The High Court has allowed a planning application for a proposed 25-turbine wind farm at Castletownmoor, Co Meath, to be submitted and processed, but barred An Bord Pleanála from deciding it until a related Court of Appeal ruling or further court directions.
Mr Justice Binchy made the orders on 21 July 2016 after considering an application by the project companies to set aside a stay granted to John Callaghan in May. The stay had prevented the Board from acting on its decision that the development qualified as strategic infrastructure, which in practice stopped it receiving and considering a planning application.
The dispute follows an earlier challenge by Mr Callaghan to the Board’s decision to designate a proposed wind farm development as strategic infrastructure without public participation. That challenge was dismissed by the High Court in 2015. One legal question was certified for appeal: whether the statutory scheme should be read as giving interested members of the public a right to be heard before the Board decides whether a development is strategic infrastructure. The appeal was listed for hearing on 4 October 2016.
Mr Callaghan argued that allowing the Board to process a planning application before the appeal was decided could prejudice him, including because he said he had been denied the opportunity to make submissions on the strategic-infrastructure designation. The project companies said delay could cause commercial harm. Their evidence referred to potential electricity sales, a possible future renewable-energy support scheme and more than €5 million in project expenses to date. The judge noted that REFIT 2 was no longer available to them and that the timing and availability of the proposed replacement scheme were uncertain.
Applying the Supreme Court’s test in *Okunade v Minister for Justice*, the judge found that Mr Callaghan had an arguable case. He concluded that the greater risk of injustice lay in continuing the stay in full, given the potential delay to the planning process and the public interest in renewable-energy development. He also considered that if Mr Callaghan succeeded in the Court of Appeal, a planning permission granted in the meantime could be vulnerable to being set aside.
The court therefore allowed the companies to submit a planning application and the Board to process it in the ordinary way. The Board must notify the parties when it is ready to decide the application. The stay remains in force against making a decision, pending the Court of Appeal ruling, unless the parties return to court in light of developments. The judge said the companies could bring forward specific commercial prejudice arising before that point. The order did not decide the appeal question or the planning merits.