High Court dismisses judicial review application regarding Strategic Infrastructure Development designation and environmental impact assessment procedures.

Neutral Citation [2015] IEHC 357

THE HIGH COURT

COMMERCIAL

[2014 No. 647 JR]

[2014 No. 170 COM]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

BETWEEN

JOHN CALLAGHAN

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND AND NORTH MEATH WIND FARM LIMITED

NOTICE PARTIES

JUDGMENT of Ms. Justice Costello delivered the 11th day of June, 2015

Introduction

1. The applicant seeks leave to judicially review the decision of the first named respondent, An Bord Pleanála (“the Board”), made on

11th September, 2014, to notify the notice parties that in its opinion the proposed wind farm development at Emlagh, Co. Meath, falls

within the scope of s.37A(2)(a) and (b) of the Planning and Development Act 2000, as inserted by s.3 of the Planning and

Development (Strategic Infrastructure) Act 2006 (“the Principal Act, as amended”), and is Strategic Infrastructure Development

(“SID”) with the result that the application for planning permission for the development is to be submitted to the Board. In addition,

the applicant seeks a number of declaratory orders relating to the procedures which were adopted by the Board which it is alleged

failed to accord with requirements of fair procedures and of Directive 2011/92/EU (“the Directive”)1. In particular, the applicant

contends that the procedure was commenced and completed in a manner that excluded any involvement of the public, including by

the applicant, and given the nature of the issues that were determined, the manner in which the decision was made amounted to a

contravention of the Directive. It is also separately contended that the provisions of the Directive have not properly been transposed

into Irish law.

2. By order dated 24th November, 2014, McGovern J. entered these proceedings into the Commercial List of the High Court. By order

dated 28th January, 2015, McGovern J. directed that the proceedings were to be dealt with by way of a single combined ‘telescoped’

hearing, the court firstly considering the application for leave to apply for judicial review and, if leave is granted, proceeding

immediately thereafter to consider the Applicant’s substantive judicial review application.

The facts

3. Element Power Ireland Ltd. (“EPI”) is engaged in the development of wind farms and is the majority shareholder in the third named

notice party, North Meath Wind Farm Ltd. (“the Third Named Notice Party”) who was joined as a notice party by order of McGovern J.

on 24th November, 2014. The second named notice party, Element Power Ireland, who was joined by the applicant to the

proceedings, is simply a trading name for the EPI and, accordingly, the second named notice party is not a legal entity. EPI proposes

to develop a wind farm at Emlagh, Co. Meath. The proposed wind farm will consist of 46 turbines spread over an area of 15km by

10km in three clusters at Farragara, Castletownmoor and Isealchríocha at a height of approximately 167m. To put this in context,

Liberty Hall stands at 59.4m, the height of the Spire of Dublin (Monument of Light) is 121.2m and the Poolbeg Chimney Stacks are just

over 207m tall.

4. The applicant says that he will be directly affected by the proposed development. His house is situated 4.8km from the nearest of

the proposed turbines. He says that a significant number of the proposed turbines will be directly visible from his house on the

outskirts of Kells, Co. Meath. He says that the proposed wind turbines are up to 167m high and will affect the health and wellbeing of

himself and his family as well as their day to day existence. The applicant says that he is an engineer and he has studied the effects

of wind turbines in detail. He describes himself as a noise sensitive person with “many autistic traits”. The applicant is married and

resides with his wife with their two sons, aged seven and eight years. Their younger son has been diagnosed with Pervasive

Developmental Disorder and attends a special educational unit in Trim, Co. Meath. He is vulnerable to change and is sensitive to noise.

The applicant states that his son is afraid of wind farms. The welfare of their children is most understandably a matter of great

concern to the applicant and his wife.

5. By letter received by the Board on 30th May, 2014, EPI initiated the pre- application consultation procedure prescribed under s.37B

of the Principal Act, as amended, in relation to the proposed Emlagh wind farm project in Co. Meath. Section 37B of the Principal Act,

as amended, states that, in respect of certain classes of development which may comprise SID:-

“(1) A person who proposes to apply for permission for any development specified in the Seventh Schedule shall, before

making the application, enter into consultations with the Board in relation to the proposed development.”

6. Following the conclusion of the pre-application consultations entered into between EPI and the Board, the Inspector prepared a

report dated 1st September, 2014. At para. 5.1 he stated:-

“Having regard to the nature and scale of the proposed facility comprising a total of 46 no. turbines and having a total

output of up to 160 MW (based on 3.5MW turbines by 46 units; 115 MW with 2.5 MW units), it is my opinion that the

proposed development comes within the scope of class 1 of the Seventh Schedule of the Strategic Infrastructure Act,

2006 (as amended) being ‘An installation for the harnessing of wind power for energy production (a wind farm) with

more than 25 turbines or having a total output greater than 50 megawatts.’”

7. The Inspector was of the opinion that the development was of strategic economic or social importance to the State or the region

given the scale of the proposed development in terms of megawatt output, that the development would be one of the most

significant energy projects to be developed in the region and would make a significant impact in terms of meeting the State’s

renewable energy targets.

8. The Inspector referred to the employment generation that could be achieved by the proposed development and noted that while

there was no breakdown of the figures cited by the prospective applicant of 225 construction jobs and 60 long-term jobs, he

concluded at para. 5.2.2 that:-

“…it is apparent that the construction impact in terms of employment and economic activity would be significant. In

addition to economic activity related to employment creation, the proposed development has in my opinion the potential

to have a significant economic impact on the region in terms of revenues generated for landowners, local authority

rates and a community contribution scheme / funds.”

Accordingly he considered that the proposed development came within the scope of s.37A(2)(a) of the Principal Act, as amended.

9. Given the scale of the proposed development, the Inspector considered that the proposed development would be consistent with

the objectives of the Renewable Energy Strategy 2012-2020 published in June, 2012, albeit that the policy document was not one

which came within the scope of s.37A(2)(b) as it was neither National Spatial Strategy nor Regional Planning Guidelines. The

Inspector was satisfied that the proposed development met the conditions in s.37A(2)(b) in terms of contributing to the achievement

of the objectives of the National Spatial Strategy or Regional Planning Guidelines.

10. At its meeting on 11th September, 2014, the Board considered the Inspector’s report, together with the documents and

submissions of EPI on file and issued a Board Direction:-

“At a meeting held on 11th September 2014, the Board considered the report of the Inspector and the documents and

submissions on file.

The Board determined that the proposed development would comprise strategic infrastructure development,

generally in accordance with the Inspector’s recommendation and conclusions.

The Board was satisfied that there was no potential for transboundary impacts to occur in relation to the proposed

development, having regard to its nature, scale and location in relation to Northern Ireland.

The list of recommended bodies for consultation is noted.”

11. Accordingly by notices dated 12th September, 2014, the Board served notice that it was:-

“…of the opinion that the proposed development falls within the scope of paragraphs 37A(2)(a) and (b) of the Act.

Accordingly, the Board has decided that the proposed development would be strategic infrastructure within the meaning

of section 37A of the Planning and Development Act, 2000, as amended.”

Pursuant to that notice, the Board directed that any application for permission for the proposed development must therefore be made

directly to the Board under s.37E rather than the Local Planning Authority (as is the usual course in planning matters).

12. Following the SID designation, an application for planning permission was made to the Board by the Third Named Notice Party on

6th October, 2014. The applicant has made no submissions or observation on that application since it was lodged on 6th October,

2014.

13. The decision that is impugned by the applicant in these proceedings is the Board’s decision that the proposed Emlagh wind farm

development is SID within the meaning of s.37A of the Principal Act, as amended.

Relevant statutory provisions

14. Section 37A of the Principal Act, as amended, provides:-

“(1) An application for permission for any development specified in the Seventh Schedule (inserted by the Planning and

Development (Strategic Infrastructure) Act 2006) shall, if the following condition is satisfied, be made to the Board under

section 37E and not to a planning authority.

(2) That condition is that, following consultations under section 37B, the Board serves on the prospective applicant a

notice in writing under that section stating that, in the opinion of the Board, the proposed development would, if carried

out, fall within one or more of the following paragraphs, namely—

(a) the development would be of strategic economic or social importance to the State or the region in which it

would be situate,

(b) the development would contribute substantially to the fulfilment of any of the objectives in the National Spatial

Strategy or in any regional planning guidelines in force in respect of the area or areas in which it would be situate,

(c) the development would have a significant effect on the area of more than one planning authority.

(3) In subsection (2) ‘prospective applicant’ means the person referred to in section 37B(1).”

15. Section 37B of the Principal Act, as amended, provides:-

“(1) A person who proposes to apply for permission for any development specified in the Seventh Schedule shall, before

making the application, enter into consultations with the Board in relation to the proposed development.

(2) Such a person is referred to subsequently in this section and in sections 37C and 37D as a ‘prospective applicant’.

(3) In any consultations under subsection (1), the Board may give advice to the prospective applicant regarding the

proposed application and, in particular, regarding—

(a) whether the proposed development would, if carried out, fall within one or more of paragraphs (a) to (c) of

section 37A(2),

(b) the procedures involved in making a planning application and in considering such an application, and

(c) what considerations, related to proper planning and sustainable development or the environment, may, in the

opinion of the Board, have a bearing on its decision in relation to the application.

