Supreme Court dismisses appeal holding no right to be heard exists for strategic infrastructure planning applications.

THE SUPREME COURT

Record No. 19/2017

Clarke C.J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

In the matter of

Section 50A(7) of the Planning and Development Act 2000 (As Amended)

Between/

John Callaghan

Applicant/Appellant

and

An Bord Pleanála, Ireland and the Attorney General

Respondents

And

Element Power Ireland Limited, Element Power Ireland and North Meath Wind Farm

Notice Parties/Respondents

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 31st July 2018

1. Introduction

1.1 There have been a number of measures introduced which have the effect of altering the planning system in respect of the grant

of permissions relating to what are considered to be strategic infrastructure developments. The policy behind such legislative changes

seem to be designed so that the planning process is more streamlined in such cases, presumably reflecting a view that infrastructure

developments which are considered to be strategic from a national point of view should have the benefit of a streamlined process.

1.2 However, these proceedings are not concerned with the general merits or otherwise of adopting streamline procedures for

strategic infrastructure developments (“SID”). The issues which arise on this appeal are in reality concerned only with one aspect of

the process. It will be necessary to set out the procedures which are followed in the case of a potential “SID” in due course.

However, at a very simple level there is what might be described as an ex parte application by a developer to the respondent (“the

Board”) as a result of which the Board may make a decision that a proposed development is an “SID” for the purposes of the Planning

and Development (Strategic Infrastructure) Act 2006 (“the 2006 Act”). At this stage of the process no other party is involved beyond

the developer and the Board and in particular no opportunity is afforded to members of the general public or interested parties to

make observations concerning the question of whether the proposed development should properly be regarded as qualifying as an

“SID” in accordance with the criteria set out in the 2006 Act.

1.3 If, however, the Board determines that the proposed development is an “SID” then the application for planning permission is

brought direct to the Board rather than to the relevant local authority acting as planning authority. There are also some issues

between the parties as to whether, on the proper construction of the 2006 Act, there are further differences between the process

which is to be followed respectively when a proposed development obtains or does not obtain “SID” status. But the net legal question

which arises on this appeal is as to whether a person who wishes to become involved in the process (such as the applicant/appellant

(“Mr. Callaghan”)) has an entitlement in law to be involved in the process at the earlier stage of the consideration by the Board of

whether the application for permission should go down the “SID” route. The Board considers that no such entitlement exists and

persons such as Mr. Callaghan were not afforded the opportunity to be involved in the planning application which is the subject of

these proceedings at that earlier stage. On that basis, Mr. Callaghan sought to review the decision made by the Board in forming its

opinion under the relevant statutory provisions that the proposed development, which was the subject of the planning application in

these proceedings, would comprise SID. That opinion was reached following an application by the first named notice party (“Element

Power”). The second and third named respondents (“the State”) largely supported the position of the Board as did Element Power.

1.4 The judicial review proceedings failed before the High Court (Costello J.) (Callaghan v. An Bord Pleanála and ors [2015] IEHC 357).

However, the trial judge certified a point of law for appeal to the Court of Appeal. In substance, the issue raised was as to whether

the legislation gave rise to an implied entitlement on the part of a person such as Mr. Callaghan to be heard at the earlier stage.

Hogan J., writing for the Court of Appeal, answered that question in the negative for reasons set out in Callaghan v. An Bord Pleanála

[2016] IECA 398. Thereafter, leave to appeal to this Court was granted.

1.5 In order to put the issue in somewhat greater context it is appropriate to start by setting out the facts, followed by the relevant

procedural history.

2. The Facts

2.1 The circumstances which lead to the commencement of these proceedings are as follows. Element Power proposed to develop a

windfarm consisting of 46 turbines on 3 clusters of land near Kells in County Meath. By letter dated the 30th May 2014, Element

Power initiated the pre-application consultation procedure which is provided for in the 2006 Act and the details of this procedure will

be set out below. Following the conclusion of these consultations, the Board’s Inspector issued a report dated 1st September 2014

concerning whether or not the proposed development was SID and answered that question in the affirmative.

2.2 The Board held a meeting on the 11th September 2014 to consider the Inspector’s report and determined that the proposed

development would comprise SID. Element Power were informed of this conclusion by letter dated the 12th September 2014. The

letter also indicated that, as a result of this designation, the application for permission must be made directly to the Board rather than

to the local planning authority. The application for permission was made by the third named notice party, of which Element Power is

the majority shareholder, on 6th October 2014. On the 10th November 2014, Mr. Callaghan brought an application for leave to apply

for judicial review.

2.3 On the 4th February 2016, the Board refused permission in respect of the proposed development. It follows that, strictly speaking,

this appeal is moot. However, it is clear that applications of this type are a regular feature of the planning system and the point which

arises would apply in any case involving an SID. There is, therefore, considerable merit in attempting to remove uncertainty in this

important area of environmental law. Furthermore there is every possibility that a further application might be made by the same or

other parties for a similar development in respect of which Mr. Callaghan might wish to object. Therefore the net issue which arises on

this appeal may well recur in a very similar context. For those reasons the Court was persuaded that it was appropriate to consider

and determine this appeal notwithstanding the fact that it was moot.

2.4 It was against the background of those facts that Mr. Callaghan launched these judicial review proceedings. I therefore turn to

the course of the proceedings up to the point when they were determined in the Court of Appeal.

3. The Proceedings to date

3.1 As noted above, Mr. Callaghan sought to challenge the designation of the proposed development as SID. The application for leave

to seek judicial review and the substantive judicial review hearing were dealt with by way of a single ‘telescoped’ hearing in the High

Court. The High Court (Costello J.) delivered its decision in those proceedings on 11th June 2015, refusing to grant leave to seek

judicial review on the basis that Mr. Callaghan had not established substantial grounds for quashing the decision of the Board, or for a

declaration that the decision is invalid. Similarly, Costello J. was not satisfied that there were substantial grounds for declaring that

the Environmental Impact Assessment Directive (Directive 2011/92/EU) had not been properly transposed into Irish law and

accordingly leave was also refused in relation to this argument.

