Callaghan v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 11 June 2015
• Neutral Citation: [2015] IEHC 357
• Court: High Court
• Date: 11 June 2015

Callaghan v Bord Pleanala & Ors

COMMERCIAL

No Redaction Needed

Approved Judgment

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

BETWEEN

JOHN CALLAGHAN

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

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

NOTICE PARTIES

[2015] IEHC 357

[No. 647 JR/2014]

[No. 170 COM/2014]

THE HIGH COURT

Planning & Development – S. 37A (2) (a) and (b) of the Planning & Development Act 2000 – S. 3 of the Planning & Development (Strategic Infrastructure) Act 2006 – Directive 2011/92/EU – Fair procedures – Denial of effect public participation

Facts: The applicant applied for leave to seek judicial review of the decision of the first named respondent to notify the notice parties that in the opinion of the first named respondent, the proposed development of wind farms fell within Strategic Infrastructure Development. The applicant contended denial of fair procedures in absence of any mode of public hearing devised by the first respondent whereby the applicant could assert the likely effect of the proposed development upon his well being. The applicant alleged that the first respondent had failed to transpose the Directive into Irish Law as mandated by s. 37A of the Planning & Development (Strategic Infrastructure) Act 2006 - Environment (Miscellaneous Provisions) Act 2011

Ms. Justice Costello refused to grant leave to seek judicial review to the applicant. The Court held that the decision of the first respondent that a proposed development would be a Strategic Infrastructure Development pursuant to s. 37B (4) of the Planning & Development (Strategic Infrastructure) Act 2006 would not preclude the first respondent to carry out its obligations under s. 37G of the said Act and thus make it obligatory to consider all the relevant material, reports presented before it. The Court found that the opinion made under s. 37B of the said Act would not be a concluded decision and could be revisited by the first respondent. The Court held that since the decision of the first respondent was at pre-application stage, the right to participate in that decision-making process did not arise as there was no substantive evidence that he had been obstructed to raise his concerns in any way. The Court observed that the first respondent had no obligation to comply with the requirements of the Directive 2011/92/EU in the pre-application stage and it did not follow that such requirements must commence in the National Law since inception. The Court held that the procedure of public participation as mandated by the said Directive merely spoke of effective participation in the event all the options and solutions were open to the public but not at the pre-application stage. The Court held that the applicant would not be entitled to any relief pursuant to s. 3, s. 4 and s. 7 of the Environment (Miscellaneous Provisions) Act 2011 as there existed no real damage to the applicant absent any development and any assumption to the contrary would send the notions in the community that the proposed development would be against public interest.

1 JUDGMENT of Ms. Justice Costello delivered the 11th day of June, 2015

Introduction

2 1. The applicant seeks leave to judicially review the decision of the first named respondent, An Bord Pleanala ("the Board"), made on 11 ^th September, 2014, to notify the notice parties that in its opinion the proposed wind farm development at Emlagh, Co. Meath, falls within the scope 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 ("the Principal Act, as amended"), and is Strategic Infrastructure Development ("SID") with the result that the application for planning permission for the development is to be submitted to the Board. In addition, the applicant seeks a number of declaratory orders relating to the procedures which were adopted by the Board which it is alleged failed to accord with requirements of fair procedures and of Directive 2011/92/EU ("the Directive"). 1 In particular, the applicant contends that the procedure was commenced and completed in a manner that excluded any involvement of the public, including by the applicant, and given the nature of the issues that were determined, the manner in which the decision was made amounted to a contravention of the Directive. It is also separately contended that the provisions of the Directive have not properly been transposed into Irish law.

3 2. By order dated 24 ^th November, 2014, McGovern J. entered these proceedings into the Commercial List of the High Court. By order dated 28 ^th January, 2015, McGovern J. directed that the proceedings were to be dealt with by way of a single combined 'telescoped' hearing, the court firstly considering the application for leave to apply for judicial review and, if leave is granted, proceeding immediately thereafter to consider the Applicant's substantive judicial review application.

The facts

4 3. Element Power Ireland Ltd. ("EPI") is engaged in the development of wind farms and is the majority shareholder in the third named notice party, North Meath Wind Farm Ltd. ("the Third Named Notice Party") who was joined as a notice party by order of McGovern J. on 24 ^th November, 2014. The second named notice party, Element Power Ireland, who was joined by the applicant to the proceedings, is simply a trading name for the EPI and, accordingly, the second named notice party is not a legal entity. EPI proposes to develop a wind farm at Emlagh, Co. Meath. 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. To put this in context, Liberty Hall stands at 59.4m, the height of the Spire of Dublin (Monument of Light) is 121.2m and the Poolbeg Chimney Stacks are just over 207m tall

5 4. The applicant says that he will be directly affected by the proposed development. His house is situated 4.8km from the nearest of the proposed turbines. He says that a significant number of the proposed turbines will be directly visible from his house on the outskirts of Kells, Co. Meath. He says that the proposed wind turbines are up to 167m high and will affect the health and wellbeing of himself and his family as well as their day to day existence. The applicant says that he is an engineer and he has studied the effects of wind turbines in detail. He describes himself as a noise sensitive person with "many autistic traits". The applicant is married and resides with his wife with their two sons, aged seven and eight years. Their younger son has been diagnosed with Pervasive Developmental Disorder and attends a special educational unit in Trim, Co. Meath. He is vulnerable to change and is sensitive to noise. The applicant states that his son is afraid of wind farms. The welfare of their children is most understandably a matter of great concern to the applicant and his wife.

6 5. By letter received by the Board on 30 ^th May, 2014, EPI initiated the preapplication consultation procedure prescribed under s.37B of the Principal Act, as amended, in relation to the proposed Emlagh wind farm project in Co. Meath. Section 37B of the Principal Act, as amended, states that, in respect of certain classes of development which may comprise SID:-

7 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."

8 6. Following the conclusion of the pre-application consultations entered into between EPI and the Board, the Inspector prepared a report dated 1 ^st September, 2014. At para. 5.1 he stated:-

9 "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 7. The Inspector was of the opinion that the 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 8. The Inspector referred to the employment generation that could be achieved by the proposed development and noted that while there was no breakdown of the figures cited by the prospective applicant of 225 construction jobs and 60 long-term jobs, he concluded at para. 5.2.2 that:-

12 "...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."

13 Accordingly he considered that the proposed development came within the scope of s.37A(2)(a) of the Principal Act, as amended.

14 9. Given the scale of the proposed development, the Inspector considered that the proposed development would be consistent with the objectives of the...