The High Court has refused John Rushe and Maire Ní Raghallaigh leave to appeal its dismissal of their challenge to planning permission for a windfarm in County Galway. Mr Justice David Barniville ruled on 31 August 2020 that the applicants had not met either requirement for an appeal under section 50A(7) of the Planning and Development Act 2000, as amended.
The underlying judicial review challenged An Bord Pleanála’s 19 February 2016 decision to grant permission to Western Power Developments Limited. In a principal judgment delivered on 5 March 2020, the court refused the judicial review, rejecting the applicants’ claims concerning appropriate assessment and environmental impact assessment. The present judgment concerned only their application for leave to appeal that decision.
The applicants proposed four questions for certification. They concerned whether the court had correctly applied the principles in earlier cases on appropriate assessment; whether the Board had to make available or identify the “further” and “comprehensive” evaluations it said it had carried out; and the pleading requirements in environmental judicial review. The applicants argued that these raised points of exceptional public importance and that an appeal was desirable in the public interest. The Board and the developer opposed the application. Notice party Martin Walsh supported it.
Barniville held that the legal principles relied on in the principal judgment were established and that the applicants’ questions did not show uncertainty in the law. He said much of their case for leave sought to reargue issues already decided. On the evaluation issue, he recalled that the principal judgment had found, based on the Board’s decision and affidavit evidence, that the evaluation referred to had been carried out on the materials identified in the decision. The court had then considered whether the appropriate assessment met the applicable legal requirements.
On pleading, the judge said the principal judgment had found that some arguments were not properly raised in advance, but had nevertheless considered those arguments on their merits. He therefore described the proposed appeal on that issue as appearing hypothetical. He also rejected the applicants’ contention that EU law prevented national courts from requiring parties to plead their cases in advance.
The judge said the appeal would not be desirable in the public interest, citing the absence of legal uncertainty and the prospect of further delay to a renewable energy development for which permission had been granted in 2016. He refused leave to appeal. That ruling addressed permission to appeal the earlier judgment; it did not reconsider or change the planning permission itself.