Buckley & Grace v Bord Pleanála and Others

JurisdictionIreland
JudgeMr Justice CREGAN
Judgment Date16 September 2015
Neutral Citation[2015] IEHC 590
CourtHigh Court
Date16 September 2015
Buckley & Grace v Bord Pleanala & Ors
COMMERCIAL
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED
Approved Judgment

BETWEEN

EDWARD BUCKLEY

AND

EDEL GRACE
APPLICANTS

AND

AN BORD PLEANÁLA
RESPONDENT
ECOPOWER DEVELOPEMENT LIMITED
NOTICE PARTY

AND

DEPARTMENT OF ARTS HERITAGE AND THE GAELTACHT (DAHG)
NOTICE PARTY

[2015] IEHC 590

[No. 579 JR/2014]

THE HIGH COURT

Environment, transport and planning – Section 50 of the Planning and Development ACT 2000 – Certificate of leave to appeal – Point of law of exceptional public importance.

Facts: Following first judgment in the case wherein the application to quash a decision had been refused, the applicants now sought for a certificate for leave to appeal the earlier decision. The applicant contended that the Board failed to fulfil its statutory obligation. The applicants argued that the Ministerial guidelines provided that the Board would be under obligation to adopt the assessment of the planning inspectors.

Mr Justice Cregan held that the application for certificate for leave to appeal would be refused. The Court found that the Board duly complied with the statutory obligation required under s. 172 of the Act. The Court observed that the submission by the applicants failed to engage with the statutory criteria or the criteria set out in the case law. The Court held that the applicant failed to prove the existence of the point of law of exceptional public importance.

1

JUDGMENT of Mr Justice CREGAN delivered on 16th day of September, 2015.

Introduction
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1. On 29 th July, 2015 I gave my first judgment in this case in which I refused the application to quash a decision of An Bord Pleanála (the Board) made on 12 th August, 2014 to grant planning permission to Ecopower Developments Limited to build wind turbines in County Tipperary. The Applicants have now sought a certificate for leave to appeal my decision pursuant to s.50 A (7) of the Planning and Development Act 2000. This second judgment deals with this application for a certificate for leave to appeal.

Relevant Statutory Provisions
3

2. Section 50 A (7) of the Planning and Development Act 2000 provides as follows:

4

2 "(7) The determination of the Court of an application for section 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 Supreme Court in either case save with 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 should be taken to the Supreme Court." (Emphasis added).

5

3. The following subsection is only tangentially relevant but I set it out here for the sake of completeness. Section 50 A (8) provides as follows:

6

2 "(8) Subsection (7) shall not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution."

7

4. In Glancré Teoranta v. An Bord Pleanála and Mayo County Council [2006] IEHC 250 McMenamin J. considered the effect of these statutory principles. At page 3 of his decision he states as follows:

"It is clear that the statutory regime which has been devised by the legislature indicates an interest to ensure that the planning process is not to be hampered by a completely unrestricted access to the court which may cause harmful delays. I am satisfied that it is a restriction to be lifted only in exceptional cases."

8

There have been a number of decisions in relation to the meaning of a test of exceptional public importance. Amongst these are Kenny v. An Bord Pleanála [2002] 1 ILRM 68, Raiu v. Refugee Appeals Tribunal [2003] 21.R. 63, Lancefort Limited v. An Bord Pleanála [1998] 2 I.R. 511, Fallon v. An Bord Pleanála [1992] 2 I.R. 380, Irish Press v. Ingersoll [1995] 1 ILRM 117, Ashbourne Holdings v. An Bord Pleanála (Kearns J., 19th June, 2001, Unreported) and Arklow Holidays Limited v. An Bord Pleanála (Clarke J., the High Court, 29th March, 2006 Unreported).

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

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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.

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

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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.

13

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).

14

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.

15

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).

16

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".

17

8. ormal statutory rules of construction apply which mean inter alia that "exceptional" must be given its normal meaning.

18

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.

19

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."

20

5. Moreover in Arklow Holidays Ltd v. An Bord Pleanála and Others and Wicklow County Council and Others [2006] IEHC 102 Clarke J. stated as follows (at para. 3.1 of his decision):

21

2 "2.3 In a number of decisions of this court the requirements of this section have been analysed in some detail and it is clear that a number of tests must be met:

22

(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.

23

(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".

24

(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 Limited v. Wicklow County Council and Others (Unreported, High Court, Murphy J., 4th February, 2004)."

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6. I turn now to the application of these principles to the application in this case.

The questions raised in the certificate for leave to appeal
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7. The Applicants were seeking to have three questions certified for leave to appeal. These are as follows:

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Question 1 - Does An Bord Pleanála have jurisdiction to consider the validity of a planning application when determining a matter on appeal?

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Question 2 - If the Board does not have jurisdiction to consider the validity of a planning application and a landowner's property is subject to a grant of planning permission where consent to that application and development has been withdrawn, is this in breach of a landowner's property rights and accordingly in breach of Article 40.3.2 and/or Article 43 of the Constitution, and Article 8 and Article I of the First Protocol of the European Convention on Human Rights?

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Question 3 - When carrying out an Environmental Impact Assessment (EIA) what is the relationship between an assessment in the Inspector's report and final determination, and are planning authorities (and the Board on appeal) required to comply with the 2013 guidelines and expressly evaluate an Inspector's assessment?

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8. Although these three questions were put before the court and were the subject of detailed written legal submissions, counsel for the Applicants indicated that his clients did not wish to pursue question 2 and were not seeking a certificate in respect of this question. Given that this question (of whether there was a breach of the landowner's property rights and accordingly a breach of Article 40.3.2 and/or Article 43 of the Constitution and the Articles of the European Convention of Human Rights) had not even been raised during the course of the hearing - and indeed...

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