The High Court refused Edward Buckley and Edel Grace’s application for a certificate that would allow an appeal to the Supreme Court over a planning decision for wind turbines in County Tipperary.
Mr Justice Cregan delivered the judgment on 16 September 2015. The application concerned the court’s earlier refusal, on 29 July 2015, to quash An Bord Pleanála’s 12 August 2014 grant of planning permission to Ecopower Developments Limited. The court was deciding only whether to certify questions for appeal under section 50A(7) of the Planning and Development Act 2000.
That provision requires a point of law of exceptional public importance and that an appeal be desirable in the public interest. The judge said the applicants’ arguments on their first proposed question largely reargued issues addressed in the earlier judgment and did not establish uncertainty in the law. He also found the question did not arise from his decision.
The first proposed question asked whether the Board had jurisdiction to consider the validity of a planning application on appeal. The applicants also sought to rely on a constitutional and human-rights context involving property rights. The judge said that argument had not been pleaded or raised at the earlier hearing, and could not be introduced at the certificate stage.
A second proposed question, concerning property rights and constitutional and European Convention protections where landowner consent had been withdrawn, was withdrawn by the applicants. The judgment therefore made no determination on that question.
The third proposed question concerned the relationship between an inspector’s environmental impact assessment and the Board’s final decision, as well as the status of 2013 ministerial guidelines. The judge said he had considered and rejected the applicants’ principal argument that the Board had failed to adopt the inspector’s report as required by section 172(1H). He concluded that the Board had adopted the report and carried out an environmental impact assessment.
He found no uncertainty in the law on the inspector’s report and said the guidelines issue had not been specifically included in the statement of grounds for judicial review. The court refused to certify either of the two questions still pursued. The refusal concerned permission to appeal; it did not revisit the original planning permission or determine how it could be implemented on the land.