THE HIGH COURT COMMERCIAL RECORD NO: 2014/647JR BETWEEN: JOHN CALLAGHAN APPLICANT AND AN BORD PLEANALA AND IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND NOTICE PARTIES NOTICE FOR FURTHER AND BETTER PARTICULARS TAKE NOTICE that as solicitors for the First Named Respondent herein, we require the ‘Applicant to provide a further and better statement of the pleas made in the Statement of Grounds herein as follows:- 4. With regard to E(2) and insofar as it is alleged that the requirements of s.37A are Inconsistent with Directive 201 1/92/EU please: 1a. Provide particulars of which Article(s) of Directive 2011/92 it is alleged Section 97A Is contrary to? b. Provide particulars of how it is alleged Section 37A contravenes such provision. . Provide particulars of how it fs alleged any such alleged contravention affects the Decision of the Board herein, d. If consequences are alleged, please state the fegat basis on which such consequences affect the Decision of the Board herein.2. With further regard to E(2) and insofar as it is alleged that the “Applicant was not notified of the making of the Application nor ofthe decision contrary to fait procedures and was not in a position to take the appropriate procedures in respect of the validity of the decision contrary to the requirements of the Directive” please: a. Provide perticulars of what, In fact, it is alleged should have been notified to the Applicant? b. Provide particulars of who itis alleged should have notifiad the Applicant? c. Provide particulars of what legal provision or basis it Is asserted such notification should have taken place in accordance with? d. Provide particulars of to what the "appropriate procedures” pleaded are Intended to refer. ©. State how itis alleged and why the Applicant was not in a position to take such procedures? 3, With further regard to E(2) and insofar as it is pleaded that the First Named Respondent ‘in determining that a prospective Applicant was entitled fo avail of the procedures under Section 37 A made substantive determinations which cannot be the subject of a substantive review contrary to the requirements of the Directive". please a. Identify the substantive elements of the Board's determination being referred toner b. Provide particulars of what provision of Directive 2011/82 it is alleged gives the Applicant a right to a substantive review? ©. Provide particulars of what the Applicant contends to be meant by the term substantive" setting out the full contours of the right which Is alleged and the ‘scope of the “substantive” review on which reliance is placed. 4. With further regard to E(2), and insofar as it is alleged that ‘the First Named Respondent adopted procedures in respect of a proposal that they knew would affect a category of porsons of which the Applicant forms part that is, persons who reside close to and within sight of he wind farm develooment and failed fo consult with them and/or excluded them from the decision making process to thelr detriment while at thesame time postively engaging with the reputed prospective Applicant and gave advice as to how the application could be successfully made, all of which procedures ‘are fundamentally in contravention of the requirements of the Directive and to fair procedures and to natural and constitutional justice, which are a fundamental part of the requirements of that provision” please:- ‘a. Confirm what provision of the Directive is alleged to include requirements of {air procedures and natural and constitutional justice. b. sit alleged that the Board infringed both the Directive and the rules of natural and constitutional justice, or merely that the Board infringed the former and that the former includes the latter? cc. What advice is It alleged the Board gave to the Applicant as to how an application could be successfully made? Is it intended by the phrase “successfully made" to intimate that the Board informed the putative developer how it could obtain a grant of permission, or merely that it informed the developer how it could make an application? 5. With regard to E(3) generally ‘a. Please confirm whether it Is alloged that the unavoidable effect of the legislation is that no application Is made to a planning authority or is it alleged that the Board in exercising ils functions and through its determination facilitated the avoidance by the developer of a legal obligation? b. Ifthe latter, what legal obligation, pursuant to what legislative Instrument and Section / Article? c. Alternatively, please confirm that E(3) pleads only a case vis-d-vis the alleged deficiency in the legislation rather than a case vis-a-vis the Board's actual decision making, 6. With further regard to E(@) ineofar as itis pleaded that the Board Decision “fectitates the direct access fo An Bord Pleanala” please confirm:- a. Is it intended to assert merely that this Is the effect of the legisiation oF is It alleged that the Board sought through its determination to faciitate the avoldance by the developer of a legal obligation?b. if the latter, what legal obligation, pursuant to what legislative instrument and Section / Article? 