Arklow Holidays Ltd v an Bord Pleanála (No 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 08 September 2006
• Neutral Citation: [2006] IEHC 280
• Docket Number: [2005 No. 291 JR]
• Court: High Court
• Date: 08 September 2006

[2006] IEHC 280

THE HIGH COURT

[No. 291 JR/2005]

ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS

JUDICIAL REVIEW

BETWEEN

ARKLOW HOLIDAYS LIMITED

APPLICANT

AND

AN BORD PLEANALA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

WICKLOW COUNTY COUNCIL, ARKLOW TOWN COUNCIL, SEABANK AND DISTRICT RESIDENTS ASSOCIATION, ARKLOW ACTION GROUP, WICKLOW PLANNING ALLIANCE, AN TASICE, ARKLOW CARAVAN PARK RESIDENTS ASSOCIATION, COASTWATCH EUROPE, P.J. HYNES AND BRENDAN HYNES

NOTICE PARTIES

PLANNING & DEVELOPMENT ACT 2000 S50(f)

IRISH ASPHALT LTD v BORD PLEANALA 1996 2 IR 179 1997 1 ILRM 81

KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 IR 128 1994 2 ILRM 1

IRISH HARDWARE ASSOCIATION v SOUTH DUBLIN CO COUNCIL & BARKHILL LTD 2001 2 ILRM 291

INTERPRETATION ACT 2005 S5

Abstract:

Planning law - Judicial Review - Leave - Certification to appeal - Exceptional public interest - Whether jurisdiction to grant certification point law exceptional public importance not from judicial review application but decision of court itself

: The Applicants sought certification to the Supreme Court of a point of law of exceptional public importance not arising from a substantive leave or judicial review application but from a decision of the court on the application for certification pursuant to s. 50(4)(f) of the Planning and Development Act 2000. The Court had found that insufficient grounds existed to find substantial grounds to grant leave for review.

Held by Clarke J., that such a procedure as that sought would result in considerable delay and was contrary to the policy of the Act of 2000. The wording of the statute did not permit such a construction and the relief sought would be refused.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Clarkedelivered 8th September, 2006.

1. Introduction

2 2 1.1 I have already delivered two judgments in these proceedings. On the 18th January, 2006, I gave judgment in an application for leave to apply for judicial review ("the leave judgment"). That application was required, by virtue of the provisions of s. 50 of the Planning and Development Act, 2000, ("the 2000 Act") to be on notice. The respondent and a number of the notice parties were heard. The background to the dispute between the parties is fully set out in that judgment and it is unnecessary to refer to it again. I propose describing the parties in this judgment in the same manner as they were described in the leave judgment. In that judgment I gave leave to seek judicial review in respect of some, but not all, of the grounds advanced on behalf of Arklow.

3 3 1.2 As a result of the refusal to give leave to seek judicial review in respect of some of the grounds advanced, Arklow sought a certificate to enable it to appeal from certain aspects of that refusal to the Supreme Court. Under s. 50(4)(f) of the 2000 Act, the determination of this court is final and no appeal lies from such decision except with the leave of this court. The section provides that such leave can only be granted where this court certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

4 4 1.3 Arklow sought a certificate of appeal in relation to three matters. As appears from the judgment delivered in respect of the certification application on the 29th March, 2006, ("the certification judgment") I came to the view that two of those matters did not raise a point of law of exceptional public importance.

5 5 1.4 In respect of the third issue (to which I will refer in more detail in the course of this judgment) I came to the view that it did, indeed, raise a point of law of exceptional public importance. However, at paragraph 5.3 of the certification judgment I went on to consider the question of whether it was, nonetheless, in the public interest to grant the certificate sought. For the reasons set out in that paragraph I came to the view that it was not in the public interest so to do.

6 6 1.5 In those circumstances Arklow has raised the question of whether it is permissible in principle, and if it be, whether it is appropriate in this case, to issue a certificate to enable an appeal to be brought in respect of the refusal to grant a certificate of appeal. Arklow's argument is confined to the ground in respect of which I had come to the view that a point of law of exceptional public importance was raised but that it was not in the public interest to grant the certificate.

7 7 1.6 That is the issue which I now have to decide.

8 There are, in substance, two separate questions. They are:-

9 1. Whether there is a jurisdiction to grant a certificate in respect of a point of law that arises not from a substantive leave or judicial review application itself but from the decision of the court on the application for a certificate; and

10 2. If there be such a jurisdiction whether it is appropriate to grant a certificate on the facts of this case.

11 In that context it is necessary to turn to the underlying issue in respect of which this application arises.

2. The underlying issue

12 2 2.1 In the leave judgment, I took the view that there were not substantial grounds sufficient to justify granting leave to seek judicial review in respect of an argument which concerned the delineation of the site of the proposed development on the maps attached to the relevant planning application. As pointed out at para. 5.1 of the leave judgment, it was contended at the leave application that the delineation (being confined to the site of the waste water treatment plant itself) was inaccurate and in breach of the relevant regulations by virtue of not including on the map as so delineated other aspects of the project. As I further pointed out in that paragraph I had taken the view that Arklow did not have standing to raise such an issue because Arklow had not, in any respect, been misled by the map and had fully participated in the hearing and addressed each of the issues which arose at the hearing, including those which related to those aspects of the project which were outside the site, as delineated. On that basis I took the view that Arklow did not having standing to raise the delineation point by virtue of the fact that they had not, in any respect, been misled by it and had, therefore, suffered no prejudice.

13 3 2.2 For the reasons set out at para. 5.2 of the certification judgment I came to the view that that issue raised a point of law of exceptional public importance. However, for the reasons set out at para. 5.3 of the same judgment I came to the view that it was not in the public interest to issue the certificate. It is unnecessary to set out those reasons in full again. In this application Arklow invites me to certify for appeal to the Supreme Court an issue as to the criteria by reference to which this court should exercise its role in the grant or refusal of a certificate.

14 4 2.3 In particular it is said that, having granted leave in respect of certain aspects of Arklow's challenge, it was inconsistent of the court to take into account any further delay that might be caused by allowing an appeal to the Supreme Court. Secondly, it is said that the public interest, as referred to in s. 50 of the 2000 Act, cannot and should not encompass the merits of the project which is the subject matter of the proceedings.

15 5 2.4 Before going on to deal with the specific issues which arise in this application I think it is important to make some reference to the basis upon which I came to the view that it was not in the public interest to grant the certificate sought notwithstanding that a point of law of exceptional public importance arose.

16 6 2.5 It is part of Arklow's submission on this application that the "merits" of the project was a factor taken into account in the refusal. That was not the case. It has often been said that part of the purpose of the restrictions which recent planning legislation (including, and in particular, the 2000 Act) have introduced in respect of challenges to planning permissions, derives from a policy concern on the part of the Oireachtas that finality should be brought to planning matters in the shortest possible period consistent with allowing proper access to the court to challenge decisions of the statutory bodies involved in the planning...