(4) Where, following consultations under this section, the Board is of the opinion that the proposed development would, if

carried out—

(a) fall within one or more of paragraphs (a) to (c) of section 37A(2), it shall serve a notice in writing on the

prospective applicant stating that it is of that opinion, or

(b) not fall within any of those paragraphs, it shall serve a notice in writing on the prospective applicant stating

that it is of that opinion.

(5) A notice under subsection (4)(b) shall include a statement that the prospective applicant’s application for permission,

if it is proceeded with, must be made to the appropriate planning authority (and such an application, if it is proceeded

with, shall be made to that planning authority accordingly).

(6) The Board shall serve a copy of a notice under subsection (4)(a) or (b), as the case may be, on the appropriate

planning authority.

(7) No application for permission in respect of a development referred to in subsection (1) shall be made to a planning

authority unless or until a notice is served under subsection (4)(b) in relation to the development.

(8) In this section ‘appropriate planning auth ority ’ means whichever planning authority would, but for the enactment of

section 3 of the Planning and Development (Strategic Infrastructure) Act 2006, be the appropriate planning authority to

deal with the application referred to in subsection (1).”

16. Section 37C of the Principal Act, as amended, provides:-

“(1) A prospective applicant shall, for the purposes of consultations under section 37B, supply to the Board sufficient

information in relation to the proposed development so as to enable the Board to assess the proposed development.

(2) The holding of consultations under section 37B shall not prejudice the performance by the Board of any other of its

functions under this Act or regulations under this Act and cannot be relied upon in the formal planning process or in legal

proceedings.

(3) The Board shall keep a record in writing of any consultations under section 37B in relation to a proposed

development, including the names of those who participated in the consultations, and a copy of such record shall be

placed and kept with the documents to which any planning application in respect of the proposed development relates.

(4) The Board may consult with any person who may, in the opinion of the Board, have information which is relevant for

the purposes of consultations under section 37B in relation to a proposed development.”

17. Section 37D states:-

“(1) Where a notice has been served under section 37B(4)(a) in relation to proposed development, a prospective

applicant may request the Board to give to him or her an opinion in writing prepared by the Board on what information

will be required to be contained in an environmental impact statement in relation to the development.

(2) On receipt of such a request the Board shall—

(a) consult with the requester and such bodies as may be specified by the Minister for the purpose, and

(b) comply with the request as soon as is practicable.

(3) A prospective applicant shall, for the purposes of the Board’s complying with a request under this section, supply to

the Board sufficient information in relation to the proposed development so as to enable the Board to assess the

proposed development.

(4) The provision of an opinion under this section shall not prejudice the performance by the Board of any other of its

functions under this Act or regulations under this Act and cannot be relied upon in the formal planning process or in legal

proceedings.”

18. Section 37E states:-

“(1) An application for permission for development in respect of which a notice has been served under section 37B(4)(a)

shall be made to the Board and shall be accompanied by an environmental impact statement in respect of the proposed

development.

(2) The Board may refuse to deal with any application made to it under this section where it considers that the

application for permission or the environmental impact statement is inadequate or incomplete, having regard in

particular to the permission regulations and any regulations made under section 177 or to any consultations held under

section 37B.

(3) Before a person applies for permission to the Board under this section, he or she shall—

(a) publish in one or more newspapers circulating in the area or areas in which it is proposed to carry out the

development a notice indicating the nature and location of the proposed development and—

(i) stating that—

(I) the person proposes to make an application to the Board for permission for the proposed development,

(II) an environmental impact statement has been prepared in respect of the proposed development, and

(III) where relevant, the proposed development is likely to have significant effects on the environment of a

Member State of the European Communities or other party to the Transboundary Convention,

(ii) specifying the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the

application and the environmental impact statement may be inspected free of charge or purchased on payment of a

specified fee (which fee shall not exceed the reasonable cost of making such copy),

(iii) inviting the making, during such period, of submissions and observations to the Board relating to—

(I) the implications of the proposed development for proper planning and sustainable development, and

(II) the likely effects on the environment of the proposed development,

if carried out, and

(iv) specifying the types of decision the Board may make, under section 37G, in relation to the application,

(b) send a prescribed number of copies of the application and the environmental impact statement to the planning

authority or authorities in whose area or areas the proposed development would be situated,

(c) send a prescribed number of copies of the application and the environmental impact statement to any prescribed

authorities together with a notice stating that submissions or observations may, during the period referred to in

paragraph (a)(ii), be made in writing to the Board in relation to—

(i) the implications of the proposed development for proper planning and sustainable development, and

(ii) the likely effects on the environment of the proposed development,

if carried out, and

(d) where the proposed development is likely to have significant effects on the environment of a Member State of the

European Communities or a state which is a party to the Transboundary Convention, send a prescribed number of

copies of the application and the environmental impact statement to the prescribed authority of the relevant state or

states together with a notice stating that submissions or observations may, during the period referred to in paragraph

(a)(ii), be made in writing to the Board.”

19. Section 37G provides:-

“(1) When making a decision in respect of a proposed development for which an application is made under section 37E,

the Board may consider any relevant information before it or any other matter to which, by virtue of this Act, it can

have regard.

(2) Without prejudice to the generality of subsection (1), the Board shall consider—

(a) the environmental impact statement submitted under section 37E(1), any submissions or observations made,

in response to the invitation referred to in section 37E(3), within the period referred to in that provision, the

report (and the recommendations and record, if any, attached to it) submitted by a planning authority in

accordance with section 37E(4), any information furnished in accordance with section 37F(1) and any other

relevant information before it relating to—

(i) the likely consequences of the proposed development for proper planning and sustainable

development in the area in which it is proposed to situate the development, and

(ii) the likely effects on the environment of the proposed development,

(b) any report or recommendation prepared in relation to the application in accordance with section 146, including

the report of the person conducting any oral hearing of the proposed development and the written record of any

meeting referred to in section 37F(3),

(c) the provisions of the development plan or plans for the area,

(d) the provisions of any special amenity area order relating to the area,

(e) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c),

that fact,

(f) if the proposed development would have an effect on a European site or an area prescribed for the purposes of

section 10(2)(c), that fact,

(g) the matters referred to in section 143,

(h) any relevant provisions of this Act and of any regulations made under this Act.

(3) The Board may, in respect of an application under section 37E for permission—

(a) decide—

(i) to grant the permission, or

(ii) to make such modifications to the proposed development as it specifies in its decision and grant

permission in respect of the proposed development as so modified, or

(iii) to grant permission in respect of part of the proposed development (with or without specified

modifications of it of the foregoing kind),

or

(b) decide to refuse to grant the permission,

and a decision to grant permission under paragraph (a)(i), (ii) or (iii) may be subject to or without conditions.”

20. Section 37I provides:-

“(1) The Minister may make regulations to provide for such matters of procedure and administration as appear to the

Minister to be necessary or expedient in respect of—

(a) consultations under section 37B,

(b) the giving of an opinion under section 37D,

(c) applications for permission under section 37E, and

(d) decisions under section 37G.”

21. Section 50(2) provides:-

“A person shall not question the validity of any decision made or other act done by—

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function

under this Act,

(b) the Board in the performance or purported performance of a function transferred under Part XIV, or

(c) a local authority in the performance or purported performance of a function conferred by an enactment

specified in section 214 relating to the compulsory acquisition of land,

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No.

15 of 1986 ) (the ‘Order’).”

22. Section 143 of the Principal Act, as amended, states:-

“(1) The Board shall, in performing its functions, have regard to—

(a) the policies and objectives for the time being of the Government, a State authority, the Minister, planning

authorities and any other body which is a public authority whose functions have, or may have, a bearing on the

proper planning and sustainable development of cities, towns or other areas, whether urban or rural,

(b) the national interest and any effect the performance of the Board’s functions may have on issues of strategic

economic or social importance to the State, and

(c) the National Spatial Strategy and any regional planning guidelines for the time being in force.”

23. Pertinent Recitals to Directive 2011/92/EU:-

“(5) The environmental legislation of the Union includes provisions enabling public authorities and other bodies to take

decisions which may have a significant effect on the environment as well as on personal health and well- being.

(6) General principles for the assessment of environmental effects should be laid down with a view to supplementing and

coordinating development consent procedures governing public and private projects likely to have a major effect on the

environment.

(7) Development consent for public and private projects which are likely to have significant effects on the environment

should be granted only after an assessment of the likely significant environmental effects of those projects has been

carried out. That assessment should be conducted on the basis of the appropriate information supplied by the

developer, which may be supplemented by the authorities and by the public likely to be concerned by the project in

question…

(14) The effects of a project on the environment should be assessed in order to take account of concerns to protect

human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the

diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life...

(16) Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take

account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and

transparency of the decision-making process and contributing to public awareness of environmental issues and support

for the decisions taken

(17) Participation, including participation by associations, organisations and groups, in particular non-governmental

organisations promoting environmental protection, should accordingly be fostered, including, inter alia, by promoting

environmental education of the public…

(19) Among the objectives of the Aarhus Convention is the desire to guarantee rights of public participation in decision-

making in environmental matters in order to contribute to the protection of the right to live in an environment which is

adequate for personal health and well-being.”

24. Article 1(2)(b), (c) and (f):-

“(b) ‘developer’ means the applicant for authorisation for a private project or the public authority which initiates a

project;

(c) ‘development consent’ means the decision of the competent authority or authorities which entitles the developer to

proceed with the project;…

(f) ‘competent authority or authorities’ means that authority or those authorities which the Member States designate as

responsible for performing the duties arising from this Directive.”

