Farmer refused leave to appeal the dismissal of Intel challenge

A local farmer has been refused leave to appeal against the dismissal of his challenge to overturn permission for a €3.76 billion expansion of Intel Ireland's plant in Co Kildare.

The High Court had rejected all grounds of Thomas Reid's challenge to An Bord Pleanála's permission for the project, which will expand Intel's 160-acre campus at Leixlip by 30 acres following a construction phase expected to last four years.

Mr Reid had won a landmark Supreme Court decision in 2015 preventing the use of compulsory purchase orders for his 29-hectare Hedsor House farm, located some 500m to the west of the site of the proposed development.

Mr Justice Richard Humphreys had last May dismissed the challenge over the November 2019 permission for Intel's latest expansion. He said he did so "without much enthusiasm" due to his suspicion the planning board did not fully understand the science behind Intel's development proposal.

The board had accepted the developer’s materials without noticing an error in relation to the critical issue of ammonia emissions, he said. The fact the error was cut and pasted into documents put before the court by the board wasn’t hugely significant but did not enhance the board’s claim that it subjected the developer’s materials to the necessary level of in-depth independent scrutiny, he said.

Evidence

A considerable amount of the hearing of the challenge was taken up with submissions concerning its precise scope. That arose following a pre-trial ruling by the judge, on the application of Intel, excluding certain evidence which Mr Reid sought to advance, including new scientific evidence.

Lawyers for Mr Reid sought the necessary certificate to bring an appeal against the judge’s decision.

In a further judgment on Wednesday, Mr Justice Humphreys ruled Mr Reid had not met the criteria for leave to appeal in that he had not raised points of law of exceptional public importance.

Addressing whether the court’s exclusion of a Natura Impact Statement 2016 as evidence raised such a point of law, he said Mr Reid had not properly adduced that statement in evidence.

The statement was prepared in 2016 regarding a previous planning application.

The judge said Intel had properly pointed out that the court had not held that such evidence can never be adduced but had rather excluded the 2016 statement because it was not properly in evidence before the board.

The court was not declining to consider material which was before the board but was rather simply not allowing reliance on evidence which was not in the substantive proceedings in accordance with the rules of evidence, he said.

Complex issue raised in the Natura Impact Statement 2016 “cannot be floated into evidence at the last minute”.

He also considered it would not be appropriate in this case to certify, arising from a Supreme Court 2021 determination in proceedings by An Taisce against the board, some other broader question in relation to the Habitats Directive.

In relation to Mr Reid’s application for costs against the board and Intel, the judge said he would make no order for costs, meaning each side pays their own.

Intel and the board had not sought their costs against Mr Reid.

For reasons including that Mr Reid had raised certain points which, had they been decisive, would probably have led to the board or Intel seeking an appeal on public importance grounds, the judge said the appropriate order was no order for costs.