Arklow Holidays Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 29 March 2006
• Neutral Citation: [2006] IEHC 102
• Court: High Court
• Docket Number: [2005 No. 291
• Date: 29 March 2006

ARKLOW HOLIDAYS LTD v BORD PLEANALA & AG

COMMERCIAL

BETWEEN

ARKLOW HOLIDAYS LIMITED

APPLICANT

AND

AN BORD PLEANÁLA IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

WICKLOW COUNTY COUNCIL, ARKLOW URBAN DISTRICT COUNCIL, SEABANK AND DISTRICT RESIDENTS ASSOCIATION, ARKLOW ACTION GROUP, WICKLOW PLANNING ALLIANCE, AN TAISCE, ARKLOW CARAVAN PARK RESIDENTS ASSOCIATION, COAST WATCH EUROPE, P.J. HYNES AND BRENDAN HYNES

NOTICE PARTIES

[2006] IEHC 102

[No. 291 J.R./2005]

[No. 52 COM/2005]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Appeal

Certificate of leave to appeal to Supreme Court - Whether decision involves point of law of exceptional public importance and whether desirable in public interest that appeal be taken to Supreme Court - Meaning of exceptional public importance - Whether, if failure to demonstrate point of public importance, court must consider whether appeal of decision in public interest - Kenny v An Bord Pleanála [2002] 1 ILRM 68; Raiu v Refugee Appeals Tribunal [2003] 2 IR 63; Lancefort Ltd v An Bord Pleanála [1998] 2IR 511; Fallon v An Bord Pleanála [1992] 2IR 380; Irish Press v Ingersoll [1995] 1ILRM 117; Ashbourne Holdings v An Bord Pleanála (Unrep, Kearns J, 19/6/2001) and Arklow Holidays Ltd v An Bord Pleanála [2006] IEHC 102 (Unrep, Clarke J.,29/3/2006) considered - Planning and Development Act 2000 (No 30), s 50 (4)(f)(i)- Certificate to appeal refused (2005/1309JR;2005/120COM - MacMenamin J -13/7/2006) [2006] IEHC 250 Glancré Teo v An Bord Pleanála

Facts: The applicant applied for leave to apply for judicial review of a decision made by the Board granting permission for a waste water plant under the provisions of s. 50 of the Planning and Development Act 2000. In respect of certain aspects of the refusal of leave, the applicant applied for a certificate that the decision involved a point of law of exceptional public importance and it was desirable in the public interest that an appeal should be taken to the Supreme Court.

Held by Clarke J. in refusing the certificate sought that the point raised by the applicant was a point of law of exceptional public importance. However, the public interest needed to take into account the nature of the development proposed and the potential consequences of significant further delay. Having regard, on the one hand, to the importance of the issue raised by the applicant, and, on the other hand, to the importance of the project and the consequences of the likely delay that would be incurred, it would not be in the public interest to grant the certificate notwithstanding the finding that the point of law was of exceptional public importance.

Reporter: R.F.

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50(4)(f)

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

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

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

LANCEFORT LTD v BORD PLEANALA 1998 2 IR 511

KENNY v BORD PLEANALA & ORS 2001 1 IR 704 2002 1 ILRM 68

FALLON v BORD PLEANALA 1992 2 IR 380

ARKLOW HOLIDAYS LTD v WICKLOW CO COUNCIL & ARKLOW URBAN DISTRICT COUNCIL (UDC) UNREP ,URPHY 4.2.2004 20042/319

ASHBOURNE HOLDINGS LTD v BORD PLEANALA UNREP KEARNS 19.6.2001 2001/1/189

BEGLEY & CLARKE v BORD PLEANALA UNREP O CAOIMH 23.5.2003 2004/4/889

EEC DIR 85/337

R (WELLS) v SECRETARY OF STATE FOR TRANSPORT 2004 1 CMLR 1

BOLAND v BORD PLEANALA 1996 3 IR 435

EEC DIR 75/442

EEC DIR 91/156

EEC DIR 91/689

WASTE MANAGEMENT ACT 1996

1 JUDGMENT of Mr. Justice Clarke delivered 29th March, 2006.

1. Introduction

2 2 1.1 On 18th January, 2006 I delivered judgment in an application in these proceedings for leave to apply for judicial review under the provisions of s. 50 of the Planning and Development Act, 2000 ("The 2000 Act"). In this judgment I will refer to the parties in the same manner as in that judgment ("my previous judgment"). As is clear from my previous judgment Arklow had sought leave to apply for judicial review of a decision made by the Board granting permission for a waste water plant on six separate groups of grounds as set out in that judgment. As is also clear from my previous judgment leave was granted in respect of three of those groups of grounds but refused in relation to the three others. It is in respect of certain aspects of the refusal of leave that Arklow now seeks a certificate from this court to enable it to appeal to the Supreme Court.