25. Article 2(1) and 2(2):-

“1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have

significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a

requirement for development consent and an assessment with regard to their effects. Those projects are defined in

Article 4.”

“2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the

Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of

this Directive.”

26. Article 3:-

“The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each

individual case and in accordance with Articles 4 to 12, the direct and indirect effects of a project on the following

factors:

(a) human beings, fauna and flora;

(b) soil, water, air, climate and the landscape;

(c) material assets and the cultural heritage;

(d) the interaction between the factors referred to in points (a), (b) and (c).”

27. Article 5:-

“1. In the case of projects which, pursuant to Article 4, are to be made subject to an environmental impact assessment

in accordance with this Article and Articles 6 to 10, Member States shall adopt the necessary measures to ensure that

the developer supplies in an appropriate form the information specified in Annex IV inasmuch as:

(a) the Member States consider that the information is relevant to a given stage of the consent procedure and to

the specific characteristics of a particular project or type of project and of the environmental features likely to be

affected;

(b) the Member States consider that a developer may reasonably be required to compile this information having

regard, inter alia, to current knowledge and methods of assessment.

2. Member States shall take the necessary measures to ensure that, if the developer so requests before submitting an

application for development consent, the competent authority shall give an opinion on the information to be supplied by

the developer in accordance with paragraph 1. The competent authority shall consult the developer and authorities

referred to in Article 6(1) before it gives its opinion. The fact that the authority has given an opinion under this

paragraph shall not preclude it from subsequently requiring the developer to submit further information.

Member States may require the competent authorities to give such an opinion, irrespective of whether the developer so

requests.

3. The information to be provided by the developer in accordance with paragraph 1 shall include at least:

(a) a description of the project comprising information on the site, design and size of the project;

(b) a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse

effects;

(c) the data required to identify and assess the main effects which the project is likely to have on the

environment;

(d) an outline of the main alternatives studied by the developer and an indication of the main reasons for his

choice, taking into account the environmental effects;

(e) a non-technical summary of the information referred to in points (a) to (d).

4. Member States shall, if necessary, ensure that any authorities holding relevant information, with particular reference

to Article 3, make this information available to the developer.”

28. Article 6(2) and (4) state:-

“2. The public shall be informed, whether by public notices or by other appropriate means such as electronic media

where available, of the following matters early in the environmental decision-making procedures referred to in Article

2(2) and, at the latest, as soon as information can reasonably be provided:

(a) the request for development consent;

(b) the fact that the project is subject to an environmental impact assessment procedure and, where relevant,

the fact that Article 7 applies;

(c) details of the competent authorities responsible for taking the decision, those from which relevant information

can be obtained, those to which comments or questions can be submitted, and details of the time schedule for

transmitting comments or questions;

(d) the nature of possible decisions or, where there is one, the draft decision;

(e) an indication of the availability of the information gathered pursuant to Article 5;

(f) an indication of the times and places at which, and the means by which, the relevant information will be made

available;

(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article…

4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-

making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions

when all options are open to the competent authority or authorities before the decision on the request for development

consent is taken.”

29. Article 7 provides:-

“1. Where a Member State is aware that a project is likely to have significant effects on the environment in another

Member State or where a Member State likely to be significantly affected so requests, the Member State in whose

territory the project is intended to be carried out shall send to the affected Member State as soon as possible and no

later than when informing its own public, inter alia:

(a) a description of the project, together with any available information on its possible transboundary impact;

(b) information on the nature of the decision which may be taken.

The Member State in whose territory the project is intended to be carried out shall give the other Member State a

reasonable time in which to indicate whether it wishes to participate in the environmental decision-making procedures

referred to in Article 2(2), and may include the information referred to in paragraph 2 of this Article.”

30. Article 267 of the Treaty on the Functioning of the European Union (ex Article 234 of the Treaty establishing the European

Community) provides:-

“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it

considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling

thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose

decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in

custody, the Court of Justice of the European Union shall act with the minimum of delay.”

The applicant’s case

31. The decision ought to be quashed on a number of grounds. At the hearing of the application, the applicant confined himself to the

following grounds:-

(1) The developer, as it was obliged to do, called upon the Board to decide whether or not the proposed development

was strategic infrastructure within the meaning of the Principal Act, as amended. As a matter of fact the decision of the

Board was reached after consultation with the developer but absent any opportunity for input by members of the public

including the applicant who might have a different view to the developer. This reflected the statutory scheme established

by s.37A. This fails to afford him the right to be heard in relation to a decision which affects his interests and thus fails to

uphold his constitutional right to fair procedures.

(2) The applicant submits that the merits of the decision of the Board cannot be revisited either legally or practically.

There is no appeal on the merits. Section 50 of the Principal Act, as amended, says that the validity of the decision can

only be challenged by way of judicial review. That is what is occurring here and it is not a review of the merits of the

decision.

(3) The applicant submits that if that is not legally correct, there is in fact no practical reality to revisiting the merits of

that decision. The Board has considered certain matters in determining that the proposed development, if carried out,

would be of strategic economic or social importance. This involves reaching a decision in respect of certain matters which

would fall within the remit the Environmental Impact Assessment (“EIA”) which it will be obliged to carry out in respect of

the application for planning permission for the development. It is argued that any suggestion that it could revisit this

decision would leave the Board open to an allegation of a perception of bias in the sense of prejudgment of the issue.

(4) In reaching its decision under s.37A the Board failed to have regard to relevant matters which it ought to have

considered and its decision is therefore irrational within the meaning of O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.

(5) The applicant also argues that the decision has both substantive and procedural effects. It has a substantive effect

in domestic law therefore the applicant is entitled to fair procedures. Insofar as it has procedural effect, cumulatively,

these are significant and give rise to a right to fair procedures. He has not been afforded an opportunity to be heard

before the Board made its decision. Accordingly the decision should be quashed.

(6) The applicant argues that the State has failed properly to transpose the Directive into Irish Law as the procedure

mandated by s.37A fails to ensure that there is effective public participation in the decision-making process at a time

when all options are still open to the decision-maker.

Domestic law

32. In relation to the domestic law, the argument is that at the pre-application consultation stage the Board has reached a decision

that the development, if carried out, would be of strategic economic or social importance and that it would contribute substantially to

the fulfilment of the objectives in relation to spatial strategy and regional guidelines. These are precisely matters which fall to be

considered by the Board in conducting an EIA and then deciding whether to grant or to refuse permission (or to grant permission

subject to conditions). The argument is that at the conclusion of the pre-application stage when the Board issues a notice under

s.37B(4) it has reached a conclusion on a matter to which it is obliged to have regard at a later stage in the consent process. It does

so in circumstances where the public have no entitlement to participate in the pre-application stage. It is said that this breaches the

requirement to afford him fair procedures.

33. The applicant argues that he is entitled to fair procedures in relation to this application for planning permission. He relies on the

Supreme Court decision in Dellway Investments Ltd. v. NAMA [2011] 4 I.R. 1. The Supreme Court addressed the issue as to when a

person is entitled to a hearing and what triggers the right to fair procedures. Hardiman J. held at para. 301 that the trigger for fair

procedures is that the person claiming them is a person “affected” by the decision. At para. 313 he cited with approval from Hogan &

White, J.M. Kelly: The Irish Constitution (4th ed. 2003, Tottel) at para. 6.1.52:-

“…a person affected by, or with an interest in the outcome of an administrative decision has the right to have adequate

notice of this decision and to be given an adequate opportunity to make his case before that administrative body. What

the courts will require as an ‘adequate opportunity’ will very much depend on the circumstances since the requirements

of natural justice are not fixed and unchanging.”

34. Hardiman J. concluded that a person who is or may be affected or adversely affected by the making of a discretionary decision by

a public official or officials is entitled to fair procedures.

35. Fennelly J. held that a person whose interests are capable of being affected by a decision is entitled to fair procedures (see para.

434). At para. 460 Fennelly J. continued:-

“It does not appear to me that it has been established that the right to be heard before a contemplated decision is

made depends on establishing interference with a specific and identifiable legal right. It is difficult to discern a principled

basis for restricting the right in that way. The courts have never laid down rigid rules for determining when the need to

observe fair procedures applies. Everything depends on the circumstances and the subject matter. The fundamental

underlying principle is fairness. If a decision made concerning me or my property is liable to affect my interests in a

material way, it is fair and reasonable that I should be allowed to put forward reasons why it should not be made or that

it should take a particular form. It would be unjust to exclude me from being heard.”

He endorsed the first part of the statement of the High Court as follows:-

“[116] The court is not satisfied that any mere possibility that there might be an indirect consequence for a party's

rights affords the party concerned a right to fair procedures. There must be a real risk that a party's rights will be

interfered with in the event that there is an adverse decision.”

He continued:-

“If the requirement is that there be direct interference with the legal substance of the rights, the statement is too

narrow. It should be capable of including material practical effects on the exercise and enjoyment of the rights.”

36. Denham J. noted at para. 112 that the right to be heard was an inherent part of fair procedures and was woven into the fabric of

rights of the Constitution. She cited with approval the decision of McCarthy J. in The State (Irish Pharmaceutical Union) v.

