Ida-Viru municipality protest on Aidu wind farm annulled on technicality ({{commentsTotal}})

The site of Aidu Wind Farm as photographed by Ministry of Defense drones.
The site of Aidu Wind Farm as photographed by Ministry of Defense drones. Source: Ministry of Defence

Tartu Administrative Court on Monday left unreviewed a protest on the revocation of construction permits for the Aidu wind farm submitted by the governor of Ida-Viru County, BNS reports, as well as annulling preliminary legal protection measures, by which Aidu Tuulepark OÜ was forbidden from building the electric wind turbines cited in the construction permits.

The proposed wind farm, at Aidu, in the Maidla municipality in Ida-Viru County, has seen a long-running battle between the authorities and Andres and Oleg Sõnajalg, the two brothers who wanted to build the park.

Work had started on the project in 2013, but progress has been persistently held up, including on the issue of permissions, and concerns from both the Ministry of Defence, and the environment ministry.

The Tartu court deemed proven that the office of the Ida-Viru County government received its ruling on a previous administrative case with similar content, namely a protest by the governor of the same county over the invalidation of construction permits issued by the rural municipality of Vaivara, on July 26, 2016

"From the ruling in question, it would have been clear to the governor that Aidu Tuulepark OÜ planned to erect a wind farm in the vicinity of the former Aidu quarry, in the rural municipality of Luganuse, where Eleon's wind turbines were to be erected,'' the court ruled, according to BNS.

Eleon is the Sõnajalg's company.

''The county government, within its internal work organization, was obliged to ensure that the ruling reached the county governor immediately," the court continued.

"The ruling clearly stated that construction permits for the establishment of the wind farm have been issued, and the first wind turbines were to be erected in 2016. It is undoubtedly clear that the county governor was made aware of the issuing of the currently disputed construction permits, from that ruling," the court added.

Based on the fact that the county governor made a proposal to the Luganuse rural municipality government to declare the construction permits issued for the establishment of the Aidu wind farm invalid only on March 3, 2017, even though the 30-day deadline prescribed by law started on July 27, 2016, the county governor significantly exceeded the deadline for making the proposal.

Thus, the county governor had not gone through the compulsory pre-trial procedure as required, which, in turn, means that the court must leave the protest unreviewed.

The court also annulled the preliminary legal protection applied in the case. The annulment of the preliminary legal protection is set to enter into force when the preceding ruling regarding not reviewing the protest enters into force, it is reported.

Minstry fines issue not resolved

At present, the court has not yet resolved the applications of the Ministry of Defense and the Ministry of Justice to fine Aidu Tuulepark OÜ for the repeated breach of the preliminary legal protection ruling in connection with construction work at the location of two wind turbines.

It is highly likely that the court will have to organize an expert assessment for solving the fine applications, which, in turn, means additional time spent and large procedural expenses. This is why the court asked the two ministries to deliberate whether continuing the solving of the fine applications in question is still necessary, given the main dispute and preliminary legal protection are effectively over.

The court ruling on Monday was made by a three-member panel, though one of the judges found the county governor's protest is permissible, and its handling should have been continued, as the rural municipality government issued the construction permits on the basis of a project that lacked the coordination of the Ministry of Defense, while, secondly, artificial mounds were established underneath the construction work which were not specified in the projects on which the building permits were based.

According to the dissenting judge, these circumstances were not apparent either from the notices forwarded to the county governor or from the administrative acts in question, thus the county governor started acting in a timely manner from the moment they were made aware of a possible breach of public interest, the judge argued.

Details of the court ruling

An appeal against the administrative court's ruling can be submitted within 15 days.

The court left the county governor's protest unreviewed due to procedural errors. The law prescribes that the county governor had to go through a compulsory pre-trial procedure before turning to court, which means submitting t a proposal to declare the construction permits in question invalid themselves, to the Luganuse rural municipality government.

This proposal had to be submitted within 30 days from the moment the county governor was made aware of the issuance of construction permits. According to the court, the county governor did not go through the compulsory pre-trial procedure as required. Law and court practice prescribes that the consequence of such a breach is to leave the protest unreviewed, which is why the court was not able to assume a stance on whether the construction permits were lawful or any other substantive issues.

In February 2013, the rural municipality of Maidla decided to issue to Kindel Vara OÜ a total of 32 construction permits for erecting electric wind turbines in the villages of Aidu, Ojamaa and Aidu-Nõmme in the rural municipality of Maidla.

As the period of validity of the construction permits was ending, in February 2015, the Luganuse rural municipality in decided to issue to Kindel Vara OU a total of 33 construction permits for erecting wind turbines in the villages of Aidu, Ojamaa and Aidu-Nomme in the rural municipality of Luganuse.

Under a separate order, the construction permits were declared issued to Aidu Tuulepark OÜ.

Timeline of events

In February 2017, the Ministry of Defense asked the Ida-Viru County government to launch a supervision procedure regarding the legality of the permits issued for the construction of the wind farm. The Ministry of Defense suspected that the building permits had not been issued lawfully, it is reported, since the construction project was not coordinated with the ministry – instead an earlier, different project had been coordinated.

On March 3, 2017, the governor of Ida-Viru County made a proposal to the Luganuse rural municipality government to declare the building permits invalid. The rural municipality replied that there was no basis or need to declare the permits invalid, arguing that, among other things, that the county governor had already been made aware of the permits earlier, along with the fact that the 30-day deadline for making proposals had been exceeded.

In April 2017, the governor of Ida-Viru County submitted a protest to the administrative court requesting the rural municipality's orders in question, and the building permits issued on the basis of those orders, to be annulled.

The administrative court in May 2017, by way of preliminary legal protection, suspended the validity of the building permits, until the entry into force of a court decision and forbade Aidu Tuulepark OÜ to build the wind turbines mentioned in the orders and building.

Recent developments

After the brothers refused to comply with an order to halt construction work, the Police and Border Guard Board (PPA) declared the construction zone at Aidu off-limits, on Friday, April 19, this year.

The site of the proposed 30, 3 MW turbines was thought to pose a threat to Estonia's national security; the defence ministry stated that the turbines' operation would interfere with military radar and other equipment.

Appearing on ETV current affairs show Ringvaade last Thursday evening, the Sõnajalg brothers stated that the defense ministry's claims were without basis, since the project had the correct permits, adding that Aidu was the only site in Estonia suitable for building a wind farm of that size.

Editor: Andrew Whyte

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