Carrownagowan Concern Group and Others v an Bord Pleanála [No.3]

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 23 September 2024
• Neutral Citation: [2024] IEHC 549
• Court: High Court
• Docket Number: [H.JR.2022.0001022]

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between

Carrownagowan Concern Group, UTE Rumberger and Nicola Henley

Applicants

and

An Bord Pleanála, Coillte Cuideachta Ghníomhaíochta Ainmnithe, The Minister for Housing, Local Government and Heritage, The Minister for Agriculture, Food and The Marine, Ireland, The Attorney General and Clare County Council

Respondents

and

Futurenergy Carrownagowan Designated Activity Company (By Order)

Notice Party

[2024] IEHC 549

[H.JR.2022.0001022]

THE HIGH COURT

PLANNING & ENVIRONMENT

Leave to appeal – Appropriate assessment – Harmless error – Applicants seeking leave to appeal – Whether the public interest militated against allowing further appeal

Facts: In the No. 1 judgment ([2023] IEHC 579), Humphreys J made an order striking out part of the case of the applicants, Carrownagowan Concern Group, Ms Rumberger and Ms Henley, and discharging leave in part. In the No. 2 judgment ([2024] IEHC 300), Humphreys J dismissed the balance of the applicants’ case. The applicants sought leave to appeal. Their proposed questions of exceptional public importance related to harmless error, the alleged requirement to set out material in extenso, the incorporation of reasons into the decision and the alleged requirement on the first respondent, An Bord Pleanála (the board), to set out its own expertise.

Held by Humphreys J that: (i) the Supreme Court had already clarified that failure to cross-examine may mean that a party carrying the onus of proof is bound by the evidence thus uncontroverted (RAS Medical Ltd v The Royal College of Surgeons in Ireland [2019] IESC 4); (ii) the Supreme Court had already clarified the standard of reasons and there was no need to set out reasons in extenso in a decision (Connelly v An Bord Pleanála [2018] IESC 31); (iii) the Supreme Court had already clarified that reconfiguring a case beyond the pleaded grounds for the purpose of appeal is inappropriate (Concerned Residents of Treascon [2024] IESC 28); (iv) the Supreme Court had already made the point, albeit non-precedentially and in a different but related appellate context, in Phoenix Rock Enterprises v An Bord Pleanála & Ors [2023] IESCDET 97, that leave to appeal based on alleged uncertainty creating “alleged difficulties in practice” was not appropriate in the absence of any evidence before the High Court that the relevant industry “was being seriously affected by the issues in the case”; (v) the CJEU had already clarified that relief need not be granted for errors that do not give rise to actual effects that breach EU law, and that a court’s assessment of that test can be informed by evidence from the developer (Gemeinde Altrip and Others v Land Rheinland-Pfalz, C-72/12, ECLI:EU:C:2013:712; (vi) insofar as there were fragmentary points not expressly covered by express existing appellate authority, the mere absence of express authority rejecting a point does not have the implication that the point must be one of uncertainty and relevance that warrants leave to appeal – any left-over points were either tendentious, fell outside the pleaded and substantively argued case, did not properly arise on the facts, or were contrived points in relation to which no meaningful or demonstrable doubt arose and in relation to which no supporting material had been brought forward; and (vii) the public interest militated against allowing further appeal – the facts of the case were a poor basis for a proposed appeal, given the lack of evidence on crucial points.

Humphreys J ordered that the application for leave to appeal be dismissed with no order as to costs.

Application dismissed.

(No. 3)

JUDGMENT ofHumphreys J.delivered on Monday the 23rd day of September 2024

1 . Primary legislation in the planning area presupposes that one instance of judicial examination of the legality of decisions is normally sufficient, subject to the ever-present possibility of the Supreme Court's oversight role. But whichever appeal court we are talking about, in a context where statutory policy leans towards finality, the necessity for an appeal requires more than merely a dispute about the application of established law to particular facts – a process that is blandly called “error correction” in the appellate jurisprudence. The desirability of an appeal in such a context normally involves a demonstration rather than an assertion of uncertainty about what the law is in the first place. So what's required is not mereuncertainty – something any moderately clever lawyer can conjure up at will from thin air in any situation out of smoke, mirrors, flash-bangs and distraction – but demonstrable uncertainty. That has two essential preconditions. Firstly, a tangible basis on grounds going well beyond the mere fact that the losing party disputes the outcome – there must be either contrary jurisprudence or other material, or a compelling inherent logic. Secondly and perhaps most importantly, the indispensable prior evidential foundations for the point as something that properly arises on the facts, and within properly pleaded grounds, must be laid. Appeal mechanisms are not an assembly line for interesting academic points in the abstract. Are these criteria, which in essence underlie the statutory provisions for grant of leave to appeal, satisfied here?