3.2 Section 50A(7) of the Planning and Development Act 2000 (as amended) (“the 2000 Act”) provides that an appeal may only be

taken from certain environmental decisions where the High Court certifies that its decision involves a point of law of exceptional public

importance and that it is desirable in the public interest that an appeal be taken. That provision applied to these proceedings and Mr.

Callaghan sought such leave. Costello J. was satisfied that Mr. Callaghan had met this standard in relation to one of the points raised

in his application (Callaghan v. An Bord Pleanála and ors [2015] IEHC 493). She therefore certified the following question to be

pursued on appeal by Mr. Callaghan.

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

in the light of Sections 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 Section 37A of the Planning and Development Act 2000.”

3.3 Following the granting of the above certificate by the High Court, Mr. Callaghan initially sought leave to appeal directly to this

Court. This application was refused (Callaghan v. An Bord Pleanála [2015] IESCDET 60) on the basis that the applicant had failed to

show that there were exceptional circumstances warranting a direct appeal to this Court, and furthermore this Court was satisfied

that the appeal was one which should more properly follow the ‘ordinary’ appellate route and be heard by the Court of Appeal.

3.4 This was indeed the route which was taken, and the question certified by the High Court came before the Court of Appeal for

consideration. The Court of Appeal (Hogan J.) delivered its decision on the 21st December 2016 (Callaghan v. An Bord Pleanála and

ors [2016] IECA 398). It will be necessary to return in greater detail to the reasoning of the Court of Appeal in due course. However

for present purposes it is sufficient to note that the Court was satisfied that the opinion formed by the Board, which resulted in the

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

Court in Dellway Investments Ltd. v. NAMA [2011] IESC 13. Furthermore, Hogan J. concluded that, if the Board were to revisit the

question of strategic development, having heard submissions from all parties in the context of making a substantive decision on the

application for planning permission, it would not involve the Board in 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. Hogan J. agreed entirely with Costello J.’s

reasoning and her ultimate conclusion and consequently answered the question certified in the negative.

3.5 Mr. Callaghan subsequently applied for leave to appeal the decision of the Court of Appeal to this Court, which leave was granted

(Callaghan v. An Bord Pleanála and ors [2017] IESCDET 32). It was stated by this Court that the fact that the decision which was

sought to be appealed involved a point of law of exceptional public importance as certified by the High Court was a material factor in

its consideration. Furthermore, in the earlier determination denying Mr. Callaghan leave to appeal directly from the High Court, this

Court did not reach any definitive conclusion as to whether the point of law which had been certified by the High Court involved a

“matter of general public importance”. Therefore, this Court considered that the earlier denial of leave did not operate as a

precedential restraint in the context of the later application. Ultimately, this Court was satisfied that Mr. Callaghan had raised an

issue of general public importance and consequently granted leave to appeal to this Court with regard to the question certified by the

High Court.

3.6 One final issue which should be addressed here arose during the case management process for this appeal. A question arose as to

whether Mr. Callaghan had, in written submissions filed on his behalf, gone beyond the scope of the appeal permitted in accordance

with the determination of this Court granting leave to appeal. It was decided that it would be appropriate to hold an oral hearing

before a three judge panel to determine the proper scope of the appeal in advance of the substantive hearing. This Court has taken

the view that substantive matters of that sort should not be determined by a single case management judge.

3.7 The particular matter which was said to stray beyond the scope of the grant of leave was an issue of European law, in particular

an argument which arose in the High Court concerning the transposition of the EIA Directive into Irish law. I delivered judgment on the

scope of appeal issue on the 27th July 2017 (Callaghan v. An Bord Pleanála and ors [2017] IESC 60), concluding as follows at

paragraphs 5.1 to 5.4:-

“5.1 For the reasons set out in this judgment I have come to the view that the proper approach of the Court to

determining the scope of an appeal subsequent to the 33rd Amendment is to confine an appellant to issues which can

fairly be said to arise within the scope of the appeal as identified in the determination of this Court granting leave to

appeal. However, I also propose that the Court should not, in so confining an appeal, adopt an overly technical or narrow

approach but rather should consider whether, on a fair basis, it can be said that the arguments sought to be relied on

come within the broad scope of the leave granted.

5.2 In addition, I have come to the conclusion that, where the potential construction of a statute or legislative measures

is at issue in proceedings, this Court should not ignore arguments which might impact on the proper objective

construction of the measures concerned which derive either from the principle of constitutional construction or from the

requirement of conforming interpretation as a matter of European Union law.

5.3 In those circumstances, I would propose that Mr. Callaghan be permitted to rely on any European Union law

arguments which might be relevant to the proper construction of the statutory framework under the 2006 Act which is at

the heart of these proceedings provided that those arguments are directed towards a construction of that statutory

framework in the manner advanced on behalf of Mr. Callaghan in the courts below.

5.4 However, I would not propose that Mr. Callaghan should be entitled to raise a pure transposition argument. I would,

therefore, confine Mr. Callaghan’s arguments under European law to matters which might legitimately be said to have an

impact on the proper construction of the relevant statutory framework.”

3.8 It follows, therefore, that the issues which fall to be decided on this appeal are those which were the subject of leave to appeal

as clarified by the decision of this Court on the scope of appeal issue. In order to understand the precise questions which arise it is

appropriate to start by an analysis of the relevant legislation.

4. The 2006 Act

4.1 The 2006 Act amended the 2000 Act by, amongst other things, inserting ss. 37A to 37K, to make provision for the SID designation

and planning application procedure. The 2006 Act also added the Seventh Schedule to the 2000 Act which outlines the categories of

development which can qualify as SID, including amongst other things:-

“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.”

4.2 Section 37A 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 spatial and economic strategy 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).

4.3 Section 37B 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).”

4.4 Section 37C 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.”

4.5 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.”

4.6 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.

4.7 Section 37E goes on to set out the notice requirements in relation to the EIA.

4.8 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.”

4.9 Mr. Callaghan also makes reference to a number of areas where he argues procedural differences exist between the conventional

planning process and the SID process which are said to operate to place a third party at a disadvantage during the SID process.

