Appeal dismissed; Board not bound by s.50(2) when re-visiting strategic importance in substantive planning adjudication.

THE COURT OF APPEAL

Appeal Nos. 2015/500

Finlay Geoghegan J.

Irvine J.

Hogan J.

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

AS AMENDED

BETWEEN/

JOHN CALLAGHAN

APPLICANT/APPELLANT

- AND -

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/RESPONDENTS

- AND -

ELEMENT POWER IRELAND LIMITED,

ELEMENT POWER IRELAND AND NORTH MEATH WIND FARM LIMITED

NOTICE PARTIES/RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 21st day of December 2016

1. In 2006 the Oireachtas enacted the Planning and Development (Strategic Infrastructure) Act 2006 (“the 2006 Act”). The object of

the 2006 Act - as reflected in its Long Title - was to amend the Planning and Development Act 2000 (“the 2000 Act”) by shortening

and streamlining the planning process in relation to projects which were considered to be of strategic importance to the State and its

various regions.

2. The major change which the 2006 Act brought about was that if An Bord Pleanála formed the opinion that the proposed project

would, if carried out, be of “strategic economic or social importance to the State or the region in which it would be situate”, the

planning application was required to be made to the Board as a part of a single procedure and not to a planning authority from which

decision there would be a right of appeal to the Board. In this way the Oireachtas considered that the single procedure mechanism

would facilitate the expeditious determination of important planning applications, thereby short circuiting the conventional mechanism

of an application to the local planning authority, followed by a potential appeal to the Board.

3. The issue which arises in this appeal is whether a third party objector (such as the applicant) is entitled to be heard prior to the

Board forms an opinion as to whether the proposed project would, if carried out, be of strategic, economic or social importance,

thereby triggering the obligation to have the application made to the Board in the first instance. This submission was rejected by the

High Court (Costello J.): see Callaghan v. An Bord Pleanála (No.2) [2015] IEHC 357. Costello J. later certified this issue as a single

point of law and granted leave pursuant to s. 50A(7) of the Planning and Development Act 2000 (as amended) to appeal to this Court

in respect of this single issue: see Callaghan v. An Bord Pleanála (No. 3) [2015] IEHC 493. The certified point is in the following

terms:-

“Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed

in the light of ss. 50(2) and 143 of the Planning and Development Act 2000 such that it is necessary to read into the

scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to

s. 37A of the Planning and Development Act 2000?”

4. For my part I consider that Costello J. was entirely correct in the conclusions which she reached and I am accordingly of the view

that the certified point should be answered in the negative. Before, however, setting out the reasons for this conclusion, it is first

necessary to describe the background to these proceedings.

The background to these proceedings

5. The first notice party, Element Power Ireland Ltd. (“EPI”) is engaged in the development of wind farms and is the majority

shareholder in the third notice party, North Meath Wind Farm Ltd. The second notice party, Element Power Ireland, was joined by the

applicant to the proceedings. This, however, is simply a trading name for the EPI and, accordingly, as the second notice party is not

a legal entity, its position needs no further consideration.

6. EPI proposes to develop a wind farm at Emlagh, Co. Meath. If planning permission is granted, 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. If constructed, these turbines will therefore be remarkably tall structures.

7. The applicant, Mr. Callaghan, maintains that he will be directly affected by the proposed development. His house is situated 4.8

km. from the nearest of the proposed turbines and that at least a number of them will be visible from his house. He says that he and

his family are sensitive to noise and feel that their enjoyment of their amenities will be affected by this proposed development.

8. The pre-consultation procedure in relation to this application was initiated on 30th May 2014 by a letter from EPI to the Board in

accordance with the procedure prescribed under s.37B of the 2000 Act (as amended) in relation to the proposed Emlagh wind farm

project in Co. Meath. Section 37B of the 2000 Act, as amended, states that, in respect of certain classes of development which may

comprise strategic infrastructure development (“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.”

