Bórd Pleanála seeks to bring appeal over court’s jurisdiction to analyse decisions

An Bord Pleanála has sought permission to bring an appeal concerning the extent of the High Court’s jurisdiction to analyse the board’s decisions.

A certificate for leave to appeal was sought arising from a judgment of Mr Justice Garret Simons overturning the board’s permission for construction of an electricity generating biogas plant in Co Meath.

That challenge was brought by Niall Halpin, Johnstown, Navan, over the board’s June 2016 permission to Greenfield Ventures Limited for the plant at Gillstown, Garlow Cross, Navan.

In his May 2019 judgment, Mr Justice Simons found certain conclusions of the board concerning an EU directive on control of major accident hazards involving dangerous substances were unreasonable because no material was put before the court by the board capable of justifying those conclusions.

The board had found, based on technical information provided by the developer, there was no likelihood of the 10-tonne limit for storage of biogas at the proposed site being exceeded but, when the documentation actually relied upon by the board was considered, that conclusion could not be supported, he said.

In an electronic hearing on Friday seeking leave to appeal, Nuala Butler SC, with Fintan Valentine, for the board, said its concern was about how the court applied legal principles, known as the O’Keeffe principles, to find there was no material before the board to justify its conclusion when, she said, there was such material.

This raised a point of law of exceptional public importance because the court had “reconfigured” the O’Keeffe principles with potential far-reaching consequences, she said.

The court, she submitted, had engaged in a “substantive” analysis of the content of the material before the board which the court was not entitled to do because it lacked the expertise of the board. The board wanted an appeal to determine whether the O’Keeffe standard of review is to be applied on the basis of the court’s own analysis and understanding of the technical material on which the board made its decision or whether the appropriate question for the court to ask is whether the technical material was capable, on an analysis by a decision-maker with relevant scientific expertise, of supporting the decision reached by the board.

Neil Steen SC, with Niall Handy BL, for Mr Halpin, argued the board had not met the relevant legal criteria for an appeal. The O’Keeffe principles are well settled law and to argue otherwise, based on the application of those principles in this case, was “simply unstateable”.

The court had not substituted its own non-scientific analysis at all, it had “simply considered what the documents put before the court actually said”, it was submitted.

Mr Justice Simons will rule on the application on May 15th.