The High Court has refused An Bord Pleanála leave to appeal a judgment that invalidated planning permission for a proposed anaerobic digester plant, finding that the Board’s proposed appeal did not meet the statutory test.
Mr Justice Garrett Simons delivered the decision on 15 May 2020. The application concerned the court’s earlier judgment of 24 May 2019, which set aside the Board’s decision to grant permission. The judicial review was brought by Niall Halpin, suing through his mother and next friend, Eileen Halpin. Meath County Council and Greenfield Ventures Ltd were notice parties; the developer did not participate in the judicial review proceedings.
The Board sought leave to appeal on a question about how courts should review a planning authority’s assessment of technical material under the principles in O’Keeffe v An Bord Pleanála. It argued that the court should ask whether a decision-maker with relevant scientific expertise could have relied on the material, rather than analyse the material itself.
The judge concluded that the proposed question did not identify uncertainty in the law or a point of exceptional public importance. He said the earlier judgment applied established principles to the particular facts, including the limited information available to the Board about whether the plant could store more than 10 tonnes of biogas at one time. The Board’s commissioned report had said it could not determine the maximum storage quantity from the information available and recommended operational controls or treating the site as a lower-tier establishment.
The earlier judgment had found that the material before the Board did not support its conclusion that the threshold would not be exceeded. It also found that a planning condition described by the Board as being “as recommended” in the expert report fell short of the recommended controls. The 2019 judgment held that this material error vitiated the permission. The 2020 decision did not revisit those findings; it addressed only the application for leave to appeal.
The judge also found that an appeal would not be desirable in the public interest. The permission was due to expire in July 2021 unless implemented, creating a risk that an appeal would become moot. He cited the history of delay and said a fresh planning application under the amended legislation would be preferable if the developer still intended to pursue the project.
The application for leave to appeal was dismissed. The court invited the parties to correspond about costs, including costs of the judicial review and the leave application; if they could not agree, written submissions were to be filed within 21 days.