An Opportunity Missed – Callaghan vs. An Bord Pleanála and the Attorney-General

Painting creted about 1980 for Playboy Magazine

Judgment was delivered by the High Court (Costello J.) on 11 June 2015 in the application for leave to judicially review the decision of An Bord Pleanála to designate the North Meath Wind Farm a Strategic Infrastructure Development (SID).

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Who are the people involved?

The Applicant is John Callaghan, whilst the Respondents are An Bord Pleanála and the Attorney-General (the AG). The AG is essentially the lawyer representing the Government. No mention is made in the judgment why it was necessary to have the AG there. Hmmm.

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Notice parties are people who are not directly fighting in court but have an interest in the outcome of the litigation. This means that they are able to participate in the proceedings by presenting arguments to the court. The notice parties in this case were Element Power Ireland Limited, Element Power Ireland, and North Meath Wind farm Limited. The judge had the following to say about these Notice Parties:

“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 second named notice party, Element Power Ireland, …, 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 1Okm in three clusters at Farragara, Castletownmoor and Isealchriocha at a height of approximately 167 m. To put this in context, Liberty Hall stands at 59.4 m, the height of the Spire of Dublin (Monument of Light) is 121.2 m and the Poolbeg Chimney Stacks are just over 207 m tall.”

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Why are they in the High Court?

Again, the court explains this:

“The applicant says that he will be directly affected by the proposed development. His house is situated 4.8krn 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.”

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You will remember that in two earlier blogs  it was highlighted that autistic children (and adults) and indeed many other children and adults with special needs are particularly susceptible to noise, which causes great distress and mental anguish. Here is another example of that. The judge never mentions this aspect in her subsequent deliberations.

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What is the Applicant asking for?

This is where it starts to get complicated. You will remember that I have previously explained that when you want to take an administrative decision or a judgment on review or on appeal, you need to get the court’s permission to do that, often from the judge who you want to review or appeal. This is called getting “leave” (permission) and is meant to be a sifting process. If your case is clearly hopeless and a waste of time, the judge will ‘deny you leave’ to appeal/review.

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Mr Callaghan was asking for leave to review the decision of ABP to designate this wind farm at Emlagh, County Meath, as a Strategic Infrastructure Development (SID).

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As the Commercial Court tries to hear things as quickly and speedily as possible, the application was “telescoped”. Judge Costello explained this:

“By order dated 28th 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.”

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In other words, the judge would decide whether to grant Mr Callaghan leave to take the APB decision on review, and if the judge granted that permission, she would immediately hear the application for judicial review. . Some commentators have suggested that it was clear from the outset that the judge had already made up her mind that the application for leave to review was never going to succeed and therefore the whole thing was lumped together so it could be disposed of in one fell swoop. I think that is a very cynical way of looking at things. I would like to believe that it was an exercise in efficiency and speed, which saves time and money. In any event, it was not Judge Costello who decided to lump everything together, so it is not fair to blame her.

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What is the law?

.Section.37A of the Planning and Development Act 2000, as inserted by s.3 of the Planning and Development (Strategic Infrastructure) Act 2006 says the following:

37A. Board’s jurisdiction in relation to certain planning applications. (1) An application for permission for any development specified in the Seventh Schedule (inserted by the Planning and Development (Strategic Infrastructure) Act 2006) shall, if the following condition is satisfied, be made to the Board under section 37E and not to a planning authority. (2) That condition is that, following consultations under section 37B, the Board serves on the prospective applicant a notice in writing under that section stating that, in the opinion of the Board, the proposed development would, if carried out, fall within one or more of the following paragraphs, namely— (a) the development would be of strategic economic or social importance to the State or the region in which it would be situate, (b) the development would contribute substantially to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional spatial and economic strategy in force in respect of the area or areas in which it would be situate, (c) the development would have a significant effect on the area of more than one planning authority.    (my emphasis)

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What this means is that there is a special planning application procedure which comes into play when the APB decides that a development, which will need to seek planning permission, falls within one of the categories of development specified in the Seventh Schedule. The APB informs the developer, after consulting only with that developer, that the development comes within one or more of the criteria ((a) or (b) or (c)) set out in subsection 2. If none of these three conditions applies, then the normal planning procedure will be followed: in other words, the planning application goes to the Council under Section 34 and an appeal can be taken to ABP under Section 37 and a review of the APB’s decision can also be taken.

