The High Court has refused Claire O’Brien and Patrick O’Brien a certificate to appeal a planning judicial review ruling concerning the treatment of information submitted by the public during an environmental impact assessment (EIA).
The applicants sought a certificate to appeal to the Court of Appeal from a High Court decision delivered on 18 December 2017. Their proposed question was whether an EIA requires the competent authority to examine, analyse and evaluate the substance of information submitted by the public concerned.
The application arose from a challenge involving An Bord Pleanála’s assessment of the proposed Kilvinane wind farm. In the earlier judgment, the court found that the Inspector and the Board had considered the applicants’ submissions, including a report by Mr Bowdler criticising the noise impact assessment. It also found that the Inspector’s report assessed the development’s direct and indirect noise effects on the environment. The applicants had not challenged the adequacy of the information before the Board, their counsel having expressly stated there was no such challenge.
The applicants argued that the prior judgment had effectively held that the Board did not have to evaluate information from the public as part of the EIA. Justice Costello said that was not what the judgment decided. It found that the information had been considered, while distinguishing that obligation from the separate requirement to assess the development’s effects on the environment. The court said the earlier judgment made no finding that the Board treated the developer’s information differently from information submitted by the public.
The judge said the proposed appeal point therefore did not arise from the judgment as a matter of fact or legal conclusion. She also considered that the applicants had not clearly identified what information required examination and evaluation, while accepting there was no obligation to address every submission point by point. The issue was fact-specific and did not transcend the circumstances of the case, so it was not one of exceptional public importance.
The court also found that the applicants had not established that an appeal would be desirable in the public interest or that the law was uncertain. Justice Costello refused the certificate. The ruling concerns permission to appeal; it does not determine an appeal on the proposed legal question.