Supporting Documents:

THE SUPREME COURT

DETERMINATION

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

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 receiving environment. It then granted permission, which then became the subject of the challenge in the instant proceedings (O Grianna No.2).

7. Four issues were argued in the High Court, of which the following are relevant to this application for leave.

(i) Whether the Board had failed to carry out a proper EIA, by reason of the fact that the connection works had not formed part of the original proposal in respect of which the application for permission had been made.

On this issue, the applicants submitted that since the grid connection works were not included in the application for permission, the Board could not lawfully impose any binding conditions by way of mitigation and could not either grant or refuse permission in respect of the works. It was further submitted that there could not be meaningful public consultation. The Board had not, therefore, carried out an EIA in accordance with the law.

McGovern J. pointed out that the Board had expressly stated that the permission was not to be construed as any form of consent for the proposed grid connection and that a separate planning application would be required in that respect (unless it was an exempted development at the time of construction). The Board had conducted the process in accordance with the order of Peart J.

(ii) Whether the Board had acted ultra vires in granting permission for an application which was “substantially different” from that remitted to the Board in O Grianna No.1.

The applicants submitted that the acceptance of the variations proposed by the developer had not been in accordance with the procedural requirements of the Act.

McGovern J. considered that the information given as to the other proposed variations was within the terms of the Board’s request for information in relation to any change of circumstances. An opportunity for members of the public to make submissions had been provided and the applicants had done so.

(iii) Whether the Board had failed to carry out an appropriate assessment (“AA”) as required by the Act and the Habitats Directive.

The applicants argued that the Board had not carried out an AA with complete, precise and definitive findings and conclusions capable of removing all scientific doubt as to the effects of the proposed development.

It is noted in the judgment, when dealing with this aspect, that a significant part of the applicants’ case was based on the assertion that, from the outset, the grid connection should have been included in the planning application. McGovern J. considered this to be impermissible as an argument because it was out of time and also because it offended against the rule in Henderson v Henderson (1843) 3 Hare 100, being a point that could and therefore should have been made in O Grianna No. 1.

8. The applicants say that the rule in Henderson should not be applied in circumstances where their challenge relates to a “materially revised planning application” relating to what amounts to a different project for EIA purposes. The substantive point that they wish to argue is that the EIA procedure cannot be divorced from the development consent procedure, which involves the grant or refusal of planning permission and the imposition of conditions on any grant.

9. It is further submitted that the project in question is “a single, indivisible project”. The entirety of such a project must, it is argued, be subject to development consent to enable an EIA to be carried out. Where part of the project is not the subject of an application for permission, there will not be full public consultation; the Board cannot properly carry out an EIA and there is no power to impose binding mitigation measures.

Discussion

10. It is clear that the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. An appeal to this Court, whether directly from the High Court under Article 34.5.4 or from the Court of Appeal under Article 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it is otherwise in the interests of justice to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy in those circumstances. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further appeal.

11. In addition, leave to appeal directly from the High Court requires the applicant to demonstrate that there are exceptional circumstances warranting such an appeal.

12. Against that background it is necessary to address the basis upon which it said that the constitutional threshold is met in this case.

Decision

13. The question whether the applicants are bound by the rule in Henderson cannot, on the facts of this case, be influenced by the fact that after the original proceedings the developer proposed variations to the original plan. Whether those variations were minor, and within the power of the Board to accept, or so materially different as to require a separate application, is irrelevant to the case in circumstances where the new argument that the applicants wish to make has nothing to do with those variations. The real issue between the parties stems from the fact that the grid connections work did not form part of the original planning application. That was always the case, and was a significant feature in the decision of Peart J. However he took the view that the Act was sufficiently flexible to permit the Board to deal properly with the matter on remittal, rather than requiring a new application to be lodged. The applicants did not seek leave from this Court to appeal that decision, but in effect made the case before McGovern J. that the procedure mandated by Peart J. could not be carried out lawfully.

14. While it may be arguable in the context of an appropriate case that EU environmental law obligations require the Court to take a different view of the rule in Henderson v Henderson the applicants have not, in the circumstances of this case, made out a stateable case that it should not be applied to them. The other issues raised in the notice of application depend, in reality, upon that point.

15. In the circumstances leave to appeal to this Court will be refused.

And it is hereby so ordered accordingly.