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However, if the ABP decide that one or more of the criteria apply, the development is designated a Strategic Infrastructure Development (SID) and then the planning application is fast-tracked straight to the ABP, meaning no Council hearing, and no appeal, with the result that things will happen that little bit faster. The APB are not obliged to hold a public hearing, and can conduct the whole hearing on paper and thereafter make a decision on the basis of written submissions. If you wanted to challenge the APB’s decision on the planning application, you would need to take it on review to the High Court. In other words, objectors to the merits of the planning application will only have one bite at the cherry, and that bite is limited.

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The Seventh Schedule specifies three categories of infrastructure development which are; Energy; Transport and Environmental.  There are 13 categories of energy infrastructure; four categories of transport infrastructure and 11 categories of environmental infrastructure. Wind farms fall into the energy infrastructure category.

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Judge Costello was at pains to explain that the section is written in such a way that it makes it clear that the assessment of whether any of the three circumstances apply does not involve an assessment of the future planning application, but solely whether any of the three circumstances exist for purposes of determining if that development, were it to be built, would be an SID.

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In other words, the APB should not be treating it like a planning application yet, but rather should only be looking to see whether any one of the three (extremely broad and vaguely worded) circumstances exist. This is not to say that the matters raised in the three circumstances will not be relevant to the assessment of the planning merits of any application. The Board are obliged to take into account the “policies and objectives” of the Government. See Keane v An Bord Pleanála [1998] 2 I.L.R.M. 241. However, the fact that the APB decides that one or more of the conditions apply should not be seen as a guarantee that the planning application will succeed, because the tests are supposed to be completely different. But are they?

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What exactly are the legal arguments being put forward by the parties?

On 12th September 2014 the ABP decided that the wind farm satisfied both requirements (a) and (b) of Section 37A(2) and therefore it declared the wind farm an SID.

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Mr Callaghan wanted to judicially review the decision by the ABP to declare the wind farm an SID because he argued that:

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1. He was not given the opportunity to make representations to the ABP on whether the wind farm should be declared an SID. The only person that the ABP consulted with was the developer and so it had not heard any contrary views before it decided to declare the wind farm an SID. This was unfair.

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2. By deciding that the wind farm would be of strategic economic or social importance to the State or the region and that it would contribute substantially to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional spatial and economic strategy, the APB had practically given the green light for the wind farm to be built, before it had heard any representations from the surrounding public or other interested objectors. By the time the ABP heard these objections, all options would not be open as demanded by EU law, as the ABP had already almost made up its mind to grant the application. This meant that the only real avenue left for objectors would be the High Court on review. This was unfair as it would mean that only the procedure would be examined, rather than the reasons why the wind farm should or should not be built.

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What was the decision?

In essence, what Judge Costello decided is that Mr Callaghan was challenging the wrong decision, as the decision by the ABP to declare the wind farm an SID was only an opinion and had nothing to do with whether or not the planning application would be successful.

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Once the wind farm was declared an SID, the developer had lodged its planning application on 6th October 2014 but Mr Callaghan did not object to this application nor did he make any written submissions challenging the planning application. Instead, he was challenging the opinion of the ABP that the wind farm was an SID and that was something he could not challenge. Accordingly, the fact that he was not given an opportunity to make a submission on the wind farm’s SID status was irrelevant as he was not entitled to influence that opinion. He was entitled to try and influence the APB’s subsequent decision, namely whether to grant planning permission or not. The two exercises by the ABP, namely whether to designate the wind farm an SID and the decision whether to grant planning permission to actually construct the wind farm were very different types of decision.

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The judge explained it as follows:

“The difference between the two decisions is clear. It is perfectly possible that a proposed development could be considered to be of strategic economic or social importance if carried out but, due to its location for example, the Board might, in the exercise of its expert judgment, decide that it should refuse planning permission. …     . There could be any number of reasons why the Board could validly form the opinion that a proposed application was of strategic economic or social importance but, upon considering all of the matters and information before it both during the EIA and thereafter, that the negative factors including those relating to the strategic economic or social importance aspects of the application outweighed the benefits presented by the applicant in its pre-application to the Board pursuant to s.37B. I therefore cannot accept the applicant’s central submission that the designation of the proposed application as SID in any way predetermines the outcome or any part of the outcome of either the EIA or the application for planning permission.”  …

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“Material which the Board has to consider as part of the SID designation process can and will be properly considered in the context of the EIA and consent procedure but the Board’s opinion on SID designation is not determinative of the planning decision. The earlier exercise does not lead to impermissible prejudgment. The Board remains free to exercise its discretion in relation to all matters at the end of the process.”

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Comment – an opportunity missed?

