The Court of Appeal has dismissed John Callaghan’s appeal over An Bord Pleanála’s decision to treat a proposed 46-turbine wind farm in Co Meath as strategic infrastructure. The court ruled that the Board was not required to hear third-party objectors before making that preliminary procedural decision.
The appeal concerned a single certified question: whether the statutory scheme required the Board to hear interested members of the public before forming an opinion under section 37A of the Planning and Development Act 2000. Delivering judgment on 21 December 2016, Mr Justice Gerard Hogan said the question should be answered in the negative and proposed dismissing the appeal.
Element Power Ireland Ltd proposed the wind farm at Emlagh, with turbines in three clusters at Farragara, Castletownmoor and Isealchríocha. The judgment said the proposed turbines would be about 167 metres tall. Callaghan said his house was 4.8 kilometres from the nearest proposed turbine, some turbines would be visible from it, and he and his family were sensitive to noise.
After pre-application consultations, the Board decided in September 2014 that the project qualified as strategic infrastructure. That designation meant a planning application had to be made directly to the Board rather than first to Meath County Council. North Meath Wind Farm Ltd subsequently applied to the Board for planning permission. The appeal addressed only whether Callaghan was entitled to be heard before the strategic infrastructure designation; it did not decide whether planning permission should be granted.
The court held that the designation served the limited purpose of deciding which planning procedure would apply. It did not determine the planning application or bind the Board to its earlier view when considering the merits. At that later stage, the Board could consider the issues afresh, including after receiving third-party submissions as part of its assessment of the application.
The judgment concluded that the designation did not materially or practically affect Callaghan’s rights in the way required to trigger a right to be heard at that preliminary stage. It also rejected his argument that the Board would breach section 50(2) if it revisited strategic infrastructure issues when deciding the planning application. The original designation remained in place unless quashed through judicial review; reconsidering related issues in the separate planning decision would not itself invalidate or challenge it.