Factual and Procedural Background
The Applicant sought leave to judicially review a decision by the Board, made on 11th September 2014, which determined that a proposed wind farm development at Emlagh, Co. Meath constituted Strategic Infrastructure Development (SID) under the Planning and Development Act 2000, as amended. This decision required that the application for planning permission be submitted directly to the Board rather than to the local planning authority. The Applicant contended that the Board’s procedure failed to comply with fair procedures and the requirements of Directive 2011/92/EU, particularly due to exclusion of public involvement during the pre-application consultation stage and argued that the Directive had not been properly transposed into Irish law.
The proposed development was by Company A, which intended to build a wind farm consisting of 46 turbines across a large area in three clusters. The Applicant, who lives 4.8 km from the nearest turbine and is the primary carer of a noise-sensitive autistic child, claimed direct adverse effects on health and wellbeing. The procedural history includes the placement of the proceedings on the Commercial List and a combined hearing on leave and substantive judicial review.
Following pre-application consultations initiated by Company A, a Board Inspector recommended that the development met the criteria for SID due to its scale, economic and social importance, and contribution to national spatial strategy objectives. The Board accepted this recommendation and issued notices requiring the planning application to be made directly to it. Subsequently, Company A lodged the planning application, and the Applicant did not make submissions on it.
Legal Issues Presented
- Whether the Board’s decision to designate the proposed wind farm as SID, made after pre-application consultations excluding public participation, was lawful and complied with the Applicant’s constitutional right to fair procedures.
- Whether the Board’s SID designation decision constitutes a binding determination that cannot be revisited at the planning permission stage, thereby precluding public participation and amounting to predetermination and bias.
- Whether the State has properly transposed Directive 2011/92/EU into Irish law, particularly regarding early and effective public participation in environmental impact assessments.
- Whether the Applicant was entitled to a hearing or other procedural safeguards at the pre-application SID designation stage.
- Whether the Applicant’s motion for a determination that section 3 of the Environment (Miscellaneous Provisions) Act 2011 applies, based on alleged damage to the environment caused by procedural defects.
- Whether to refer questions concerning interpretation of the Directive to the Court of Justice of the European Union (CJEU) under Article 267 TFEU.
Arguments of the Parties
Applicant's Arguments
- The Board’s SID designation decision was made after consultation only with the developer, excluding the public and the Applicant, thus breaching the Applicant’s constitutional right to fair procedures.
- The SID designation decision involves substantive matters that overlap with issues to be considered in the Environmental Impact Assessment (EIA) and planning permission stages, and cannot be revisited, thereby predetermining the outcome and causing bias.
- The statutory scheme and Board’s procedure fail to provide for public participation at the earliest stage when all options remain open, contrary to Directive 2011/92/EU requirements.
- The State has failed to properly transpose the Directive into Irish law, as the public is excluded from the pre-application consultation process which effectively commences the consent procedure.
- The Board’s decision was irrational because it was made on incomplete information, lacking adequate economic and social impact analysis.
- The procedural effects of the SID designation are significant and impact the Applicant’s rights, warranting fair procedures at that stage.
- The Applicant sought a determination that section 3 of the Environment (Miscellaneous Provisions) Act 2011 applies, arguing that failure to ensure fair procedures is likely to cause damage to the environment.
