Stay on planning injunction concerning wind turbines was inappropriate

O'Malley J (nem diss): Planning and development - stay pending appeal - s.160 of the Planning and Development Act 2000 - wind farm - unauthorised development - permission for diameter blades of 90 metres - scheme for blades of 103 meters - whether deviation from permitted blade length was developments and, if so, whether it was exempted development - ruling by An Bord Pleanala that the scheme was development, and was not exempt development - application for substitute consent - enforcement proceedings by planning authority - whether a material breach - High Court order to switch turbines to standby mode - application for stay on order refused - public interest - Environmental Impact Assessment Directive (2011/92/EU) - whether a statable ground of appeal - least risk of injustice - stay granted in Court of Appeal - loss of revenue to developer - minimal impact on objectors of longer blades - discretion as to whether to stay pending appeal.

"Simons J. found that the developer had acted in good faith. It had engaged proactively with the planning authority. Its reliance on Condition 3 was indicative of a mistake rather than any culpable disregard. However, it was not reasonable to rely on that condition as a vehicle through which to introduce significant change. Furthermore, the developer had failed to make it clear to the planning authority that an agreement to a change in rotor diameter was being sought."

"In such circumstances, it was in my view an error to consider the potential financial loss solely by reference to a worst case scenario relating to the length of time it could take before the Court of Appeal determined the matter, without reference to the possibility that the High Court might vacate its order in a relatively short period of time. It is also relevant that, as it turned out, the Court of Appeal was in a position to fix an early hearing date. The ability of the court system to bring matters on for hearing within a reasonably short period is probably the most effective protection against the possibility that serious and unjustified harm might be caused to either party pending that hearing."

O'Donnell J (concurring): Problems of analysis relating to planning injunctions - whether a court should halt a development pending a further decision.

"The order made was to restrain the operation of the windfarm which was found by the High Court judge to not be in compliance, and furthermore that such contravention was material. The order was made, however, with liberty to apply, and it seems that the judge contemplated the possibility of staying the order in the event that the Board granted leave to appeal, and decided not to exercise its jurisdiction under s. 177J to require the development to cease, or perhaps exercised such jurisdiction in only a partial way. This would be logical, since any decision of the Board to grant leave to apply for substitute consent under s. 177J would amount to a significant change of circumstances, both factual and legal."

"It is clear that the judge hearing this matter in the Court of Appeal did so under considerable pressure of time and during a lengthy and busy list, and gave the application an admirable hearing and delivered a carefully reasoned decision. However, I agree fully with O’Malley J. that, from this remove, it appears the decision gave too much weight to the financial loss which might be suffered by the appellant developer if the appeal were to succeed."

"An overly rigid application of the Campus Oil criteria can lead to an applicant with a flimsy case nevertheless obtaining an interlocutory injunction, which in many cases determines the practical outcome of the dispute. It has come to be recognised that the approach is subject to a number of exceptions."

"An individual ought not be permitted to obtain from a court an order disapplying the law, either individually or generally, merely by asserting a stateable, though perhaps weak, case and a fear of substantial damage. If an injunction is granted and the claim nevertheless fails, there is no easy way of repairing the damage to the rule of law caused by the fact that the law has been (wrongly) suspended."

"For those reasons, I agree with O’Malley J. that, while the residents have been successful in their appeal in respect of the applicable law, I would not now set aside the order of the Court of Appeal. To do so would render the High Court order operative in circumstances not contemplated by the judge making the order. In the absence of a viable substitute consent pathway, it would, I think, have been necessary to fashion some more nuanced compromise order."