Supreme Court Judgement delivered on the Strategic Infrastructure Development Process

The Supreme Court recently issued a ruling on a strategic infrastructure wind farm development, and specifically the pre-application SID-determination stage of the planning process for SID projects. The court determined that the pre-application procedure, whereby the developer enters into consultation with An Bord Pleanála, does not result in the board predetermining any issue of substance.

On July 31st, the Supreme Court issued its decision in relation to Callaghan v. An Bord Pleanála. The entirety of the judgement is available on the Courts Service website here.  The main issue in the case (which was raised by a third party in the context of a wind farm Strategic Infrastructure Development (SID) project in Meath) concerned the pre-application phase of the SID process. This is the initial stage of the SID process whereby a prospective applicant engages directly with An Bord Pleanála in order to determine whether a proposed development constitutes SID or not, (i.e. whether the subsequent planning application should be lodged directly with An Bord Pleanála or the relevant Local Authority). The concerns raised included that third party rights were infringed by the process and that the determination of a project being SID may pre-determine the eventual outcome of the planning application process, basically in determining the SID status the Board would have had to consider matters which would be relevant to its substantive decision to grant or refuse permission. The supreme court has held that the pre-application procedure, whereby the developer enters into consultation with An Bord Pleanála, does not result in the board predetermining any issue of substance.

The courts decision rejected the third party arguments and held that forming the initial opinion at the pre-application stage merely has the “….procedural effect of directing the application down one particular route it does not amount to a binding decision for any other purpose, and the suggestion that the Board can re-consider the strategic importance of the project at the planning permission stage does not involve the Board in challenging its earlier determination”. The  court also found that there was nothing inconsistent with the Board stating that it was “…originally of the opinion that the project is of strategic importance but that, having gone into the matter more thoroughly and having regard to the observations of all interested parties, the Board is now of the view that its importance is less than originally thought. Such a re-consideration is simply a matter that is contemplated by the legislation properly construed in accordance with the Constitution and does not involve a challenge to the validity of the original decision to go down the SID route in the first place.”

The judgement is important in the context of the SID procedures and demonstrates that the initial determination is a procedural consideration to determine which application process should be undertaken in relation to relevant projects, which does not pre-determine or influence the consideration or outcome of the subsequent application process. This is self-evident when the outcomes of the SID process are considered as there remain a significant number of refusals of the process. The judgement therefore confirms that the SID procedures are robust and that third party rights are not impacted.

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