The High Court ruled that a stay on An Bord Pleanála’s decision on the proposed Castletownmoor wind farm had already ended when the Court of Appeal dismissed an appeal on a legal issue in December 2016. It held that a later application by the wind farm companies to vary or discharge the stay was moot because the Board was free to decide the planning application.
The judgment, delivered by Ms Justice Costello on 15 May 2017, concerned judicial review proceedings brought by John Callaghan against the Board, Ireland and the Attorney General. North Meath Wind Farm Limited and Element Power Ireland Limited were notice parties.
The case arose from an earlier dispute over the Board’s designation of a proposed 46-turbine Emlagh wind farm as strategic infrastructure. After permission for that project was refused, the companies applied for a smaller, 25-turbine development at Castletownmoor, on part of the site. The Board designated that proposal as strategic infrastructure in May 2016, and Mr Callaghan brought a new judicial review challenge.
In July 2016, Mr Justice Binchy varied an interim stay. His order allowed the companies to submit a planning application and the Board to process it, but barred the Board from deciding it until the Court of Appeal ruled on a certified legal question about public participation in strategic infrastructure designation. The Court of Appeal dismissed that appeal in December 2016. The Supreme Court later granted Mr Callaghan leave to appeal that ruling.
The companies sought to have the Board proceed with its decision after it notified the parties in April 2017 that it was ready to do so. Ms Justice Costello found the July 2016 order made the stay on delivery of a decision operative only until the Court of Appeal’s decision. The Supreme Court’s later grant of leave to appeal did not extend it. The Board was therefore free, and statutorily obliged to act as expeditiously as possible, she said.
The judge also addressed the parties’ arguments about her jurisdiction in case of an appeal. She rejected Mr Callaghan’s submission that the court’s discretion was confined by the earlier order, saying a later application could be considered on its merits in light of changed circumstances, provided it was brought bona fide and did not amount to an abuse of process.
Although unnecessary to her decision that the application was moot, she said that if a stay remained in force she would discharge it. She weighed the applicant’s potential need to bring fresh judicial review proceedings if permission were granted against the companies’ claimed commercial prejudice from delay, including carrying costs and delays to design, approvals, procurement and finance. The source records her conclusion on that hypothetical balance, but does not state a separate operative order discharging the stay.