Connelly v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Clarke C.J.,O'Donnell Donal J.,Dunne J.,O'Malley Iseult J.,Finlay Geoghegan J.
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] IESC 36
• Date: 30 July 2018
• Court: Supreme Court
• Docket Number: Appeal No: S:AP:IE:2017:000013

Between/

Kathleen Connelly

Applicant/Respondent

And

An Bord Pleanála

Respondent/Appellant

And

Clare County Council

McMahon Finn Wind Acquisitions Ltd

Notice Parties

[2018] IESC 36

Clarke C.J.

O'Donnell Donal J.

Dunne J.

O'Malley Iseult J.

Finlay Geoghegan J.

Appeal No: S:AP:IE:2017:000013

Record No: 2014/488JR

THE SUPREME COURT

Planning permission – Environmental impact assessment – Appropriate assessment – Respondent seeking to challenge the decision of the appellant – Whether adequate reasons were given by the appellant in its decision

Facts: The second notice party, McMahon Finn Wind Acquisitions Ltd (the developer), was the applicant in an application for permission involving a proposed wind farm development consisting of six turbines. The application was turned down by the first notice party, Clare County Council, on the 12th July 2011. The developer appealed against that refusal to the respondent/appellant, An Bord Pleanála. On the 9th May 2014, the Board determined to grant permission with the formal decision of the Board being dated the 29th May 2014. The applicant/respondent, Ms Connelly, brought judicial review proceedings challenging that decision of the Board. The High Court (Barrett J) decided to quash the decision of the Board granting permission. It was in respect of that decision of Barrett J that the Board appealed to the Supreme Court. Clarke CJ held that he would dismiss the appeal on much narrower grounds than those identified by the trial judge, confining himself to quashing the decision on the grounds related to an appropriate assessment.

Held by Clarke CJ that the appropriate form of order to make should be an order remitting the matter back to the Board to determine the planning application concerned in accordance with law as interpreted in the judgment of the Court.

Clarke CJ held that he would grant the applicant 75% of the costs of the proceedings in the High Court and the appeal in the Supreme Court (with the costs of the appeal in the Supreme Court to include the costs of filing the respondent’s notice) but would make no order in respect of the costs of the application for a certificate in the High Court.

Judgment approved.

Ruling of the Court ( ex tempore) on the Final Order and on Costs delivered the 30 ^th July, 2018 by Clarke C.J.

1 I propose to deal first with the substantive order which the Court should make. As noted in the judgment in this case one of the matters on which the Court required further submissions from counsel was as to whether, and if so in what way, the planning application which was under challenge in these proceedings should be remitted back to the Board. All parties were agreed that the matter should be remitted back. There was, perhaps, some difference of emphasis between the parties as to the terms on or manner in which that remittal should take place.

2 The Court is anxious to minimise the risk of further disputes between the parties arising from the process which the Board follows hereafter. At the same time the Court is mindful of the fact that, by being overly prescriptive, the Court might make matters worse rather than better.

3 On balance the Court has come to the view that the appropriate form of order to make should be an order remitting the matter back to the Board to determine the planning application concerned in accordance with law as interpreted in the judgment of this Court.

4 However, in making that general order, the Court had regard to and wishes to note that there was no challenge to the process which took place before the Board up to the point when, as a result of the Inspector's Report, the Board decided to seek further information and a natura impact statement. The Board is clearly entitled to take that fact into account in deciding what procedures it requires to follow...