns of the Planning Authority, I am inclined to conclude that given the nature and scale of the remedial works proposed, the existing use of the lands in question, the site location on lands of limited ecological value in terms of the site synopsis for the relevant Natura 2000 designations, the implementation of best practice construction techniques / methodologies in terms of pollution control / avoidance, and as the proposed works will generally be confined to an area of previously disturbed land, the proposal is unlikely to have any significant effect, in terms of the disturbance, displacement or loss of habitats or species, on the ecology of the Killarney National Park, Macgillycuddy’s Reeks and Caragh River Special Area of Conservation and the Mullaghanish to Musheramore Special Protection Area, and therefore I am inclined to conclude that the proposed development would not be likely to significantly affect the integrity of these sites and would not undermine or conflict with the Conservation Objectives applicable to same.

9.3.12 Therefore, it is reasonable to conclude that, on the basis of the information available, which I consider adequate in order to issue a screening determination, the proposed repair works, both individually and in combination with other plans or projects, would not be likely to have a significant effect on any European site and, in particular, specific Site Codes: 000365 & 004162, in view of the relevant

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conservation objectives, and that a Stage 2 appropriate assessment (and the submission of a NIS) is not therefore required.

9.4 The ‘Ancillary’ Works: 9.4.1 At this point it is necessary to consider the remaining activities which are essentially ancillary to the principle ‘repair’ works with particular reference to the development of the temporary on-site compound incorporating offices and welfare facilities, and the carrying out of drainage protection works including adjustments to existing / permitted drains and swales.

9.4.2 Having reviewed the available information, it is readily evident that these activities constitute ‘development’ pursuant to Section 3 of the Planning and Development Act, 2000, as amended, in that they involve the carrying out of ‘works’ as defined by Section 2 of the Act. Furthermore, given the nature of these works, I am satisfied that they constitute exempted development pursuant to Classes 16 & 17 of Part 1 and Class 3 of Part 3 of Schedule 2 of the Planning and Development Regulations, 2001, amended.

9.5 Appropriate Assessment: The ‘Ancillary’ Works: 9.5.1 In view of the relationship of the ancillary development works to the principle repair activities, in addition to the purpose of same, with particular reference to the proposed drainage works which are specifically intended to avoid the contamination of surrounding surface waters thereby preserving the integrity of nearby Natura 2000 sites, it is my opinion that in light of the nature and scale of the aforementioned development, the nature of the receiving environment, and the implementation of best practice construction techniques / methodology in terms of pollution control / avoidance, the said development works would not be likely to have any significant effect, either individually or in combination with other plans or projects, on any Natura 2000 site.

9.6: Other Works: 9.6.1 The final remaining aspect of the proposed remedial works which requires consideration concerns the proposal to undertake re-grading works in the vicinity of Turbine No. T19 given that a slope stability analysis has identified the northern and eastern banks at this location to be unstable. In this respect it is also proposed to place the sand / gravel component of the extracted material in a suitable depression at the hard-standing area adjacent to Turbine No. T18 with the remaining disturbed peaty material to be taken off site by licensed contractors.

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9.6.2 Having reviewed the available information, it is my opinion that the proposed re-grading operations clearly involve the carrying out of ‘works’ through an act of excavation with the subsequent deposition of the extracted material and thus can be held to constitute “development” as defined by Section 3 of the Planning and Development Act, 2000, as amended. However, I am inclined to suggest that there may be a degree of doubt as to whether such works could be considered to constitute exempted development.

9.6.3 At this point I would suggest that the Board may wish to consider categorising the aforementioned works as comprising as act of ‘repair’ and thus determine that they constitute exempted development pursuant to Section 4(1)(h) of the Act which refers to ‘Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures’, however, it is my opinion that the proposed ground re-profiling works are not in themselves specifically related to the repair of the existing turbines and thus cannot be held to contribute to the maintenance, improvement or other alteration of same. In effect, I am inclined to conclude that the proposed re-grading works constitute additional development works (on lands not previously disturbed as part of the original turbine construction works) which are not exempted development.

9.7 Environmental Impact Assessment: 9.7.1 Having regard to the site location, and the nature and scale of the development proposed, in my opinion, the subject works do not involve a class of development prescribed for the purposes of Section 176 of the Planning and Development Act, 2000, as amended, as set out in Parts 1 & 2 of Schedule 5 of the Planning and Development Regulations, 2001, as amended, and therefore do not necessitate the mandatory preparation of an Environmental Impact Statement. Furthermore, following consideration of the criteria set out in Schedule 7 of the Planning and Development Regulations, 2001, as amended, it is similarly my opinion that the proposed works do not require the submission of an Environmental Impact Statement.

10.0 RECOMMENDATION

It can be concluded, given the foregoing, that the carrying out of remedial works to 3 No. wind turbines within the Coomacheo Wind Farm in the townlands of

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Clydaghroe & Clonkeen, Co. Kerry, is development which is exempted development. A draft order is set out as follows.

ORDER

WHEREAS a question has arisen as to whether the carrying out of remedial works to 3 No. wind turbines within the Coomacheo Wind Farm in the townlands of Clydaghroe & Clonkeen, Co. Kerry, is or is not development and is or is not exempted development:

AND WHEREAS the said question was referred to An Bord Pleanála by SSE Renewables Ireland Ltd. on the 24th day of March, 2015:

AND WHEREAS An Bord Pleanála in considering this reference, had regard particularly to -

a) Sections 2, 3 and 4 of the Planning and Development Act, 2000, as amended, b) Articles 6 and 9 of the Planning and Development Regulations, 2001, as amended, c) Classes 16 & 17 of Part 1 of the Second Schedule to the said Regulations, as amended, and the Conditions and Limitations of said Classes, d) Class 3 of Part 3 of the Second Schedule to the said Regulations, as amended, and the Conditions and Limitations of said Classes, e) Schedule 5 to the said Regulations, as amended, f) the nature, extent and scope of the works;

AND WHEREAS An Bord Pleanála has concluded that –

a) the said remedial works constitute works which are development as defined in Section 3 of the Planning and Development Act, 2000, as amended; b) the repair aspect of the remedial works constitutes “works for the maintenance, improvement or other alteration of any structure” as defined in Section 4(1)(h) of the said Act; c) having regard to the nature, scale and extent of the repair aspect of the remedial works, said works do not materially affect the external appearance of the existing wind turbines so as to render their appearance inconsistent with their own character or that of neighbouring structures;

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d) the repair aspect of the remedial works accordingly comes within the exempted development provisions of Section 4(1)(h) of the Planning and Development Act, 2000, as amended; e) the remaining ancillary aspects of the remedial works come within the scope of the exemptions provided at Classes 16 & 17 of Part 1 and Class 3 of Part 3 of Schedule 2 to the Planning and Development Regulations, 2001, as amended; and f) the ground re-grading works along the northern and eastern banks in the vicinity of Turbine No. T19 do not constitute “works for the maintenance, improvement or other alteration of any structure” as defined in Section 4(1)(h) of the Planning and Development Act, 2000, as amended,

NOW THEREFORE An Bord Pleanála, in exercise of the powers conferred on it by Section 5 (4) of the 2000 Act, hereby decides that:

a) the carrying out of remedial works to 3 No. wind turbines within the Coomacheo Wind Farm in the townlands of Clydaghroe & Clonkeen, Co. Kerry, is development and is exempted development. b) the ground re-grading works along the northern and eastern banks in the vicinity of Turbine No. T19 is development which is not is exempted development

Signed: ______Date: ______Robert Speer Inspectorate

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