North Kerry Wind Turbine Awareness Group v an Bord Pleanála

JurisdictionIreland
JudgeClarke C.J.,MacMenamin J.,O'Malley J.
Judgment Date09 October 2017
Neutral Citation[2017] IESCDET 102
CourtSupreme Court
Date09 October 2017

[2017] IESCDET 102

THE SUPREME COURT

DETERMINATION

Clarke C.J.

MacMenamin J.

O'Malley J.

BETWEEN/
NORTH KERRY WIND TURBINE AWARENESS GROUP
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
KERRY COUNTY COUNCIL IRELAND

AND

THE ATTORNEY GENERAL

AND

STACKS MOUNTAIN WINDFARM LIMITED
NOTICE PARTIES
APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT PURSUANT TO ARTICLE 34.5.4° OF THE CONSTITUTION.
Result: The Court grants leave to appeal to this Court from the High Court.
Reasons Given:
Jurisdiction
1

The applicant seeks leave to appeal against the refusal of the High Court (McGovern J.) to grant an order of certiorari pursuant to s.50 of the Planning and Development Act 2000 in respect of a decision by An Bord Pleanála to give planning permission for a windfarm. The substantive judgment was delivered on the 9th March 2017 (see [2017] IEHC 126). A further judgment refusing to grant a certificate of leave to appeal was delivered on the 2nd May 2017 (see [2017] IEHC 250).

2

This Court confirmed in Grace and anor v An Bord Pleanála [2017] IESC 10 that, notwithstanding the provisions of s.50 of the Planning and Development Act 2000, it has jurisdiction to grant leave to appeal where the relevant constitutional criteria are met.

3

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.

4

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. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. 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 issues
5

The applicant asserts that it is in the interests of justice that leave should be granted, and also that a number of points of law of general public importance arise from the decision of the High Court.

(i) The interests of justice are said to be engaged because, it is submitted, an issue argued unsuccessfully by the applicant in the High Court is the subject of a reference to the Court of Justice of the European Union made by Humphreys J. in Holohan v An Bórd Pleanála [2017] IEHC 268. The issue is described as relating to the manner of, and recording of, the environmental impact assessment (‘EIA’) and appropriate assessment (‘AA’) and particular reference is made to questions (i), (j) and (k) in Holohan. It is submitted that if the outcome of Holohan favours the position taken by the applicant, then the applicant will have been unfairly deprived of relief.

Questions (i) and (j) in Holohan concern a possible obligation on the part of the Board to give reasons for rejecting the view of its inspector that further scientific information was needed. That issue does not appear to arise here.

Question (k) asks whether the Board is obliged, in conducting an AA, to give express and detailed reasons...

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