The High Court has refused John Callaghan’s applications for discovery and a protective costs order in a judicial review concerning a proposed 46-turbine wind farm near Emlagh, Kells, Co Meath.
Mr Justice Brian J. McGovern ruled on 20 February 2015 that the extensive documents sought from An Bord Pleanála and the project’s notice parties were not relevant or necessary to resolve the judicial review. He said the requests were largely fishing exercises based on assertions unsupported by evidence in the applicant’s affidavits.
The case challenges the Board’s 12 September 2014 determination that the proposed development fell within the statutory definition of strategic infrastructure. That designation meant any planning application had to be made directly to the Board. The judge stressed that the challenged decision was preliminary: the Board had not granted development consent or planning permission. North Meath Wind Farm Limited had lodged a planning application on 6 October 2014, which was then awaiting decision.
Callaghan sought documents from the notice parties relating to landowner agreements and project finances, alleged project splitting, grid connection, a purported “Green Wire” export project and company records. The judge refused each category. He said the requests were either irrelevant to the issue under review, unsupported by evidence, or an attempt to test affidavit assertions without contrary evidence. Some company records were publicly available, and some of the requested material included sensitive commercial information.
He also refused the discovery sought from the Board. The Board’s secretary had sworn that Callaghan had received the file of papers considered in the decision and information that included internal administrative emails. The judge said the further material had not been shown to be necessary to resolve a factual dispute or the legal issue in the judicial review.
The court also rejected Callaghan’s request for costs protection under section 50B of the Planning and Development Act, the Aarhus Convention or the relevant EU directive. The judge held that the challenged decision was only a preliminary strategic-infrastructure designation and did not concern environmental impact assessment or development consent. He concluded that those costs-protection provisions did not apply to this application.