4.10 In this context, it is necessary to set out s. 146B of the 2000 Act, as inserted by the 2006 Act, which provides for the alteration

by the Board of an SID permission:-

“(1) Subject to subsections (2) to (8) and section 146C, the Board may, on the request of any person who is carrying out

or intending to carry out a strategic infrastructure development, alter the terms of the development the subject of a

planning permission, approval or other consent granted under this Act.

(2) (a) As soon as practicable after the making of such a request, the Board shall make a decision as to whether the

making of the alteration to which the request relates would constitute the making of a material alteration of the terms of

the development concerned.

(b) Before making a decision under this subsection, the Board may invite submissions in relation to the matter to be made

to it by such person or class of person as the Board considers appropriate (which class may comprise the public if, in the

particular case, the Board determines that it shall do so); the Board shall have regard to any submissions made to it on

foot of that invitation.

(3) If the Board decides that the making of the alteration—

(a) would not constitute the making of a material alteration of the terms of the development concerned, it shall alter the

planning permission, approval or other consent accordingly and notify the person who made the request under this

section, and the planning authority or each planning authority for the area or areas concerned, of the alteration,

(b) would constitute the making of such a material alteration, it shall determine whether to—

(i) make the alteration,

(ii) make an alteration of the terms of the development concerned, being an alteration that would be different from that

to which the request relates (but which would not, in the opinion of the Board, represent, overall, a more significant

change to the terms of the development than that which would be represented by the latter alteration), or

(iii) refuse to make the alteration.

(4) Before making a determination under subsection (3)(b), the Board shall determine whether the extent and character of

—

(a) the alteration requested under subsection (1), and

(b) any alternative alteration it is considering under subsection (3)(b)(ii),

are such that the alteration, were it to be made, would be likely to have significant effects on the environment (and, for

this purpose, the Board shall have reached a final decision as to what is the extent and character of any alternative

alteration the making of which it is so considering).

(5) If the Board determines that the making of either kind of alteration referred to in subsection (3)(b)—

(a) is not likely to have significant effects on the environment, it shall proceed to make a determination under subsection

(3)(b), or

(b) is likely to have such effects, the provisions of section 146C shall apply.

(6) If, in a case to which subsection (5)(a) applies, the Board makes a determination to make an alteration of either kind

referred to in subsection (3)(b), it shall alter the planning permission, approval or other consent accordingly and notify the

person who made the request under this section, and the planning authority or each planning authority for the area or

areas concerned, of the alteration.

(7) In making a determination under subsection (4), the Board shall have regard to the criteria for the purposes of

determining which classes of development are likely to have significant effects on the environment set out in any

regulations made under section 176.

(8) (a) Before making a determination under subsection (3)(b) or (4), the Board shall—

(i) make, or require the person who made the request concerned under subsection (1) to make, such information relating

to that request available for inspection for such period,

(ii) notify, or require that person to notify, such person, such class of person or the public (as the Board considers

appropriate) that the information is so available, and

(iii) invite, or require that person to invite, submissions or observations (from any foregoing person or, as appropriate,

members of the public) to be made to it in relation to that request within such period, as the Board determines and, in the

case of a requirement under any of the preceding subparagraphs, specifies in the requirement; such a requirement may

specify the means by which the thing to which it relates is to be done.

(b) The Board shall have regard to any submissions or observations made to it in accordance with an invitation referred to

in paragraph (a).

(c) The Board shall notify any person who made a submission or observation to it in accordance with that invitation of its

determination under subsection (3)(b) or (4).

(9) In this section ‘term’ has the same meaning as it has in section 146A.”

4.11 Mr. Callaghan refers to s. 34(6) of the 2000 Act, which provides for the granting of permission in a conventional planning

application where the proposed development would be in material contravention of a development plan. That section provides in

relevant part:-

“(a) In a case in which the development concerned would contravene materially the development plan or local area plan,

a planning authority may, notwithstanding any other provision of this Act, decide to grant permission under this section,

provided that the following requirements are complied with before the decision is made, namely—

(i) notice in the prescribed form of the intention of the planning authority to consider deciding to grant the permission

shall be published in at least one daily newspaper circulating in its area and the notice shall specifically state which

objective of the development plan would be materially contravened by granting this permission,

(ii) copies of the notice shall be given to each of the following—

(I) the applicant,

(II) a prescribed body which has been notified of the application by the planning authority, and

(III) any person who has made a submission or observation in writing in relation to the development to which the

application relates,

(iii) any submission or observation as regards the making of a decision to grant permission and which is received by the

planning authority not later than 4 weeks after the first publication of the notice shall be duly considered by the authority

(iiia) not later than 6 weeks from the publication of the notice under subparagraph (i), the manager shall prepare a report

for the planning authority advising the authority of his or her opinion regarding the compliance or otherwise of the

proposed development under any relevant Ministerial guidelines under section 28 or any relevant policies or objectives of

the Government or Minister of the Government or with any regional planning guidelines and the report shall be considered

by the authority before a resolution is passed under subparagraph (iv), and] (iv) a resolution shall be passed by the

authority requiring that a decision to grant permission be made.

(iv) a resolution shall be passed by the authority requiring that a decision to grant permission be made.”

4.12 Also in this context reference should be made to s. 37(2)(b) of the 2000 Act:-

“Where a planning authority has decided to refuse permission on the grounds that a proposed development materially

contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it

considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the

proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to regional planning guidelines for the area,

guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in the area,

and any relevant policy of the Government, the Minister or any Minister of the Government, or

(iv) permission for the proposed development should be granted having regard to the pattern of development, and

permissions granted, in the area since the making of the development plan.”

4.13 Furthermore, it is necessary to set out s. 143 of the 2000 Act (as amended):-

“(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.

(2) In this section ‘ public authority ’ means any body established by or under statute which is for the time being

declared, by regulations made by the Minister, to be a public authority for the purposes of this section.”

4.14 It is also necessary to refer to the Planning and Development Regulations 2001 (as amended) (“the 2001 Regulations”). Mr.

Callaghan pointed to article 22(2)(g) of the 2001 Regulations, which provides that, in the context of a conventional planning

application where the applicant is not the legal owner of the land or structure concerned, such application must be accompanied by

“the written consent of the owner to make the application”. Mr. Callaghan submitted that there is no such requirement in the context

of an application which goes down the SID route.