7. With further regard to &(3) insofar as it is pleaded that “the decision furthermore ‘avoids the Applicant complying with the provisions of part IV of the Planning and Development Regulations 2001 and the procedures for the making of the Application directly 'o An Bord Pleanala are determined by An Bord Pleanala in consultalion with the prospective Applicant and in accordance with the provisions of Section 37 E of the Planning and Development Act 2000 and a number of important requirements contained in these provisions which apply to all other Planning Applications are not required to be complied with”: ‘2, Is it Intended to assort morely that this is the effect of the legislation or Is it alleged that the Board sought through its determination to facifate the avoidance by the developer of a legal obligation? b. Ifthe letter, what legal obligation, pursuant to what legislative instrument and Section / Article? 8, With further regard to (3) and the pleading that "if an Bord Pleanala assumed jurisdiction (0 deal with the Applicant it avoids a requirement fo make an Application {0 the Planning Authority inthe first instance" please:- a. Provide full and detailed particulars of what the alleged requirement to make ‘an application to the planning authority for the kind of determination in respect of application was made lo the Board herein. b, Provide full and detailod particulars of the legal basis on which itis alleged that such a requirement exists. ©. With further regard to E(3) please provide particulars and dotails of the following: a. Provide full and detailed particulars of the alleged disadvantage it is said that the Applicant has suffered b. Confirm whether as a matter of law itis alleged that the Board Decision under challenge herein is alleged to constitute a development consent. Stato whother it is alleged that the Applicant cannot participate or makesubmissions or observations In any application for planning permission which is to be made or may be made in respect of the intended development the subject matter of those proceedings? What persons is It alleged are required under Irish domestic law and in particular pursuant to the scheme of the Planning and Development Act 2000 (es amended) and under the Environmental Impact Assessment Directive to be engaged with at the earliest possible stage in the preparation of Information in respect of the development? Provide particulars of the legat basis for this allegation, Confirm whether It is alleged that something unlawful occurred at the consultations as described in E(3), and if so, furnish particulars of such alleged unlawful occurrence. Confirm if the allegation Is intended instead to be that the fact of such consultations occurring (and the lecislative scheme itsetf is unlawful Provide particulars of what persons it is alleged are required under Irish domestic law and in particular pursuant fo the scheme of the Planning and Development Act 2000 (as amended) and under the Environmental Impact Assessment Directive to be engaged with at the earliest possible stage in respect of the “preparation of Information in respect of the development and in respect of the preparation of the Plans and the Environmental Impact Statement.” Provide particulars of what information in respect of the development it is alleged that this obligation arises? In respect of the preparation of what Plans is i alleged this obligation arises? Pursuant to what provision of Irish and / or European law is It alleged any person is entitled to be involved in the preparation of an Environmental Impact Statement? Provide particulars of how it is allogod that the Environmental impact Statement grounds the Application? . Provide particulars of the legal provision pursuant to which it is alleged that | | |the Environmental Impact Statement is an interactive process under the provisions of the Environmental Impact Assessment Directive? 1. Provide particulars of what legal provision it is alleged that persons effected [sic] directly or indirectly by the development as well as prescribed bodies all of which who [sie] must be engaged with before an Environment impact Statement is finalized? ©. Provide particulars of what legal provision it is alleged that persons are entitled to be consulted under; what procedures itis alleged are appropriate {o that right of consultation and engagement; and what legal provision gives Tis0 to such alleged proceduras? 