Employment Appeals Tribunal [1987] I.L.R.M. 36 at p. 40:-

“If the proceedings derive from statute, then, in the absence of any set of fixed procedures, the relevant authority

must create and carry out the necessary procedures…”

37. The applicant argued that he had a right to be heard in relation to the determination of whether or not the proposed application

amounted to SID. He argued that his interests were such that his right to fair procedures was triggered. He lives within 5km of the

proposed development. He is a qualified engineer and he has studied wind farm technology. He is the primary carer of an autistic child

who will be gravely disturbed by the proposed giant turbines. He himself is very sensitive to noise. He says that as he was not

afforded an opportunity to be heard his right to fair procedures was breached. Furthermore, if the decision is such that the applicant

has a right to be heard then the Board must adopt procedures to meet his entitlement. It is insufficient for the Board to say that

neither the statutory scheme nor the regulations provide for public participation in the SID designation process. No such procedures

were adopted by the Board.

38. The second argument advanced by the applicant is that the decision under s.37B(4) involves a decision by the Board that the

development is either strategic economically or socially important to the State or region. He argues that this is a binding decision as it

cannot be revisited. Section 50(2) of the Principal Act, as amended, states:-

“A person shall not question the validity of any decision made or any act done by—…

(b) the Board in the performance or purported performance of a function [under the Act]…

otherwise and by way of an application for judicial review…”

39. Judicial review is not a review of the merits of a decision. There is no substantive appeal on the planning merits of the decision as

the decision-maker is the Board. There is no dispute in relation to these latter two points. The applicant however points to the

following difficulties created by those facts. When deciding whether or not the proposed development would if carried out be SID, the

Board has to decide whether or not the proposed development would fall within one or more of the paragraphs set out in s.37A(2):-

“(a) The development will be of strategic economic or social importance to the State or the region in which it would be

situate,

(b) The development would contribute substantially to the fulfilment of any of the objectives in the National Spatial

Strategy or in any regional planning guidelines in force in respect of the area or areas in which it would be situate,

(c) The development would have a significant effect on the area of more than one planning authority.”

40. Prior to reaching its decision the Board is obliged to have consultations with the prospective applicant in relation to the proposed

development. As part of that consultation process, the Board may give advice to the prospective applicant regarding the proposed

application in relation to what considerations, related to proper planning and sustainable development or the environment may, in the

opinion of the Board, have a bearing on its decision in relation to the application for planning permission. Thus the Board engages very

closely with the prospective applicant in relation to these issues.

41. Once the application for planning permission is submitted to the Board it then must conduct an EIA and is expressly mandated to

have regard to matters set out in s.143 of the Principal Act, as amended. These are:-

“(a) the policies and objectives for the time being of the Government, a State authority, the Minister, planning

authorities and any other body which is a public authority whose functions have, or may have, a bearing on the proper

planning and sustainable development of cities, towns or other areas, whether urban or rural,

(b) the national interest and any effect the performance of the Board’s functions may have on issues of strategic

economic or social importance to the State, and

(c) the national spatial strategy and any regional planning guidelines for the time being in force.”

42. As part of the EIA the Board is obliged to assess, inter alia, the direct and indirect affects of a project on human beings, fauna

and flora, soil, water, air, climate and landscape and the interactions between these matters by virtue of the provisions of the

Directive (s.171A of the Principal Act, as amended).

43. The applicant’s case is that the statutory scheme requires the Board to reach a decision in relation to certain factors if it is to

hold that proposed development may be SID and it does so after consultation with the developer from which the public is excluded.

Then, when conducting the EIA and determining the application for planning permission it has to consider and have regard, inter alia,

to certain of those factors upon which it has already reached a decision i.e. whether the development is of strategic economic or

social importance. He argues, firstly, that the Board cannot itself, as a matter of law, change its decision in relation to these matters

by reason of the provisions of s.50 and therefore these matters have been determined without the participation of the public.

44. Secondly, even if the Board legally could change its decision, as a matter of fact there is an unavoidable appearance of

predetermination in respect of some of the matters which it must consider in deciding whether or not to grant the permission sought.

In this regard the applicant relies upon the decision of the Supreme Court in Tomlinson v. Criminal Injuries Compensation Tribunal

[2006] 4 I.R. 321. In that case the applicant applied to the respondent for compensation. The respondent, by way of a single member

decision, decided that the scheme applied to the applicant and made an award but deducted the sum of stg£592,000.00 in respect of

insurance paid out upon the death of the applicant’s husband. The applicant believed that the deduction was improperly made. Under

the scheme there was a right of appeal to a three-member tribunal of the respondent. The applicant chose to seek judicial review of

the decision instead. In opposing the application for judicial review the respondent pleaded that it was entitled to make the

deduction. Denham J. pointed out that this involved the respondent addressing the substantial issue in the case i.e. the entitlement

of the respondent to make the deduction. At para. 18 she held:-

“The respondent, having pleaded to the issue that the deduction was intra vires, there is the appearance that it has

reached a decision on this issue. This appears clear for two reasons. First, a member of the respondent has already

decided that the deduction should be made. Secondly, the respondent has pleaded in these judicial review proceedings

that the respondent was entitled to make the deduction. While I am in no way determining that a three-member tribunal

of the respondent would not approach the matter fairly, I consider that it would in the circumstances be perceived as

unlikely to be capable of adopting a different view.”

45. At para. 19 she stated it appeared clear what the decision of the respondent would be if the Court referred the net issue to the

respondent to hear on appeal.

46. The applicant argues that in the circumstances of the scheme mandated by the Principal Act, as amended, in relation to SIDs, it

is unavoidable that there is a form of predetermination. It is argued that it is not possible to cure the perception of bias and therefore

on this separate ground, the decision of the Board should be quashed. It is argued that the statutory scheme requires that the

developer gets very close to the Board. This is no criticism of the performance by the Board of its functions. However, the fact that

the Board reaches its decision after getting so close to the developer, due to the mandatory requirements of the statutory scheme

exacerbates the bias problem, according to the applicant.

47. Separately, the applicant pointed to the fact that the prospective applicant for planning permission in fact provided very little

information to the Board relating to the strategic economic and social importance allegedly attaching to the proposed development.

He points to the information which he has adduced in the application for judicial review: the affidavit of Mr. Noel Meade in relation to

the possible negative effects of the proposed development on the bloodstock industry and employment in the bloodstock industry in

the locale of the proposed wind farm, the affidavit of Mr. Colm McCarthy, economist, in relation to the role of wind farms in the

context of the State’s targets for renewable energy and the affidavit of Mr. Bernard Allen of the GAA in relation to the alleged social

benefits that would accrue from the proposed development. None of this information was before the Board when it reached its

decision pursuant to s.37B(4). It is argued that this amounts to a failure to have regard to relevant material and that the decision

should be quashed as being irrational within the meaning of O’Keeffe v. An Bord Pleanála.

48. The applicant submitted that the decision pursuant to s.37B had procedural effects of considerable significance. The notice

requirements were less onerous, for example there was no obligation to erect a site notice in respect of an application for permission

to develop strategic infrastructure. The nature and extent of the plans and documents lodged by the prospective applicant can be

the subject matter of discussion and agreement between the applicant and the Board. The Board is authorised by s.37G(3)(a)(ii) to

make modifications to the proposed development and to grant permission in respect of the proposed development as so modified.

There is no appeal to the Board. The Board may give advice and guidance in respect of the application for permission to the applicant.

The Board has a wider power to grant permission that is in material contravention of the development plan than does a planning

authority. It is argued that cumulatively the procedural effects are such as to entitle the applicant to fair procedures and to afford

him a right to be heard in relation to the decision as to whether or not the application should be designated SID.

Transposition of the Directive into Irish law

49. In addition to the arguments based on domestic law, the applicant argued that the State had failed properly to transpose the

Directive into Irish law. The applicant’s essential point was that it was important to consider the requirements of the Directive and

then to assess the Irish statutory scheme against these requirements. It was incorrect, as the respondents had argued, to consider

the statutory scheme and to see how it satisfied (or failed to satisfy) the requirements of the Directive. The applicant submitted that

the Directive required that the national procedure ensures that there is early and effective public participation in the Article 3 EIA

when all options remain open to the decision-maker. It is not sufficient to say that the public will be able to participate in the

procedure before the decision, whether to grant or refuse planning permission, is made. The public participation must be when all

options remain open. He says the Irish legislative scheme does not satisfy this test. By the time the public may participate in the EIA

all options are no longer open and the public cannot effectively influence the outcome of the consent procedure because of the prior

SID designation of the proposed procedure.

50. The applicant relies upon the decision of the European Court of Justice (“ECJ”) in the case of C-416/10 Križan and Others v.

Slovenská inšpekcia životného prostredia. The case concerned a two-stage procedure for the grant of permission for a landfill

development. At the first decision stage, the public was not informed of the location of the proposed landfill. The Court had to

consider whether or not the procedures adopted by the Member State satisfied the requirements of the Directive. At paras. 89-90 of

the judgment the Court held:-

“As for the question whether the principle of effectiveness precludes rectification of the procedure at second instance

by making available to the public relevant documents which were not accessible during the administrative procedure at

first instance, it is apparent from the information provided by referring court that, under the applicable national

legislation, the administrative body at second instance has power to amend the administrative decision at first instance.

However, it is for the referring court to determine whether, first, in the context of the administrative procedure at

second instance, all options and solutions remain possible for the purposes of Article 15(1) of Directive 96/61,

interpreted in the light of Article 6(4) of the Aarhus Convention, and, second, regularisation at that stage of the

procedure by making available to the public concerned relevant documents still allows that public effectively to influence

the outcome of the decision making process.

