Appeal told such a move over Co Tyrone anaerobic digestion facility could encourage others to ignore planning regulations
The plant at Dunnalong Road, Bready, was given the green light by Derry City and Strabane District Council in 2014 following an application from Gravis Planning on behalf of Assured Energy.
The site was operational by late 2016, but relations between landowner Raymond Pollock and the operators broke down after he began to raise concerns over how it was being managed.
The council served an enforcement notice for a breach of planning control in August 2019.
The Planning Appeals Commission (PAC) subsequently deemed the entire development “unlawful”.
Assured Energy appealed the decision in 2020, but this was dismissed.
Raymond Pollock (right) and son Glenn, on whose land the plant is. Pic: Martin McKeown
Another appeal hearing was initially due to take place in December 2024, but was postponed on two further occasions before being held on Friday., where commissioner Jacqueline McParland heard arguments.
Appearing on behalf of Gravis Planning, Stewart Beattie KC said the government had a legislative duty to work towards climate change targets contained in the 2022 Climate Change Act.
“The duty imposed by that Act is remarkably high in terms of renewable energy targets,” he said.
“In the context of a scenario now described by both the legislature and the council as a crisis, we say that against those factors, that of itself gives rise to exceptional circumstances.”
However, Conor Fegan, appearing for the council, said granting permission would lead to a plethora of applications ignoring environmental regulations.
“You would create a perverse incentive for renewable energy operators to entirely circumvent the environmental impact assessment regime,” he argued.
“To build it out and then come back later and say ‘it doesn’t matter, look at how great the benefits are of renewable energy’, that will open the floodgates to renewable energy operators being in a position where they may decide to crack on with the development and ask for permission afterwards, safe in the knowledge that the benefits of their scheme will get them over the exceptional circumstances hurdle.”
A section of the plant in Co Tyrone. Pic: Martin McKeown
Mr Fegan said mitigations discussed had not been in place since the plant had been operating, and were still not in place today, and that the company had an unfair advantage by not previously having to abide by planning conditions.
The commissioner also heard the appellant had “gained financially” from the plant, and Mr Fegan added there was evidence of historical harm on designated sites.
“If you were to grant permission you would effectively be allowing the developer to get away with something which they would not have been able to get away with as a matter of law if they had applied correctly on a prospective basis,” he added.
Mr Beattie said planners did not accept they had an unfair advantage.
“No one has been prevented or precluded from being involved in the industry,” he said.
“There’s no legal principle that says that planning permission can’t be granted retrospectively. ‘You made money’ is not an answer.
The site at Dunnalong Road, Bready, has been in operation since 2016
News Catch Up – Friday 12th September
“In a climate emergency, the request being made here is that you reduce the renewable energy provision. You’re being asked in effect to remove that renewable energy source from the grid.”
Ms McParland also heard from an NI Environment Agency representative, who said current research was pointing towards extra emissions systems being needed for anaerobic digester plants.
“In all the research that’s been done on digestate, the anaerobic digestate actually increases the amount of reactive nitrogen,” he said.
“There’s a growing realisation that anaerobic digesters without the nutrient recovery systems such as the Vapogant are problematic and they actually increase reactive nitrogen release.”
Ms McParland said she would be carrying out a site visit and hoped to rule on the appeal before Christmas.