Callaghan v an Bord Pleanála

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Binchy
Judgment Date21 July 2016
Neutral Citation[2016] IEHC 488
Date21 July 2016
Docket Number[2016 No. 324 J.R.]

[2016] IEHC 488

THE HIGH COURT

Binchy J.

[2016 No. 324 J.R.]

BETWEEN
JOHN CALLAGHAN
APPLICANT
AND
AN BORD PLEANÁLA
FIRST NAMED RESPONDENT
AND
IRELAND AND ATTORNEY GENERAL
SECOND NAMED RESPONDENT
AND
NORTH MEATH WIND FARM LIMITED

AND

ELEMENT POWER IRELAND LIMITED
NOTICE PARTY

Environment & Planning – Planning and Development Act, 2000 – Planning scheme – Strategic infrastructure development (SID) – Public interest – Greater risk of injustice – Balance of convenience – Partial stay.

Facts: Following the grant of leave to seek reliefs by way of judicial review and grant of stay on the decision of the first named respondent, the applicant now sought an order to quash the decision of the first named respondent. The notice parties sought an order setting aside the stay order regarding the operation of the decision of the Bord pending the determination of the proceedings. The applicant contended that the planning scheme would not constitute SID. The applicant further argued that the planning scheme would be contrary to the statutory laws, as it did not involve the public. The notice parties contended that it would cause significant commercial harm if the stay was not lifted.

Mr. Justice Binchy set aside the stay to the extent that it enabled the notice parties to submit planning application to the first named respondent and ordered the stay to remain operative to prevent the first named respondent from making any decision on the planning application. The Court observed that the applicant raised points of exceptional public importance and made out an arguable case. The Court observed that the greater risk of injustice would be in the continuation of the stay.

JUDGMENT of Mr. Justice Binchy delivered on the 21st day of July, 2016.
1

On 23rd May, 2016, I granted the applicant herein leave to seek various reliefs by way of judicial review as against the respondents. In addition, on that date, I granted the applicant a stay on the decision of the first named respondent (the 'Bord') which the applicant challenges in these proceedings, pending the determination of these proceedings.

2

Following the service of the proceedings, the notice parties applied to have the proceedings entered into the commercial list and this Court so ordered on 10th June, 2016. On the same date, the notice parties sought an order setting aside that part of my order of 23rd May, 2016 whereby I granted a stay on the operation of the decision of the Bord pending the determination of these proceedings. That is the application with which this judgment is concerned. The application was heard before me on 28th and 29th June 2016.

Background
3

The notice parties to the action are involved in the development of wind farms. They previously applied to the Bord for permission to develop forty-six wind turbines at Emlagh, Co. Meath (the 'Emlagh Development'). Prior to submitting that planning application, the Bord had designated that development as strategic infrastructure development (' SID') for the purposes of s. 37A of the Planning and Development Act 2000. That section makes no provision for the involvement of the public in any way in such a designation.

4

Consequent upon that decision, the applicant issued proceedings against the same respondents, under Record No. 2014/647JR which were also admitted to the commercial list under Record No. 2014/ 170COM. In those proceedings the applicant sought, inter alia, declaratory orders to the effect, that the decision of the Bord that the proposed development constituted strategic infrastructure for the purposes of s. 37A(2)(a) and (b) of the Planning and Development Act 2000 (as inserted by s. 3 of the Planning and Development (Strategic Infrastructure) Act 2006 was flawed by reason of the fact that the decision was arrived at without any involvement of the public (the applicant having been denied the opportunity to make representations to the Bord in this regard). The applicant also sought an order quashing the decision of the Bord so designating the development as SID.

5

The leave application and the substantive proceedings were dealt with by way of a single combined 'telescoped' hearing before Costello J., who delivered her decision on 11th June, 2015. She dismissed the applicant's claims in their entirety. Following that decision, the applicant applied for a certificate for leave to appeal, and sought a certificate on three points of law. Costello J. gave a written judgment in relation to this application on 24th July, 2015 whereby she certified that just one of the matters raised by the applicant constituted an issue of exceptional public importance in respect of which she granted leave to appeal. That issue is as follows:-

'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 ?'

That appeal has been listed for hearing in the Court of Appeal on 4th October, 2016.

