The High Court has dismissed Dermot McDonnell’s judicial review challenge to An Bord Pleanála’s approval of a wind farm at Oweninny, Bellacorick, County Mayo. The court also refused his application for a certificate that would allow an appeal on a point of law of exceptional public importance.
In a judgment delivered on 31 May 2017, Mr Justice Robert Haughton addressed the form of the order following rulings he had delivered on 16 and 17 May, and whether the applicant needed certification to appeal.
The Board’s approval was dated 2 June 2016. McDonnell lodged papers on 27 July, but did not move his ex parte application for leave to seek judicial review until 21 November. The court ruled that lodging the papers did not stop time running: the application was “made” when it was moved in court, outside the eight-week period in section 50(6) of the Planning and Development Act 2000.
The judge then considered whether to extend time. He said he would have been disposed to extend it based on factors including McDonnell’s evidence that he had inadvertently been misled about when to move the application, and that he had otherwise shown good and sufficient reason for delay. But after considering the merits, he concluded that the two grounds pursued were not arguable and refused an extension. The judgment records that the notice party, Oweninny Power DAC, had argued that the grounds were not arguable, and that McDonnell was given an opportunity to respond.
The final order set aside the December 2016 order granting leave, but only to the extent that it had granted leave to seek judicial review. It refused the relief sought and dismissed the proceedings. There was no order as to costs.
The court separately held that the first ruling, on whether the application had been made in time, did not require an appeal certificate because it did not determine the leave application or the judicial review. The second ruling, refusing an extension after considering the merits, was subject to the certification requirement in section 50A(7).
McDonnell argued that the case raised issues about capacity factor, wind-speed information, environmental calculations and community benefit from the proposed wind farm. The judge found that he had not identified a point of law of exceptional public importance for certification and refused the application. The judgment notes that the Board’s material included the Inspector’s view that a community contribution of €2,500 per installed megawatt per annum would be appropriate; it did not set that contribution as an order in this proceeding.