Judgment history

2 . In Carrownagowan Concern Group & Ors v. An Bord Pleanála & Ors (No. 1)[2023] IEHC 579, ( [2023] 10 JIC 2704 Unreported, High Court, 27th October 2023) I made an order striking out part of the applicant's case and discharging leave in part.

3 . That has been appealed to the Court of Appeal (no leave to appeal was required in such a situation, although that legislative inconsistency is in parliamentary cross-hairs at time of writing), and judgment is awaited.

4 . In ( [2024] IEHC 300Carrownagowan Concern Group & Ors v. An Bord Pleanála & Ors (No. 2) Unreported, High Court, 20th May 2024), I dismissed the balance of the applicant's case.

5 . The applicants now seek leave to appeal.

Geographical context

6 . The development at issue is a proposed windfarm and associated works in the townlands of Ballydonaghan, Caherhurley, Coumnagun, Carrownagowan, lnchalughoge, Killokennedy, Kilbane, Coolready, and Drummod, County Clare. The area is located northwest of Killaloe, near the village of Bodyke.

7 . As stated in the AA screening document, the area of the proposed wind farm is located within forested lands on the northern slopes of Slieve Bernagh mountain, approximately 4 km northeast of the village of Broadford, 7 km north-west of Killaloe, and 2.5 km south of the village of Bodyke at its closest point. Lough Derg lies approximately 4 km to the east of the proposed development area.

Facts

8 . On 30th November 2020, Coillte lodged an application for permission (File Reference ABP-308799–20) to construct the development.

9 . The application included a Natura Impact Statement for the purposes of the habitats directive, and an EIA report for the purpose of directive 2011/92.

10 . Whilst Coillte was the applicant for planning permission, all development rights in respect of Carrownagowan Wind Farm were transferred from Coillte to FuturEnergy, although the development lands had not transferred as of the substantive hearing. FuturEnergy's onshore wind development rights in respect of the relevant Coillte lands are held pursuant to an exclusive option for lease, which option allows for entry into a long-term lease prior to commencement of the construction of Carrownagowan Wind Farm.

11 . On 27th November 2020, the developer published notice of the making of the application. The papers were available for public inspection from 7th December 2020 for a period of seven weeks.

12 . The second named applicant made a submission on 12th January 2021, and the first named applicant made a submission received on 3rd February 2021.

13 . The Development Applications Unit (DAU) of the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media also made a submission.

14 . On 3rd February 2021, the deadline for submissions expired.

15 . In early 2021, on foot of the DAU submission, the board requested further information from the developer.

16 . On 8th July 2021, the developer submitted further information.

17 . The developer submitted a second tranche of further information on 23rd December 2021.

18 . This further information was advertised, and notified to those who had made submissions in January 2022, and the second and third named applicants made submissions on 14th and 16th February 2022 respectively.

19 . The third named applicant made a submission in which she reiterated the points she had made in a first, rejected, submission.

20 . The inspector prepared a report dated 31st August 2022.

21 . The board adopted a decision on 29th September 2022 granting permission. The board order agreed with the inspector that at screening there was the possibility of significant effects on Slieve Bernagh Bog SAC (002312) and Slieve Aughty Mountains SPA (004168), and that on appropriate assessment such effects could be ruled out. The inspector's conclusion as to the effects being acceptable following EIA was also agreed with.

Procedural history

22 . The procedural history is set out in the No. 2 judgment. Following that judgment, the applicant lodged submissions seeking leave to appeal, dated 26th June 2024 but for some reason not delivered to the court until 10th July 2024. The board's submissions are dated 15th July 2024. The notice party delivered submissions dated 29th July 2024.

23 . The leave to appeal issue was listed for hearing on 11th September 2024, and judgment was reserved at the conclusion of the hearing on that date. New leading counsel appeared for the applicants and introduced a number of fresh and imaginative arguments not particularly recognisable in...