4.15 Mr. Callaghan further referred to articles 17, 18 and 19 of the 2001 Regulations, which make provision for the notice

requirements in the context of a conventional planning application, for the publication of the notice in a newspaper, and for the

erection of a site notice on the land or structure to which the application relates.

4.16 Reference is also made to articles 22 and 23 of the 2001 Regulations which make detailed provision for the content of

conventional planning applications, and the requirements for particulars which accompany such an application. By way of contrast,

Mr. Callaghan refers to the Part 18 of the 2001 Regulations which deal with SID applications. In particular, article 210(2) provides that

the during the course of the pre-application consultation, the Board shall indicate to a prospective applicant “the plans, particulars or

other information which the Board will require for the purposes of consideration of an application” as well as “the time frames and

sequencing to be applied to the application process” and “any other matters in relation to the application process as the Board

considers appropriate”.

4.17 Mr. Callaghan also sought to contrast the procedural differences between conventional planning applications and SID applications

in the context of modifications to the proposed development. He seeks to contrast the procedure under s. 37G(3)(a)(ii) (see above),

which provides for the making by the Board of modifications to the proposed development, with the requirements under articles 34

and 35 of the 2001 Regulations in the conventional permission process. The essential difference, counsel for Mr. Callaghan submitted,

is that in the SID context the Board can make modifications to the proposed development and grant permission in relation to the

modified proposed development without requiring any further public input. Under articles 34 and 35, the planning authority must first

seek modified plans from the developer and where the authority considers that the “information, evidence, revised plans, drawings or

particulars received … contain significant additional data” provision is made for further notice requirements in relation to the revised

plans and there is provision for further public engagement in relation to the proposed development as modified.

4.18 Finally, reference must be made to s. 50(2) of the 2000 Act, which makes provision for the judicial review procedure in relation

to decisions of the Board:-

“(2) 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’).”

4.19 In the light of that statutory regime it is next appropriate to consider the interpretation placed on those legislative provisions by

the Court of Appeal.

5. The Court of Appeal Judgment

5.1 Before setting out the reasoning of the Court of Appeal, it is important to recall that that Court was asked to address itself to the

specific question which had been certified by the High Court, which is set out above. Hogan J. summed up the issue as follows:-

“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.”

5.2 Hogan J. began his analysis by noting that there is no provision made in the 2006 Act for the making of third party submissions at

the pre-application consultation stage of the SID process. However, he went on to state that this is not in and of itself dispositive,

as:-

“… 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.”

5.3 Consequently, Hogan J. isolated the question to be answered by the Court as being whether it was necessary for the Board, in

light of the above-mentioned constitutional guarantee, to create procedures to allow for third party consultation at the pre-

application stage. Hogan J. stated that, “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.”

5.4 Before going on to consider the answer to that question, Hogan J. noted the importance of identifying the nature of the decision

of the Board to admit the application to the single stage SID procedure. Hogan J. stated:-

“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 (sic) 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.”

5.5 In this context, Hogan J. went on to consider the judgment of this Court in Dellway Investments. Hogan J. stated that this was a

good example of a situation where what might have seemed “at first blush to have been a purely procedural decision had significant

implications for the rights of a third party.” Dellway, of course, concerned the potential transfer of the applicant’s bank loans to NAMA

in circumstances where the applicant did not have a right to be heard prior to such a decision to transfer taking place. This Court in

Dellway concluded that the applicant was entitled to be heard prior to any decision by NAMA to transfer the loans, as such transfer

would have material and practical implications for the applicant.

5.6 Hogan J. set out the standard enunciated by this Court in Dellway regarding the trigger for fair procedures, referring to the

judgment of Hardiman J., who noted that the trigger was that the person claiming fair procedures is “affected” by the decision.

Similarly, Hogan J. noted the comments of Fennelly J. in Dellway to the effect that:-

“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.”

5.7 Fennelly J. further stated in Dellway:-

“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.”

5.8 Thus, Hogan J. continued by stating that the question to be addressed in the context of this appeal is “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?” He stated that it is difficult to identify any such material or practical effects. Hogan J. stated that it is

open to the Oireachtas to provide that certain planning applications be dealt with by a single stage procedure as in the present case.

To do so does not have material or practical effects on Mr. Callaghan.

5.9 Hogan J. rejected Mr. Callaghan’s argument that the single stage SID procedure effectively permits the Board to pre-determine

certain issues on an ex parte basis in a manner which is prejudicial to him. Hogan J. stated that the initial opinion formed by the Board

that the proposed development, if it were to be carried out, would comprise SID “is simply for the limited and narrow statutory

purpose of determining whether the one stage SID procedure should apply and for no other purpose.” Hogan J. stated that it would be

unconstitutional for the Oireachtas to provide for a procedure whereby the Board is bound at the later substantive decision-making

stage by an opinion reached on a procedural matter at a preliminary ex parte stage. He stated:-

“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.”

5.11 Hogan J. stated that the Board can and indeed should consider all matters afresh at the subsequent substantive decision making

stage, including whether the proposed development involves strategic infrastructure. He concluded on this point by stating:-

“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 [Element Power’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).”

5.12 Hogan J. then went on to consider the arguments which Mr. Callaghan raised to support the broader proposition discussed

above, regarding the disadvantages faced by a third party who is precluded from engaging in the application process prior to the

Board forming its opinion that a development would comprise SID. Hogan J. first considered the argument regarding the Board’s power

to advise applicants for permission under the s. 37B(3) of the 2000 Act. Hogan J. stated:-

“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.’”

5.13 Furthermore, Hogan J. pointed to an analogous provision in “ordinary” planning applications, allowing the Board to consult with

the applicant prior to the application, under s. 247 of the 2000 Act. Hogan J. concluded:-

“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.”

5.14 Hogan J. then considered Mr. Callaghan’s argument concerning the Board’s power to amend a planning permission granted under

the SID procedure. In “ordinary” cases such an application to amend is made to the planning authority. Hogan J. considered that this

was simply a logical consequence of the fact that the SID procedure involved a single stage application made directly to the Board.