9. Following the conclusion of the pre-application consultations entered into between EPI and the Board, the Board’s inspector

prepared a report dated 1st September 2014. At para. 5.1 of that report 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.”

10. The inspector was of the opinion that the proposed 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.

11. The inspector also drew attention in his report to the potential employment implications of the proposed development:

“…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.”

12. The inspector accordingly concluded that the proposed development came within the scope of s. 37A(2)(a) of the 2000 Act, as

amended. 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.

13. The Board subsequently issued a direction on 11th September 2014 to the following effect:

“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.”

(emphasis supplied)

14. The Board accordingly issued a formal notice to the effect that it was:-

“…of the opinion that the proposed development falls within the scope of ss. 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 s. 37A of

the Planning and Development Act 2000, as amended.”

15. The Board then directed that any application for permission for the proposed development must therefore be made directly to the

Board under s.37E of the 2000 Act rather than to the local planning authority (in this case, Meath County Council).

16. Following this SID designation, an application for planning permission was made to the Board by North Meath Wind Farm Ltd. (the

third notice party) on 6th October 2014. The applicant now challenges the validity of the Board’s decision that the proposed Emlagh

wind farm development is SID within the meaning of s.37A of the 2000 Act on the grounds that he was entitled to be heard prior to

the making of that decision.

17. It is next necessary to set out in some detail the relevant statutory provisions.

The relevant statutory provisions

18. The 2006 Act amended the 2000 Act by inserting the following provisions. Section 37A of the 2000 Act (as so inserted) 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).”

19. Section 37B of the 2000 Act 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 authority ’ 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).”

20. 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.”

21. Section 37D provides:

“(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.”

22. Section 37E provides:

“(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.”

23. 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.”

24. For completeness it may be noted that s. 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.”

25. Since the applicant also maintains that once the Board has determined that the project is of strategic importance for the purpose

of the admission of the application into the single procedure it cannot later re-visit that question as to do so would to question its

earlier decision otherwise than by way of judicial review, it may be convenient here to set out s. 50(2) of the 2000 Act:-

“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 ….

26. It is finally necessary to set out the terms of s. 143 of the 2000 Act:-

“(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.”

The decision of the High Court

27. The applicant advanced a variety of grounds of challenge before the High Court, all of which were rejected by Costello J. As I

have already observed, she granted leave to appeal on one ground only and this, accordingly, is the only issue which this Court has

any jurisdiction to consider: see s. 50A(11)(a) of the 2000 Act (as inserted by s. 13 of the 2000 Act).

28. On this issue Costello J. first noted that:-

“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.”

29. Costello J. went on to stress the limited nature of the decision to be made by Board on an application pursuant to s. 37B noting

that 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, saying that the opinion was formed solely for the purpose of deciding to which body (planning authority or

the Board) the prospective applicant should submit the application for planning permission. She added:-

“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.

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.

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.”

30. Costello J. further rejected the argument that the Board was effectively required by the statutory mechanism to pre-judge the

outcome or that by re-visiting the issue in its ultimate decision on the planning application it was effectively questioning the validity

of its original decision under s. 37A(2) to admit the application to the single procedure process other than by means of an application

for leave to apply for judicial review under s. 50 of the 2000 Act. Nor did she accept the argument that in the circumstances the

decision of the Board to admit the application to the single stage procedure without hearing third parties violated the applicant’s right

to fair procedures.

The nature of the s. 37A(2) decision

31. It is agreed that the 2000 Act does not expressly provide for a pre-application consultation procedure involving third parties prior

to the making by the Board of any decision admitting the proposed application to the special SID procedure under s. 37A(2). The

failure by the Oireachtas to make such express provision is not, of course, in itself dispositive, since in the absence of set statutory

procedures the constitutional obligation to abide by fair procedures will require the decision-maker if necessary to “create and carry

out procedures” which are fair and respect the substance of the constitutional guarantee: see O’Brien v. Bord na Móna [1983] I.R.