3 3 1.2 Each of the parties who were represented at the leave application also appeared on the hearing of this certification application.

2. The Statutory Basis for Appeal

4 Under s. 50(4)(f) of the Planning and Development Act, 2000, the determination of this Court of an application for judicial review is final and no appeal lies from such a decision save with the leave of this Court, which leave is only to 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.

5 2 2.2 It is clear from the decisions of the Supreme Court in KSK v. An Bord Pleanála [1994] 2 I.R. 128, Irish Asphalt v. An Bord Pleanála [1996] 2 I.R. 179, and Irish Hardware Association v. South Dublin County Council and Others [2001] 2 I.L.R.M. 291, together with numerous decisions of this Court, that the policy behind the section is that there should be a greater degree of certainty and expedition in the determination of planning judicial reviews.

6 3 2.3 In a number of decisions of this court the requirements of the section have been analysed in some detail and it is clear that a number of tests must be met:-

7 (i) There must be an uncertainty as to the law in respect of a point which has to be of exceptional importance; see for example Lancefort v. An Bord Pleanála [1998] 2 I.R. 511.

8 (ii) The importance of the point must be public in nature and must, therefore, transcend well beyond the individual facts and parties of a given case. Kenny v. An Bord Pleanála (No. 2) [2001] 2 I.R. 704. It is the case that every point of law arising in every case is a point of law of importance. Fallon v. An Bord Pleanála [1992] 2 I.R. 308. That, of itself, is insufficient for the point of law concerned to be properly described as of "exceptional public importance".

9 (iii) The requirement that the court be satisfied "that it is desirable in the public interest that an appeal should be taken to the Supreme Court" is a separate and independent requirement from the requirement that the point of law be one of exceptional public importance. See Kenny (No. 2). On that basis, even if it can argued that the law in a particular area is uncertain, the court may not, on the basis, inter alia, of time or costs, consider that it is appropriate to certify the case for the Supreme Court. Arklow Holidays Limited v. Wicklow County Council and Others (Unreported, High Court, Murphy J., 4th February, 2004).

10 4 2.4 This latter case involved a judgment in an application in proceedings relating to the same development as that with which I am concerned and involved an application for a certificate in respect of a refusal to give leave to seek judicial review in relation to the original decision of the planning authority in respect of this development. The proceedings with which I am concerned relate to the decision of the Board in the same planning process.

11 5 2.5 It is also clear that the point of law concerned must arise from the decision: see Ashbourne Holdings Ltd v. An Bord Pleanála (Unreported, High Court, Kearns J. 19th June, 2001), Kenny (No. 2) and Begley and Clarke v. An Bord Pleanála (Unreported, High Court, O Caoimh J., 23rd May, 2003).

12 6 2.6 I did not understand there to be any significant controversy between any of the parties to the certificate application in relation to the appropriate principles to be applied.

13 I therefore will proceed to consider the various points in respect of which a certificate is sought applying those principles.

3. Failure to Assess

14 2 3.1 As pointed out at paragraph 5.17 of my previous judgment, Arklow argued at the leave hearing that there were substantial grounds for contending that there had not been an adequate assessment of the environmental impact of the project sufficient to satisfy the requirements of directive 85/337 as interpreted by the Court of Justice in particular in Wells v. Secretary of State (Case C û 210/02 1st January, 2004) (2004) 1 CHLR 31. As set out in my previous judgment, that argument was the second leg of contentions made on behalf of Arklow which concerned conditions 9 and 13 of the planning permission ultimately granted by the Board. Under the first leg of the argument it was contended that the relevant conditions conferred an impermissibly wide discretion on the planning authority in relation to matters which were to be the subject of further agreement, contrary to the principles set out in Boland v. An Bord Pleanála [1996] 3 I.R. 435. At paragraph 5.11 of my previous judgment I concluded that the criteria set out for the agreement to be reached between the Urban District Council (as developer) and the County Council (as planning authority) were sufficiently precise to meet the Boland test and further concluded that there did not seem to me to be substantial grounds to the contrary. No certificate is sought in respect of that finding.

15 3 3.2 However at paragraph 5.19 of my previous...