Ó Gríanna v an Bord Pleanála

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Clarke C.J.,MacMenamin J.,O'Malley J.
• Judgment Date: 09 October 2017
• Neutral Citation: [2017] IESCDET 101
• Date: 09 October 2017

[2017] IESCDET 101

THE SUPREME COURT

DETERMINATION

Clarke C.J.

MacMenamin J.

O'Malley J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) AND IN THE MATTER OF AN APPLICATION

BETWEEN

PÓL Ó GRÍANNA GERALDINE UÍ DHUINNÍN AOIFE NÍ DHUINNÍN CLIONA NÍ DHUINNÍN BERNADETTE COTTER TIM O'CONNELL CAOIMHGHÍN Ó BUACHALLA PADRAIG D. KELLEHER ALAN KING XAK AROO SIMON SWALE

AND

ELIZABETH TWOMEY

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL

AND

FRAMORE LIMITED

NOTICE PARTIES

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES.

Result: The Court does not grant leave to appeal.

Reasons Given:

Jurisdiction

1 This is an application for leave to appeal directly from the High Court in circumstances where the trial judge (McGovern J.) refused to grant a certificate of leave to appeal under the relevant statutory procedure (s. 50A (7) of the Planning and Development Act 2000). This Court has previously ruled that, having regard to the text of the 33rd Amendment, it has jurisdiction to entertain such an appeal in a case that meets the constitutional criteria (see Grace and anor v An Bord Pleanala [2017] IESC 10).

2 As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition, because this is an application for leave to appeal directly from the High Court, it is also necessary that it be established that there are exceptional circumstances warranting a direct appeal to this Court.

3 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. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

The proceedings

4 Previous litigation between these parties was resolved by the judgment of Peart J. in O Grianna v An Bord Pleanála [2014] IEHC 632 ( O Grianna No.1). Peart J. held that the connection of the windfarm to the national grid was an integral part of the overall development, and that the Environmental Impact Assessment ('EIA') carried out by the Board was flawed because it did not constitute a cumulative assessment of the impact of both the turbines and the connection works. The environmental impact statement ('EIS') submitted by the developer had not included a statement of the environmental effects associated with the connection works because, it said, the route and specifications were a matter for the ESB.

5 Peart J. then, having heard further submissions as to the appropriate final order, gave a second judgment in which he ordered the remittal of the matter to the Board. In so doing he observed that the Board could utilise its statutory powers to require a further EIS and provide the necessary opportunity for submissions to be made thereon. The applicants had opposed that course of action, arguing that the illegality could not be cured in that fashion, that it was necessary to prepare an entirely new EIS and that the powers available to the Board would not enable it to comply with the requirements for an EIA in accordance with the Court's judgment. That argument was based on the finding that the EIS did not address the effects of the works associated with the connection.

6 The matter having been remitted, the developer submitted a revised public notice to the Board. As well as including the provision of approximately 11.5 km of underground cabling for the connection to the grid, the revised plan relocated one of the proposed turbines a distance of 50m from the original proposed site (as a noise abatement measure). There were some consequential alterations to the internal access track and associated underground cable. The Board requested further information, to be included in a revised EIS that was to take into account any changes in circumstance and in the...