1p. Provide particulars of how is It alleged that any oF all of these obligations are frustrated and / or nullified by the procedures adopted by the prospective developer in this case? 4. Provide particulars of how is It alleged that any or all of these obligations are frustrated and / or nullified by the procedures adopted by An Bord Pleanala in this case? Provide particulars of what legal provision it is alleged requires that any person living close to a proposed development is entitled to be given notice of, of consulted about, or made aware of an application for designation of a proposed development as strategic development under S37A? 8. Generally, with regard to E(3) and the final non-numbered paragraph thereof, what application is referred to here? 10. With regard to E(4) insofar as a legitimate expectation Is pleaded, please provide 1. patticulars of the provisian(s) of the Act or Directive under which itis alleged such a legitimate expectation arises? Please provide full and detalled particulars of how itis alleged the claimed legitimate expectation arises. With regard to E(5) where it Is ploaded that the Board Decision and the Board's “approach eniltlas the Board ta “assume jurisdiction fo determine all metters relating fo the proposed Application without any facility to roview its substantive determination" please fa, Provide particulars of how the approach adopted by the Board allegedlyentiied the Board to assume jurisdiction to determine matters relating to the proposed application? b, Provide particulars of what is alleged to have been determined? . Ifacclaim is being made regarding bias or pre-judgment please confirm same. 1d. Provide particulars of whether this is an allegation made contra the legislative scheme or directed at the substance of the Board Decision herein? 42, With regard to E(6) insofar as Its pleaded that the First Named Respondent failed to ‘comply with the terms of Section 37 (C) in making its determination nor has it any or any sufficient regard to this provision, a. Please provide particulars of the material facts on which this allegation Is, made, b. Please stale the particulars of how the Board is alleged to have failed to ‘comply with 8.376. c. Alternatively, please confirm that your allegations here are limited to those pleaded in E(8), 43. With regard to E(7) please provide the legal basis for the error of law which is pleaded herein. What legal provisions are involved in the allegation? 14. With regard to E(2) please provide particulars of the relevant considerations the Board is alleged to have failed to have regard to and the irrelevant considerations itis sald the Board had regard to. Insofar as this general plea is not intended to allege anything over and above the more specific pleas, please confirm withdrawal of E(9). If you intend to allege anything specific over and above the more specific pleas please state precisely what thats. 46, With regard to E(10) please state what is alleged herein that is any different to what is alleged in E(7). Please confirm withdrawal of one or other of these paragraphs which appear to make the same allegation. If this is not correct, please state the difference. 46. With regard to E(13) please provide full particulars of the legal provisions or requirements which are claimed have been violated or breached in the circumstances pleaded therein17. With regard to E(14), please provide full particulars of what legal provision or requirement itis alleged the Board falled to direct its mind to? 18, With regard to E(15), please fa. Identify the precise legal provisions relled upon. b. Identify the alleged mandatory requirement to which reference is made. regard to E(17)= a. Pursuant to what legal provision Is this allegation made regarding the claim that inadequate reasons were given? b. Provide full particulars of the inadequacy which is alleged, 20. With regerd to E(18) insofar as this appears to be @ generalized allegation as opposed to the more specific allegations made elsewhere, please confirm and state what Is alleged herein that is any different from that alleged elsewhere in more specific pleas. If there is nothing different alleged, please confirm withdrawal of this general plea. if anything over and above is alloged, please state precisely what that is. 21. With regard to E(19) Insofar as this appears to be a generalized allegation as opposed to the more specific allegations made elsewhere, please confirm and state what is alleged herein that is any different from that alleged elsewhere in more specific ploas. If there is nothing different alleged, please confirm withdrawal of this general plea. If anything over and above is alleged, please state precisely what that is, 22, With regard to E(21} ‘a. Pursuant to what legal provision is this allegation made regarding the ciaim that inadequate reasons were given? b. Provide ful particulars of the inadequacy which is alleged. 