Thus, it was considered that it seemed necessary that the Board should also have a power of amendment. Furthermore, Hogan J.

noted that s. 146B(2) of the 2000 Act (as amended) allows the Board to invite submissions before making a decision permitting an

amendment and must consider any submissions so invited. Thus, Hogan J. concluded that Mr. Callaghan’s procedural rights received

adequate protection in this regard.

5.15 Next, Hogan J. considered Mr. Callaghan’s argument regarding s. 143 of the 2000 Act, subs. (b) of which 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. Mr. Callaghan’s argument

was that in forming its opinion at the initial stage of the SID procedure, this predetermined that issue when the Board subsequently

comes to make its substantive decision. Hogan J. disposed of this question on the same basis as highlighted above to the effect that

the Board has an obligation to consider this matter afresh at the substantive stage of the process.

5.16 Finally, Hogan J. turned to an argument relating to s. 50(2) of the 2000 Act. Essentially, Mr. Callaghan argued that if the Board

were to revisit its opinion formed under s. 37A(2) that the proposed development would comprise SID, this would be to question “the

validity of any decision of the Board other than by means of judicial review” as required by s. 50(2). Hogan J. considered this

submission to be unsound. He stated:-

“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.”

5.17 Hogan J. continued to note that by proceeding with application following admission to the SID procedure necessarily is done so

on the basis that the earlier decision under s. 37A(2) is valid. Hogan J. highlighted the different statutory purposes served at each

stage of the procedure. Consequently, the argument under this heading was also rejected.

5.18 Hogan J. then concluded by stating:-

“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.”

5.19 Accordingly, the question certified was answered in the negative. In those circumstances it is necessary to consider the issues

which arise on this appeal.

6. Discussion

6.1 There are, in reality, a number of inter-related questions which arise on this appeal. Ultimately, the substantive issue concerns

the entitlement or otherwise of Mr. Callaghan to be heard at the preliminary stage of the SID process. That, in turn, depends on

whether it can be said that his interests are affected by the decision to permit the application in question to go down the SID route

in such a way that his entitlement to be heard arises in the light of the principles identified by this Court in Dellway.

6.2 However, an integral part of that consideration involves a second major issue of contention, being the question of the extent to

which it is open to the Board, in considering a substantive application for development consent, to revisit questions which must

inferentially have impacted on the Board’s decision to permit the case to go down the SID route in the first place. Put another way, if

Mr. Callaghan is correct in asserting that the Board cannot revisit matters which, on his argument, were definitively and finally

determined by virtue of the decision to deem the project to be an SID, then his case would undoubtedly be strengthened for

suggesting that material matters have been finally determined at the preliminary stage. That is not to say that he does not have

some additional arguments concerning the differences which are said to apply in circumstances where a case is progressed down the

SID route rather than through the ordinary planning process. It will be necessary to address those arguments in any event. However,

a significant part of Mr. Callaghan’s case was based on the contention that it was not open to the Board (contrary to what was

decided by the Court of Appeal) to re-open what I might loosely call SID matters at the substantive hearing. It is to that issue which

I will first turn.

6.3 However, before so doing it is perhaps appropriate to touch on the question of European Union law which this Court indicated, in

its ruling on the scope of this appeal, could properly arise in the circumstances of this case. As already noted the Court indicated that

it was open to Mr. Callaghan to urge on the Court any argument concerning the proper construction of the relevant legislation which

was mandated by European Union law. The Court took that view because it had concluded that it would be wrong, as a matter of

Union law, for a court to place a construction on national legislation in any case where that legislation was impacted by Union law

without having regard to the well established requirements of Union law concerning the manner in which national law with a Union law

dimension should be construed.

6.4 There is no doubt that it is well established in European Union law in the environmental area that, in cases where Union law

applies, a party must be entitled to be heard at a stage in the process where all relevant matters are still alive in the sense that the

final decision on those matters can still be influenced. To put the same principle in the negative it is impermissible that a party be

deprived of the opportunity to be heard at a stage where material final decisions are made on some aspect of the consent process,

thus depriving the relevant party of the opportunity to seek to influence that aspect of the decision.

6.5 For example, this approach can be seen in the judgment of the Court of Justice of the European Union in Case C-416/10 Križan

which concerned inter alia the requirement for early and effective public participation in the environmental sphere in the context of

Directive 96/61 EC and the Aarhus Convention. The CJEU stated:-

“In that regard, it is important to note that Article 15 of Directive 96/61 requires the Member States to ensure that the

public concerned are given early and effective opportunities to participate in the procedure for issuing a permit. That

provision must be interpreted in the light of recital 23 in the preamble to that directive, according to which the public

must have access, before any decision is taken, to information relating to applications for permits for new installations,

and of Article 6 of the Aarhus Convention, which provides, first, for early public participation, that is to say, when all

options are open and effective public participation can take place, and, second, for access to relevant information to be

provided as soon as it becomes available. It follows that the public concerned must have all of the relevant information

from the stage of the administrative procedure at first instance, before a first decision has been adopted, to the extent

that that information is available on the date of that stage of the procedure.

…

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.” (Emphasis added)

6.6 This point, however, seems, in effect, to be virtually identical to the question which I hope shortly to address concerning the

extent to which matters determined in the context of the SID can be revisited at the substantive stage. Clearly if such matters

cannot be revisited then the Court would have to give serious consideration to the impact of Union law in that regard, for it might well

give rise to a situation where material matters had been definitively and finally determined prior to the permitted involvement of a

legitimately interested party. However, whether that be so in itself depends on the proper answer to the interpretative question as a

matter of national law as to whether matters which might have to be considered in the context of determining whether it was

appropriate to go down the SID route can be re-opened. On one view it might well be the case that no issue of European Union law

could arise under that heading, at least provided that all matters remained open for consideration at the substantive development

consent stage. Against that background it follows that it is necessary first to turn to the question of the extent to which any matters

may be said to have been irrevocably decided by the preliminary decision to go down the SID route such that the matters concerned

could not be re-opened at the development consent decision making stage. I therefore turn to that question.

