Callaghan v an Bord Pleanála

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Gerard Hogan
Judgment Date21 December 2016
Neutral Citation[2016] IECA 398
Date21 December 2016
Docket NumberAppeal Nos. 2015/500

[2016] IECA 398

THE COURT OF APPEAL

Hogan J.

Finlay Geoghegan J.

Irvine J.

Hogan J.

Appeal Nos. 2015/500

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000,

AS AMENDED

BETWEEN/
JOHN CALLAGHAN
APPLICANT/APPELLANT
- AND -
AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/RESPONDENTS
- AND -
ELEMENT POWER IRELAND LIMITED
ELEMENT POWER IRELAND

AND

NORTH MEATH WIND FARM LIMITED
NOTICE PARTIES/RESPONDENTS

Planning and development – Third party objector – Certified question – Appellant seeking entitlement to be heard prior to the respondent forming an opinion as to whether a proposed project would, if carried out, be of strategic, economic or social importance – Whether the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in the light of ss. 50(2) and 143 of the Planning and Development Act 2000 is such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to s. 37A of the 2000 Act

Facts: The appellant, Mr Callaghan, submitted to the High Court that a third party objector (such as himself) was entitled to be heard prior to the first respondent, An Bord Pleanála, forming an opinion as to whether a proposed project would, if carried out, be of strategic, economic or social importance, thereby triggering the obligation to have the application made to the Board in the first instance. This submission was rejected by the High Court (Costello J): [2015] IEHC 357. Costello J later certified this issue as a single point of law and granted leave pursuant to s. 50A(7) of the Planning and Development Act 2000 to appeal to the Court of Appeal in respect of this single issue: [2015] IEHC 493. The certified point was in the following terms: Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in the light of ss. 50(2) and 143 of the 2000 Act such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to s. 37A of the 2000 Act?

Held by Hogan J that the opinion formed by the Board under s. 37A(2) of the 2000 Act which resulted in the single stage SID procedure did not materially or practically affect the rights of the appellant in the sense understood by the Supreme Court in Dellway Investments Ltd v National Asset Management Agency [2011] IESC 13 such as would oblige the Board to entertain submissions from him as a third party prior to forming of any such opinion; nor could it be said that if the Board were to re-visit the question of strategic development having heard submissions from all parties in the quite different context of making a substantive decision on the application for planning permission it would involve the Board questioning the validity of its own decision other than by means of judicial review in the manner specified and required by s. 50(2) of the 2000 Act.

Hogan J held that since he considered that Costello J was entirely correct in both her reasoning and ultimate conclusion on this question, he proposed answering the certified question in the negative and he accordingly dismissed the appellant’s appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 21st day of December 2016
1

In 2006 the Oireachtas enacted the Planning and Development (Strategic Infrastructure) Act 2006 (‘the 2006 Act’). The object of the 2006 Act - as reflected in its Long Title - was to amend the Planning and Development Act 2000 (‘the 2000 Act’) by shortening and streamlining the planning process in relation to projects which were considered to be of strategic importance to the State and its various regions.

2

The major change which the 2006 Act brought about was that if An Bord Pleanála formed the opinion that the proposed project would, if carried out, be of ‘strategic economic or social importance to the State or the region in which it would be situate’, the planning application was required to be made to the Board as a part of a single procedure and not to a planning authority from which decision there would be a right of appeal to the Board. In this way the Oireachtas considered that the single procedure mechanism would facilitate the expeditious determination of important planning applications, thereby short circuiting the conventional mechanism of an application to the local planning authority, followed by a potential appeal to the Board.

3

The issue which arises in this appeal is whether a third party objector (such as the applicant) is entitled to be heard prior to the Board forms an opinion as to whether the proposed project would, if carried out, be of strategic, economic or social importance, thereby triggering the obligation to have the application made to the Board in the first instance. This submission was rejected by the High Court (Costello J.): see Callaghan v. An Bord Pleanála (No.2) [2015] IEHC 357. Costello J. later certified this issue as a single point of law and granted leave pursuant to s. 50A(7) of the Planning and Development Act 2000 (as amended) to appeal to this Court in respect of this single issue: see Callaghan v. An Bord Pleanála (No. 3) [2015] IEHC 493. The certified point is in the following terms:-

‘Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in the light of ss. 50(2) and 143 of the Planning and Development Act 2000 such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to s. 37A of the Planning and Development Act 2000?’

4

For my part I consider that Costello J. was entirely correct in the conclusions which she reached and I am accordingly of the view that the certified point should be answered in the negative. Before, however, setting out the reasons for this conclusion, it is first necessary to describe the background to these proceedings.