23, With regard to E(22) please identify the legal provisions and factual matters referred{o. Insofar as this appears to be a generalized allegation as opposed to the more specttic allegations made elsewhere, please confirm and state what is alleged herein that is any different from that alleged elsewhere in more specitic pleas. If there is nothing different alleged, please confi withdrawal of this general plea. If anything ‘over and above is alleged, please state precisely what that is. 24, With regard to E(23), please provide particulars ofthe following: 28, 26. (On what basis is it alleged that the Board carried out no, or no critical, analysis? (On what basis is it alleged that the principle of audi alteram partem is of any benefit to the Applicant? Provide full particulars of the “alternative submission" which is being referred tohere. Provide full particulars of the source of the “more authoritative interpretation of the likely economic impacts’. Is this a document? If s0, provide full particulars of the document and confirm whether it was alleged that this was before the Board. With regard to €(25), what is the legal basis for this allegation? Please, in this regard, set out precisely how the complaints made herein regard consent of landowners has a bearing on the scheme under s.37A-s.370. With regard to E(26) What is the legal basis for the alleged requirement to analyse? What is the legal basis for the alloged duty to verify the truth of assertions? On what factual basis is it alleged the developer was seeking to avoid or circumvent any legal provision? ‘On what factual basis is it alleged the Board was allowing the developer to avoid or sumvent any legal provision? 27. With regard to E(27) insofar as itis pleaded "that the First Nemed Respondent erred in law and in fact in considering the Application as one which was limited to aparticular area and wore at all material times aware that this development formed part of a wider proposal on behalf of the prospective Applicant to develop a major Windfarm operation under the style and tile of Greenwire which proposed a number of inter-connected clusters of Windfarms stretching over a number of countios and which the present Application, the subject mattor of decision of the 11” and/or 1 ‘September 2014 formed part ‘a. Please provide particulars of what provisions of the Directive Is alleged to be involved here and in respect of what allegations. b. Please provide particulars of what provision of Irish law is alleged to be Involved here? c. How is such an obligation alleged to arise from such legal provisions? d. For the avoidance of doubt, please provide particulars of the legal provisions relled on to claim the above is an error of law. 8. Please set out the full legal provisions and basis for the allegation that the Board's Decision conslitutes or facilitates project-spliting, 28. With further regard to E(27) insofar as itis pleaded that “the First Named Respondent acted wrongly and contrary to Statute in failing fo disclose and make available all reports and documentation grounding ts determination of the 11" and/or 12" September 2014.” a. Provide particulars of what provision of the Directive is alleged to be involved here? b. Provide particulars of what provision of Irish law is alleged to be Involved here? cc. Provide particulars of what provision of statute itis alleged the Board falled to comply with when allegedly failing to disclose documentation? 4d. Provide particulars of precisely what "reports" and “documentation” It is said ‘were not disclosed or made available? regard to E(28) wherein itis pleaded that the Board “erred fn law in the manner in which it determined the application and in the communication in respect of thisproject involved communication with the Board in advance of the Inspector's Report ‘and with Senior Officials of the Board who ultimately made determinations in a manner not contemplated by or authorised in the statutory procedures please a. Set out clearly the material facts on which this is based. b. Provide particulars of what is the legal basis for this allegation? 30. At E(29) it is pleaded that the decision was made contrary to fair procedures, contrary fo natural and constitutional justice. Insofar as this is intended to plead anything over ‘end above what is contained in the balance of the grounds, please state samo, If this is not intended to contain a plea or ground any different to that pleaded elsewhere, please withdraw it 31. With regard to E(30) please confirm if this is a legitimate expectation case any different to that pleaded above at E(4). If not, please withdraw it. If different, pleaso set out particulars of how itis different, Without prejudice to this:- a. On what legal basis is a legitimate expectation alleged to arise. b. What is the alleged relationship between the Directive and the rules of naturat justice? c. What