Ballyboden Tidy Towns Group v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 07 January 2022
• Neutral Citation: [2022] IEHC 1
• Docket Number: [2021 No. 89 JR]

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000, as Amended

Between

Ballyboden Tidy Towns Group

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

South Dublin County Council

Notice Party

[2022] IEHC 1

[2021 No. 89 JR]

THE HIGH COURT

JUDICIAL REVIEW

Leave to appeal – Questions of exceptional public importance – Conforming interpretation – Applicant seeking leave to appeal – Whether the High Court was correct to hold that any implied rule as to the duration of development consent did not have direct effect

Facts: The High Court (Humphreys J), in Ballyboden Tidy Towns Group v An Bord Pleanála (No. 1) [2021] IEHC 648, dismissed the proceedings of the applicant, Ballyboden Tidy Towns Group, challenging flood relief works in the Whitechurch Stream catchment area in Rathfarnham, Co. Dublin. The applicant applied for leave to appeal. The applicant’s proposed questions of exceptional public importance were as follows: “(i) Was the Court correct to hold that the indefinite duration point could only go to the validity of the decision if the directive was directly effective in this respect? (ii) Was the Court correct to hold that any implied rule as to the duration of development consent is not sufficiently clear, precise and unconditional as to be capable of having direct effect? (iii) Was the Court correct to hold that any implied rule as to the duration of development consent needed to be sufficiently clear, precise and unconditional as to be capable of having direct effect? (iv) Was the Court correct to hold that any implied rule as to the duration of development consent did not have direct effect? (v) In the light of the principle of conforming interpretation, should 177AE be read as requiring the imposition of a time limit on a permission granted thereunder?”

Held by Humphreys J that the applicant’s conforming interpretation argument is “not just evolution but a changed case” and “an entirely recast case”, agreeing with both the State’s and the board’s characterisations. Humphreys J held that the point is totally unfounded on the merits when one actually asks what the conforming interpretation would be, and dissolves when one moves away from the abstract academic level to look at the actual practicality. Humphreys J held that the duration point as a non-transposition argument might not be a non-starter if it had been properly pleaded. Humphreys J would have said the same about the new point, introduced for the first time, that the board should have considered the question of a time limit (assuming one is not automatically required and assuming someone raises something before the board to make this an issue and that the board has jurisdiction to impose a time limit if the statute does not). Since those points were not pleaded, Humphreys J did not consider them further beyond noting them as not unarguable. Under those circumstances, Humphreys J did not consider the public interest aspect.

Humphreys J dismissed the application for leave to appeal.

Application dismissed.

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 7th day of January, 2022

1 In ( [2021] IEHC 648 Ballyboden Tidy Towns Group v. An Bord Pleanála (No. 1) Unreported, High Court, 20th October, 2021), I dismissed the applicant's proceedings challenging flood relief works in the Whitechurch Stream catchment area in Rathfarnham, Co. Dublin. The applicant now applies for leave to appeal.

The law in relation to leave to appeal

2 There are already a large number of cases on the criteria for leave to appeal, and that is a phenomenon that can only get worse over time. I have taken into account the caselaw set out in submissions and other caselaw insofar as it seems relevant to me. Of particular note is the principle identified in Ross v. An Bord Pleanála (No. 2) [2015] IEHC 484, [2015] 7 JIC 2107 (Unreported, High Court, Noonan J., 21st July, 2015) that it is not generally appropriate to grant leave to appeal on a point that has not been pleaded: see also Hellfire Massy Residents Association v. An Bord Pleanála (No. 2) [2021] IEHC 636, ( [2021] 10 JIC 1302 Unreported, High Court, 13th October, 2021) at para. 6(iv).

3 This point was also emphasised by the Supreme Court in the determination in Moore v. An Bord Pleanála [2021] IESCDET 124 citing Casey v. Minister for Housing Planning and Local Government [2021] IESC 42, [2021] 7 JIC 1606 (Unreported, Supreme Court, Baker J. (Clarke C.J., O'Donnell, MacMenamin and Dunne JJ. concurring), 16th July, 2021), regarding the importance of pleadings in judicial review. Admittedly, a determination is technically non-precedential, but here its logic is compelling and of course totally consistent with the formal jurisprudence such as Ross v. An Bord Pleanála.

4 Insofar as the Supreme Court might occasionally grant leave to appeal on a point that has been held by the High Court not to have been properly pleaded (see for example An Taisce v. An Bord Pleanála [2021] IESC 79, [2021] 12 JIC 0704 (Unreported, Supreme Court, Hogan J. (Dunne, Charleton, O'Malley and Woulfe JJ. concurring), 7th December, 2021) at para. 28) that is a slightly different situation. In my respectful view, the jurisprudence can be reconciled as follows. The logic of the Supreme Court determination in Moore suggests that the approach of allowing leave to appeal on points that have not been pleaded cannot be correct as a matter of principle. But an appellate court allowing leave to appeal on points that have been held by the High Court not to have been pleaded must be justifiable as a matter of pragmatism in certain circumstances in a context where the pleading point is complex and it is easier to finally determine that point at appellate level only after one has evaluated the whole case. But that commendably pragmatic approach (if I may respectfully say so) has no relevance to the grant of leave to appeal by the High Court, which by definition has evaluated the whole case and thus has come to a definite view about the scope of the pleadings.

Applicant's proposed questions

5 The applicant's proposed questions of exceptional public importance are as follows:

• “(i) Was the Court correct to hold that the indefinite duration point could only go to the validity of the decision if the directive was directly effective in this respect?

• (ii) Was the Court correct to hold that any implied rule as to the duration of development consent is not sufficiently clear, precise and unconditional as to be capable of having direct effect.?

• (iii) Was the Court correct to hold that any implied rule as to the duration of development consent needed to be sufficiently clear, precise and unconditional as to be capable of having direct effect?

• (iv) Was the Court correct to hold that any implied rule as to the duration of development consent did...