255, 286, per Finlay P. The real question, therefore, is whether it was necessary for the Board in the light of this constitutional

guarantee to create such procedures for third party consultation in the first instance. The answer to that question depends, as we

shall presently see, on whether the present applicant has been materially or practically affected by this decision to admit the planning

application to the single stage procedure.

32. In addressing this question, perhaps the first issue for consideration is the nature of the Board’s decision to admit the application

to the single stage SID procedure in accordance with s. 37A(2). This is of some importance because the answer to this question

necessarily informs a good deal of any analysis of the remainder of the questions posed in this appeal. If, for example, the decision so

to admit was a purely routine procedural one which was simply a preliminary to the ultimate decision on the merits of the planning

application, then it may be expected that any additional obligations imposed on the Board by the constitutional guarantee of fair

procedures over and above the statutory requirements would be a good less than if such a decision were to have significant

repercussions for the property rights of any affected third party, if, indeed, there were any at all.

33. At the hearing of the appeal it was common case that the service of a notice by the Board under s. 37A(2) of the 2000 Act to

admit the application into the single stage SID procedure is irreversible. Once that statutory opinion has been formed, then – save

where that opinion was to be quashed in judicial review proceedings - the application for planning permission must proceed to be

determined by the Board.

34. Does this mean, however, that the Board is obliged to entertain third party submissions prior to such a decision? The requirements

of fair procedures are not fixed and static and are ultimately dependent on a range of factors, such as the nature of the decision and

the implications for the parties likely to be affected thereby. What is critical is that the decision maker “may not act in such a way as

to imperil a fair hearing or a fair result”: see Kiely v. Minister for Social Welfare [1977] I.R. 267, 281, per Henchy J. In the context of a

planning adjudication the guarantee of fair procedures is principally directed at ensuring a high level of procedural justice will govern

the ultimate substantive adjudication of the Board upon the planning application.

The Supreme Court decision in Dellway Investments

35. There may, of course, be instances of where what might seem at first blush to have been a purely procedural decision had

significant implications for the rights of a third party. This, of course, was well illustrated by the Supreme Court’s decision in Dellway

Investments Ltd. v. National Asset Management Agency [2011] IESC 13, [2011] 4 I.R. 1, where the applicant could show that the

potential transfer of its bank loans from commercial banks to NAMA without reference to it was liable to have significant reputational

implications for the company and would impact on its property rights. The very act of such transfer of bank loans to a so-called “bad

bank” such as NAMA carried with it the implication in the minds of many (including financial institutions) that Dellway could not service

those loans, even if that implication was not warranted by a consideration of the objective facts.

36. Moreover, as Finnegan J. pointed out, the powers granted to NAMA by the National Asset Management Agency Act 2009 were

more extensive than those enjoyed by “ordinary” non-NAMA mortgagors under Part 10 of the Land and Conveyancing Law Reform Act

2009.

37. The Supreme Court accordingly held that fair procedures meant that the applicant was entitled to be heard prior to any decision

by NAMA to receive this tranche of loans, precisely because such a transfer of those loans quite obviously had material reputational

and practical implication for the borrowers.

38. The applicant maintains that the Dellway principles equally apply by analogy to the decision of the Board to admit the planning

application to the SID process. This, submission of course, pre-supposes that the applicant’s rights and interests are affected by this

decision, for as Hardiman J. observed ([2011] 4 I.R. 1, 280) in Dellway, the “trigger for fair procedures is that the person claiming

them is ‘affected’ by the decision.”

39. In his judgment in Dellway Fennelly J. also took up this theme, saying (20011] 4 I.R. 1, 328:

“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.”

40. Fennelly J. agreed – subject to an important caveat – with the following statement of principle which had been expressed thus by

the High Court:

“[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.”

41. Fennelly J. qualified that statement by observing ([2011] 4 I.R. 1, 328-329):

“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.”

