Callaghan v an Bord Pleanála and Others

JurisdictionIreland
JudgeMs. Justice Costello
Judgment Date24 July 2015
Neutral Citation[2015] IEHC 493
Date24 July 2015
CourtHigh Court
Docket Number[2014 No. 647 J.R.] [2014 No. 170 COM]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT 2000 ACT, AS AMENDED

BETWEEN
JOHN CALLAGHAN
APPLICANT
AND
AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND AND NORTH MEATH WIND FARM LIMITED
NOTICE PARTIES

[2015] IEHC 493

Costello J.

[2014 No. 647 J.R.]

[2014 No. 170 COM]

THE HIGH COURT

COMMERCIAL

Government – Planning & Development – Leave to appeal – S. 50 of Planning and Development Act 2000 – Planning and Development (Strategic Infrastructure) Act 2006 – Exceptional public importance – Interests of public – Fair procedures

Facts: Following the Court refusing to grant leave to seek judicial review of the decision of the first named respondent designating the proposed application for a wind farm by the first named notice party to be strategic infrastructure development under the Planning and Development (Strategic Infrastructure) Act 2006, the applicant now sought a certificate for leave to appeal to the Court of Appeal on three questions. The first question was whether the scheme contained in the said Act of 2006 made it necessary to read a right for interested members of the public to be heard prior to An Bord Pleanala forming an opinion under s. 37A when construed under s. 50 (2) and s. 143 of the Planning and Development Act 2000. The second and third questions were concerned with the preclusion of An Bord Pleanala from reaching a different opinion on the question of a proposed development being important to the State and fulfilling objectives of the National Spatial Strategy from that reached under s. 37A (2) of the Act of 2000, and failure to transpose Directive 2011/92 into Irish law respectively in lieu of the statutory scheme contained under the said Act of 2006.

Ms. Justice Costello granted the certificate of leave to appeal to the applicant pertaining to the first question while refusing to grant leave with respect to the second and third questions. The Court held that the power to grant leave must be exercised sparingly, ensuring that there existed a question of exceptional public importance in the state of uncertainty, which must be resolved for the common good as it would likely affect the outcome of similar future cases. The Court found that the point raised by the aforesaid first question carried utmost public importance as it for the first time challenged the fairness of the procedures introduced under s. 37A of the Act of 2000 for the pre-application process. The Court, however, was of the view that the law in relation to fair procedures was still evolving and uncertain to that extent. The Court observed that despite the refusal of the Court earlier to grant leave for judicial review, the certification for leave to appeal must follow with respect to the first question as it had the potential to reverse the earlier judgment if viewed from the applicant's perspective, thus giving rise to vagueness and uncertainty.

JUDGMENT of Ms. Justice Costello delivered the 24th day of July, 2015
1

On 11th June, 2015, I gave judgment in this matter and I refused the applicant's application for leave to seek judicial review in respect of a decision by An Bord Pleanála (‘the Board’) to designate the proposed application for a wind farm by the first named notice party to be strategic infrastructure development within the meaning of the Planning and Development (Strategic Infrastructure) Act 2006. The applicant has applied for a certificate for leave to appeal in respect of that judgment. The applicant seeks a certificate on three points of law which he says are of exceptional public importance in the following terms:-

‘Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in the light of Sections 50(2) and 143 of the Planning and Development Act 2000 such that:-

(a) It is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanala reaching an opinion pursuant to Section 37A of the Planning and Development Act 2000.

(b) It precludes or effectively precludes An Bord Pleanala, when reaching its decision whether to grant or refuse permission, from reaching a decision on the question of whether the proposed development would be of strategic, economic or social importance to the State and/or would contribute substantially to the fulfilment of any of the objectives of the National Spatial Strategy or any regional planning guidelines for the time being in force different to that reached when forming its opinion pursuant to Section 37A(2) of the Planning and Development Act 2000.

(c) It fails to properly transpose Directive 2011/92 into Irish law by failing to ensure that there is effective public participation in the decision-making process at a time when all options were still open to the decision maker.’

2

Section 50A(7) of the Planning and Development Act 2000, as amended, provides that an appeal may only be taken where the High 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. Subsection (7) provides as follows:-

‘(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.’

3

The principles upon which the court should approach an application for a certificate for leave to appeal were summarised by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 and have been followed consistently in many cases. He 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.’

4

In Ógalas Limited (Trading as Homestore and More) v. An Bord Pleanála & Ors [2015] IEHC 205, Baker J. at para. 4 held:-

‘McMenamin J. summarised the law applicable to a grant of certificate in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 and I will not repeat the ten criteria outlined by him at pp. 4 and 5 of his judgment but accept his proposition that it is not sufficient for an applicant for a certificate to show that a point of law emerges in or from a case, but an applicant must show that the point is one of exceptional public importance and must be one in respect of which there is a degree of legal uncertainty, more than one referable to the individual facts in a case. There must be a public interest in requiring that the point of law be clarified for the common good, but to an extent, if there exists uncertainty in the law, and because clarity and certainty in the common law is a desirable end in itself, and important for the administration of justice, if it can be shown the law is uncertain the public interest suggests an appeal is warranted’.

5

I accept that each of these points raised by the applicant is of importance and that they each transcend the individual case. They apply to any application for planning permission which could be designated strategic infrastructure under the Act of 2006. This means that the points automatically affect all strategic infrastructure development within the State which by definition will be large scale and of importance to the State or a region of the State. This point was not really in dispute.

6

The point raised must be important to cases other than the case in issue, it must transcend the facts of the particular case and help in the resolution of...

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