Callaghan v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 20 February 2015
• Neutral Citation: [2015] IEHC 235
• Court: High Court
• Date: 20 February 2015

[2015] IEHC 235

THE HIGH COURT

[No. 647 J.R./2014]

[No. 170 COM/2014]

Callaghan v Bord Pleanala & Ors

COMMERCIAL

BETWEEN

JOHN CALLAGHAN

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

AND

ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND AND NORTH MEATH WIND FARM LIMITED

NOTICE PARTIES

Planning & Development – The Planning and Development Act 2000 – Judicial review – Disclosure of documents

Facts: Following the decision of the first named respondent that the construction of the proposed wind farm development by the first named notice party was a Strategic Infrastructure Development (SID), and a challenge of that decision by the applicant, the applicant now came to the Court by way of judicial review seeking orders for discovery of certain documents from the respondents and notice parties and a protective costs order as well.

Mr. Justice Brian J. McGovern refused to grant the order for discovery of documents to the applicant. The Court refused to grant the protective costs order to the applicant. The Court observed that the discovery in judicial review ought to be an exception rather than a rule as the judicial review was concerned with procedural matters rather than substance. The Court while scrutinizing the categories of documents sought by the applicant held that none of those documents had any direct relevance to the aspect of the case. The Court held that the applicant at the preliminary stage where just a determination had been made that the proposed development came within the ambit of the Planning and Development Act could not be permitted to ask for a wide array of documents and some of those being publicly available. The Court found that s. 50B of the Planning and Development Act and Aarhus Convention did not apply to the subject case because the development consent had yet to be given and thus, the issue of costs did not arise at all.

1 1. This is an application for discovery and a protective costs order. Very extensive discovery is sought against the respondents and notice parties in these judicial review proceedings. The notice parties are engaged in the development of wind farms and wish to construct 46 turbines on three clusters of lands at Emlagh near Kells, Co. Meath. By letter dated 30 ^th May, 2014, the first named notice party initiated the pre-application consultation procedure described under s. 37B of the Planning and Development Act 2000, as amended, in relation to the proposed wind farm project.

2 2. Section 37B(1) of the Act provides that, in respect of certain classes of development which may comprise "Strategic Infrastructure Development"("SID"):-

2 2 "(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."[Emphasis added]

3 3. Following the conclusion of the pre-application consultations entered into between the first named notice party and the Board, at its meeting held on 11 ^th September, 2014, the Board considered the report of its Inspector, together with the documents and submissions on file. On 12 ^th September, 2014, the Board served notice that it was "of the opinion that the proposed development falls within the scope of paragraphs 37A(2)(a) and (b) of the Act. Accordingly, the Board has decided that the proposed development would be strategic infrastructure within the meaning of s. 37A of the Planning and Development Act 2000, as amended".

4 4. As a result of that designation by the Board, it followed that any application for permission for the proposed development must be made directly to the Board under s. 37E of the Act rather than to the local Planning Authority.

5 5. The decision which is impugned by the applicant in these proceedings is that decision made by the Board that the proposed Emlagh wind farm development is a Strategic Infrastructure Development within the meaning of section 37A.

6 6. Following the SID designation, an application for planning permission was made to the Board by North Meath Wind Farm Limited (the third named notice party) on 6 ^th October, 2014. The first notice party is the majority shareholder in the third notice party. The applicant has made no submissions or observation on that application since it was lodged on 6 ^th October, 2014. A decision on the application is due in April 2015.

Discovery in Judicial Review

7 7. In Sheehy v. Ireland (Unreported, High Court, 30 July, 2002), Kelly J. said that discovery in judicial review proceedings "ought to be the exception rather than the rule". A party in judicial review proceedings will not be permitted to raise unsubstantiated assertions and then seek to find evidence through the discovery process. This type of fishing expedition is something the courts in this jurisdiction have always sought to discourage. See K.A. v. Minister for Justice & Ors [2003] 2 I.R. 93 and Carlow Kilkenny Radio Limited v. B.C.I. [2003] 3 I.R. 528. In Fitzwilton v. Judge Alan Mahon [2006] IEHC 48, Laffoy J. said:-

"primarily by reason of the nature of the process, the relief afforded and the issues which arise injudicial review proceedings, the practical application of the principles may result in discovery being less frequently ordered injudicial review proceedings than in other civil proceedings."

8 8. In Evans v. University College Cork [2010] IEHC 420 at para. 6, Hogan J. stated:-

"In addition, it should be noted that as judicial review is normally concerned with procedural matters rather than substance, this will inevitably limit the range of documents which are both relevant and necessary injudicial review matters."

9 9. This legal position is accepted by all parties to the application and as the starting point from which the application for discovery should be approached.

10 10. Even the most cursory consideration of the discovery request made by the applicant shows that it is extraordinarily extensive in its terms and will impose a very significant burden on a party obliged to comply with it. It is accepted by the respondents and the notice parties that if there is a clear factual dispute on the affidavits which would have to be resolved in order to properly adjudicate on the application for judicial review, then discovery may be necessary. It is also accepted that if a document which ought to have been before the decision maker was not before it or that a document which ought not to have been before the decision maker was before it that discovery might be necessary. The respondents and notice parties argue that neither situation arose...