The Supreme Court has left in place a stay of a High Court order that restrained the operation of a wind farm found to be in material breach of its planning permission. The stay will remain while the Court of Appeal decides the substantive appeal.
In a judgment delivered on 17 July 2020, Supreme Court judge O’Donnell J. agreed with the outcome proposed by O’Malley J. The residents had succeeded in their appeal on the applicable law, but the court did not set aside the Court of Appeal’s stay. It left that court to decide the substantive appeal in light of its own conclusions.
The High Court had found that the wind farm was not being operated in accordance with its permission and that the departure was material. It made an order restraining operation, with liberty to apply. The developer appealed and sought a stay pending that appeal. The Court of Appeal granted the stay.
O’Donnell J. said the developer had stateable grounds of appeal, but that the appeal could not then be described as having a really strong prospect of success. He considered that, immediately after the High Court decision, the order should not have been stayed: the trial judge had carefully limited it and anticipated that An Bord Pleanála could address the planning issue through its statutory substitute-consent process.
Two subsequent changes altered that assessment. An agreement involving the Board and, among others, the residents in separate judicial review proceedings meant the substitute-consent application could not be processed as quickly as the trial judge might have expected. A recent Supreme Court decision also made it less certain when the Board could consider the application. The restraint risked becoming indefinite rather than temporary, increasing the potential loss to the developer.
O’Donnell J. said there was a risk of injustice either way: if the stay were lifted and the appeal succeeded, the wind farm would have been restrained when it should not have been; if the stay remained and the appeal failed, planning law would not have been enforced during that period and the development would have operated unlawfully. He said those competing harms could not readily be measured against each other.
Given that the Court of Appeal had heard the substantive appeal, O’Donnell J. agreed that the stay should remain while that court reached its decision. The judgment concerns the interim stay pending appeal; it does not decide the substantive appeal’s outcome.