Balz & anor v An Bord Pleanala & anor (Unapproved) [2020] IESC 22 (05 May 2020)

Balz & anor v An Bord Pleanala & anor (Unapproved) [2020] IESC 22 (05 May 2020)

A stay on the order of certiorari quashing planning permission is justified to protect the developer from catastrophic financial loss due to loss of REFIT 2 Scheme eligibility, given the invalidity was not the developer's fault and substitute consent may cure the defect. However, the stay is conditional on the...

Source-derived case information.

Citation
[2020] IESC 22
Parties
Applicant/appellant: Klaus Balz; Applicant/appellant: Hanna Heubach; Respondent: An Bord Pleanála; Notice Party: Cork County Council; Notice Party: Cleanrath Windfarms Ltd.
Jurisdiction
Ireland
Judgment Date
05 May 2020
Procedural Posture
Judicial Review Appeal / Supreme Court Judgment on Stay Application After Successful Appeal
Outcome
Stay granted on terms
Legal Topics
Planning Permission, Judicial Review, Substitute Consent, Windfarm Development, Stay of Certiorari, Renewable Energy Support Schemes
Planning Law Administrative Law Environmental Law Planning Permission Judicial Review Substitute Consent Windfarm Development Stay of Certiorari +1 more

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Parties

Klaus Balz

Applicant/appellant

Hanna Heubach

Applicant/appellant

An Bord Pleanála

Respondent

Cork County Council

Notice Party

Cleanrath Windfarms Ltd.

Notice Party

Procedural Posture

Judicial Review Appeal / Supreme Court Judgment on Stay Application After Successful Appeal

Legal Issues

  1. 1 Whether a stay should be granted on the order of certiorari quashing planning permission for a windfarm pending substitute consent application
  2. 2 Whether the developer should be permitted to continue to operate the windfarm during the stay period
  3. 3 The impact of the stay on eligibility for the REFIT 2 renewable energy support scheme

Ratio Decidendi

A stay on the order of certiorari quashing planning permission is justified to protect the developer from catastrophic financial loss due to loss of REFIT 2 Scheme eligibility, given the invalidity was not the developer's fault and substitute consent may cure the defect. However, the stay is conditional on the developer undertaking not to operate the windfarm pending the Board's decision, as continued operation would prejudice the applicants and there was insufficient evidence of necessity to operate during the stay.

Court Disposition

Stay granted on terms

Orders

  • Stay on the order of certiorari quashing planning permission is granted pending the Board's decision on substitute consent, conditional on the developer undertaking not to operate the windfarm in the interim.
  • Liberty to apply granted to the parties.