An Taisce v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Max Barrett
• Judgment Date: 19 November 2018
• Neutral Citation: [2018] IEHC 640
• Docket Number: 2014 No. 342 JR
• Date: 19 November 2018

Between:

AN TAISCE

Applicant

– and –

AN BORD PLEANÁLA, IRELAND

and

the ATTORNEY GENERAL

Respondents

– and –

J McQUAID QUARRIES LIMITED, MONAGHAN COUNTY COUNCIL, PETER SWEETMAN

Notice Parties

[2018] IEHC 640

Barrett J.

2014 No. 342 JR

THE HIGH COURT

Points of law of exceptional public importance – Certification/leave – Planning and Development Act 2000 s. 50A(7) – Applicant seeking certification/leave under s. 50A(7) of the Planning and Development Act 2000 – Whether the High Court's principal judgment involved points of law of exceptional public importance justifying certification/leave

Facts: The applicant, An Taisce, claimed that the High Court's principal judgment ([2018] IEHC 315) involved points of law of exceptional public importance justifying certification/leave under s. 50A(7) of the Planning and Development Act 2000. The Court proceeded by reference to Dunnes Stores v An Bord Pleanála [2016] IEHC 263. The application fell to be decided by the judge who decided the principal judgment. The points were as follows: 1) "Has the Court correctly applied the recent decision of the Supreme Court on out of time impermissible collateral attacks? In particular was the court correct to proceed on the basis that because 'the later decision could never have been granted were it not for the decision of the 28th May 2012' the challenge to the later decision was an impermissible collateral attack on the decision of 28th May, 2012?"; 2) "Is the concept of 'exceptional circumstances' identified by the CJEU [Court of Justice] in Case C-215/06 a matter exclusively for member states to identify or one with a European dimension requiring certain minimum standards? If so, does the relevant Irish legislation and/or circumstances of this case meet those standards? Was the Court correct to characterize the result here as consistent with the 'proper reading of the import of [Case C-215/06] Commission v Ireland'?"; and 4) "Was An Taisce precluded from challenging the Board's decision to accept the adequacy of the rEIS if it had not made any comment on the issue in the course of the planning process?"

Held by Barrett J that what was placed in issue by Point 1 was whether the Court's judgment was right/wrong, which was not a point of law of exceptional public importance. Concerning Point 2, Barrett J held that: (i) merely to raise a question of law is not to identify a point of law of law of exceptional public importance; (ii) where (as here) the sole legal uncertainty presenting is uncertainty that it is sought to introduce by the question posed and which does not otherwise present that fails to identify such a point of law; (iii) the Court's principal judgment proceeded, inter alia, by reference to the most recent CJEU case-law (Case C-196/16 Comune di Corridonia) so it was difficult to see how uncertainty of the type contended for could arise; (iv) there is no support in law for the proposition that the State cannot legislate for categories of 'exceptional circumstances'; and (v) the Court's decision in its principal judgment was essentially that these proceedings were commenced out of time and all else is obiter, hence the queries raised in Point 2 could not be certified. Barrett J, having noted that An Taisce conceded that if it failed to win leave on Points 1 and 2 it could not succeed on Point 3, would not consider Point 3. Concerning Point 4, Barrett J held that under Irish law one cannot typically raise in a judicial review application a matter not previously put to the relevant decision-maker; the European Union law doctrines of equivalence/effectiveness did not vary that position in this case.

Barrett J held that he would decline to grant the certification/leave sought.

Certification/leave refused.

JUDGMENT of Mr Justice Max Barrett delivered on 19th November, 2018.

1 An Taisce claims that the court's principal judgment ( [2018] IEHC 315) involves points of law of exceptional public importance justifying...