The High Court refused Noel Mulhaire leave to seek judicial review of An Bord Pleanála’s decision to permit a 24-metre communications structure at an ESB substation in Cahircalla, Ennis, County Clare.
In a judgment delivered on 31 October 2007, Mr Justice Birmingham said none of the grounds raised, individually or together, amounted to substantial grounds for challenging the permission. The ruling concerned whether leave should be granted; it was not a full judicial review of the Board’s decision.
The Board granted permission on appeal after Ennis Town Council refused the ESB’s application. The Board’s inspector had recommended refusal, citing the structure’s height and scale, its proximity to homes, potential harm to visual amenities and property values, and conflict with development plan objectives. The Board granted permission subject to conditions, including a five-year limit, site reinstatement, landscaping and restrictions on changes to the mast.
Mulhaire argued that the site notice did not comply with planning regulations and that the Board had failed to give adequate reasons, acted irrationally, and failed to notify him about matters including the inspector’s report. The judge rejected those grounds at the leave stage.
On the site notice, the court found that erecting it on the day the planning application was submitted complied with the regulations. The judge also said Mulhaire had known about the proposal and had made submissions, and had not shown prejudice.
The court found the Board’s reasons sufficient. They referred to national mobile communications policy, the site’s commercial zoning and existing use as an ESB substation, among other considerations. The judge said the decision and its conditions made clear why the Board had departed from the inspector’s recommendation.
The judgment also held that the Board could grant permission despite a material contravention of the development plan if any one of the statutory grounds applied. It found material before the Board to support its conclusions on public health and visual amenity, and no evidence that the Board had ignored the telecommunications guidelines.
The judge rejected the complaint that Mulhaire should have received the inspector’s report, noting that it was favourable to his position and that third parties had the last word in the appeal. He also dismissed the claim that the Board had decided too quickly after receiving the report.
The court refused leave to apply for judicial review. It did not quash or otherwise alter the planning permission.