Cleary Compost and Shredding Ltd v an Bord Pleanála No.2

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 13 June 2018
• Neutral Citation: [2018] IEHC 347
• Docket Number: [2015 No. 454 JR]
• Court: High Court
• Date: 13 June 2018

BETWEEN

CLEARY COMPOST

AND

SHREDDING LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

(NO. 2)

[2018] IEHC 347

Baker J.

[2015 No. 454 JR]

THE HIGH COURT

Judicial review – Certificate for leave to appeal – Public interest – Applicant seeking certificate for leave to appeal High Court decision – Whether the court's decision involved a point of law of exceptional public importance

Facts: The applicant, Cleary Compost and Shredding Ltd, appealed a decision of Kildare County Council of 23 December 2014 to refuse permission to extend or expand waste activity on a site at Larchill, Monasterevin, Co. Kildare. On 8 June 2015, the respondent, An Bord Pleanála, dismissed the appeal in the exercise of its statutory jurisdiction under s. 138(1)(b)(i) of the Planning and Development Act 2000 for the stated reasons that the existing waste facility did not have the benefit of planning permission and did not or could not benefit from any of the exemptions in the 2000 Act, as it required an Environmental Impact Assessment and an Appropriate Assessment. The applicant applied for judicial review of the decision of An Bord Pleanála in regard to the correctness of the approach of An Bord to the appeal and the reasons therefor. On 10 July 2017, the High Court (Baker J) refused the application. The applicant applied to the High Court pursuant to s. 50A(7) of the 2000 Act for a certificate for leave to appeal Baker J's decision.

Held by Baker J that insofar as it was argued that the question regarding the correct treatment of a series of declarations under s. 5 of the 2000 Act might raise a point of law of exceptional public importance, it did not do so in this case and the determination in the substantive action was so rooted in the facts of the case and the manner by which An Bord treated the evidence before it, that the point did not arise from the judgment. Baker J held that no public interest would be achieved in asking the appellate court to further review the decision of An Bord in the light of the clear conclusions which were specific to and rooted in the actual evidence before An Bord.

Baker J held that she would refuse to grant the certificate sought.

Application refused.

JUDGMENT of Ms. Justice Baker delivered on the 13th day of June, 2018

1 This judgment is given in the application by the applicant pursuant to s. 50A(7) of the Planning and Development Act 2000 (as amended) ('the PDA'), for a certificate for leave to appeal my decision delivered on 10 July 2017, Cleary Compost and Shredding Ltd. v. An Bord Pleanála [2017] IEHC 458 ('the substantive judgment'). The statutory test is set out in s. 50A(7) of the PDA and requires the applicant for leave to demonstrate that the court's 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.

2 Section 50A(7) provides as follows:

'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 leading judgment is that of MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 where he set out the ten principles applicable in the consideration of the issues as follows:

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 It is clear, as noted by Hedigan J. in Shillelagh Quarries Ltd. v. An Bord Pleanála [2013] IEHC 92 at para. 6.2, that the tests are cumulative.

5 In Arklow Holidays Ltd. v. An Bord Pleanála [2006] IEHC 102, [2007] 4 IR 112, Clarke J. further clarified the principles, which I would summarise as follows:

1. there must be an uncertainty as to the law in respect of a point which has to be of exceptional importance;

2. the importance of the point must be public in nature and transcend the individual facts and the parties;

3. the court must be satisfied as a 'separate and independent requirement' that it is 'desirable in the public interest that an appeal should be taken', so that even if law in a particular area is uncertain, the court may not always consider it appropriate to grant leave to appeal.

6 As Barrett J. said in Dunnes Stores v. An Bord Pleanála [2016] IEHC 263, at para. 57:

'"a point of law of exceptional public importance", is a point of law that is of unusual or untypical importance. That is a very high hurdle to cross: the point of law must not just be important, but of unusual or untypical importance.'

7 He took the view that, having regard to the high threshold, most applications for a certificate to appeal will fail, and this echoes the observation of MacMenamin J. in Glancré, that the 'jurisdiction to certify such a case must be exercised sparingly'.

8 Thus, it would appear that the legislative intent is that the High Court decision be final, save in exceptional cases and where the public interest is served by an appeal.

The substantive judgment

9 The substantive judgment was an application for judicial review of the decision of An Bord Pleanála ('An Bord') in an appeal by the applicant...