7. Are Any Issues Finally Determined

7.1 I propose to start with a consideration of the structure of the provisions of the 2000 Act concerning strategic development which

were introduced by the 2006 Act. The combined effect of sections 37A and 37B gives rise to a mandatory obligation to go down the

route of an application directly to the Board in cases which are considered to meet the conditions specified in s. 37A(2). Section

37B(1) requires a person who proposes to apply for a permission specified in the Seventh Schedule to enter into consultation with the

Board prior to making any application for such permission. Following that consultation the Board is required, under s. 37B(4), to form

an opinion as to whether the development either falls within one or more of the categories specified in s. 37A(2) or does not do so.

7.2 In substance, where the Board is of the opinion that the development falls within those categories, it becomes mandatory on the

applicant for permission to make that application directly to the Board (see s. 37E(1)). Where the Board is not of the opinion that the

development comes within any of the categories specified in s. 37A(2) then the applicant is required, if a permission for development

consent is to go ahead, to go down the route of an ordinary application to the relevant local planning authority in accordance with s.

37B(5). The Board’s notice setting out its opinion that the development does not come within s. 37A(2) must include a statement to

the effect that such application must be made to the planning authority.

7.3 While somewhat complicated, the overall structure of the scheme is relatively straightforward. If a proposed development comes

within the Seventh Schedule then any applicant for permission must first enter into the consultations contemplated by the various

provisions in the legislation leading to the Board forming an opinion as to whether the development qualifies for the purposes of s.

37A(2). It is that opinion which determines the subsequent course of the planning application, for if the opinion is to the effect that

the development does so qualify then the provisions concerning SID applications directly to the Board apply, whereas if the opinion is

to the opposite effect the applicant is authorised to go down the route of an ordinary planning application to the relevant local

planning authority.

7.4 For present purposes the key provision is, therefore, the opinion which the Board must form under s. 37A(2) as a result of the

process specified in the legislation. It is clear that the conclusion of the Board must be that it is of the opinion that the proposed

development, if carried out, would fall into one or more of the three categories specified in ss. 37A(2)(a) to (c). It is that conclusion

which directs the substantive planning application into either the SID or the ordinary route.

7.5 As will have been seen from the provisions of s. 37A(2), the first two categories concerned involve development which would be

of strategic economic or social importance to the State or the region in which it would be situated or would contribute substantially

to the fulfilment of any objectives in national or regional spatial or economic strategies in force and relevant. To that is added a case

where the development may be of significant effect in more than one planning authority area.

7.6 Leaving aside that latter category it is clear that, in order for a proposed development to qualify, the Board must be of opinion

that it is of strategic importance either regionally or to the State or having regard to the fulfilment of relevant strategies. It may be

useful simply to refer to that collection of qualifying criteria as the identification of the project as being one of strategic importance

although, obviously, in cases of doubt, it would be necessary to refer to the specific terms of the criteria rather than that generic

description.

7.7 The underlying point to Mr. Callaghan’s challenge under this heading is to the effect that the question of whether a development

fulfils such strategic goals may itself form an important part of the process of determining whether, on balance, it is appropriate to

grant permission or not. While the fact that a proposed development may be of strategic importance in that sense cannot be

decisive, it can hardly be doubted that the strategic influence of a project is likely to be a material factor properly taken into account

by the Board in reaching a final conclusion on whether to grant or refuse permission. In essence, therefore, the argument suggests

that the formation by the Board of an opinion that a development meets the criteria specified amounts to a decision that it is, in

substance, of strategic importance in the sense in which I have used that term, and that in turn may be a material or even very

significant factor in the overall assessment of the Board. On that basis it is said that what could turn out to be a most important part

of the Board’s overall consideration has been finally pre-determined at a stage when Mr. Callaghan was not entitled to be heard and

that his interests are, therefore, materially affected. On that basis it is said that he must have the right to be heard.

7.8 In this context it is appropriate to note the statement by Hogan J. in this case to the effect that this Court had made clear that

an administrative decision maker hearing a matter between parties 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. In that regard

Hogan J. cited Adam v. Minister for Justice (2001) 3 I.R. 53. That clearly represents a general principle. It has been clear, of course,

since at least East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 that legislation requires, if at all

possible, to be construed in a manner which renders it consistent with the Constitution. Where legislation provides for some form of

preliminary view being taken on an ex parte basis but gives the task of making a final decision after a full consideration involving the

views of all interested parties, then a constitutional construction of that legislation would require that any party who had a right to

be heard at the latter stage could not have that right impaired by the decision maker being in any way bound or influenced by the

fact that an earlier decision may have involved a preliminary consideration of some of the issues which may fall for ultimate

determination.

7.9 Indeed, such a process happens before the Courts. A judge may be persuaded on an ex parte application seeking an interim

injunction that the plaintiff has established an arguable cause of action and that the other criteria necessary for the grant of an

injunction are met. The same judge may be called on to consider whether to grant an interlocutory injunction having heard not only

the plaintiff but the defendant. The judge hearing that interlocutory injunction should not pay any regard to the fact that, without

having had the benefit of hearing the defendant, an earlier view had been taken that the criteria were met.

7.10 It seems to me to clearly follow that, unless the relevant legislation contains clear provision to the contrary, the proper

interpretation of legislation involving a two stage process must be that any matters determined at an earlier or preliminary stage

where an interested party is not entitled to be heard must remain open for full re-consideration at the stage when a final decision

potentially affecting the rights or obligations of any individual is to be made. It follows in turn that the default position in this case

must be that the Board cannot be bound or influenced by its earlier decision to go down the SID route when considering the strategic

importance of the proposed development in the context of making a final decision as to whether to grant permission.

7.11 However, counsel for Mr. Callaghan suggests that there is a provision in the planning code which expressly prevents the Board

from re-visiting the question of the strategic importance of the proposed development. It is true that s. 50(2) of the 2000 Act does

provide 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 2001 Act “otherwise than by way of an application for judicial review”. On that basis it

is said that to permit the Board to re-consider, at the grant of permission stage, the question of the strategic importance of the

proposed development would involve a construction of the legislation which permitted the validity of the original decision on strategic

importance to be questioned in a manner which was contrary to section 50.