Section 37A(2) of the 2000 Act, as amended by the 2006 Act, does indeed say that the SID designation is “in the opinion of the Board”. But so what? One cannot help but feel that this was an opportunity missed.

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The Planning and Development (Strategic Infrastructure) Act 2006 was passed at the height of the “Celtic Tiger”.  It was a time when the building industry was in a feeding frenzy and developments were started anywhere and everywhere, including environmentally fragile areas and flood plains. The government of the day was being wined, dined and bribed, and was firmly in the developers’ pockets. Everything that could be done to smooth the way for the mad rush to build anything anywhere was done, including this insane 2006 Act.

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This challenge by Mr Callaghan was a golden opportunity for the judiciary to call a halt to that executive madness and this could have been achieved by giving a far more critical  interpretation to that little phrase ‘in the opinion of the Board’.

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The judge treated that phrase with far too much respect and far too little recognition of its consequences on the life of Mr Callaghan and his family:

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“…on a strict construction of the section, the s.37B opinion is that: an opinion of the Board that the proposed development would, if carried out, fall within one of the categories set out in s.37A(2). It is an opinion, not a concluded decision”.

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And later:

“In the light of this conclusion, is the applicant’s right to fair procedures triggered at the s.37B pre-application stage? In answering that question it is important to consider what right or interest of the applicant could or may be affected by the decision in question. There is no absolute right to be heard as such. The right to be heard is a right to protect a separate, different right or interest. In domestic law it is his right to participate in the planning process and to affect the outcome of the planning application process. This is a right that applies to any person or company residing anywhere in the State. It is not related to the individual’s property rights or right to health or bodily integrity.”

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Judge Costello is essentially saying that the determination by the APB is not of much substance and does not affect Mr Callaghan’s rights. This cannot be right. How can it be said that the SID designation by ABP does not have any real consequences that should entitle Mr Callaghan to make representations to ABP before it makes its decision? Of course it has consequences. It has very real consequences. There are shorter time limits within which to object and obviously only one opportunity to object. There is no appeal against the APB, which means you can only be heard once on the merits of the application, and the people listening to your objections are the same people who think that the wind farm is great news for the region! The APB has the discretion not to hold a public hearing, an option that it regularly exercises. These are all very significant consequences.

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It is alarming to hear a High Court judge say things like “there is no absolute right to be heard as such”.  The concept of “audi alteram partem” (“Let the Other Side Be Heard”) is at the cornerstone of every fair legal system. It says that if your rights are affected by a decision, you must be given the opportunity to address the decision maker before the decision is made (when all options are open). That is why it is called a Principle of Natural Justice, because it is absolutely fundamental to any legal system that claims to be fair and transparent. If there is any doubt or ambiguity in the thing, the courts should always find for the right to be heard, rather than not to be heard.

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In a fair and transparent planning system, and also the legal system, everything should be open to investigation and scrutiny; to challenge and enquiry. This is especially true of bodies like the ABP which wield considerable power and make momentous decisions that can impact on hundreds, even thousands, of lives.

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In the leading Irish text on judicial review, “Administrative Law in Ireland”, Gerard Hogan says at page 804:

“The dominant judicial view would appear to be that all discretionary powers are reviewable.”

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In other words, when it comes to challenging government and quasi-government decisions,  nothing is untouchable.

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Where a government is intent on riding roughshod over the rights of its citizens, we look to the Courts to protect our rights as granted by the Constitution.  The High Court had a wonderful opportunity to strike a blow for civil liberties. Alas, it chose instead to support the hollow rhetoric of “economic development” and “strategic importance”, rather than giving support to a desperate father trying to protect his autistic son.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in High Court; Judicial Review; Appeal on the merits; judicial discretion, Ms Justice Costello; Section 37A Planning and Development Act 2000; and tagged , , , , , , , , . Bookmark the permalink.

3 Responses to An Opportunity Missed – Callaghan vs. An Bord Pleanála and the Attorney-General

  1. The future decisions of the judiciary can be redefined by the legislature. The legislators will all be cap in hand seeking re-election in the near future. Write to your sitting TDs today seeking their commitment to rewriting Section 37A(2) of the 2000 Act, as amended by the 2006 Act in the interests of fairness to all parties. Don’t take a soft word for an answer – follow-up methodically and relentlessly until you get an unambiguous answer. Politicians will hear the message if just 10 concerned people in each county do this. Or do nothing, and revert to the status quo ante. The wind farm developers and operators do not suffer from apathy – failure is certain when concerned citizens remain silent.

  2. Pingback: Well Done John! | The Law is my Oyster

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