The High Court has certified an appeal on whether interested members of the public must be heard before An Bord Pleanála forms an opinion that a proposed wind farm should be treated as strategic infrastructure. It refused to certify two other proposed appeal points.
The ruling, delivered by Ms Justice Costello on 24 July 2015, concerns John Callaghan’s application for a certificate to appeal an earlier judgment. On 11 June 2015, the court refused him leave to seek judicial review of the Board’s decision to designate the proposed wind farm application as strategic infrastructure.
Under section 50A(7) of the Planning and Development Act 2000, as amended, an appeal requires a High Court certificate that the decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest.
Callaghan proposed three questions. The first asked whether the statutory scheme requires interested members of the public to be heard before the Board reaches its opinion under section 37A. The other two concerned whether the Board could reach a different view on the development’s strategic importance when deciding the planning application, and whether the legislation ensured effective public participation while all options remained open.
Justice Costello found the law clear on the second and third questions and refused certificates on those points. She said the second had been resolved through ordinary statutory interpretation. On the third, she relied on established European Court of Justice decisions and concluded that the law was not evolving or uncertain as applied to the procedure.
She reached a different conclusion on the first question. The judge said the strategic infrastructure designation legislation had not been tested by the courts and that its interaction with the evolving law on fair procedures was open to debate. She considered that if a right to participate in the pre-application process existed but was absent from the scheme, the issue would be of exceptional public importance and an appeal would be in the public interest.
The court therefore certified an appeal on the first question only: whether the statutory scheme, read with sections 50(2) and 143 of the 2000 Act, requires a right for interested members of the public to be heard before the Board reaches its section 37A opinion.
The certificate allows an appeal on that point; it does not reverse the June judgment or grant leave to seek judicial review. Justice Costello maintained her view that Callaghan had not established substantial grounds for judicial review. She also noted that the proposed wind farm could contribute to State renewable energy targets, while an appeal’s delay could harm its commercial viability, but said those considerations did not alter her decision to certify the first point.