Balz & anor v An Bord Pleanala & anor (Unapproved)

Factual and Procedural Background

The Appellants challenged a planning permission granted by Entity A for the construction of an eleven-turbine windfarm near their residence in The County. The High Court had refused their judicial-review claim, but the Supreme Court allowed their appeal on 12 December 2019, holding that Entity A wrongly treated certain noise-impact submissions as irrelevant. The judgment rendered the permission legally flawed.

After judgment, Company A (the developer and notice party) sought “substitute consent” under Part XA of the Planning and Development Act 2000 and asked the Supreme Court to stay—or defer—the formal certiorari order quashing the permission. Company A argued that an immediate quashing would jeopardise its access to the State’s REFIT 2 renewable-energy price-support scheme and expose it to planning-enforcement proceedings. The Appellants opposed any stay, contending that the developer was attempting to benefit simultaneously from arguing that the permission was both invalid (for substitute consent) and valid (for REFIT 2), and that it had continued on-site works after the Supreme Court judgment.

Legal Issues Presented

1. Does the Supreme Court have jurisdiction to stay or postpone the making of an order of certiorari quashing a planning permission?
2. If such jurisdiction exists, should it be exercised in favour of Company A to preserve its eligibility for the REFIT 2 scheme and shield it from enforcement proceedings, notwithstanding the Appellants’ successful appeal?

Arguments of the Parties

Company A’s Arguments

• The Court possesses inherent power to stay its own orders where justice so requires.
• A temporary stay is essential to avoid catastrophic financial loss that would arise if REFIT 2 eligibility were lost during the period before substitute consent might be granted.
• The requested stay need not permit operation of the windfarm; its primary purpose is to maintain regulatory and commercial status quo.

Appellants’ Arguments

• Reliance on Ahmed v. Her Majesty’s Treasury demonstrates that a stay would “obfuscate” the effect of the Court’s judgment by treating a void decision as if it remained operative.
• Company A knowingly proceeded with construction during the Supreme Court appeal and after judgment; any commercial risk is therefore self-inflicted.
• The stay would, in practice, place the Appellants in the same position as if they had lost the appeal, while Company A would enjoy continued benefit from an invalid permission.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court (per Judge O’Donnell) confirmed its inherent jurisdiction to stay or defer orders but emphasised that such relief is “exceptional” because a judgment that a decision is void ab initio normally takes immediate effect. It then balanced the competing interests:

• REFIT 2 risk: Evidence, though limited, established a real possibility that quashing the permission could trigger loss of REFIT 2 support, jeopardising a €72 million investment and the policy objective of renewable-energy promotion.
• Planning enforcement: A stay would shield Company A from near-certain success of any s. 160 enforcement action while substitute consent is pending.
• Developer conduct: Company A continued construction—including completing a turbine—after the Court’s judgment without first seeking guidance. The Court viewed this as a factor weighing against an unconditional stay.
• Impact on Appellants: Granting a blanket stay permitting operation of the windfarm would negate the benefit of their successful appeal. The harm is concrete because continued operation affects noise levels at their residence.
• Availability of cure: Substitute consent offers a statutory mechanism to regularise the permission; the Court recognised that invalidity might ultimately be temporary.

Balancing these factors, the Court found it just to protect Company A’s REFIT interests but unjust to allow ongoing operation that could harm the Appellants.

Holding and Implications

ORDER: The Court will grant a stay on the execution (or issuance) of the certiorari order provided Company A gives an undertaking within seven days not to operate the windfarm pending Entity A’s decision on the substitute-consent application; parties have liberty to apply.

Implications: The conditional stay preserves Company A’s potential REFIT 2 eligibility while safeguarding the Appellants from operational noise until the planning status is resolved. The judgment re-affirms that Irish courts may defer quashing orders in exceptional circumstances but will tailor conditions to prevent unfair prejudice. No new precedent on substantive planning law was created; the decision primarily refines procedural discretion regarding stays.