The background to these proceedings
5

The first notice party, Element Power Ireland Ltd. (‘EPI’) is engaged in the development of wind farms and is the majority shareholder in the third notice party, North Meath Wind Farm Ltd. The second notice party, Element Power Ireland, was joined by the applicant to the proceedings. This, however, is simply a trading name for the EPI and, accordingly, as the second notice party is not a legal entity, its position needs no further consideration.

6

EPI proposes to develop a wind farm at Emlagh, Co. Meath. If planning permission is granted, the proposed wind farm will consist of 46 turbines spread over an area of 15km by 10km in three clusters at Farragara, Castletownmoor and Isealchríocha at a height of approximately 167m. If constructed, these turbines will therefore be remarkably tall structures.

7

The applicant, Mr. Callaghan, maintains that he will be directly affected by the proposed development. His house is situated 4.8 km. from the nearest of the proposed turbines and that at least a number of them will be visible from his house. He says that he and his family are sensitive to noise and feel that their enjoyment of their amenities will be affected by this proposed development.

8

The pre-consultation procedure in relation to this application was initiated on 30th May 2014 by a letter from EPI to the Board in accordance with the procedure prescribed under s.37B of the 2000 Act (as amended) in relation to the proposed Emlagh wind farm project in Co. Meath. Section 37B of the 2000 Act, as amended, states that, in respect of certain classes of development which may comprise strategic infrastructure development (‘ SID’):

‘(1) A person who proposes to apply for permission for any development specified in the Seventh Schedule shall, before making the application, enter into consultations with the Board in relation to the proposed development.’

9

Following the conclusion of the pre-application consultations entered into between EPI and the Board, the Board's inspector prepared a report dated 1st September 2014. At para. 5.1 of that report he stated:-

‘Having regard to the nature and scale of the proposed facility comprising a total of 46 no. turbines and having a total output of up to 160 MW (based on 3.5MW turbines by 46 units; 115 MW with 2.5 MW units), it is my opinion that the proposed development comes within the scope of class 1 of the Seventh Schedule of the Strategic Infrastructure Act, 2006 (as amended) being “An installation for the harnessing of wind power for energy production (a wind farm) with more than 25 turbines or having a total output greater than 50 megawatts.’

10

The inspector was of the opinion that the proposed development was of strategic economic or social importance to the State or the region given the scale of the proposed development in terms of megawatt output, that the development would be one of the most significant energy projects to be developed in the region and would make a significant impact in terms of meeting the State's renewable energy targets.

11

The inspector also drew attention in his report to the potential employment implications of the proposed development:

‘…it is apparent that the construction impact in terms of employment and economic activity would be significant. In addition to economic activity related to employment creation, the proposed development has in my opinion the potential to have a significant economic impact on the region in terms of revenues generated for landowners, local authority rates and a community contribution scheme/funds.’

12

The inspector accordingly concluded that the proposed development came within the scope of s. 37A(2)(a) of the 2000 Act, as...

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6 cases
  • Callaghan v an Bord Pleanála
    • Ireland
    • Supreme Court
    • 31 July 2018
    ...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 1.5 In order to put the issue in somewhat greater context it is appropriate to start by sett......
  • Cork Institute of Technology v Minister for Transport, Tourism and Sport
    • Ireland
    • High Court
    • 19 December 2017
    ...might respectfully observe, been encapsulated succinctly by Hogan J. in the following observation in Callaghan v. An Bord Pleanála [2016] IECA 398, para. 37: ' The Supreme Court...[ in Dellway] held that fair procedures meant that the applicant was entitled to be heard prior to any decisio......
  • Merriman v Fingal County Council
    • Ireland
    • High Court
    • 21 November 2017
    ...the court might respectfully observe, been encapsulated succinctly by Hogan J. in his observation in Callaghan v. An Bord Pleanála [2016] IECA 398, para. 37, that ' The Supreme Court...[in Dellway] held that fair procedures meant that the applicant was entitled to be heard prior to any dec......
  • Kelly v Dublin City Council
    • Ireland
    • Supreme Court
    • 29 May 2019
    ...as State (Murphy) v. Kielt [1984] I.R. 458, Dellway Investments Limited v. NAMA [2011] 4 I.R. 1, and Callaghan v. An Bord Pleanála [2016] IECA 398 are some of the authorities relied upon to support this 22 Picking up on what the trial judge said at para. 42 of his judgment regarding the ......
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