The Supreme Court has ruled that John Callaghan may rely on certain European Union law arguments in his appeal over planning procedures for proposed strategic infrastructure. The ruling concerns the arguments he may make at a future substantive hearing; it does not decide the planning law issue itself.
The appeal concerns whether people opposing a proposed development are entitled to be heard when An Bord Pleanála decides whether it qualifies as strategic infrastructure under the Planning and Development (Strategic Infrastructure) Act 2006. That classification means a planning application is made directly to the Board rather than to a local planning authority.
The High Court and Court of Appeal had held that the Board could revisit relevant questions during its environmental impact assessment, and that objectors could make observations at that stage. The Supreme Court had granted leave to appeal on the statutory interpretation issue. The Board, the State and the notice parties argued that Callaghan’s written submissions went beyond the permitted scope, prompting a separate hearing to clarify the limits before the appeal’s substantive hearing.
In a judgment delivered by Mr Justice Clarke on 27 July 2017, the Court said appeal arguments should fairly fall within the grounds on which leave was granted, while allowing reasonable refinement and avoiding an overly technical approach. It concluded that the Court should consider whether EU law bears on the proper interpretation of the 2006 Act, including the requirement to interpret national law consistently with EU law where possible.
The Court proposed that Callaghan be allowed to make EU law arguments that support the statutory interpretation he advanced in the courts below. It did not permit him to pursue the distinct argument that the 2006 Act failed to properly transpose Directive 2011/92 into Irish law. The judgment describes that as a “pure transposition” issue outside the scope of the leave granted.
The ruling therefore settles which EU law arguments may be advanced, not whether Callaghan’s interpretation is correct or whether the Board’s planning procedures comply with EU law. The source judgment records a proposal by the judge on the appeal’s scope and does not report a final decision on the underlying appeal.