Has the decision under s. 37A(2) of the 2000 had material and practical effects for the applicant in the Dellway

Investments sense?

42. Returning to the facts of the present case, can it therefore be said that the Board’s decision has had material and practical

effects so far as applicant was concerned in the sense understood by the Supreme Court in Dellway? The applicant maintains that the

decision is likely to pre-dispose the Board in favour of granting permission. Nevertheless, for my part, I agree with Costello J. that it is

difficult to identify any such material or practical effects, certainly so far as this applicant is concerned.

43. The fact that the planning application is now converted into a single one-stage procedure is not a material or practical effect in

this Dellway sense. It was fully open to the Oireachtas to provide for a mechanism whereby certain planning applications should be

determined by the Board alone without recourse to a planning authority at first instance. It cannot be said that the applicant is

materially or practically affected by this change.

44. The applicant’s second contention under this heading is that the s. 327A(2) procedure in effect permits the Board to pre-

determine certain questions on an ex parte basis – such as the question of strategic development – in a manner which is prejudicial to

him.

45. What is clear, however, is that the initial opinion which is formed by the Board for the purposes of s. 37A(2) is simply for the

limited and narrow statutory purpose of determining whether the one stage SID procedure should apply and for no other purpose. It

is, moreover, by definition, an opinion which has been formed on the basis on an ex parte view of the case made by the applicant for

permission. What, in reality, is happening here is that the Oireachtas has provided a mechanism by which a procedural decision

(namely, whether the ordinary planning application procedure or the special SID procedure) is taken.

46. While the Board is required to form the opinion for the purposes of this procedural decision under s. 37A(2), it cannot be supposed

that the Oireachtas intended or envisaged that such an opinion formed for procedural purposes on a purely one sided view of the

evidence and the arguments should be regarded as determinative or dispositive so far any consideration of the same issue in the

course of the substantive merits of the planning application is concerned. If that, indeed, were the nature of the scheme established

by s. 37A, the constitutionality of such a procedure would be seriously open to question since it would effectively deny third party

objectors the right to fair procedures in respect of the ultimate determination of any application for planning permission by providing

for the advance determination of key questions on an ex parte basis: see, e.g., by analogy the reasoning of the Supreme Court in DK

v. Crowley [2002] 2 I.R. 744. In that case the Supreme Court found s. 3 of the Domestic Violence Act 1996 to be unconstitutional,

precisely because it allocated a prescriptive weight to the ex parte decision of the District Court, as that decision stood unless the

respondent could show that that initial order had been wrongly granted.

47. This, however, is not at all what the Oireachtas had in mind so far as the present case is concerned. It must be accepted that

the Board might well form an opinion that the potential application presented issues of strategic planning importance - thus triggering

the SID procedure – having heard only at this stage the applicant for permission, as this is what the scheme of s. 37A(2) expressly

envisages. This, however, does not at all mean that when it comes to the ultimate substantive decision on whether to grant planning

permission the Board is bound by its earlier opinion formed under s. 37A(2). The Supreme Court has made it clear that an

administrative decision-maker hearing a matter inter partes cannot be bound or constrained by any view formed by the same

decision-maker when making an earlier determination on an ex parte basis for an altogether different statutory purpose: see Adam v.

Minister for Justice [2001] 3 I.R. 53.

48. All of this is to say that the Board can – and should – consider all of these issues afresh (such as, e.g, whether the proposed

development in question involves strategic infrastructure) and in the context of the required Environmental Impact Assessment when

determining the merits of the planning application once it has had the benefit of the submission from other third parties in the course

of making a final determination on the application under s. 37G. Precisely because the Board is not – and could not constitutionally –

be bound by any opinions which it formed on an ex parte basis when making the initial s. 37A(2) determination, I do not think that the

applicant can demonstrate that he is materially affected by this decision in the Dellway sense of this term. Put another way, it cannot

be said that the Board’s initial opinion which results in the SID procedure materially impacts on the applicant’s entitlement to have the

substantive planning decision determined by the Board in a manner which is fair and in accordance with the criteria stipulated by the

