Supreme Court: Defense reason enough for limiting wind farm developments

Wind turbine at Aidu Wind Park in Ida-Viru county.
Wind turbine at Aidu Wind Park in Ida-Viru county. Source: Rene Kundla/ERR

The Supreme Court has decided that it is permissible to restrict wind farm developments following national defense considerations. The court found no unconstitutional aspects in legal acts Toila Rural Municipality relied on when refusing a wind farm construction permit.

At the heart of the matter was the decision of the Toila Rural Municipality to refuse a building permit for the Päite-Vaivina wind farm. Est Wind Power OÜ applied for a permit for 28 wind turbines in March of 2016. The local government refused after the Ministry of Defense failed to coordinate the project, finding that the turbines would jeopardize the operation of a Defense Forces radar system and undermine national security.

Est Wind Power OÜ that belongs to businessman Harry Raudvere challenged the rural municipality's decision in administrative court that upheld the complaint. The circuit court later arrived at the same conclusion but based on difference argumentation.

The circuit court found legal acts the Ministry of Defense proceeded from when refusing to coordinate the project to be partially unconstitutional. This meant that the ministry had no legal grounds for its refusal and the rural municipality for withholding the building permit. At the same time, the court supported the ministry's claim that national defense interests might justify a decision not to grant the permit and ordered constitutional review proceedings.

The Supreme Court Constitutional Review Chamber decided on Tuesday that provisions of the Construction Act and the defense minister's regulation in question are not unconstitutional.

The minister's regulation that is based on the Construction Act provides criteria for the operational capacity of national defense infrastructure – the radar in this case. The local government cannot issue a building permit if the planned construction work hinders the radar's operational capacity.

The chamber found that while the limitation in question infringes on entrepreneurial freedom and right of ownership, fundamental rights and freedoms can be restricted in a democratic society if there exists a constitutional goal and infringement is proportional.

Restrictions of basic rights need to be provided by the law and cannot be delegated to executive power. The Supreme Court concluded that the ban on obstructing the work of national defense objects proceeds from the law, while the minister's regulation only provides technical criteria. The law is sufficiently accurate and the regulation in accordance with it.

The chamber also found that the provisions in question do not infringe on basic rights to a disproportional degree as claimed by the appellant. It is not the object of the case whether infringement has a significant legitimate goal – to ensure national defense. The suitability or necessity of the measure has furthermore not been called into question. However, the appellant does not hold the restriction of their rights to be sensible as they find that all manner of reduction of operational capacity of national defense infrastructure should not be grounds for refusing a building permit.

The Supreme Court explained that the regulation does not rule out a building permit in case of every kind of effect on the radar's capacity – it is not a question of the radar's maximum operational capacity but rather capacity required to normally perform its intended task.

Even though the ban on building could reduce the property's value, the Supreme Court does not find the restrictions extensive enough to warrant a land transfer. The property can be used in a financially sensible capacity in the future, which is why infringement can be considered a restriction on ownership. The appellant could not have been certain they would be allowed to construct a wind farm on the property when they secured the right of superficies.

Because the Constitutional Review Chamber did not satisfy the circuit court's application, the rural municipality now has 30 days to officially challenge the circuit court ruling in the Supreme Court Administrative Law Chamber.


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Editor: Marcus Turovski

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