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Meath wind farm objector loses challenge over planning procedure

The Court of Appeal has rejected an engineer’s challenge to the planning procedure that was adopted for a proposed €240m wind farm near his home at Kells, in Co Meath.

In its ruling on an important point of law, the three judge court ruled An Bord Pleanála was not obliged to first hear submissions from objectors before it can designate a development as a strategic infrastructural development (SID), one of strategic importance to the State.

Under the Planning and Development (Strategic Infrastructure) Act 2006, such a designation means a developer can apply directly to the Board for permission rather than go through the normal planning process involving applying first to a local authority from which there is a right of appeal to the Board.

The issue in the appeal by John Callaghan, Oldcastle Road, Kells, was whether a third party objector, such as himself, was entitled to be heard by the Board before its September 2014 designation of the proposed development at Emlagh as a SID development.

The proposed €240m development by North Meath Wind Farm Ltd (NMWF), whose majority shareholder is Element Power Ireland Ltd (EPIL), was for 46 wind turbines, each with a height of up to 169 metres and a power output of 2.5 to 3.5MW, on three clusters of lands at Farragara, Castletownmoor and Ísealchríocha, near Kells.

Mr Callaghan fears the proposed development will adversely impact on the environment and health and development of his young son who has Pervasive Developmental Disorder.

Planning permission for the €240m Emlagh development was refused last February by the Board on grounds including its scale being contrary to proper planning and sustainable development of the area. The developer then submitted a revised application for a 25 turbine development at Castletownmoor.

The issue about whether Mr Callaghan had a right to be heard before the SID designation decision was made concerning the Emlagh proposal was referred for determination to the appeal court following the High Court’s 2015 rejection of his challenge to the procedure adopted.

The High Court dismissed Mr Callaghan’s core claim the procedure was fundamentally unfair and meant there would be no public involvement in the process of carrying out an environmental impact assessment (EIA) concerning the proposed development.

Ms Justice Caroline Costello rejected claims the SID designation in any way predetermined the outcome, or any part of the outcome, of either the EIA or the application for planning permission. The decision about whether the development was SID was a different decision from whether or not to grant permission and the latter decision must be made on the basis it accords with proper planning and sustainable development in the area, she said.

The judge certified an appeal on a point of law of exceptional public importance arising from her judgment – whether or not interested members of the public had a right to be heard before the Board former an opinion a development was SID.

Giving the appeal court’s judgment, Mr Justice Gerard Hogan ruled that the scheme of the 2006 Act, when construed in light of the relevant provisions of the Planning and Development Act 2000, did not give the public a right to be heard before the Board reached a SID opinion.

The Board’s opinion, which resulted in the single stage SID procedure, did not materially or practically affect Mr Callaghan’s rights in such a way as entitled him to have his submissions heard by the Board before it made the SID designation, he held.

He also rejected as “unsound” Mr Callaghan’s argument the Board, when making its later substantive decision whether or not to grant planning permission, cannot revisit its initial determination the proposed development is SID.