McCallig -v- An Bord Plean�la & Ors

Factual and Procedural Background

This opinion concerns an application for judicial review against a decision by the respondent on 11th February, 2011, granting permission for a proposed wind-farm development near Glenties, Co. Donegal. The applicant was granted leave to seek judicial review to quash this decision, particularly challenging the validity of a specific condition (the 12th condition) imposed by the respondent. The applicant contended that this condition was ultra vires and contrary to a departmental circular letter. The application also sought declarations and injunctive reliefs based on grounds verified by affidavit. The second notice party and the respondent both filed statements of opposition verified by affidavits.

The applicant advanced multiple grounds challenging the respondent's decision, including the alleged inclusion of the applicant’s land without written consent, failure to comply with natural justice principles, errors in environmental impact assessments, and failure to consider the cultural heritage of the Gaeltacht area. The second notice party and respondent opposed these claims, asserting compliance with statutory requirements and sufficiency of environmental information.

Procedurally, the planning application process involved initial submission to the first notice party (the planning authority), a decision granting permission subject to conditions, an appeal to the respondent, and the respondent’s subsequent decision to grant permission with further conditions. The applicant’s judicial review challenge is directed solely at the respondent’s decision.

Legal Issues Presented

1. Whether the respondent erred in law and acted without jurisdiction by granting planning permission including lands of the applicant without her written consent as required by statutory provisions.
2. Whether the respondent failed to observe the principles of natural and constitutional justice, particularly the audi alteram partem rule, by disregarding the applicant’s submissions regarding lack of consent.
3. Whether the respondent acted ultra vires by imposing a condition supplementing an inadequate environmental impact statement contrary to statutory directives and departmental circulars.
4. Whether the environmental impact statement was insufficient, particularly regarding avifauna and cultural heritage, and whether the respondent lawfully granted permission without further required information.
5. Whether the respondent properly considered the proposed development’s impact on the Gaeltacht cultural heritage area.
6. Whether the respondent’s decision was irrational, unreasonable, or contrary to common sense.
7. Whether the omission of certain turbines as a condition of permission negated the applicant’s land being affected by the development.
8. Whether the respondent had jurisdiction to consider alleged defects in the original planning application and whether it could disregard defects in the procedures of the first notice party.

Arguments of the Parties

Applicant's Arguments

• The respondent unlawfully granted permission including the applicant’s land without her written consent, violating statutory requirements.
• The respondent failed to properly consider the applicant’s submissions and acted unfairly, breaching natural justice.
• The environmental impact statement was inadequate, especially concerning wild birds and cultural heritage impacts, rendering the decision ultra vires.
• The respondent improperly used a condition (the 12th) to supplement an inadequate environmental impact statement, contrary to departmental circulars and EU directives.
• The entire development site lies within a Gaeltacht area, and the respondent failed to obtain or consider information on its cultural heritage impact.
• The decision was irrational and unreasonable.
• The omission of certain turbines did not eliminate development works on the applicant’s land, which remains affected by peat regeneration areas required by conditions.
• The respondent improperly declined to consider defects in the original planning application and procedures of the first notice party, which affected jurisdiction.

Second Notice Party's Arguments

• The respondent reasonably assumed compliance with consent requirements based on a solicitor’s letter representing landowners within the site boundary.
• Any dispute over legal title is a civil matter not for the respondent to adjudicate.
• The omission of turbines near the applicant’s land precludes any development works on that land.
• The planning authority and respondent correctly assessed that no part of the site lay within a Gaeltacht area, and even if it did, the development would not seriously affect cultural heritage.
• The environmental impact statement and further information were sufficient; the respondent acted within jurisdiction in granting permission and imposing conditions.
• The 12th condition was a proper, detailed management requirement, not an attempt to avoid seeking further information.
• The respondent’s decision was lawful, reasonable, and not contrary to common sense.

Respondent's Arguments

• The respondent is not responsible for determining land ownership; sufficient evidence existed to satisfy jurisdiction.
• The decision does not permit development on the applicant’s land or impose conditions affecting it.
• The respondent gave primary consideration to proper planning and sustainable development.
• The respondent had sufficient information including the planning application, further information, appeals, submissions, and its Inspector’s report.
• The respondent complied with natural justice principles.
• The applicant failed to specify which EU directives were infringed.
• The environmental impact statement and assessments were adequate; the 12th condition was lawfully imposed.
• The applicant’s grounds do not amount to substantial grounds for relief.

Table of Precedents Cited

Court's Reasoning and Analysis

The court commenced by reviewing the statutory framework governing planning applications, including the requirement under article 22(2)(g) of the Planning and Development Regulations 2001 that written consent from landowners be obtained for applications involving their land. It found the solicitor’s letter purporting to represent landowners insufficiently specific and unsigned by the applicant, thus failing to comply with the consent requirements. The court determined that the respondent had jurisdiction to consider the validity of the application and could not ignore defects arising from lack of consent.

The court found the respondent’s procedure unfair in declining to properly consider the applicant’s submissions regarding non-consent and ownership, constituting a material error of fact and breach of natural justice.

Regarding the environmental impact statement, the court acknowledged that while the bird surveys were “far from robust” and lacked information on migratory species and recently reintroduced Golden Eagles, the respondent’s Inspector and the Department of the Environment, Heritage and Local Government did not recommend further surveys before granting permission. Instead, they recommended a management plan condition to mitigate potential impacts. The court held that the respondent’s acceptance of the environmental information and imposition of Condition 12 was a lawful exercise of discretion and not irrational or unreasonable.

The court rejected the applicant’s claim that Condition 12 was used unlawfully to supplement an inadequate environmental impact statement in contravention of departmental circulars. It found no evidence that the respondent acted contrary to these guidelines, concluding that the condition’s sole purpose was to ensure appropriate habitat management.

On the issue of the Gaeltacht cultural heritage, the court found that the environmental impact statement did not contain specific information on cultural heritage impacts but held this was not mandatory given the nature of the development and the absence of evidence that such an assessment was necessary. The respondent’s consideration of population trends and cultural policies was reasonable, and no further information was required.

Concerning the omission of turbines near the applicant’s land, the court found that this did not eliminate the need for peat regeneration areas on the applicant’s land, which remained materially affected by the development. The court applied the principle of “enforcing the enforceable” to hold that relocation of the peat regeneration area within the site could be treated as a detail to be agreed, preserving the condition’s effect.

The court emphasized that the respondent’s decision annulled the prior decision of the first notice party, and no default or revival of the planning authority’s decision would occur if the respondent’s decision were quashed.

Ultimately, the court declined to grant certiorari quashing the respondent’s decision but granted a declaration that the respondent’s decision insofar as it purported to grant permission affecting the applicant’s land was void, reflecting the lack of consent and jurisdictional error.

Holding and Implications

The court’s final decision was to decline the order of certiorari quashing the respondent’s decision to grant permission for the proposed development.

However, the court granted a declaration that the respondent’s decision insofar as it purported to grant planning permission affecting the applicant’s land was void due to lack of proper consent and jurisdictional error.

The direct effect is that the respondent’s decision stands generally but does not validly authorize development on or affecting the applicant’s land. No permanent injunction or damages were claimed or granted. No new legal precedent was established beyond the application of existing principles regarding consent, jurisdiction, and environmental impact assessments.