The High Court has refused an application by People Over Wind to reopen a dismissed judicial review challenge to An Bord Pleanála’s decision granting planning permission. It also refused the group’s alternative request to amend its grounds to raise an alleged failure to notify the Department of Arts, Heritage and the Gaeltacht of a planning appeal.
Mr Justice Haughton had dismissed the applicants’ claims on 1 May 2015. In a judgment delivered on 11 June, he said the court could reconsider a final decision only in exceptional circumstances, including where a newly raised point was important, would probably have affected the outcome and could not have been raised earlier by a party with the opportunity to do so.
People Over Wind relied on affidavits stating that the Department and the National Parks and Wildlife Service (NPWS) had not been notified of Coillte’s appeal to An Bord Pleanála. Its counsel argued that the absence of a Department submission on the appeal had been cited during the original hearing as support for Coillte’s proposed mitigation measures concerning the Nore Freshwater Pearl Mussel habitat. The applicant said the court might have reached a different result if it had known the Department’s silence followed a lack of notice.
The Board and Coillte disputed that the alleged failure could have changed the result. The Department had been named as a notice party in the judicial review but chose not to participate, despite knowing by then that it had not received notice of the appeal, the judge said. The Department also did not participate in the application to reopen the case.
Justice Haughton was not persuaded that the original decision would probably have been different. He said references in that judgment to the Department making no submission were neutral and did not form part of the court’s reasoning on the validity of the appropriate assessment. He also found that the applicants could have investigated the notification issue earlier by inspecting planning files or making a freedom of information request. The respondent’s and Coillte’s written submissions before the original hearing had drawn attention to the Department’s lack of an appeal submission, he said.
The judge therefore found the demanding threshold for reconsidering the final judgment had not been met. On the alternative amendment request, he assumed without deciding that the court had jurisdiction to amend grounds after determining the judicial review. He refused the request because the applicant could have discovered the non-notification earlier and had not adequately explained the delay. The court refused both forms of relief. The original dismissal remained in place; the judgment did not determine anew whether the planning permission or appropriate assessment was lawful.