is the alleged relationship between the doctrine of ‘legitimate ‘expectation and the rules of natural justice? d. What Is the basis for alleging that the decision of the Board was fundamental? fe. To whats it alleged the Board's decision was fundamental? {What provision of the Directive Is allegedly involved here? 32. With further regard fo (30) insofar as it is pleaded that the “First Named Respondent falfod to have any or any appropriate regard to the Aarhus Convention and f0 the requirements and intentions therein contained. The provisions of Section 37 A-O of the Planning and Development Act 2000 (as amended) are inconsistent with and incompatible fo the Aarhus Convention in respect of the Public's Right of participation enshrined therein’, please state pursuant to what legal provision It Is alleged the Board should have regard to the Aarhus Convention. Please state what provisions inthe said Convention are relied on and how they are alleged to grounds rights or ‘claims on the part of the Applicant. 33. With regard to E(S2) insofar as it is alleged that the provisions of Section 37 A:D of the Planning and Development Act 2000 (as amended) are inconsistent and incompatible with Directive 20 11/92/EU in respect of tho Public's Right of participation ‘a. Pursuant to what provision of the Directive is this incompatibility alleged? b, What is it alleged the Board should do having regard to such alleged incompatibility? c. Pursuant to what legal provision Is i alleged that the Board shoukd do so? 34. Insofar ac it Is alleged at E(34) that there is an error of law on the face of the record, please provide full and detailed particulars of this allegation. 35, With regard to (35) Insofar as this appeats to be a generalized allegation as opposed to the more specitic allegations made elsewhere, please confirm and state What is alleged herein that is any different from that alleged elsewhere in more specific pleas. If there is nothing different alleged, please confirm withdrawal of this general plea. if anything over and above Is alleged, please state precisely what that is, 36. With regard to E(36) insofar as this appears to be a generalized allegation as ‘opposed to the more specific allegations made elsewhere, please confirm and state what is alleged herein that is any different from that alleged elsewhere In more specific pleas. If ther is nothing different alloged, please confirm withdrawal of this general plea. 1f anything over and above is alleged. please state precisely what that is. 37. With regard to E(37) insofar as this appears to be a generalized allegation as ‘opposed to the more specific allegations made elsewhere, please confirm and state what is alleged herein that is any different from that alleged elsewhere in more specific pleas. If there is nothing different alleged, please confirm withdrawal of this, general plea. if anything over and above is alleged, please state precisely what that is, 38, With regard to E(38)-8. Insofar as it is pleaded that the Board's Decision “and its procedures adopted” were not * please:- oportionate to the Applicants rights and its obligations {State what rights and what obligations are asserted here. Il, State how itis alleged that an absence of proportionality arises. In so stating please, confirm whether this case is made contra the legislation or contra the Board's actual substantive decision, li, State what itis alleged the proportionate “decision” or “procedures” should have been, b. With respect to the bald allegation regarding the Habitats Directive, please withdraw same or provide full particulars of samo. AND TAKE NOTICE that we require replies to the above by the 19 January 2015 in ‘accordance with the Court's directions herein and require same for the purpose of drafting ‘opposition papers. ‘TAKE NOTICE THAT in the event of satisfactory replies not being recelved to these requests, ‘within the above referred time period then application will be made to Court without further notice to compel replies and/or seeking dismissal of the Plaintifs claim herein, AND FURTHER TAKE NOTICE thal, in the event that such applications as described above prove necessary, this Notice for Further and Betler Particulars will bo used for the purposes of fixing you with the costs of any such application. Dated the day of 2014 Signed: Barry Doyle & Company, Solicitors for the Respondent, Marshalsea Court, 23 Merchant's Quay, Dublin 8, To: The Registrar,And to: Copied to: Copied to: Contral office, Four Courts, Inns Quay, Dublin 7 O'Connell and Clarke, Solicitors for the Applicant Suite 142, The Capel Building, St. Mary’s Abbey, Dublin 7. Office of the Chief State Solicitor, Solicitors for the Second and Third Respondents, 3-10 The Chancery, Chancery Lane, Bubtin 2. Mathoson, Solicitors for the Notice Parties, 70, Sir John Rogerson’s Quay, Dublin 2