You might remember that in a previous blog I disagreed with Judge Caroline Costello’s finding against John Callaghan that Mr. Callaghan (and other members of the public) did not have the right to make representations to An Bord Pleanala (ABP) before ABP decided whether to declare a wind farm a Strategic Infrastructure Development (SID) as contemplated by Section 37 of the Planning and Development Act.

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Once the proposed development is declared to be an SID by the ABP, 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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Judge Costello held that the initial decision to designate a proposed development an SDI did not affect Mr Callaghan’s right to make representations as he could do so when the planning application itself came before the APB. 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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I was very critical of judge Costello’s decision:

“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.”

Well, to give credit where credit is due, the learned judge has admitted that she might be wrong. She has granted Mr Callaghan’s application for leave to appeal on that very question:

“I was not satisfied that the argument advanced met the threshold of substantial grounds for the reasons outlined in my judgment. My conclusion was predicated on my assessment of the nature of the decision made by the Board when giving its opinion under s.37B(4). Starting from that assessment, I rejected the applicant’s argument that his right to fair procedures was triggered and on that basis I concluded that he had not established substantial grounds that he was entitled to participate in the pre-application procedure. However, I acknowledge that logically if a court accepted the applicant’s characterisation of the nature of the decision of the Board under s.37B(4) (which I rejected) it could well reach the conclusion that he was entitled to fair procedures in respect of that stage of the process. In my opinion the law in this area is uncertain and as the whole point of affording an appeal is to overturn a decision where the High Court has been in error, I believe that it is desirable in the public interest that there be an appeal on this point, given that it is a point of exceptional public importance.”
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“… I am satisfied that in point (a) the applicant has raised a point of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal or the Supreme Court. I certify that the applicant may appeal the judgment of 11th June, 2015, as follows:-
Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in the light of Sections 50(2) and 143 of the Planning and Development Act 2000 such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanala reaching an opinion pursuant to Section 37A of the Planning and Development Act 2000.”

Well done John, for persevering with your struggle against enormous odds. And well done Judge Costello, for having the bottle to admit that you might be wrong.

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You can read the full judgment of Judge Costello here: Leave to appeal judgment