Engineer loses appeal over public right to be consulted in strategic planning procedures 

The Supreme Court has dismissed an engineer’s appeal over the planning procedure that was adopted for a proposed €240m wind farm near his home at Kells, in Co Meath.

Although permission for that development was ultimately refused, the Supreme Court decided to determine the core point raised in John Callaghan’s case because it would apply in any case involving strategic infrastructural development (SID).

The core issue was whether a third party objector, such as Mr Calllaghan, was entitled to be heard by an Bord Pleanala before its September 2014 designation of the original proposed development as SID, of strategic importance to the State.

Under the Planning and Development (Strategic Infrastructure) Act 2006, such a designation means a developer can apply directly to the Board for permission rather than go through the normal planning process involving applying first to a local authority from which there is a right of appeal to the Board.

North Meath Wind Farm Ltd (NMWF), whose majority shareholder is Element Power Ireland Ltd (EPIL), sought permission via the SID procedure for a €240m development of 46 wind turbines on three clusters of lands at Farragara, Castletownmoor and Ísealchríocha, near Emlagh, Kells.

Mr Callaghan, Oldcastle Road, Kells, claimed the proposed development would adversely impact on the environment and health and development of his young son who has Pervasive Developmental Disorder.

After the Board refused permission in 2016 for the proposed development on grounds including its scale being contrary to proper planning and sustainable development of the area, the developer submitted a revised application for a 25 turbine development at Castletownmoor.

The High Court had in 2015 dismissed Mr Callaghan’s core claim the SID procedure was fundamentally unfair and meant there would be no public involvement in the process of carrying out an environmental impact assessment (EIA) concerning the proposed development.

However, Ms Justice Caroline Costello certified an appeal on a point of law of exceptional public importance arising from her judgment – whether or not interested members of the public had a right to be heard before the Board formed an opinion a development was SID.

The Court of Appeal ruled in 2016 the scheme of the 2006 Act, when construed in light of the relevant provisions of the Planning and Development Act 2000, did not give the public a right to be heard before the Board reached a SID opinion.

Mr Callaghan secured a further appeal to the Supreme Court where a five judge court on Tuesday unanimously dismissed his appeal.

The Chief Justice, Mr Justice Frank Clarke, stressed the case was not concerned with the merits or otherwise of adopting streamline procedures for SID.

It was rather concerned with an aspect of the process, whether a person who wishes to become involved in the process is legally entitled to be involved at the stage where the Board considers an application should go down the SID route.

There was no such entitlement, he found.

The Board, when considering an application which has gone down the SID route, remains obliged to consider, on the merits, any questions concerning the strategic importance of the project for which permission is sought, he said.

The fact the Board would have earlier formed an opinion as to the strategic importance of the project, for the purposes of deciding whether it should go down the SID route in the first place, cannot, as a matter of constitutional construction, in any way legitimately influence the Board’s final decision, he said.

It followed the decision to go down the SID route did not interfere with any rights Mr Callaghan might enjoy, he held.

He also rejected arguments by Mr Callaghan there were material consequences, adverse to his interests, of the decision to go down the SID route.