Buckley v an Bord Pleanála, Ireland and the Attorney General

• Jurisdiction: Ireland
• Judge: O'Donnell J.,McKechnie J.,Finlay Geoghegan J.
• Judgment Date: 27 March 2018
• Neutral Citation: [2018] IESCDET 45
• Court: Supreme Court
• Date: 27 March 2018

[2018] IESCDET 45

THE SUPREME COURT

DETERMINATION

O'Donnell J.

McKechnie J.

Finlay Geoghegan J.

Between:

MICHAEL ALEN-BUCKLEY

and

GIANCARLA ALEN-BUCKLEY

Applicants

-and-

AN BORD PLEANÁLA, IRELAND

and

THE ATTORNEY GENERAL

Respondents

-and-

WATERFORD CITY AND COUNTY COUNCIL

and

ECOPOWER DEVELOPMENTS LIMITED

Notice Parties

Planning permission – Judicial review – Leave to appeal – Applicants seeking leave to appeal against High Court judgments – Whether the submitted issues reached the threshold for leave to appeal

Facts: The first respondent, An Bord Pleanála, on the 14th December, 2016, decided to grant planning permission to Ecopower Developments Ltd for a wind farm development at Knocknamona, Co. Waterford. By order of the High Court dated the 20th February, 2017, the applicants, Mr and Ms Alen-Buckley, were granted leave to judicially review the said decision of the Board. The applicants sought to quash the decision, and also sought a number of declaratory reliefs. Their core arguments were divided into two categories: a) issues relating to the granting of planning permission for a grid connection and temporary haul routes, and ancillary issues flowing from same; and b) additional issues with the decision of the Board to grant planning permission to the wind farm development alone. The High Court (Haughton J), on the 26th September, 2017, refused the application for judicial review. Subsequently, on the 26th October, 2017, the applicants indicated to the High Court that they intended to seek a certificate for leave to appeal the said judgment to the Court of Appeal pursuant to s. 50A(7) of the Planning and Development Act 2000. That application was heard and refused by Haughton J on the 10th November, 2017. The applicants applied to the Supreme Court seeking leave to appeal against both the judgment dismissing their application for judicial review and the judgment dismissing their application for a certificate for leave to appeal to the Court of Appeal.

Held by O’Donnell J, McKechnie J and Finlay Geoghegan J that the Court was not satisfied that any of the submitted issues said by the applicants to satisfy the criteria for leave to appeal reached the constitutional threshold.

O’Donnell J, McKechnie J and Finlay Geoghegan J held that the Court would refuse leave to appeal under Article 34.5.4° of the Constitution.

Application refused.

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the applicant to appeal to this Court from the judgments and orders of the High Court

REASONS GIVEN

1 This determination relates to an application for leave to appeal to the Supreme Court from judgments of the High Court (Haughton J.) dated the 26 ^th September, 2017, and the 10 ^th November, 2017, and from the resulting orders of that Court, one of which was made and perfected on the 5 ^th October, 2017, and the other of which was made and perfected on the 10 ^th November, 2017.

2 Michael Alen-Buckley and Giancarla Alen-Buckley, referred to in this determination as ‘the applicants’, seek leave to appeal to this Court from the said judgments and orders of the High Court.

3 An Bord Pleanála (also referred to in this determination as ‘the Board’) opposes the application for leave. The application is also opposed by Ecopower Developments Limited, referred to as ‘Ecopower’. The second named respondent (Ireland and the Attorney General) and the first named notice party (Waterford City and County Council) did not participate in the application for leave.

Jurisdiction

4 The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. What is sought in this application is what is colloquially known as a “leapfrog” appeal directly from the High Court to the Supreme Court. The threshold for such an appeal is higher than that in respect of an appeal from the Court of Appeal. As is clear from the terms of Article 34.5.4° of the Constitution, it is necessary, in order for this Court to grant leave to appeal directly from a decision of the High Court, that the Court is satisfied that there are exceptional circumstances warranting a direct appeal, a precondition to which is the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.

5 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33 ^rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESC DET. 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] I.E.S.C. 73. The additional criteria required to be met on a so-called “leapfrog appeal” direct from the High Court to this Court were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESC DET. 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

6 It should be noted that any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court's consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive decision of the Court.

Background and Procedural History

7 A fuller history of the proceedings can be found in the applicants' application for leave document and the replying documents, as well as in the judgment of the High Court ( [2017] I.E.H.C. 541). What is presented here is a summary for contextual purposes.

8 The within proceedings arose out of a decision by the Board, dated the 14 ^th December, 2016, to grant planning permission to Ecopower for a wind farm development at Knocknamona, County Waterford. By order of the High Court dated the 20 ^th February, 2017, the applicants were granted leave to judicially review the said decision of the Board. The applicants sought to quash the decision, and also sought a number of declaratory reliefs. Their core arguments were divided into two categories: a) issues relating to the granting of planning permission for a grid connection and temporary haul routes, and ancillary issues flowing from same; and b) additional issues with the decision of the Board to grant planning permission to the wind farm development alone. The judgment of the High Court on the substantive judicial review proceedings was delivered by Haughton J. on the 26 ^th September, 2017. The learned judge refused the application for judicial review. The order of the Court was perfected on the 5 ^th October, 2017.

9 Subsequently, on the 26 ^th October, 2017, the applicants indicated to the High Court that they intended to seek a certificate for leave to appeal the said judgment to the Court of Appeal pursuant to section 50A(7) of the Planning and Development Act 2000, as amended (‘the 2000 Act’). This application was heard and refused by Haughton J. on the 10 ^th November, 2017, and the order of the Court to that effect was perfected on the same date.

10 The applicants now seek leave to appeal against both the judgment dismissing their application for judicial review and the judgment dismissing their application for a certificate for leave to appeal to the Court of Appeal.

Appeal to this Court

11 The applicants have requested an extension of time within which to apply for leave, explaining that they waited until after Haughton J. had delivered his ex tempore judgment on their application for a certificate for leave to appeal to the Court of appeal before filing their application for leave to appeal to this Court. They seek to have the orders of the High Court set aside. The applicants further seek an order of certiorari quashing the said decision of the Board to grant planning permission to Ecopower. The applicants also ask this Court make a reference to the Court of Justice of the...