The High Court has refused an applicant leave to challenge An Bord Pleanála’s designation of a proposed 46-turbine wind farm at Emlagh, Co Meath, as strategic infrastructure. The court also declined to refer questions about EU environmental assessment rules to the Court of Justice of the European Union.
The decision concerns the project’s route through the planning system, not whether it should receive planning permission. Strategic infrastructure designation meant the developer had to apply directly to An Bord Pleanála rather than a local planning authority.
The applicant argued that the Board’s pre-application process excluded the public and breached fair procedures and EU rules requiring effective public participation. He also argued that the Board had relied on limited information and had effectively prejudged issues it would later consider when deciding the planning application. The applicant did not make a submission or observation on that application after it was lodged in October 2014.
In a judgment delivered on 11 June 2015, Ms Justice Costello said the designation was an opinion about which authority should consider the application. It did not determine the planning outcome. The Board would later have to assess the environmental impact statement and consider public submissions and other information before deciding whether to grant, refuse or modify permission. The court said the Board remained free to reach a different view on matters it had considered at the designation stage.
The judge rejected the argument that the statutory process necessarily created an appearance of bias or predetermination. She also rejected the challenge based on the information available to the Board, finding that it depended on the claim that the designation was conclusive. The applicant had not otherwise challenged the sufficiency of the information for the limited opinion the Board had to form.
On the EU directive, the court held that public participation requirements applied from the formal planning application, not the earlier consultation stage. It found the public could participate while the planning options remained open, and therefore declined to seek a preliminary ruling from the CJEU.
The applicant also sought a determination that special environmental litigation costs rules applied. The court refused, finding the proceedings did not meet the statutory requirements.
Because the hearing was “telescoped,” the court considered leave and the substantive challenge together if leave were granted. It concluded the applicant had not established substantial grounds to quash the Board’s 11 September 2014 decision or to declare the EU directive improperly transposed, and refused leave. The judgment did not decide the wind farm’s planning application.