Callaghan v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IESC 39
• Court: Supreme Court
• Docket Number: Record No. 19/2017,[S.C No. 19 of 2017]
• Date: 31 July 2018

[2018] IESC 39

THE SUPREME COURT

Clarke C.J.

Clarke C.J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

Record No. 19/2017

In the matter of Section 50A(7) of the Planning and Development Act 2000 (As Amended)

Between/

John Callaghan

Applicant/Appellant

and

An Bord Pleanála, Ireland

and

the Attorney General

Respondents

And

Element Power Ireland Limited, Element Power Ireland

and

North Meath Wind Farm

Notice Parties/Respondents

Strategic infrastructure development – Judicial review – Application for permission – Appellant seeking judicial review of the decision of the respondent – Whether the appellant had an entitlement in law to be involved in the process at the earlier stage of the consideration by the respondent of whether the application for permission should go down the strategic infrastructure development route

Facts: The first notice party, Element Power, proposed to develop a windfarm consisting of 46 turbines on 3 clusters of land near Kells in County Meath. By letter dated the 30th May 2014, Element Power initiated the pre-application consultation procedure provided for in the Planning and Development (Strategic Infrastructure) Act 2006. Following the conclusion of those consultations, the Inspector of the first respondent, An Bord Pleanála, issued a report dated 1st September 2014 concerning whether or not the proposed development was a strategic infrastructure development (SID) and answered that question in the affirmative. The Board held a meeting on the 11th September 2014 to consider the Inspector's report and determined that the proposed development would comprise SID. Element Power were informed of that conclusion by letter dated the 12th September 2014. The letter also indicated that, as a result of this designation, the application for permission must be made directly to the Board rather than to the local planning authority. The application for permission was made by the third notice party, North Meath Wind Farm, of which Element Power was the majority shareholder, on 6th October 2014. On the 10th November 2014, the appellant, Mr Callaghan brought an application for leave to apply for judicial review. The net legal question which arose on appeal was as to whether a person who wishes to become involved in the process (such as the appellant) has an entitlement in law to be involved in the process at the earlier stage of the consideration by the Board of whether the application for permission should go down the SID route. The judicial review proceedings failed before the High Court (Costello J). The trial judge certified a point of law for appeal to the Court of Appeal. The issue raised was as to whether the legislation gave rise to an implied entitlement on the part of a person such as Mr Callaghan to be heard at the earlier stage. Hogan J answered that question in the negative. Leave to appeal to the Supreme Court was granted.

Held by Clarke CJ that the Board, when considering whether to grant or refuse permission on foot of an application which has gone down the SID route, remains obliged to consider on the merits any questions concerning the strategic importance of the project for which permission is sought; the fact that the Board had earlier formed an opinion as to the strategic importance of the project, for the purposes of determining that it should go down the SID route in the first place, could not, as a matter of constitutional construction, in any way legitimately influence the Board's final decision. Clarke CJ held that, having noted a number of provisions of the legislation where the appellant said that there were material differences between the process leading to the grant of permission and the nature of a permission once granted which depended on the route adopted, none of the differences amounted to the sort of material practical effect on the exercise and enjoyment of rights which were identified in the judgment of Fennelly J in Dellway Investments Ltd v NAMA [2011] IESC 13 as being necessary before the right to be heard must be said to arise.

Clarke CJ held that the appeal should be dismissed.

Appeal dismissed.

Judgment of Mr. Justice Clarke , Chief Justice, delivered the 31st July 2018

1. Introduction

1.1 There have been a number of measures introduced which have the effect of altering the planning system in respect of the grant of permissions relating to what are considered to be strategic infrastructure developments. The policy behind such legislative changes seem to be designed so that the planning process is more streamlined in such cases, presumably reflecting a view that infrastructure developments which are considered to be strategic from a national point of view should have the benefit of a streamlined process.

1.2 However, these proceedings are not concerned with the general merits or otherwise of adopting streamline procedures for strategic infrastructure developments ('SID'). The issues which arise on this appeal are in reality concerned only with one aspect of the process. It will be necessary to set out the procedures which are followed in the case of a potential 'SID' in due course. However, at a very simple level there is what might be described as an ex parte application by a developer to the respondent ('the Board') as a result of which the Board may make a decision that a proposed development is an 'SID' for the purposes of the Planning and Development (Strategic Infrastructure) Act 2006 ('the 2006 Act'). At this stage of the process no other party is involved beyond the developer and the Board and in particular no opportunity is afforded to members of the general public or interested parties to make observations concerning the question of whether the proposed development should properly be regarded as qualifying as an 'SID' in accordance with the criteria set out in the 2006 Act.

1.3 If, however, the Board determines that the proposed development is an 'SID' then the application for planning permission is brought direct to the Board rather than to the relevant local authority acting as planning authority. There are also some issues between the parties as to whether, on the proper construction of the 2006 Act, there are further differences between the process which is to be followed respectively when a proposed development obtains or does not obtain 'SID' status. But the net legal question which arises on this appeal is as to whether a person who wishes to become involved in the process (such as the applicant/appellant ('Mr. Callaghan')) has an entitlement in law to be involved in the process at the earlier stage of the consideration by the Board of whether the application for permission should go down the 'SID' route. The Board considers that no such entitlement exists and persons such as Mr. Callaghan were not afforded the opportunity to be involved in the planning application which is the subject of these proceedings at that earlier stage. On that basis, Mr. Callaghan sought to review the decision made by the Board in forming its opinion under the relevant statutory provisions that the proposed development, which was the subject of the planning application in these proceedings, would comprise SID. That opinion was reached following an application by the first named notice party ('Element Power'). The second and third named respondents ('the State') largely supported the position of the Board as did Element Power.

1.4 The judicial review proceedings failed before the High Court (Costello J.) ( Callaghan v. An Bord Pleanála and ors [2015] IEHC 357). However, the trial judge certified a point of law for appeal to the Court of Appeal. In substance, the issue raised was as to whether the legislation gave rise to an implied entitlement on the part of a person such as Mr. Callaghan to be heard at the earlier stage. Hogan J., writing for the Court of Appeal, answered that question in the negative for reasons set out in Callaghan v. An Bord Pleanála [2016] IECA 398. Thereafter, leave to appeal to this Court was granted.

1.5 In order to put the issue in somewhat greater context it is appropriate to start by setting out the facts, followed by the relevant procedural history.

2. The Facts

2.1 The circumstances which lead to the commencement of these proceedings are as follows. Element Power proposed to develop a windfarm consisting of 46 turbines on 3 clusters of land near Kells in County Meath. By letter dated the 30th May 2014, Element Power initiated the pre-application consultation procedure which is provided for in the 2006 Act and the details of this procedure will be set out below. Following the conclusion of these consultations, the Board's Inspector issued a report dated 1st September 2014 concerning whether or not the proposed development was SID and answered that question in the affirmative.

2.2 The Board held a meeting on the 11th September 2014 to consider the Inspector's report and determined that the proposed development would comprise SID. Element Power were informed of this conclusion by letter dated the 12th September 2014. The letter also indicated that, as a result of this designation, the application for permission must be made directly to the Board rather than to the local planning authority. The application for permission was made by the third named notice party, of which Element Power is the majority shareholder, on 6th October 2014. On the 10th November 2014, Mr. Callaghan brought an application for leave to apply for judicial review.

2.3 On the 4th February 2016, the Board refused permission in respect of the proposed development. It follows that, strictly speaking, this appeal is moot. However, it is clear that applications of this type are a regular feature of the planning system and the point which arises would apply in any case involving an SID. There is, therefore, considerable merit in attempting to remove uncertainty in this important area...