90 Consequently, the principle of effectiveness does not preclude the possibility of rectifying, during the administrative

procedure at second instance, an unjustified refusal to make available to the public concerned the urban planning

decision at issue in the main proceedings during the administrative procedure at first instance, provided that all options

and solutions remain possible and that rectification at that stage of the procedure still allows the public effectively to

influence the outcome of the decision-making process, this being a matter for the national court to determine.”

51. The applicant argues that the Directive is concerned with consent procedure. In Irish law the consent procedure in this instance

commences with s.37B: the pre-application consultations even though this is not the actual application for planning permission. This is

due to the manner in which the State has purported to transpose the Directive and it is this which must be assessed. The applicant

says the Directive applies to the pre-application consultation process as this is the commencement of the consent procedure in Irish

law. The requirement is that there be early and effective public participation. This means that the public has a right to be heard at

this stage and the public has been denied this right.

52. Secondly, and separately, it is argued that it also means that the Board in effect is making a decision on the socio-economic

aspects of an EIA. In order to comply with the requirements of the Directive this means that the Board must have all information

relevant to this aspect of the decision before it, not just the information provided by the prospective applicant. It must make all of

this information available to the public and it must afford the public the opportunity to participate in this aspect of the EIA. None of

this occurs under the Irish procedure. It is no answer to say that it will occur subsequently in the process. The applicant rejects the

argument that the Directive is not engaged until the application for planning permission is submitted. He says this is all one process

and therefore the Directive applies from the beginning of the process. Furthermore, it is clear that the Directive is engaged as the

decision of the Board itself actually refers to the transboundary effects of the proposed development. This decision in relation to

transboundary effects derives from Article 7 of the Directive. It therefore follows that the Directive is engaged at this pre-application

stage.

53. The applicant relies on the case C-201/02 R (Wells) v. Secretary of State for Transport which concerned the time at which an

EIA must be carried out in the context of the consent procedure comprising several stages. The Court held that the effects which the

project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision.

At para. 53 the Court held:-

“In a consent procedure comprising several stages, that assessment must, in principle, be carried out as soon as it is

possible to identify and assess all the effects which the project may have on the environment.”

54. The applicant submits that this should have been done in Ireland at the pre-application stage.

55. The final case relied upon by the applicant is the case of C-50/09 Commission v. Ireland. In that case the Commission alleged

that Ireland had failed to transpose the Directive correctly. It identified a gap in the implementation of the Directive arising from two

factors. The first was the lack of any right on the part of the Environmental Protection Agency (“EPA”) where it received an

application for a licence for a project as regards pollution aspects to require an EIA. The second was the possibility that the EPA

might receive an application and decide on questions of pollution before an application was made to a planning authority which alone

could require the developer to make an environmental impact statement (“EIS”). The Court pointed out that Ireland had neither

established nor even alleged that it was legally impossible for a developer to obtain a decision from the EPA where he had not also

applied to the planning authority for permission. It held:-

“81 It is therefore not inconceivable that the Agency, as the authority responsible for licensing a project as regards

pollution aspects, may make its decision without an environmental impact assessment being carried out in accordance

with Articles 2 to 4 of Directive 85/337.”

56. The applicant emphasises that the test set out by the ECJ in assessing whether the Directive had been properly transposed was

whether something incompatible with the requirements of the Directive was legally impossible or inconceivable. If it was not, then the

Member State could not show that the Directive had been properly transposed into national law.

57. The applicant argues that the Directive is engaged at this pre-consultation stage. The consultation between the Board and the

developer is far wider than the consultation that occurs under s.37D or s.135 of the Principal Act, as amended. The Board is entitled

to give advice under s.37B(3), including advice on what considerations, related to proper planning and sustainable development or the

environment may, in the opinion of the Board, have a bearing on its decision in relation to the application for planning permission. This

is to be contrasted with the more limited role of the Board in s.37D which permits the Board to give an opinion in writing on what

information will be required to be contained in the EIS in relation to the development. This, it is said, is unobjectionable and reflects

the requirements of the Directive. The applicant says that there is an overlap between the matters considered by the Board in

determining whether or not the proposed development constituted SID and matters which are required to be considered in the course

of an EIA. It is said that the Directive requirement for participation by the public at the earliest possible stage in the procedure is not

met when the decision-maker has already reached a conclusion on some of the matters it has to consider as part of the EIA. It is the

applicant’s argument that as a result the State has failed properly to transpose the Directive. Sections 37A and 37B are mandatory

procedures which fail to satisfy the public participation requirements of the Directive. It is insufficient to argue that the public may

participate at a later stage in the process prior to the making of the decision.

58. Finally, the applicant urged that the Court may wish to consider whether or not it is necessary to refer the matter of the

transposition of the Directive into Irish law for an opinion to the Court of Justice of the European Union (“CJEU”). I consider this

aspect of the matter below.

Discussion

Leave

59. As this is a ‘telescoped’ hearing comprising both the application for leave to seek judicial review and the substantive hearing

thereafter, I must first consider whether any or all of the applicant’s grounds for seeking judicial review satisfy the requirements of

s.50A of the Principal Act, as amended. The provisions of the section are mandatory. The Court shall not grant leave unless it is

satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. In addition, as a

separate proof, the Court must be satisfied that the applicant has a sufficient interest in the matter the subject of the application.

60. It has long been established that the test to be applied is that annunciated by Carroll J. and subsequently approved by the

Supreme Court in McNamara v. An Bord Pleanála (No.1) [1995] 2 I.L.R.M. 125 at p. 130:-

“In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be

trivial or tenuous.”

This is a different, higher, test than sufficient interest which applies in relation to other applications for judicial review. It is against

this higher threshold that the applicant’s grounds must be weighed.

The decision

61. Central to the applicant’s arguments is the nature of the decision made by the Board pursuant to s.37B(4) and whether or not it

determines matters that are considered in the EIA and in the decision upon the application for planning permission. This is central to

the arguments in relation to fair procedures and the Directive.

62. Section 37B(4) requires the Board to form an opinion as to whether the proposed development if carried out will fall or will not fall

within one or more of:-

“(a) the development would be of strategic economic or social importance to the State or the region in which it would

be situate,

(b) the development would contribute substantially to the fulfilment of any of the objectives in the National Spatial

Strategy or in any regional planning guidelines in force in respect of the area or areas in which it would be situate,

(c) the development would have a significant effect on the area of more than one planning authority.”

Thus the Board must form an opinion based on limited information provided solely by the prospective applicant in relation to one or

more of the subparagraphs. The opinion is for the purpose of deciding to whom the prospective applicant should submit the

application for planning permission.

63. Once it has made its decision it notifies the applicant pursuant to s.37B(4). The applicant then submits its application for planning

permission either to the Board, if it has designated the application to be SID, or to the appropriate planning authority, if it has not.

The Board or the planning authority is the competent authority for the purpose of the Directive and must carry out an EIA. Assuming

that the Board has designated the proposed application to be SID, the Board and the applicant must follow the procedures mandated

in ss.37D-H. In particular the Board is obliged by law to have regard to all of the additional information provided to it as part of the

Article 3 assessment and s.171A of the Principal Act, as amended. This includes input from the statutory bodies, all submissions and

observations of the public, submissions from the planning authority for the relevant area and the EIS provided by the applicant for

planning permission. Once it has completed the EIA, the Board must then make a decision on the consent application.

64. When making a decision pursuant to s.37G the Board is deciding whether or not to grant or refuse permission or whether to make

modifications to the proposed development or to grant permission in respect of part of the proposed development or to grant

permission in respect of part of the proposed development (with or without specified modifications). This is a different decision for a

different purpose based on far more extensive information that it is obliged to consider than the SID designation decision. The Board is

viewing the entire application and assessing whether or not in the exercise of its planning expertise the proposed development (with

or without modifications) complies with requirements of the proper planning and sustainable development of the area and is a

development to which planning permission should be granted.

65. The difference between the two decisions is clear. It is perfectly possible that a proposed development could be considered to be

of strategic economic or social importance if carried out but, due to its location for example, the Board might, in the exercise of its

expert judgment, decide that it should refuse planning permission. It could do so on the grounds that the particular project in that

location would not accord with proper planning and sustainable development. It may be that the application is premature, given the

state of existing infrastructure which might be inadequate to meet the requirements of the proposed development or it might be

inappropriate given the density of the housing in the immediate environs. There could be any number of reasons why the Board could

validly form the opinion that a proposed application was of strategic economic or social importance but, upon considering all of the

matters and information before it both during the EIA and thereafter, that the negative factors including those relating to the

strategic economic or social importance aspects of the application outweighed the benefits presented by the applicant in its pre-

application to the Board pursuant to s.37B. I therefore cannot accept the applicant’s central submission that the designation of the

proposed application as SID in any way predetermines the outcome or any part of the outcome of either the EIA or the application for

planning permission. This accords with the reasoning of Finlay Geoghegan J. in Kelly v. An Bord Pleanála [2014] IEHC 400 in relation to

the effect of an EIA. She stated at para. 33:-

“However, the outcome of that examination, analysis, evaluation and identification informs rather than determines the

planning decision which should or may be made.”

Material which the Board has to consider as part of the SID designation process can and will be properly considered in the context of

the EIA and consent procedure but the Board’s opinion on SID designation is not determinative of the planning decision. The earlier

exercise does not lead to impermissible prejudgment. The Board remains free to exercise its discretion in relation to all matters at the

end of the process.