7.12 I am not satisfied that that argument is well founded. First, it is clear that all that is required in order for the Board to require a

project to go down the SID route is that the Board forms an opinion that the proposed development meets the statutory criteria.

While the formation of that opinion has the procedural effect of directing the application down one particular route it does not amount

to a binding decision for any other purpose, and the suggestion that the Board can re-consider the strategic importance of the

project at the planning permission stage does not involve the Board in challenging its earlier determination. There is nothing

inconsistent with the Board saying that we were, as a result of consultation with the developer, originally of the opinion that the

project is of strategic importance but that, having gone into the matter more thoroughly and having regard to the observations of all

interested parties, the Board is now of the view that its importance is less than originally thought. Such a re-consideration is simply a

matter that is contemplated by the legislation properly construed in accordance with the Constitution and does not involve a

challenge to the validity of the original decision to go down the SID route in the first place.

7.13 For those reasons I am of the view that all relevant matters remain at large when the Board comes to consider whether to grant

permission. The Constitution requires such a construction to be placed on the legislation if at all possible and there is nothing in the

wording of the legislation which would prevent it being interpreted in that way. On that basis I agree with the judgment of the Court

of Appeal on that issue.

7.14 As noted earlier the other aspect of this appeal concerned the contention put forward on behalf of Mr. Callaghan to the effect

that there were real differences of substance between the consequences of a permission sought and granted under the SID regime as

opposed to those sought and granted under the ordinary application process to a relevant local planning authority. On that basis, as

an alternative, it is argued that the decision to go down an SID route affects the rights and interests of persons such as Mr.

Callaghan and requires that he be heard before the decision to go down the SID route is made. I therefore turn to that question.

8. Are there Material Effects of going down the SID Route?

8.1 It is important, at the outset, to emphasise that the question with which the Court is currently concerned involves substantive

rather than procedural matters. Undoubtedly the procedures may be different when an application is made directly to the Board rather

than to a local planning authority. Indeed, the very fact that the application is made at first instance to the Board means that there

is no appeal on the merits. However, the right to be heard, as was pointed out by this Court in Dellway, (see the judgment of Fennelly

J. cited earlier) arises where there are material practical effects on the exercise and enjoyment of rights. A number of provisions of

the legislation are said by Mr. Callaghan to meet that test.

8.2 First reliance is placed on the ability of the Board to advise applicants for permission which is provided for in s. 37B(3) of the 2000

Act. However, as Hogan J. pointed out that section does not in any way require the Board to adopt any substantive conclusion so far

as the application for permission itself is concerned. Section 37C(2) expressly provides that anything which occurs during that

consultation “cannot be relied upon in the formal planning process or in legal proceedings”. Thus, there is express statutory provision

which precludes any material reliance being placed on that consultation process so far as the ultimate decision to grant or refuse

permission is concerned. In addition, as Hogan J. also pointed out, there is provision for pre-application consultation in the context of

a planning application to a local planning authority under s. 247 of the 2000 Act. On the basis of that analysis I agree with the view

expressed by Hogan J. to the effect that the statutory provisions concerning consultation in the context of an SID do not involve any

material distinction which would meet the Dellway test.

8.3 Next it is necessary to consider the argument which stems from the fact that the Board has power to amend a planning

permission granted under the SID procedure whereas in other cases such an application is made to the planning authority. Here again

I agree with the views of the Court of Appeal which was to the effect that the distinction concerned simply flows from the fact that

the Board is the only decision maker in an SID application whereas the local planning authority is at least the first instance decision

maker (and in some cases the only decision maker) in a non-SID case. It should also be noted that s. 146B(2) of the 2000 Act (as

amended) allows the Board to invite submissions before making an amendment decision. While that provision is permissory rather than

mandatory it is clear that, in a case where it could be established that a party must, as a matter of fair procedures, be entitled to be

heard before an amendment is permitted, then a constitutional construction of that section would require it to be interpreted as

imposing, in such a case should it ever arise, an obligation to consult. I should emphasise that I make no final determination on

whether there may be cases where such an obligation would arise but simply note that should such a case emerge the procedural

rights of any legitimately interested party are fully protected.

8.4 Next reliance is placed on s. 143(b) of the 2000 Act which requires the Board to have regard to the national interest in relation to

matters of strategic, economic or social importance. However, in substance that requirement could only be of relevance if the Board

were bound by the initial opinion which it formed in order to allow the relevant application to progress as an SID. On the basis of the

views which I have expressed earlier in this judgment, it seems to me to be clear that all issues remain open and thus the question of

whether there truly are strategic interests which require to be taken into account and, even if there be such interests, the weight to

be attached to them, remains a matter which is open to be debated at the stage of the final decision to grant or refuse permission.

8.5 In addition there are a number of points under this general heading which were relied on in the written submissions filed on behalf

of Mr. Callaghan in this Court but which were not the subject of specific reference in the judgment of the Court of Appeal. However,

for completeness, it is appropriate that I deal with them.

8.6 It is argued that there is no provision in the SID process requiring the consent of a landowner to the making of an application

which goes down the SID route whereas such consent is necessary in the case of “ordinary” applications for permission. In my view

the Board were correct to argue that this point does not arise at all. A proper construction of the Regulations in the light of Frascati

Estates v. Walker (1975) IR 177 makes clear that it is necessary that there be consent from a landowner to the making of an

application for permission. I have come to that conclusion without prejudice to the point made on behalf of the Board to the effect

that this point was not pursued in the High Court and should not have formed part of any subsequent appeals.

