Balscadden Road SAA Residents Association Ltd v an Bord Pleanala and Christian Morris v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 12 March 2021
• Neutral Citation: [2021] IEHC 143
• Docket Number: [2020 No. 375 JR]
• Court: High Court

BETWEEN

BALSCADDEN ROAD SAA RESIDENTS ASSOCIATION LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CREKAV TRADING G.P. LIMITED

NOTICE PARTY

AND

BETWEEN

CHRISTIAN MORRIS

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CREKAV TRADING G.P. LIMITED

NOTICE PARTY

(NO. 2)

[2021] IEHC 143

Humphreys J.

[2020 No. 375 JR]

[2020 No. 293 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judgment of Humphreys J. delivered on Friday the 12th day of March, 2021

1 In broad terms, and subject to argument in any individual case, one can frequently envisage that issues in multi-layered litigation that blends domestic, European and constitutional-type challenges (or in other words, the typical major planning case nowadays) could be addressed in a rough order as follows:

(i). firstly, domestic law issues (which may be enough);

(ii). EU law points not appropriate for a reference (and if one of these is decisive, probably it's enough to stop there);

(iii). then if needs be, EU law points that warrant a reference under art. 267 TFEU (because only at that point are such issues fully “necessary” for the decision); and

(iv). finally, but only if there is no other determinative issue, points regarding the validity or ECHR compatibility of primary or secondary legislation or measures of a general character like ministerial guidelines, based on the principle of deciding constitutional-type issues last and on the principle that only when all else fails is there “no other remedy” available for the purposes of s. 5(1) of the European Convention on Human Rights Act 2003.

2 In Balscadden Road SAA Residents Association Ltd. v. An Bord Pleanála (No. 1) [2020] IEHC 586 (Unreported, High Court, 25th November, 2020), I got as far as category (i), found two of the domestic points determinative but decided them all anyway, and stopped there.

3 Following that hearing and judgment, the notice party has now returned to court with an innovative motion asking that I now also decide the European law grounds.

Jurisdiction to make the order sought

4 A case that stands or falls on a single question does not give rise to problems of the kind that confront us here. But in cases that can be disposed of on more than one ground, issues arise about the extent to which the court can or should express views on all issues, as well as the distinction between a positive decision that, taken with the material facts, forms part of the ratio on the one hand, and an obiter view, which is something less than a positive statement that the court is upholding or quashing a decision on a particular ground, on the other.

5 There is some asymmetry as between applicants and respondents in judicial review in the sense that an applicant only has to find one good point in order to win, whereas the respondent has to win on all points. This seems to incentivise the scattergun approach of launching dozens of grounds in the hope that there might be at least some fragment somewhere that takes the court's fancy. Taking that too far can be counterproductive - better for everybody to do the deep thinking early in the case and plead with precision accordingly.

6 Admittedly, the boundary between ratio and obiter is not absolutely self-evident where a decision could be made on more than one ground. Sometimes the court indicates this expressly, such as saying that it is basing its decision on point A, but is also offering a view on point B. Sometimes this may be implicit, such as where for example the court offers a view on an “if I am wrong” basis. Thus, if the judge says, in effect, I am deciding the case on point A, but assuming arguendo that I am wrong about that, I am deciding it on point B. The decision on point B is strictly speaking obiter, although if an appellate court found that the original court was wrong on point A, but correct on point B, point B would then become the ratio of the appellate decision.

7 Furthermore, even if the court making the decision adopts a particular characterisation, our system allows a later court to view a decision in narrower terms or indeed occasionally in broader terms, particularly by viewing some fact as material or non-material in terms different to those perceived by the original court. So where the court (as I did in the present case) finds in favour of a particular party based on two grounds, a later court could narrow the decision categorising one finding as the ratio and another as obiter, a point made by Professor Glanville Williams in Learning the Law, 11th ed. (London, Stevens & Sons, 1982), p. 75. However, for the purposes of the present discussion, I am speaking of the distinction as it is understood by the court itself. In that sense, both of the points were part of the ratio.

8 Where multiple points arise, the court has some choice as to how the matter should be dealt with. Ranging from deciding the least number of issues to deciding the greatest number of issues, the court's options include:

(i). to positively decide one (or perhaps more than one), dispositive ground and say nothing about the other grounds;

(ii). to positively decide one (or more than one), dispositive ground, offer obiter views on one or some (but not all) of the other issues and say nothing about any remaining issues;

(iii). to positively decide one (or more than one), dispositive ground and offer obiter views on all other grounds; or

(iv). to positively decide all issues.

9 As a matter of empirical observation, courts generally err on the side of deciding less rather than more. But the court has a choice in that regard. The court can and may decide only such limited issues as are necessary to dispose of the case; or alternatively may decide all issues that arise on the pleadings, even if a decision on just a single issue would be dispositive.

10 I call this a “choice” rather than a “discretion” because this has never been viewed as in any way like a reviewable discretion (in relation to costs for example) that is subject to scrutiny and reversal on appeal. Judges in our system have never been legally compelled to decide obiter points any more than they are precluded from say sitting at 10.30 am rather than 11.00 am, or writing judgments with the conclusion announced first followed by reasons or vice versa. Whether a particular court in a particular case goes on to offer an obiter view on one of the issues that arises on the pleadings but is not decisive is not the sort of thing that our system has ever sought to rigidly regulate. It falls into the category of practices that can legitimately vary from judge to judge and from case to case, and for there to be an inflexible rule or even a strong institutional preference one way or the other in relation to such matters would, particularly for first instance judges, diminish the art and profession of judging to the level of an almost mechanical process.

11 Of course there are cases where courts have decided all of the issues even where this was not necessary. During the hearing in the present case I suggested that the parties focus on the domestic issues first and leave argument as to the European issues over for the time being. Counsel for the notice party developer calls that “happenstance”. But it wasn't happenstance - it was an approach on a principled basis. If European issues on which the proceedings turn are not acte clair, the question of recourse to Luxembourg falls for consideration. That can only be done if a decision on the European issues is “necessary” for disposition of the case. If the matter can be disposed of on domestic law points then, at least in principle, the determination of the matter on European law points is no longer “necessary”. That was the basis on which I attempted to encourage the parties to deal with submissions on the domestic law issues first.

12 That is not meant to be a rigid or inflexible position. If for example the core issue in a particular case is one of European law and any domestic points are genuinely peripheral, then it may make more sense to simply cut to the chase. But as a general rule, a court might feel there is something to be said for deciding the domestic law issues first if that is an available option which potentially could be dispositive. Hence the four-step running order outlined at para. 1 above.

13 Given that I have already indicated the decision arrived at (namely that the development consent is being quashed), there is a strong element of the hypothetical and advisory to deciding any further matters. In Lofinmakin v. Minister for Justice, Equality and Law Reform [2013] IESC 49, [2013] 4 I.R. 274, McKechnie J. said that “that the court will not - save pursuant to some special jurisdiction - offer purely advisory opinions or opinions based on hypothetical or abstract questions” (para. 51(iv)). Admittedly, here the order has not been perfected, so the proceedings are...