66. In this case, as a matter of law, the Board is obliged to consider all matters set out in s.37G. This includes the EIS, any

submissions or observations made to it relating to the implications of the proposed development for proper planning and sustainable

development and the likely effects on the environment of the proposed development and the other matters set out in s.37G(2). As

pointed out by the applicant, this refers to the matters set out in s.143 of the Principal Act, as amended, which includes the national

interest and any effect the performance of the Board’s functions may have on issues of strategic economic or social importance to

the State and the National Spatial Strategy and any regional planning guidelines for the time being in force. In this instance the

prospective applicant submitted as part of its s.37B submission to the Board that the proposed development would, if carried out,

create 225 construction jobs and 60 long term jobs. However it is perfectly possible that submissions and observations made by third

parties including the public and other interested parties might be submitted which could show that other jobs might be lost. In this

regard the affidavit of Mr. Meade is relevant. To take a hypothetical case, if a prospective applicant indicates that a proposed

development has the potential to create 200 jobs and, inter alia, on that basis the Board forms the opinion that the proposed

development would if carried out be of strategic economic or social importance, it is possible that observations or submissions to the

effect that the proposed development might result in the loss of 500 jobs could be sent to the Board. The Board could not ignore

these hypothetical submissions and it must therefore in exercising its expertise and reaching a decision pursuant to s.37G weigh up

the submissions made by the applicant for planning permission and the other information submitted to it as part of the planning

process. It cannot be said that the Board has prejudged the issue and definitively concluded that the proposed development is of

strategic economic or social importance. It must make its concluded decision on the basis of the fuller information which will be

available to it when it comes to make the consent decision.

67. I reject the argument that, as a matter of law, the Board cannot revisit the s.37B(4) opinion. Firstly, as a matter of law, it is

obliged to reconsider the material it considered in forming the opinion when determining the consent decision. Secondly, on a strict

construction of the section, the s.37B opinion is that: an opinion of the Board that the proposed development would, if carried out fall

within one of the categories set out in s.37A(2). It is an opinion not a concluded decision.

68. Thirdly, s.50 of the Principal Act, as amended, states that a person shall not question the validity of any decision made or other

act done by the Board in the performance or purported performance of a function under the Act otherwise than by way of an

application for judicial review under O.84 of the Rules of the Superior Courts. In deciding whether or not to grant or refuse planning

permission or to grant planning permission subject to modifications pursuant to s.37G, the Board would not be questioning the validity

of its s.37B(4) decision in any way. The Board would be looking at the same material and any other material submitted by the

developer, other agencies, the EPA and the public to reach a fundamentally different decision. The decision is whether or not to grant

planning permission. This must be made on the basis that it accords with proper planning and sustainable development in the area. It

is not a decision as to whether or not a proposed development would, if carried out, be of strategic economic or social importance to

the State.

69. As a matter of law the Board is entitled to look again at the material that was submitted by the applicant for planning permission

at the pre-application stage in conjunction with all the additional information then available to the Board to reach a different decision

in relation to the social and/or economic aspects of the proposed development as it is in the context of a different decision.

Fair procedures

69. In the light of this conclusion, is the applicant’s right to fair procedures triggered at the s.37B pre-application stage? In answering

that question it is important to consider what right or interest of the applicant could or may be affected by the decision in question.

There is no absolute right to be heard as such. The right to be heard is a right to protect a separate, different right or interest. In

domestic law it is his right to participate in the planning process and to affect the outcome of the planning application process. This is

a right that applies to any person or company residing anywhere in the State. It is not related to the individual’s property rights or

right to health or bodily integrity. Those are matters for submission to the decision-maker and go to the merits of the planning

decision.

70. Put in this way the answer becomes clear. In order to preserve and protect the applicant’s right to participate in and affect the

outcome of the planning application process, it is not necessary that the applicant be entitled to be heard at the pre-application

stage set out in s.37B. This is because the pre-application decision is not legally a predetermination of anything to be decided by the

Board pursuant to s.37G. The rights are triggered when the application for planning permission is submitted and the statutory scheme

clearly protects those rights from that point in time.

71. The fact that the Board consults with or advises a developer at the pre-application stage without the involvement of the public

does not alter this and of itself does not trigger the applicant’s rights to fair procedures as set out in Dellway.

72. In my judgment, the decision pursuant to s.37B does not trigger the rights contended for as the decision does not have the

substantive effect contended by the applicant.

73. The decision of the Board pursuant to s.37B has procedural effects. If it reaches a decision that the proposed development does

not fall within the SID criterion then the Board serves a notice in writing on the prospective applicant stating this opinion and the

subsequent application for planning permission is made to the appropriate planning authority. If, on the other hand, the Board forms

the opinion that the matter falls within one or more of subparas. (a) to (c) of s.37A(2) then the notice served by the Board requires

the prospective developer to submit the application for planning permission directly to the Board. In the latter case, there are

resulting procedural differences from the planning application that is first considered by a planning authority. Most significantly, there

is no appeal to the Board. There are different provisions in relation to material contravention of the development plan; different

requirements in relation to notice of the proposed development; the nature and extent of the plans and documents the applicant for

planning permission is required to lodge are different; and the Board is entitled to consult with the applicant to a greater extent and

to modify the plans. This is a synopsis of the more significant effects referred to by the applicant. He argues that taken together

they have a significant impact upon his interests and therefore he should be entitled to fair procedures before the decision is taken

which results in these procedural effects.

74. Whether or not the procedural effects of the decision are such as to trigger a right to fair procedures as set out in Dellway is a

matter of degree. In considering this issue it is important to bear in mind the interest or right of the applicant which is required to be

protected. In this instance it is the right to participate effectively in the planning process. In my opinion the procedural effects of the

decision do not impair or curtail the applicant’s right to participate in the process in a manner such as to trigger not only his but all

and any member of the public’s right to fair procedures. Indeed he does not make the case that he has actually been hindered in any

way from participating in the planning process by reason of the procedural effects of the decision of the Board he seeks to quash. His

case is advanced on a theoretical basis only as he has elected not to make any submission or objection to the Board and there is

evidence on affidavit that he was aware of the planning application and could presumably therefore have voiced his concerns to the

Board within the time allowed for submissions if he wished.

Predetermination

75. As a matter of fact the statutory scheme requires that the prospective applicant for planning permission has detailed

consultations and possibly receives advice from the Board during the pre-application procedure when the public are not involved. It is

also a requirement of the Act that the Board forms an opinion pursuant to s.37B(4) as to whether or not a development, if carried

out, would be SID. It is argued that it necessarily follows either as a matter of fact or perception that the Board predetermines the

issue as to whether or not the proposed development is of strategic economic or social importance in the State before the application

for planning permission is submitted. In my opinion this falls very far short of the position in Tomlinson. In Tomlinson there was a

distinct legal point to be considered: the jurisdiction of the tribunal to make deductions from its award in respect of payments made

pursuant to insurance policies. The statement of opposition filed on behalf of the tribunal in the judicial review proceedings expressly

pleaded that the tribunal had jurisdiction to make such a deduction. In other words, in the pleadings it had stated a view of the law

which was the very matter which would fall to be decided by the tribunal on an appeal from the decision at first instance.

76. The debate in Tomlinson took place in the context of the Court’s exercise of its discretion where there were alternative remedies

of appeal and judicial review. In the circumstances the Supreme Court held that the more appropriate remedy was judicial review and

remitted the matter to the High Court for judicial review. This authority is not of assistance in considering whether there is a

perception of bias in the form of predetermination of necessity in all cases dealt with under the statutory procedure provided for in

ss.37A-H of the Principal Act, as amended. The applicant’s argument is one of principle rather than fact specific. Therefore this is

what he must establish to succeed on this point.

77. In my opinion the cases of Dublin and County Broadcasting Limited v. Independent Radio and Television Commission (Unreported,

High Court, Murphy J., 12th May, 1989) and Spin Communications Ltd. v. Independent Radio and Television Commission [2000] IEHC

128 are of more relevance. The test there established is that the question of bias must be determined on the basis of what a right-

minded person would think of the real likelihood of prejudice and not on the basis of a suspicion which might dwell in the mind of a

person who is ill-informed and who did not seek to direct his mind properly to the facts. Applying this test, it cannot be said that such

a reasonable, well informed person would reach the conclusion that the Board was biased and had predetermined the planning consent

application on the basis of its s.37B opinion.

78. In this case, the Board’s decision pursuant to s.37B(4) is not determinative of the socio-economic aspects of the application for

planning permission and the decision it has to make pursuant to s.37G. The Board will revisit some of the material which it considered

in the context of the s.37B decision when reaching the different decision required of it pursuant to s.37G. In addition, of course, at

this stage the applicant and others will have had full opportunity to present such information or arguments to the Board in relation to

this aspect and other aspects of the application for planning permission as they see fit. This applies in all applications under the

scheme. These matters must be considered by the Board when exercising its discretion in respect of the application for planning

permission. In these circumstances I do not accept that it can fairly be argued that every case which goes before the Board pursuant

to the statutory scheme must appear tainted by bias and predetermination. As the applicant’s case is based on the statutory scheme

and not on any particular facts, I am not persuaded by this argument.

