Callaghan v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date27 July 2017
Neutral Citation[2017] IESC 60
CourtSupreme Court
Docket Number[Appeal No: 19/2017]
Date27 July 2017

[2017] IESC 60

THE SUPREME COURT

Clarke J.

Clarke J.

MacMenamin J.

Dunne J.

[Appeal No: 19/2017]

Between/
John Callaghan
Applicant/Appellant
and
An Bord Pleanála, Ireland

and

the Attorney General
Respondents
and
Element Power Ireland Limited, Element Power Ireland

and

North Meath Windfarm Limited
Notice Parties/Respondents

Scope of appeal – Leave to appeal – Constitutional construction – Appellant seeking to appeal against a decision of the Court of Appeal – Whether appellant had, in written submissions, gone beyond the scope of the appeal permitted in accordance with the determination of the Supreme Court granting leave to appeal

Facts: The Supreme Court granted leave to appeal to the appellant, Mr Callaghan, against a decision of the Court of Appeal delivered by Hogan J on the 21st December, 2016. A notice of intention to proceed was filed on behalf of Mr Callaghan and written submissions were thereafter filed on his behalf and on behalf of three sets of respondents being, respectively, the first respondent (An Bord Pleanála), the second and third respondents (the State) and the notice parties (Element Power). In each of the submissions filed by the Board, the State and Element Power a suggestion was made that Mr Callaghan had, in the written submissions filed on his behalf, gone beyond the scope of the appeal permitted in accordance with the determination of the Supreme Court granting leave to appeal. In those circumstances, when the matter first was before the Court for the purposes of case management, it was determined that an issue be tried as to the proper scope of the appeal in order to bring clarity to those matters in advance of the substantive hearing.

Held by Clarke J that the proper approach of the Court to determining the scope of an appeal subsequent to the 33rd Amendment to the Constitution is to confine an appellant to issues which can fairly be said to arise within the scope of the appeal as identified in the determination of the Court granting leave to appeal. However, Clarke J also proposed that the Court should not, in so confining an appeal, adopt an overly technical or narrow approach but rather should consider whether, on a fair basis, it can be said that the arguments sought to be relied on come within the broad scope of the leave granted. In addition, Clarke J came to the conclusion that, where the potential construction of a statute or legislative measures is at issue in proceedings, the Court should not ignore arguments which might impact on the proper objective construction of the measures concerned which derive either from the principle of constitutional construction or from the requirement of conforming interpretation as a matter of European Union law.

Clarke J held that Mr Callaghan should be permitted to rely on any European Union law arguments which might be relevant to the proper construction of the statutory framework under the Planning and Development (Strategic Infrastructure) Act 2006 which was at the heart of the proceedings provided that those arguments are directed towards a construction of that statutory framework in the manner advanced on behalf of Mr Callaghan in the courts below. However, Clarke J would not propose that Mr Callaghan should be entitled to raise a pure transposition argument. Clarke J would, therefore, confine Mr Callaghan’s arguments under European law to matters which might legitimately be said to have an impact on the proper construction of the relevant statutory framework.

Judgment approved.

Judgment of Mr. Justice Clarke delivered the 27 th July, 2017.
1. Introduction
1.1

This Court has recently granted leave to appeal (see Callaghan v. An Bord Pleanála & ors [2017] IESCDET 32) to the appellant (‘Mr. Callaghan’) against a decision of the Court of Appeal delivered by Hogan J. on the 21 st December, 2016 ( Callaghan v. An Bord Pleanála & ors [2016] IECA 398). In the ordinary way a notice of intention to proceed was filed on behalf of Mr. Callaghan and written submissions were thereafter filed on his behalf and on behalf of three sets of respondents being, respectively, the first named respondent (‘the Board’), the second and third named respondents (‘the State’) and the notice parties (‘Element Power’). In each of the submissions filed by the Board, the State and Element Power a suggestion was made that Mr. Callaghan had, in the written submissions filed on his behalf, gone beyond the scope of the appeal permitted in accordance with the determination of this Court granting leave to appeal.

1.2

In those circumstances, when the matter first was before the Court for the purposes of case management, it was determined that an issue be tried as to the proper scope of the appeal in order to bring clarity to those matters in advance of the substantive hearing. Such an oral hearing then ensued and this judgment is directed to the issues raised. Before going on to deal with the specific issues which arise in the circumstances of this case it is appropriate to identify the general principles by reference to which a decision such as this should be taken.

2. General Principles
2.1

In Grace & Sweetman v. An Bord Pleanála & ors [2017] IESC 10 this Court, confirming its previous decision in McEnery v. Commissioner of An Garda Síochána [2016] IESC 26, indicated that, subject to very limited exceptions, the only questions which are properly addressed by the Court on an appeal under the new constitutional architecture, which has been in place since the 33 rd Amendment to the Constitution came into effect, ‘are the issues which can fairly be said to come within the ambit of the grounds on which leave to appeal is given’. However, in an analogous area, this Court has also recently, in a determination in SPV Osus Limited v. HSBC Institutional Trust Services (Ireland) Limited & ors [2017] IESCDET 84, indicated that the Court should not adopt an ‘overly technical attitude to the question of whether the relevant issues were raised in precisely the same form in the court or courts below’. For like reasons this Court should not adopt an overly technical approach to the precise boundaries of the issue or issues in respect of which leave to appeal was granted. An application for leave to appeal is necessarily made in a relatively summary form and the Court does not have access to all of the materials which were before the Court below. Because of this the precise boundaries of the arguments which may be properly addressed to the Court should not be regarded as written in stone by reference to the exact language used in the determination of this Court granting leave. Rather, by analogy with the question of whether an issue sought to be relied on was raised in a court or courts below (which issue was addressed in SPV Osus), the Court should consider whether the arguments sought to be put forward can fairly be said to arise within the terms on which leave has been given recognising that arguments will necessarily be refined or adjusted to some extent as the appellate process progresses.

2.2

Indeed, a similar issue is addressed by O'Donnell J. in his judgment in McDonagh v. Sunday Newspapers Limited (reference to be inserted when available) which is also delivered today. The difficulty which arose in that case stemmed from complications which derived from the fact that the Court had certified some but not all of the issues in respect of which leave to appeal was sought. As O'Donnell J. points out the Court considers leave to appeal on the basis of limited materials and it may become clear as the appeal develops that some latitude on the issues which require to be considered must be afforded to the parties. The alternative, as O'Donnell J. also points out, is a risk of a descent into Dante's inferno. On the facts of McDonagh, O'Donnell J. held that the Court was entitled to review the scope of the issues which can be argued. It is not necessary to go that far in the circumstances of this case. However, McDonagh is certainly authority for the proposition that a court should not adopt a narrow or overly technical approach to the scope of the appeal.

2.3

It follows that the approach of this Court to the scope of an appeal should be to ensure that the arguments sought to be put forward on behalf of the appellant can be said to come reasonably and fairly within the scope of the issues or grounds identified in the determination granting leave to appeal but that an overly technical or rigid approach should not be adopted to determining those boundaries. In particular, refined or adjusted arguments directed to the same general end may well be permissible provided that the issue to which those arguments are directed comes fairly within the scope of the...

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