2000 Act. This is right is, in any event, expressly preserved by s. 37G of the 2000 Act (as amended).

49. In many ways the present case is similar in terms of principle to that of a decision which I delivered as a judge of the High Court

in Heatons Ltd. v. An Bord Pleanála [2013] IEHC 261. In that case I held that a local authority did not breach fair procedures by failing

to give advance notice to the landowner of the making of a statutory reference to the Board under s. 5(4) of the 2000 Act. I

concluded that this was so even though the reference in question essentially asked whether the occupier of the lands was doing so in

a manner consistent with the terms of a specified planning permission. In Heatons I rejected the comparison with Dellway

Investments, saying:

“The fundamental reason, however, why no such advance notice is required is because the merits of the application will

be adjudicated fairly by the Board…Heatons would therefore get that opportunity to be heard before any decision adverse

to its interests might possible be taken….”

50. Much the same can be said here. In summary, therefore, I am of the view that the Board’s original s. 37A(2) opinion results in a

procedural decision which does not have any material or practical effects for the applicant in the sense envisaged by the Supreme

Court in Dellway. The applicant’s entitlement is to a fair adjudication on the substantive merits of EPI’s application for planning

permission in accordance with law. As that latter entitlement is not materially or practically affected by the adoption of the single

stage SID procedure, the applicant’s right to fair procedures does not extend to any entitlement to be heard by the Board prior to

forming an opinion pursuant to s. 37A(2).

The Board’s power to advise applicants for permission

51. As part of his general argument that the third party objectors were disadvantaged as compared with developers once the SID

procedure was triggered by the Board in comparison with “ordinary” applications for planning permission, the applicant pointed to s.

37B(3) which enables the Board in the course of the consultation process to give advice to the proposed developer “regarding the

proposed application and, in particular…regarding whether the proposed development would, if carried out, fall within….s.37A(2).”

52. None of this, however, compels the Board to adopt any substantive conclusion so far as the application for permission itself is

concerned nor does it suggest that by doing so and giving such advice the Board is pre-disposing itself in favour of the developer.

This is underscored by the provisions of s. 37C(2) which makes clear that the holding of any such s. 37B consultation shall not

prejudice the performance of any of its statutory functions and, moreover, “cannot be relied upon in the formal planning process or in

legal proceedings.” It might also be noted that so far as the “ordinary” application for planning permission are concerned, s. 247(1) of

the 2000 Act allows the planning authority to enter into consultations with a proposed applicant for permission to “give advice to that

person regarding the proposed application.” Section 247(2) further enables the authority to advice the person concerned:

“of the procedures involved in considering a planning application, including any requirements of the permission regulations

and shall, as far as possible, indicate the relevant objectives of the development plan which may have a bearing on the

decision of the planning authority.”

53. In these circumstances, one is obliged to say that there is in this respect no material difference between the “ordinary” planning

procedure and the procedures provided under s. 37A et seq, of the 2000 Act (as amended) save that the application is to a different

body.

The Board’s power to revise existing planning permissions granted under the SID procedure

54. Section 146B of the 2000 Act enables the Board to amend a planning permission granted under the SID procedure, whereas in

“ordinary” cases the application for amendment is made to the planning authority (even if the actual permission was granted by the

Board). But this, it seems to be, is just a necessary consequence of the fact that in the case of permissions granted under the SID

procedure the planning authority has had no role at all in the process. This power thus simply reflects the single-stage nature of the

permissions granted under this procedure.

55. It is, however, important to note that even in this instance the procedural rights of a third party such as Mr. Callaghan are fully

protected and safeguarded. Section 146B(2)(b) of the 2000 Act provides that:-

“Before making a decision [permitting an amendment] under the subsection, the Board may invite submissions in relation

to the matter to be made by it by such person or class of person as the Board considers appropriate (which class may

comprise the public if, in the particular case if, in the particular case, the Board considers that it shall do so) and the

Board shall have regard to any submissions made to it on foot of that invitation.”