79. Furthermore, the logic of the applicant’s argument is that, regardless of opinion of the Board on the s37B issue, the statutory

scheme would inevitably and automatically disqualify the Board from any further involvement in the planning process once it has made

any determination pursuant to s.37B(4). If it makes a decision that the matter is not SID, and thus the planning application should be

submitted to the planning authority, the arguments advanced by the applicant here would apply equally to a developer who wished to

appeal a decision of a planning authority to the Board. In those circumstances, it could equally be argued that the Board had

predetermined that the matter was not of strategic economic or social importance to the State and therefore had predetermined an

issue which it had to consider on appeal. The applicant may say that is the consequence of a flawed legislative scheme and does not

in itself invalidate his arguments; in my opinion it is more suggestive of the fallacy of the premise upon which the argument is based. I

do not accept that this is a form of predetermination. It follows that the SID designation process does not trigger the rights to fair

procedures contended for by the applicant.

Irrational

80. The applicant argued that the Board had before it very little information regarding the proposed development when it reached its

s.37B(4) opinion. He said that the information was incomplete, for example- there was no economic analysis of the proposed wind

farm both as regards its impact upon the State’s renewable energy requirements and obligations or upon job creation and/or losses.

He argued that the decision was therefore irrational and ought to be quashed, relying upon the well known case of O’Keeffe v. An

Bord Pleanála. However this argument is all predicated upon the submission that the s.37B(4) decision amounts to a conclusive

determination that the proposed development is SID and this opinion cannot be reconsidered. As I have held that this is not the case

and that all matters remain open for consideration by the Board once the application for planning permission is received, this argument

must be rejected. There was correctly no challenge otherwise to the sufficiency of the information before the Board in forming its

opinion on 11th September, 2014, and therefore this ground for judicial review must be rejected.

Directive

81. As set out above, the applicant has argued that the State has failed properly to transpose the Directive into national law. The

critical point in Križan is that it is for the National Court to determine whether the national procedures ensure that at the time the

public may participate in the process that all options and solutions remain possible and that the public may effectively influence the

outcome of the decision-making process. The procedure established in the Act of 2006 satisfies this test. From the date of the

application for planning permission all options and solutions remain open under the Irish statutory scheme. There is no

predetermination of any part of the application as was argued by the applicant. The Board is not legally precluded from reconsidering

the material submitted by the applicant for planning permission in the pre-application stage and from reaching a different conclusion in

the light of the further information which will be available to the Board once the EIA procedure and all the other submissions and

observations are made available to it. As I have pointed out above, the Board is not questioning the validity of its s.37B(4) opinion

when it is making its s.37G decision whether or not to grant planning permission in full or in part of the proposed development, with or

without modifications. Before the Board finally reaches a decision pursuant to s.37G, there are many further steps to be undertaken.

There is a scoping exercise in respect of the EIS, the EIA has then to be conducted by the Board. There is a possibility for

consultations with the developer and others. The developer may be required to resubmit plans and drawings and there are various

other matters set out in the Act. In my opinion the public is able effectively to influence the outcome of the decision and can

participate early and effectively in the process when all options and solutions remain possible.

82. In view of the fact that I have concluded that as a matter of national law, the Board is not precluded from revisiting the s.37B

decision in relation to the socio-economic aspects of an EIA when conducting the EIA pursuant to ss. 37D-G, it follows that there is

no obligation on the Board at the pre-application stage to comply fully with the requirements of the Directive in relation to the

conduct of an EIA. Therefore the arguments predicated on the fact that the pre-application assessment under s.37B does not satisfy

the requirements of the Directive is not a ground for saying that the Directive has not properly been transposed into national law.

Simply because the national procedure commences with a pre-application procedure, it does not follow that the procedure required by

the Directive to exist in national law has to commence at this point. It is clear from Križan that the public participation right mandated

by the Directive must afford the public merely an effective participation in the procedure when all options and solutions are possible.

In R(Wells) it was held that the EIA must in principle be carried out as soon as it is possible to identify and assess all the effects

which the project may have on the environment. This cannot be done before the application for planning permission has been

submitted even if the public was entitled to participate at the pre-application stage. These cases do not lead to the conclusion that

the Directive must be interpreted as precluding a member state from engaging with any issues which touch upon or concern the EIA

at a stage in the statutory scheme from which the public is excluded as was argued by the applicant.

83. In fact in the case of C-431/92 Commission v. Germany it was held by the ECJ that the public participation provisions of the

Directive apply from the date when the application for consent is formally lodged and not sooner. On the facts the ECJ rejected an

argument that the preliminary consultations preceding the formal application for consent were a significant part of the consent

procedure and therefore the Directive would have applied to the preliminary consultation. The Court held as follows:-

“30 The German Government argues, however, that the formal application for consent of 26 July 1988, accompanied by

the complete file on the project, had been preceded by a preliminary stage which was a significant part of the consent

procedure. During that preliminary stage, which was initiated on 18 May 1987, the competent authority was to advise

the developer on the content and lodging of the application for consent. A series of meetings took place at which

specialist departments were also represented. In addition the project is said to have been notified on 7 March 1988 to

the competent authority in accordance with the Landesplanungsgesetz (Law of the Land of Hesse on planning).

31 That argument cannot be accepted.

32 Informal contacts and meetings between the competent authority and the developer, even relating to the content a

proposal to lodge an application for consent for a project, cannot be treated for the purposes of applying the directive

as a definite indication of the date on which the procedure was initiated. The date when the application for consent was

formally lodged thus constitutes the sole criterion which may be used. Such criterion accords with the principle of legal

certainty and is designed to safeguard the effectiveness of the directive. The Court moreover followed this approach in

Bund Naturschutz, cited above (paragraph 16).

33 The consent procedure for the project at issue must accordingly be regarded as having been initiated after the

deadline of 3 July 1998, with the result that the project was required to undergo an assessment of its effects on the

environment in accordance with a directive.”

84. Therefore, applying this analysis, as I am obliged to do, to the facts in this case, the public participation provisions of the

Directive were not triggered until the formal application for development consent was submitted in October, 2014, notwithstanding

the fact that there were pre-application consultations with the prospective applicant. It follows that they do not apply to the pre-

application procedure, even where that procedure involves extensive consultation with and the giving of advice to the developer on

the content and lodging of the application for consent. Thus all of the applicant’s arguments predicated upon the submission that the

requirements of the Directive applied to the pre-application procedure must be rejected.

85. The applicant argued that because the decision of 11th September, 2014, specifically referred to Article 7 that it necessarily

followed that the public participation requirements of the Directive were engaged at this stage. In my opinion this argument also must

be rejected. Article 7 requires that where a member state is aware that a project is likely to have significant effects on the

environment in another member state, the Member State in whose territory the project is intended to be carried out is to send to the

affected Member State:-

“…as soon as possible and no later than when informing its own public, inter alia:

(a) a description of the project, together with any available information on its possible transboundary impact;

(b) information on the nature of the decision which may be taken.”

86. Article 7 is engaged before or at least contemporaneously with informing the public in relation to those matters in accordance with

the obligations on member states pursuant to the Directive. The obligation under Article 7(1) thereafter is to afford the other Member

State a reasonable time in which to indicate whether it wishes to participate in the environmental decision-making procedures in the

Member State in whose territory the project is intended to be carried out. Thus, Article 7 is a prelude to participation in the

environmental decision-making procedures. The fact that an Article 7 opinion is expressed in a notice issued pursuant to s.37B(4)

therefore, does not imply that at that stage the environmental decision-making procedures referred to in Article 2(2) of the Directive

have been engaged or that the rights of the public to participate in same have arisen.

Preliminary reference to the CJEU

87. Article 267 TFEU (ex Article 234 TEC) provides as follows:-

“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it

considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling

thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose

decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in

custody, the Court of Justice of the European Union shall act with the minimum of delay.”

88. The applicant asked the Court to request the CJEU to give a preliminary ruling pursuant to Article 267 TFEU on the following

questions:-

“(i) Are the provisions of Article 6(2) of the EIA Directive to be interpreted as meaning an environmental impact

assessment cannot commence until there has been a request for development consent?

(ii) are the provisions of Article 6(2), 6(3), 6(4) and 7(1) of the EIA Directive to be interpreted as meaning that the

environmental impact assessment has commenced and the public concerned should be informed and/or consulted where

a body, which is a competent authority for the purposes of the EIA Directive, in a process mandated by domestic law,

makes a determination in respect of a proposed development which has the effect of giving to that competent authority

jurisdiction to determine development consent and where, during the said process, the said body assesses and makes

determinations in respect of whether the project is likely to have significant effects on the environment in another

Member State and assesses and makes determinations in respect of matters which are required as part of an

environmental impact assessment and which must, as a matter of domestic law, be considered when making its decision

on development consent?”

89. It is common case that this Court has discretion as to whether or not to refer the questions to the CJEU. As was succinctly

stated by Finlay Geoghegan J. in The Environmental Protection Agency v. Greenstar Holdings Ltd. & Ors [2014] IEHC 178:-

“66. In accordance with Article 267, this Court may only make a reference “if it considers that a decision on the

question is necessary to enable it give judgment”. It is commoncase that this Court, not being a court of final appeal,

has a discretion as to whether or not to make a reference.

67. I am not satisfied that the Court has jurisdiction pursuant to Article 267 to now request a preliminary ruling from the

CJEU on the interpretation of Article 14 of the Framework Directive and Article 10 of the Landfill Directive as it does not

appear to me that a ruling on the interpretation of those provisions is necessary…”

90. In this case, I am of the opinion that a ruling on the interpretation of the provisions as sought by the applicant is not necessary

to enable me to deliver judgment in this case. It is clear from the decision of the Court in Križan (discussed at para. 50 et seq.) that

it is for the National Court to determine whether the domestic law provisions ensure that the procedure allows the public effectively

to influence the outcome of the decision-making process and can participate when all options and solutions remain possible. As I have

held that this is so under the Irish legislation, there can be no necessity to refer any question to the CJEU as required by Article 267

TFEU. I therefore decline to refer either of the questions to the CJEU as requested.

