Callaghan v an Bord Pleanála, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Clarke J.,MacMenamin J.,Laffoy J. |
| Judgment Date | 13 March 2017 |
| Neutral Citation | [2017] IESCDET 32 |
| Court | Supreme Court |
| Date | 13 March 2017 |
[2017] IESCDET 32
THE SUPREME COURT
DETERMINATION
Clarke J.
MacMenamin J.
Laffoy J.
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED
AND
AND
This determination relates to an application by John Callaghan (the Applicant), who was the appellant in the underlying appeal to the Court of Appeal, for leave to appeal under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal (Finlay Geoghegan J., Irvine J. and Hogan J.) delivered by Hogan J. on 21st December, 2016 and the order of the Court of Appeal on foot of that judgment made on 21st December, 2016 and perfected on 19th January, 2017.
As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.
The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
As is recorded in the Applicant's application for leave, which is published on the Courts Service website along with this determination, the relevant facts are set out in the judgment of the Court of Appeal ( [2016] IECA 398). In summary, the background to the proceedings is as follows:
(a) The first notice party/respondent (EPI) proposes to develop a wind farm at Emlagh, County Meath, which it is proposed will consist of 46 turbines at a height of approximately 167 metres. The Applicant maintains that he will be directly affected by the proposed development, his house being situated 4.8km from the nearest of the proposed turbines and a number of the turbines being visible from his house.
(b) In accordance with sub-section (1) of section 37B of the Planning and Development Act 2000, as amended (the Act of 2000), EPI by letter dated 30th May, 2014 initiated consultations with the first respondent (the Board) in relation to the proposed development. Following conclusion of those consultations, the Board's Inspector prepared a report dated 1st September, 2014 in which it was concluded that the proposed development came within the scope of section 37A(2)(a) of the Act of 2000 and that it met the conditions in section 37A(2)(b) in terms of contributing to the achievement of the objectives of the National Spatial Strategy or Regional Planning Guidelines.
(c) Subsequently the Board issued a direction on 11th September, 2014 in which it stated that it had determined that the proposed development would comprise strategic infrastructure development, generally in accordance with the Inspector's recommendations and conclusions. The Board accordingly issued a formal notice stating that it was of opinion that the proposed development falls within the scope of paragraphs (a) and (b) of section 37A(2) and that it had decided that the proposed development would be strategic infrastructure within the meaning of section 37A of the Act of 2000. The Board directed that any application for permission for the proposed development must be made directly to the Board under section 37E of the Act of 2000 rather than to the local planning authority.
(d) An application for planning permission was made to the Board by the third notice party, of which EPI is the majority shareholder, on 6th October, 2014.
(e) The Applicant applied to the High Court (Record No. 2014 No. 647JR/2014 No. 170 COM) for leave to seek judicial review in respect of the decision of the Board to designate the proposed development as a strategic infrastructure development on the grounds that he was entitled to be heard prior to the making of that decision.
The Applicant's application was heard in the High Court by Costello J. There being agreement between the parties, the application was dealt with by way of a single combined ‘telescoped hearing’ of the application for leave to apply for judicial review and the substantive judicial review application. Judgment having been delivered in the High Court on 11th June, 2015, it was ordered that the Applicant's application be refused. The Applicant then applied to the High Court for a certificate for leave to appeal the judgment of the High Court pursuant to section 50A(7) of the Act of 2000. Having delivered judgment on 24th July, 2015 on that application, by order of the High Court made on 30th July, 2015 it was ordered by the High Court that one point of law raised by the Applicant was of exceptional public importance and that it was desirable in the public interest that an appeal should be taken from the decision of the High Court. That point was formulated as follows:
‘Is the Statutory Scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006 when construed in the light of Sections 50(2) and 143 of the [Act of 2000] such that it is necessary to read into the Scheme a right for interested members of the public to be heard prior to [the Board] reaching an opinion pursuant to Section 37A of the [Act of 2000]?’
Subsequently, the Applicant applied to this Court for leave to appeal directly to this Court from the High Court pursuant to Article 34.5.4° of the Constitution. By a determination of this Court dated 15th December, 2015 ( [2015] IESCDET 60) this Court (Denham C.J., Dunne J. and Charleton J.), being satisfied that the constitutional threshold for leave to appeal from the High Court directly to this Court had not been met, refused the application.
Thereafter, the Applicant's appeal was heard by the Court of Appeal. As noted previously, the judgment of the Court of Appeal was delivered on 21st December, 2016 by Hogan J. In the judgment (at para. 63) he summarised his conclusions. The opinion formed by the Board under section 37A(2) of the Act of 2000, which resulted in a single stage strategic infrastructure development procedure, did not materially or practically affect the rights of the Applicant such as would oblige the Board to entertain submissions from him as a third party prior to forming any such opinion. If the Board were to revisit the question of strategic development, having heard submissions from all parties in the context of making a substantive decision on the application for planning permission, it would not involve the Board in questioning the validity of its own decision other than by means of judicial review in the manner specified and required by section 50(2) of the Act of 2000. Hogan J. proposed that the certified question be answered in the negative and that the Applicant's appeal be dismissed. Those conclusions and decision were reflected in the order of the Court of Appeal made on 21st December, 2016 from which the Applicant seeks leave to appeal on this application. In that order the point of law certified by Costello J. was answered in the negative and the appeal was dismissed. Directions were given in relation to the hearing of the costs issues in relation to the appeal.
The Applicant contends that leave should be granted for the following reasons:
(a) The answer to the question in the point of law certified by the High Court depends on the proper interpretation of the legislation introduced in the Planning and Development (Strategic Infrastructure) Act 2006 amending the provisions of the Act of 2000 in issue. The answer is of general importance and transcends the facts of this case. The answer determines the public's entitlement to participate in the Board's decision to determine that a proposed development is a ‘strategic infrastructure development’. The determination of this Court in Grace & Anor. v. An Bord Pleanála & Ors. [2016] IESCDET 29...
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