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Supreme Court: Challenge to wind farm development referred to CJEU

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A woman who brought a challenge to the development of a wind farm beside her home has had her case referred to the Court of Justice of the European Union.

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About this case:

Ms Edel Grace and Mr Peter Sweetman brought a challenge to a permission granted by An Bórd Pleanála to permit the development of a wind farm on lands owned by Coillte; intended to be developed and operated by ESB Wind Development Ltd

High Court

As required by s.50 of the Planning and Development Act 2000, as amended, the proceedings were commenced by judicial review and were heard in the High Court.

On 1st October 2015, the High Court dismissed the claim (Grace & anor v. An Bórd Pleanála IEHC 593).

As further required by s.50A(7) of the Planning and Development Act 2000, no ordinary appeal could be pursued from that decision except with a certificate of the High Court to the effect that a point of law of exceptional public importance arose and that it was desirable in the public interest that an appeal be pursued.

An application for such a certificate was made and, on the 4th December 2015, was refused - preventing any appeal from being pursued to the Court of Appeal, as a refusal to certify could not itself be the subject of an appeal.

Supreme Court

An application was brought seeking leave to appeal to the Supreme Court directly from the High Court utilising the provisions of Art. 34.5.4 of the Constitution as introduced by the 33rd Amendment – also known as leapfrog appeals.

As set out in Grace & anor v. An Bórd Pleanála IESCDET 29, the Supreme Court granted leave to bring a leapfrog appeal and specified three issues or grounds which met the constitutional threshold:

  1. Whether Supreme Court jurisprudence on the question of standing in environmental matters requires to be revised in the light of recent judgments of the ECJ and, if so, the application of any such revised jurisprudence to the facts of this case;

  2. Whether Supreme Court jurisprudence concerning the absence of an entitlement to appeal against a refusal of leave to appeal by the High Court in environmental matters requires to be revised in the light of the 33rd Amendment and the jurisprudence of the ECJ and, if so, the application of such revised jurisprudence to the facts of this case; and

  3. Should it prove both appropriate and necessary in the light of the finding of the Court on issues (a) and (b) whether a substantive appeal against the decision of the High Court should be allowed by the Supreme Court on either or both of the grounds in respect of which the applicants sought leave to appeal before the High Court.

    4. The judgment of the seven-judge Supreme Court was delivered jointly by Mr Justice Clarke and Ms Justice O’Malley

    On the standing issue, the Court concluded that “at least Ms Grace” had standing to pursue the proceedings and the appeal, due to the fact that her home is “less than one kilometre from the SPA and relatively close to the site of the proposed development”. In those circumstances, the Court stated that it was not necessary “to reach a final determination on whether Mr Sweetman also has standing”.

    On the appeal issue, the Court concluded that it was “not necessary to revisit the existing jurisprudence in respect of the absence of an entitlement to appeal from the refusal of a certificate of leave to appeal by the High Court in a case such as this”.

    The Court explained that an appellant “has an independent possibility of appealing directly” to the Supreme Court under Article 34.5.4. Therefore, “while an appeal to the Court of Appeal must always remain the most normal route for any appeal to follow, nonetheless a party who is refused a certificate which has the effect of preventing them from invoking the jurisdiction of the Court of Appeal, has a constitutional route open to them”.

    On the substantive issue, the Court concluded that “not all of the issues of European law” which were necessary to determine the appeal were clear. In the circumstances, the Court proposed to “refer certain issues of European law to the Court of Justice of the European Union”.

    • by Seosamh Gráinséir for Irish Legal News

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