Judge refuses to permit Bord Pleanála bringing appeal over court decisions

A High Court judge has refused to permit An Bord Pleanála bring an appeal over the overturning of the board’s permission for an electricity generating biogas plant in Co Meath. The board wanted an appeal concerning the extent of the court’s jurisdiction to consider and analyse the board’s decisions.

A certificate for leave to appeal was sought arising from a judgment of Mr Justice Garret Simons upholding a challenge by Niall Halpin, Johnstown, Navan, to 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 seeking leave to appeal, lawyers 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.

Lawyers for Mr Halpin argued the O’Keeffe principles are well settled law and the court had not substituted its own non-scientific analysis at all but rather “simply considered what the documents put before the court actually said”. In a detailed ruling on Friday, Mr Justice Simons said his findings in the case were consistent with well-established domestic law in respect of the High Court’s supervisory jurisdiction in judicial review proceedings.

He had not sought to “second-guess” the board’s assessment of the material before it or to substitute the court’s views for the board’s, he said. None of his findings gave rise to an “uncertainty” in the law necessitating an appeal, he held.

The board had also failed to show an appeal was desirable in the public interest, he further ruled. This was because of a real risk any appeal would become pointless because the permission was set to expire in July 2021 and there had already been “inordinate delay” in the progress of these proceedings, including significant delay by the board in filing its opposition papers.