- The Applicant requested that the Court refer questions to the CJEU regarding the interpretation of the Directive and the timing of the commencement of the environmental impact assessment process.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 |
Standard for irrationality in administrative decisions. |
The Court rejected irrationality claim as the SID designation was not a conclusive determination. |
| Dellway Investments Ltd. v. NAMA [2011] 4 I.R. 1 |
Trigger for fair procedures is being a person affected by a decision. |
The Court applied the principle that fair procedures rights arise only when a person is materially affected. |
| Tomlinson v. Criminal Injuries Compensation Tribunal [2006] 4 IR 321 |
Predetermination and bias arise when a decision-maker has effectively decided an issue in advance. |
The Court held no predetermination here as the SID designation was not binding on the planning decision. |
| Kelly v. An Bord Pleanála [2014] IEHC 400 |
Outcome of environmental assessment informs but does not determine planning decisions. |
The Court relied on this to reject the argument that SID designation predetermines planning permission. |
| Dublin and County Broadcasting Ltd. v. Independent Radio and Television Commission (1989, unreported) |
Test for bias is the perception of a reasonable, informed person. |
The Court found no real likelihood of bias or predetermination in the SID designation process. |
| Spin Communications Ltd. v. Independent Radio and Television Commission [2000] IEHC 128 |
Same as above regarding bias test. |
Applied to reject bias claim. |
| C-416/10 Križan and Others v. Slovenská inšpekcia životného prostredia |
Public participation must occur when all options remain open and must effectively influence the decision. |
The Court held that Irish procedure satisfies this test as public participation occurs at planning application stage. |
| C-201/02 R (Wells) v. Secretary of State for Transport |
EIA must be carried out as soon as effects can be identified and assessed. |
The Court held that the EIA need not start before the formal application stage. |
| C-50/09 Commission v. Ireland |
Proper transposition of Directive requires that no decision be taken without an EIA; gaps in implementation may violate the Directive. |
The Court found Ireland had not properly transposed the Directive in some respects but this was distinguished from the facts here. |
| C-431/92 Commission v. Germany |
Public participation provisions apply from the date of formal application for consent, not preliminary consultations. |
The Court relied on this to reject the Applicant’s argument that public participation should occur at pre-application stage. |
| McNamara v. An Bord Pleanála (No.1) [1995] 2 I.L.R.M. 125 |
Test for substantial grounds for judicial review. |
Applied to assess whether Applicant’s grounds met the higher threshold for leave to apply for judicial review. |
| The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987] I.L.R.M. 36 |
Where statute does not fix procedures, the relevant authority must create and carry out necessary procedures. |
Cited in support of Applicant’s fair procedures argument. |
| McCoy & Anor v. Shillelagh Quarries Ltd. & Ors [2015] IECA 28 |
Interpretation of "statutory requirement" in environmental proceedings. |
Applied in relation to costs and statutory requirement under Environment (Miscellaneous Provisions) Act 2011. |
| The Environmental Protection Agency v. Greenstar Holdings Ltd. & Ors [2014] IEHC 178 |
Discretion on whether to refer questions to the CJEU under Article 267. |
The Court exercised discretion to decline referral in this case. |
Court's Reasoning and Analysis
The Court carefully distinguished between the Board’s SID designation decision made under section 37B(4) and the subsequent planning permission decision under section 37G. The SID designation is an opinion formed on limited information provided solely by the prospective applicant and serves only to determine the competent authority to which the application should be submitted. It does not constitute a final or binding determination on the substantive planning merits.
The Court found that the Board is required by law to reconsider all relevant matters, including socio-economic and environmental impacts, during the EIA and planning permission stages when full public participation is afforded. Thus, the SID designation does not predetermine the outcome of the planning decision and does not give rise to a perception of bias or predetermination.
Regarding fair procedures, the Court held that the Applicant’s right to participate and be heard arises at the planning application stage, not at the pre-application SID designation stage. The procedural effects of the SID designation did not impair the Applicant’s right to participate in the planning process in a manner sufficient to trigger fair procedures at the pre-application stage.
On the issue of transposition of Directive 2011/92/EU, the Court observed that the Directive requires effective public participation when all options remain open. Irish law triggers public participation at the formal planning application stage, consistent with the Directive and relevant European case law. The preliminary consultation stage, which excludes public involvement, does not engage the Directive’s public participation requirements.
The Court rejected the Applicant’s claim that the Board’s decision was irrational due to insufficient information, as the SID designation is not a conclusive or determinative decision on the merits.
Finally, the Court exercised its discretion not to refer the questions of interpretation of the Directive to the CJEU, finding that it was unnecessary to do so to deliver judgment.
Regarding the Applicant’s motion under the Environment (Miscellaneous Provisions) Act 2011, the Court found no causal link between any procedural failure and actual or likely damage to the environment, as no development had commenced. Therefore, the motion was refused.
Holding and Implications
The Court REFUSED LEAVE to the Applicant to seek judicial review of the Board’s decision of 11th September 2014 designating the proposed wind farm as Strategic Infrastructure Development.
The Court held that the SID designation decision does not trigger the Applicant’s right to fair procedures, does not amount to predetermination or bias, and is not a binding decision on the merits of planning permission. The statutory scheme complies with the requirements of Directive 2011/92/EU by affording public participation at the formal planning application stage when all options remain open.
The Court declined to make a preliminary reference to the Court of Justice of the European Union and refused the Applicant’s motion under the Environment (Miscellaneous Provisions) Act 2011.
This decision directly affects the parties by upholding the Board’s SID designation process and confirming the procedural framework for public participation in planning and environmental assessments. No new legal precedent altering the scope of fair procedures or Directive transposition was established.