6

Subsequent to the issue of leave to appeal the applicant brought forward an application for a stay on all proceedings before the Bord. Finlay Geoghegan J. gave a decision, ex tempore, on that application on the 9th December, 2015 and having weighed the prejudice which each of the parties said they would suffer, she declined to grant a stay to the applicant. It will be seen however that the prejudice which the notice parties at that time argued that they would suffer is no longer a factor for the purposes of this application.

7

Following upon the original decision of the Bord, the notice parties made an application to the Bord for planning permission for that development, but this application was refused by the Bord in or about 4th February, 2016. It appears that the scale of the proposed development was a significant factor in the decision of the Bord to refuse that application. As a result, the applicant brought forward a revised and scaled down proposal which was submitted to the Bord pursuant to s. 37 of the Act of 2000 in or around 4th March, 2016. This application involved the development of a wind farm consisting of twenty-five wind turbines at Castletownmoor, Co Meath.

8

Before the Bord made any decision as to whether or not this development constituted SID, the applicant became aware of the application and wrote to the Bord requesting that he be allowed to participate in the process and to make submissions to the Bord in relation to the matter. The applicant also requested the Bord to refrain from further processing the application until the decision of the Court of Appeal on the certified point of law has been delivered. The Bord declined to do so.

9

Fearing that the Bord would again decide that the development being proposed by the notice parties constitutes SID without receiving any submissions from the applicant, and that thereafter the Bord would proceed to receive and consider a planning application from the notice parties, the applicant brought forward these proceedings. However, before the leave application came on for hearing before me (and after the issue of the proceedings) the Bord, on 11th May, 2016 determined that the Castletownmoor development constitutes SID and notified the applicant of this by letter dated 16th May, 2016. In the amended statement of grounds the applicant seeks reliefs, inter alia, as follows:-

(i) an order quashing the decision of the Bord that the Castletownmoor development constitutes SID;

(ii) an order quashing the decision of the Bord whereby it refused to accept a submission from the applicant regarding whether or not the said development constitutes SID;

(iii) a declaration to the effect that s, 37A-H of the Planning and Development Act 2000 is inconsistent with and contrary to EU Council Directives 85/337 (as amended by Council Directive 97/11 and 2003/35, as consolidated under Council Directive 2011/92/EU;

(iv) a declaration that the Bord, in making a determination that a development constitutes SID, without any involvement of the public, is contrary to the said directives and

(v) a declaration that s. 37A-H of the Planning and Development Act 2000 is inconsistent with the requirements of Council Directive 2011/92/EU and/or that Directive has not been properly transposed into Irish law.

The Applicant also seeks other reliefs but it is not necessary to set them all out for the purposes of this decision.

10

The issue between the parties in this application is whether or not the court should set aside the stay which restrains the Bord from acting upon its decision that the Castletownmoor development constitutes SID, the practical effect of which is to restrain the Bord from receiving and considering any planning application in relation to that development, pending the determination of the certified point of law by the Court of Appeal.

11

The notice parties contend that they will suffer significant commercial harm if the Bord is not free to receive, process and adjudicate their planning application pending the determination of the Court of Appeal, by reason of the additional delay that will be caused to the notice parties in the event that they are successful before the Court of Appeal, and also with their planning application before the Bord, when ultimately submitted.

12

The applicant on the other hand contends that he will suffer an irreversible prejudice if the Bord is permitted to deal with that planning application, in advance of a determination of the Court of Appeal on the certified question as to whether or not the Castletownmoor development constitutes SID. The applicant says this is so because he claims that...

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2 cases
  • O'Brien v an Bord Pleanála
    • Ireland
    • High Court
    • 24 July 2017
    ...related to proposals to develop a wind farm in County Meath. The first judgment was that of Binchy J. delivered on the 21st July, 2016 [2016] I.E.H.C. 488. He applied the test set out in Okunade to the facts of the application before him. In relation to the question 'where does the greates......
  • Browne v Kerry County Council
    • Ireland
    • High Court
    • 21 March 2017
    ...appeal of the November 2015 decision, that that was the operative decision and as Binchy J. said in Callaghan v. An Bord Pleanála & Ors [2016] IEHC 488 at para. 25:- ‘ the decision of the planning authority would no longer be of any relevance, and consequently nor would the judicial review ......

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