8.7 Next attention is drawn on behalf of Mr. Callaghan to the fact that certain notice requirements and provisions concerning the form

and content of applications for permission differ between applications dealt with under the SID procedure and those considered under

the ordinary procedure. At least in part it is said that these issues are again new and were not raised in the High Court but, without

prejudice to that contention, it seems to me that there is no substance in the argument under this heading. The fact that, for

example, the Board is given some latitude in respect of specifying material requirements under Article 210 of the Regulations

concerning plans and information and that, therefore, the precise requirements may not be the same as apply in an ordinary

application for permission to a local planning authority does not mean that, in and of itself, it can properly be said that the Dellway

test is met. No real argument was put forward as to how those differences could have a real practical effect on the entitlement of a

person, such as Mr. Callaghan, to raise objections at the permission stage. The only consequence of Mr. Callaghan not having the

right to be heard at the stage when a decision to go down the SID route is made is that the relevant procedures for an SID

application will be followed rather than the alternative procedures which would arise in the case of an application to a planning

authority. However, in order for such distinctions to meet the Dellway test, it would be necessary to demonstrate that there was a

real and practical interference with the right of Mr. Callaghan to advance his opposition to the proposed development by virtue of

those differences. In my view no such differences have been established.

8.8 The next point concerned the fact that the Board can modify a development proposal under s. 37G(3)(a)(ii). In that context it is

said that an application which goes down the SID route can be subject to a modification in circumstances where a similar modification

might not be allowed in the ordinary process. On this point I agree with the submissions made on behalf of the Board to the effect

that, even if it could be established that there was a legal entitlement to be heard in respect of any particular type of modification

then that right would arise at the stage when a modification was being considered. Thus, to the extent that it might be considered

necessary to imply an entitlement to be heard in relation to any relevant modification, that can be dealt with at an appropriate stage

without implying an entitlement to be heard at the stage when a decision is made to go down the SID route. I should emphasise that

this judgment should not be taken as deciding that any such right necessarily arises.

8.9 Separate from those contentions, which concern differences in the Regulations relating to, respectively, SID and ordinary

applications, a further point, which was not referred to in the judgment of the Court of Appeal, was raised before this Court

concerning the process which can lead to the grant of a planning permission notwithstanding the fact that the proposed development

is in material contravention of the relevant planning authority’s development plan. The “ordinary” procedure is set out in s. 34(6) of

the 2000 Act. The equivalent SID procedure is that specified in s. 37G(6). Both of those sections are cited earlier. Hardly surprisingly,

given that it is the members of the planning authority who passed the relevant development plan in the first place, the legislation

provides for a vote of those members if a permission is to be granted which is in material breach of that development plan. Obviously

no equivalent is required where the Board is itself the first instance body. Also the Board, correctly in my view, draws attention to the

fact that the Board itself on appeal in an “ordinary” case can give permission in material breach of a relevant development plan. In a

case where there is an appeal to the Board from a decision of a planning authority, it is true that s. 37(2)b imposes certain

restrictions on the Board where it is hearing an appeal against the refusal of a planning authority to grant permission on the grounds

of a material contravention of the development plan. However, the Board does undoubtedly retain a general power to disagree with

the view of a planning authority that a proposed development is in material contravention. The only difference of substance is,

therefore, that where the planning authority is involved at first instance its members must make a decision whether to grant a

permission notwithstanding that the development is considered to be in material contravention of a development plan and if the

members so decide then there will be restrictions on the Board if the matter is appealed by the developer.

8.10 However, the ultimate consideration which must be given to the final decision to grant or refuse permission (and if granting to

consider what conditions must be imposed) remains one where the same overall considerations have to be applied whether the

decision is made by a planning authority (with or without an appeal to the Board) in an ordinary case or by the Board in an SID case.

The ultimate test is whether the decision maker is satisfied that the development is consistent with proper planning and sustainable

development. In either event an objector, such as Mr. Callaghan, is entitled to put forward any arguments which can suggest that

the development does not meet those criteria. Clearly the content of any relevant development plan must be a significant part of the

relevant consideration in either case. Whether going down the ordinary route or the SID route it remains possible, in an appropriate

case, for the decision maker to nonetheless grant a permission even though it be in contravention of the relevant development plan.

8.11 It follows, in my view, that none of the distinctions identified amount to the sort of real and substantive interference with rights

which meet the Dellway test. In substance the rights which Mr. Callaghan is entitled to have protected are concerned with the ability

effectively to make objection to a permission sought on any legitimate lawful basis. The Dellway test requires that there be a material

and practical interference with that entitlement in order for the right to be heard to arise. Neither individually nor cumulatively do the

various differences between the process which is required to be followed in the case of an SID application and an “ordinary”

application differ to the extent that they place any real or substantial barrier to the making of any objection which a person in the

position of Mr. Callaghan might wish to raise prior to a final decision on whether to grant or refuse permission being made.

8.12 I am not satisfied that any differences that can be identified between the consequences of an application going down the SID

route as opposed to following the ordinary planning process before a local planning authority are such as give rise to the sort of

material as opposed to purely procedural consequences which would invoke an entitlement to be heard. For those reasons I am

satisfied that the Court of Appeal was correct to conclude that Mr. Callaghan did not have a right to be heard on those grounds as

well.

9. Conclusions

9.1 For the reasons set out earlier in this judgment I am first satisfied that the Board, when considering whether to grant or refuse

permission on foot of an application which has gone down the SID route, remains obliged to consider on the merits any questions

concerning the strategic importance of the project for which permission is sought. The fact that the Board had earlier formed an

opinion as to the strategic importance of the project, for the purposes of determining that it should go down the SID route in the first

place, cannot, as a matter of constitutional construction, in any way legitimately influence the Board’s final decision. It follows that,

on that ground, there is no interference with any rights which Mr. Callaghan might enjoy by the decision to go down the SID route.

9.2 Next I have sought to analyse the various arguments put forward on behalf of Mr. Callaghan which suggest that there are material

consequences, adverse to his interests, of a decision to go down the SID route. In that context attention was drawn on behalf of Mr.

Callaghan to a number of provisions of the legislation where it was said that there were material differences between the process

leading to the grant of permission and the nature of a permission once granted which depended on the route adopted. However, for

the reasons set out in this judgment, I am not persuaded that any of the differences amount to the sort of material practical effect

on the exercise and enjoyment of rights which are identified in the judgment of Fennelly J. in this Court in Dellway, as being necessary

before the right to be heard must be said to arise. On those grounds also I have concluded that Mr. Callaghan was not entitled to be

heard at the preliminary stage.

9.3 It follows that I agree with the conclusions of the Court of Appeal and propose that this appeal should, therefore be dismissed.