Section 3 of the Environment (Miscellaneous Provisions) Act 2011

91. The applicant brought a motion seeking a determination pursuant to s.7 of the Environment (Miscellaneous Provisions) Act 2011

that s.3 of the Act of 2011 applies to the proceedings. Sections 3, 4 and 7 of the Act of 2011 provide as follows:-

“3.— (1) Notwithstanding anything contained in any other enactment or in—

(a) Order 99 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ),

(b) Order 66 of the Circuit Court Rules ( S.I. No. 510 of 2001 ), or

(c) Order 51 of the District Court Rules ( S.I. No. 93 of 1997 ),

and subject to subsections (2), (3) and (4), in proceedings to which this section applies, each party (including any notice

party) shall bear its own costs.

(2) The costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant, or as

the case may be, the plaintiff, to the extent that he or she succeeds in obtaining relief and any of those costs shall be

borne by the respondent, or as the case may be, defendant or any notice party, to the extent that the acts or

omissions of the respondent, or as the case may be, defendant or any notice party, contributed to the applicant, or as

the case may be, plaintiff obtaining relief.

(3) A court may award costs against a party in proceedings to which this section applies if the court considers it

appropriate to do so—

(a) where the court considers that a claim or counter-claim by the party is frivolous or vexatious,

(b) by reason of the manner in which the party has conducted the proceedings, or

(c) where the party is in contempt of the court.

(4) Subsection (1) does not affect the court’s entitlement to award costs in favour of a party in a matter of exceptional

public importance and where in the special circumstances of the case it is in the interests of justice to do so.

(5) In this section a reference to “court” shall be construed as, in relation to particular proceedings to which this section

applies, a reference to the District Court, the Circuit Court, the High Court or the Supreme Court, as may be

appropriate.

4.—(1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (3), instituted by a person

—

(a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or

other requirement attached to a licence, permit, permission, lease or consent specified in subsection (4), or

(b) in respect of the contravention of, or the failure to comply with such licence, permit, permission, lease or

consent, and where the failure to ensure such compliance with, or enforcement of, such statutory requirement,

condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to

in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment.

(2) Without prejudice to the generality of subsection (1), damage to the environment includes damage to all or any of

the following:

(a) air and the atmosphere;

(b) water, including coastal and marine areas;

(c) soil;

(d) land;

(e) landscapes and natural sites;

(f) biological diversity, including any component of such diversity, and genetically modified organisms;

(g) health and safety of persons and conditions of human life;

(h) cultural sites and built environment;

(i) the interaction between all or any of the matters specified in paragraphs (a) to (h).

(3) Section 3 shall not apply—

(a) to proceedings, or any part of proceedings, referred to in subsection (1) for which damages, arising from

damage to persons or property, are sought, or

(b) to proceedings instituted by a statutory body or a Minister of the Government.

(4) For the purposes of subsection (1), this section applies to—

(a) a licence, or a revised licence, granted under section 83 of the Environmental Protection Agency Act 1992,

(b) a licence granted pursuant to section 32 of the Act of 1987,

(c) a licence granted under section 4 or 16 of the Local Government (Water Pollution) Act 1977,

(d) a licence granted under section 63, or a water services licence granted under section 81, of the Water

Services Act 2007,

(e) a waste collection permit granted pursuant to section 34, or a waste licence granted pursuant to section 40,

of the Act of 1996,

(f) a licence granted pursuant to section 23(6), 26 or 29 of the Wildlife Act 1976,

(g) a permit granted pursuant to section 5 of the Dumping at Sea Act 1996,

(h) a licence granted under section 40, or a general felling licence granted under section 49, of the Forestry Act

1946,

(i) a licence granted pursuant to section 30 of the Radiological Protection Act 1991,

(j) a lease made under section 2, or a licence granted under section 3 of the Foreshore Act 1933,

(k) a prospecting licence granted under section 8, a State acquired minerals licence granted under section 22 or

an ancillary rights licence granted under section 40, of the Minerals Development Act 1940,

(l) an exploration licence granted under section 8, a petroleum prospecting licence granted under section 9, a

reserved area licence granted under section 19, or a working facilities permit granted under section 26, of the

Petroleum and Other Minerals Development Act 1960,

(m) a consent pursuant to section 40 of the Gas Act 1976,

(n) a permission or approval granted pursuant to the Planning and Development Act 2000.

(5) In this section—

“damage”, in relation to the environment, includes any adverse effect on any matter specified in paragraphs (a) to

(i) of subsection (2); “statutory body” means any of the following:

(a) a body established by or under statute;

(b) a county council within the meaning of the Local Government Act 2001;

(c) a city council within the meaning of the Local Government Act 2001.

(6) In this section a reference to a licence, revised licence, permit, permission, approval, lease or consent is a reference

to such licence, permit, lease or consent and any conditions or other requirements attached to it and to any renewal or

revision of such licence, permit, permission, approval, lease or consent…

7.—(1) A party to proceedings to which section 3 applies may at any time before, or during the course of, the

proceedings apply to the court for a determination that section 3 applies to those proceedings.

(2) Where an application is made under subsection (1), the court may make a determination that section 3 applies to

those proceedings.

(3) Without prejudice to subsection (1), the parties to proceedings referred to in subsection (1), may, at any time,

agree that section 3 applies to those proceedings.

(4) Before proceedings referred to in section 3 are instituted, the persons who would be the parties to those

proceedings if those proceedings were instituted, may, before the institution of those proceedings and without prejudice

to subsection (1), agree that section 3 applies to those proceedings.

(5) An application under subsection (1) shall be by motion on notice to the parties concerned.

92. The applicant seeks the determination that s.3 applies to the proceedings. The proceedings are civil proceedings and they do not

fall within the exclusions in s.3(3). He argues that they have been instituted for the purpose of ensuring compliance with, or the

enforcement of, a statutory requirement. It is accepted, on the basis of McCoy & Anor v. Shillelagh Quarries Ltd. & Ors [2015] IECA

28, that the reference to “statutory requirement” in s.4(1)(a) is a freestanding one which is distinct and separate from proceedings

designed to ensure the compliance with or enforcement of a condition or other requirement of a licence, permit or other form of

development consent. He identifies the statutory requirement as the procedure which the Board ought to have adopted pursuant to

s.37A in order to safeguard his asserted rights to fair procedures and to have given him an opportunity to be heard before the Board

made its decision pursuant to s.37B(4). Counsel for the applicant summarised the argument as follows. He said that the statutory

requirement in s.37A goes beyond a mere determination as occurred in September, 2014, it requires the hearing of the applicant for

the purposes of a proper consideration of the s.37A question. Without that, the procedure will give rise to significant effects/damage

to the environment. It is argued that the nature of the development is such that it will clearly cause damage to the environment.

Therefore, the failure of the Board to ensure that the applicant was afforded fair procedures at the pre-application stage satisfies the

requirement in s.4(1)(b) of the Act of 2011 that it “has caused, is causing, or is likely to cause, damage to the environment”.

93. It is absolutely clear that a determination, pursuant to s.7, that s.3 of the Act of 2011 applies to the proceedings cannot be

made unless there is a causative link between the failure to ensure compliance with, or the enforcement of, a statutory requirement

and damage to the environment. The damage to the environment may have been caused, continuing or it may be something that is

likely to be caused in the future. Section 4(2) of the Act of 2011 provides that damage to the environment includes damage to all or

any of the matters set out. It includes (e) landscapes and natural sites and (g) health and safety of persons and conditions of human

life. When asked to identify the damage to the environment upon which the applicant relied, counsel referred to the development

which the notice parties hoped to carry out and asked rhetorically “how can it be said that there will not be damage to landscapes?”

His case is thus based on the nature of the proposed development and the damage identified at s.4(2)(e).

94. It must be borne in mind that these proceedings relate to matters which occurred (or which did not occur) before any application

for planning permission was lodged. There is no wind farm in existence therefore obviously there is no damage actually caused or

being caused to the environment within the meaning of s.4. Therefore the issue is whether or not the failure asserted by the

applicant to afford him his constitutional entitlement to fair procedures at the pre-application SID designation stage is likely to cause

damage to the environment.

95. The entire purpose of applying for planning permission and of conducting EIAs is to assess developments and to determine their

environmental effects and to regulate them, inter alia, for the purpose of avoiding damage to the environment. If the Court were to

grant the applicant the determination pursuant to s.7 that he seeks, it would be predicated upon an assumption that this entire

process would not be carried out properly in due course. Clearly, the Court cannot proceed on that basis. Simply put, this application

does not fall within the parameters of s.4 and therefore s.3 of the Act of 2011 cannot apply to the proceedings. I refuse the

determination sought.

Conclusions

96. The applicant has not established substantial grounds for quashing the decision of the Board of 11th September, 2014, or for a

declaration that the decision is invalid. Likewise he has not made out his case that there are substantial grounds for declaring that

the Directive has not been transposed properly into Irish law. I therefore refuse the applicant leave to seek judicial review.

1 The Environmental Impact Assessment Directive 85/337/EEC and its three amendments have been codified by Directive 2011/92/EU