Balz v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 01 October 2018
• Neutral Citation: [2018] IEHC 535
• Date: 01 October 2018
• Court: High Court
• Docket Number: [2017 No. 558 J.R.]

BETWEEN

KLAUS BALZ

AND

HANNA HEUBACH

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL

FIRST NAMED NOTICE PARTY

AND

CLEANRATH WINDFARM LTD.

SECOND NAMED NOTICE PARTY

[2018] IEHC 535

Haughton Robert J.

[2017 No. 558 J.R.]

[2017 No. 144 COM.]

THE HIGH COURT

COMMERCIAL

Planning and development – Leave to appeal – Points of law of exceptional public importance – Appellants seeking a certificate for leave to appeal – Whether points of law of exceptional public importance have been raised

Facts: Haughton J, on 30th May, 2018, dismissed the claim of the applicants, Mr Balz and Ms Heubach, for judicial review of the decision of the respondent, An Bord Pleanála, dated 25th April, 2017 and recorded in the Board Direction dated 16th May, 2017 granting permission to the second notice party, Cleanrath Windfarm Ltd, for the construction of an eleven turbine windfarm at Cleanrath, Inchigeelagh, Co. Cork. The applicants applied to the High Court for a certificate for leave to appeal, pursuant to s. 50A(7) of the Planning and Development Act 2000. The applicants sought certification in respect of three questions: (1) whether the obligation on the Board, under Article 3 of the EIA Directive (and the corresponding domestic requirement of s. 171A of the 2000 Act) includes an obligation to assess, investigate, examine, analyse and evaluate each of the submissions or observations validly made to the Board pursuant to Article 6 of the EIA Directive, including submissions based upon (a) credible scientific evidence relevant to the environmental effect of windfarm noise, (b) scientific criticism of the 2006 Wind Energy Development Guidelines and (c) scientific criticism of ETSU-R-97; (2) whether the Board is permitted to exclude from its assessment (and in exercising its statutory discretion whether or not to apply the 2006 Guidelines), on the basis that they were not “relevant planning considerations”, scientific criticisms of the Guidelines and ETSU-R-97; (3) whether the obligation on the Board under Article 8 of the EIA Directive, to consider certain information in the development consent procedure, form part of the process of impact assessment required under Article 3 of the EIA Directive.

Held by Haughton J that no points of law of exceptional public importance had been raised.

Haughton J held that the application for a certificate would be refused.

Application refused.

Judgment of Mr. Justice Robert Haughton delivered on the 1st day of October, 2018.

1 In my judgment delivered on 30th May, 2018 I dismissed the applicants claim for judicial review of the decision of the respondent (‘the Board’) dated 25th April, 2017 and recorded in the Board Direction dated 16th May, 2017 granting permission to the second named notice party Cleanrath Windfarm Ltd. (‘Cleanrath’) for the construction of an eleven turbine windfarm at Cleanrath, Inchigeelagh, Co. Cork (‘the impugned decision’).

2 This judgment relates to an application by the Applicants for a certificate for leave to appeal, pursuant to s. 50A(7) of the Planning and Development Act, 2000 (‘PDA 2000’), as inserted by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006, and as amended by s. 74(1) of the Court of Appeal Act, 2014. As so amended s. 50A(7) provides:-

‘The determination of the Court of an application for s. 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the [Court of Appeal] in either case save with the leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal shall be taken to the [Court of Appeal]’.

3 It was not in dispute that the principles relating to consideration of certification under s. 50A(7) are those set down by Clarke J. (as he then was) in Arklow Holidays Ltd. v. An Bord Pleanála [2008] IEHC 2, and MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250. In Arklow Holidays Clarke J. stated:-

‘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.

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:-

(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.

(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’.

(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 be 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 Ltd. v. Wicklow County Council and Others (Unreported, High Court, Murphy J., 4th February, 2004).’

4 In Glancre Teoranta, MacMenamin J. reviewed the authorities and at pg.4 stated:-

‘I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein.

1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court ( Kenny).

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the court ( Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’.

8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.

9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.’

5 To this it should be added that the court should stand back from its principal judgment and assess the certification application from a neutral point of view. Thus if another view of the law is reasonably possible, it is not for the court considering certification to assess the merits of the arguments or the strength of the appeal – see comments of Costello J. in Callaghan v. An Bord Pleanála [2015] IEHC 493.

6 The commercial implications of the further delay that an appeal will entail may be a consideration where the public interest is engaged. As Costello J. observed in Callaghan:

8. In the case of People Over Wind v. An Bord Pleanála & Ors [2015] IEHC 393, Haughton J. was asked to certify points of law in relation to a judicial review relating to a large wind farm which was to be developed by Coillte. In opposing the certificate, Coillte argued that the inevitable delay consequent upon such an appeal would have very damaging commercial consequences such that the development might in fact not proceed. It was pointed out that the proposed development, if carried out, would contribute very significantly to the renewable energy targets of the State. Haughton J. held that essentially this was a private commercial interest and while it was a factor to be taken into account in the court's assessment as to whether or not the grant of a certificate was in the best interest of the public, it was not determinative.

9. Similar considerations apply in this case. The proposed development, if carried out, is likely to contribute significantly to the State's renewable energy targets. However, it is a private development being carried out for commercial...