56. It follows, therefore, that if the proposed amendment is likely to affect the interests of a discrete or more general class of

persons, the Board is obliged to call for submissions. In these circumstances, I do not see that the existence of the statutory power

of amendment by the Board materially affects the rights of a potential third party objector as compared with the “ordinary” planning

procedure.

The possible implications for s. 143 of the 2000 Act

57. The applicant also points to the fact that s. 143(b) of the 2000 Act requires the Board to have regard to “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”

in making its substantive decision on the planning application. The argument here is that if the Board has already formed an opinion on

the strategic infrastructure question in the context of s. 37A(2)(b), it has pre-determined this question when it subsequently comes

to make a determination on the substantive issue.

58. Once again, however, I do not think that this submission is well founded. The decision on strategic infrastructure made by the

Board under s. 37A(2) is made on an ex parte basis for one, limited – although admittedly important – statutory basis. For all the

reasons I have already set out to explain, the fact that the Board has arrived at a view on this issue of strategic development for one

purpose and in one special statutory context, can in no sense foreclose or pre-determine the conclusion of the Board on this self-

same question in a quite different statutory context where it has had the benefit of submissions addressing this question and not

simply those provided by the developer.

Whether the Board is bound by its original determination by reason of s. 50(2) of the 2000 Act

59. It remains to consider the applicant’s contention that the Board cannot re-visit the initial s. 37A(2) determination regarding

strategic infrastructure in the course of making the substantive adjudication in respect of the planning permission because to do so

would involve a questioning of “the validity of any decision” of the Board other than by means of the judicial review procedure

specified and required by s. 50(2) of the 2000 Act. For my part, I consider that this submission is unsound.

60. It is plain that a re-visiting by the Board of the questions of strategic infrastructure at the substantive stage does not involve it

in “questioning the validity” of the original decision under s. 37A(2). As I have already noted, the original decision under s. 37A(2) is

irreversible, save to the extent that it is quashed in judicial review proceedings. The fact that the Board may wish to re-visit some of

these questions in the course of the substantive adjudication does not in any sense imply that the Board is challenging - whether

directly or indirectly – that the validity of the earlier decision.

61. By proceeding with the application following the admission to the SID procedure the Board necessarily proceeds on the basis that

its original decision under s. 37A(2) was valid. The Board formed an opinion on strategic infrastructure for one statutory purpose (i.e.,

admission to the SID procedure). The fact that it may take a different view of this question in a different statutory context (namely,

the adjudication on the substantive planning application) does not in itself suggest or imply that it is seeking to impeach or quash the

original decision as invalid.

62. There is, accordingly, no substance to the contention that the re-visiting of aspects of the original decision taken for one purpose

in a quite different statutory context amounts to a challenge to the legal validity of the first decision. In such circumstances there is

no basis for the contention that the prohibition contained in s. 50(2) of the 2000 Act is thereby breached.

Conclusions

63. In summary, therefore, I am of the view that the opinion formed by the Board under s. 37A(2) of the 2000 Act which resulted in

the single stage SID procedure did not materially or practically affect the rights of the applicant in the sense understood by the

Supreme Court in Dellway Investments such as would oblige the Board to entertain submissions from him as a third party prior to

forming of any such opinion. Nor can it be said that if the Board were to re-visit the question of strategic development having heard

submissions from all parties in the quite different context of making a substantive decision on the application for planning permission it

would involve the Board questioning the validity of its own decision other than by means of judicial review in the manner specified and

required by s. 50(2) of the 2000 Act.

64. Since I consider that Costello J. was entirely correct in both her reasoning and ultimate conclusion on this question, I would

propose answering the certified question in the negative and I would accordingly dismiss the applicant’s appeal.