New Appeal: On An Bord Pleanala’s duty to give reasons for its decisions

In this determination, Connolly v An Bord Pleanala, the Supreme Court granted the Bord leave for a leapfrog appeal from a decision of the High Court. In November 2016, Barrett J quashed a decision of the Bord to grant planning permission for a wind farm in County Clare for not providing sufficient reasons for its decision. Later, the High Court refused to grant the Bord certification to appeal that decision to the Court of Appeal.

 

Background

In 2011, Clare County Council refused McMahon Finn (notice party) permission for the development of a wind farm. McMahon Finn appealed that decision to An Bord Pleanala. After considering the appeal at a number of meetings, and after receiving additional information from the developer, the Bord granted permission for the development.

Kathleen Connelly, a homeowner close to the proposed development applied to the High Court for any order of certiorari quashing the Bord’s decision. She argued that the Bord did not provide adequate reasons for its decision to allow an objective observer to establish whether the decision met the requirements of law.

The High Court, Barrett J (here) reviewed the case law, determining that the applicable authorities are:

– the Court of Justice in Mellor, para. 59, “[I]nterested parties must…have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts”,

– Clarke J. in Christian, para. 78, “In order to assess whether a relevant decision is lawful, a party considering a challenge…must have access to a sufficient amount of information to enable an assessment as to lawfulness to be made”, and

– Finlay Geoghegan J. in Kelly, para.48, “[T]he essential principle is that the reasons must be such as to enable an interested party assess the lawfulness of the decision…”.

21. These obligations appear heightened in importance when one has regard to the tight time constraints that apply to seeking judicial review.

 

Quashing the Bord’s decision, Barrett J held that the Bord had not provided sufficient reasons in compliance with the quoted authorities.

 

Supreme Court

The Bord applied for leave for a leapfrog appeal to the Supreme Court arguing that the standard for leave to the Supreme Court of “general public importance” is lower than the “exceptional public importance” standard necessary for an appeal to the Court of Appeal under s 50 of the Planning and Development Act 2000.

The Bord argued that the High Court decision sets a new, higher threshold of reasoning for decision-makers, contrary to long-settled lines of authority.

Granting leave, the Court stated:

21. It is self-evident from the description of the issues and background circumstances that this is a matter of general public importance which warrants a leapfrog appeal to this Court. The issues in question concern not only this decision of the Board, but many other decisions of the Board. The question, simply put, is as to the degree of particularity and specificity necessary in the Board’s decision.

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  1. New Appeal: Supreme Court grants second appeal on An Bórd Pleanála’s duty to give reasons for its decisions | SCOIRLBLOG

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