Clonres Clg v an Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Humphreys J. |
| Judgment Date | 04 February 2022 |
| Neutral Citation | [2022] IEHC 42 |
| Docket Number | [2020 No. 725 JR] |
In the Matter of an Application Pursuant to Section 50 of the Planning and Development Act 2000, as Amended
and
In the Matter of an Application Pursuant to Section 50, 50A and 50B of the Planning and Development Act 2000, as Amended
and
[2022] IEHC 42
[2020 No. 725 JR]
[2020 No. 693 JR]
THE HIGH COURT
JUDICIAL REVIEW
Leave to appeal – Exceptional public importance – Planning and Development Act 2000 s. 50A – Respondent seeking leave to appeal – Whether the application met the criteria for leave to appeal under s. 50A of the Planning and Development Act 2000
Facts: The High Court (Barniville J), in Clonres v An Bord Pleanála (No. 1) [2018] IEHC 473, granted certiorari of a permission granted by the respondent, An Bord Pleanála, for a housing development, and remitted the matter back for further consideration. The board refused permission following that remittal, a decision that was successfully judicially reviewed by the notice party, Crekav Trading GP Ltd, in Crekav Trading GP Ltd v An Bord Pleanála [2020] IEHC 400. In the meantime, a fresh application was made to the board, which was granted. In Clonres CLG v An Bord Pleanála (No. 2) [2021] IEHC 303, Humphreys J granted certiorari of the latter board decision in two sets of proceedings (the Clonres and Conway matters) on the basis of domestic law issues, and adjourned a third challenge to the development (Sweetman v An Bord Pleanála [2020 No. 729 JR]), which was based on EU law grounds. The board applied for leave to appeal to the Court of Appeal under s. 50A of the Planning and Development Act 2000. The board’s points of law of alleged exceptional public importance were as follows: (1) “In the established test for the interpretation of development plans, is the ‘ordinary and reasonably informed (and intelligent) person/member of the public’ to be assumed to have (i) no legal training or particular expertise in law and (ii) no particular expertise in town planning? Ought such person be assumed to have (iii) any knowledge of the law relating to planning?” (2) “Is a development plan a statutory instrument within the meaning of section 2 of the Interpretation Act 2005?” (3) “If the answer to 2 is yes, do all of the rules applicable to the interpretation of statutory instruments apply, either all of the time or at all, to the interpretation of development plans, and if such rules apply some of the time only, when do they apply?” (4) “If the answer to 3 is that the rules of interpretation applicable to statutory instruments do apply some or all of the time to the interpretation of development plans, do these rules of interpretation override the established test referred to in no. 1 and/or how do they otherwise interact with the established test for the interpretation of development plans?” (5) “[b]earing in mind the answers to the foregoing questions, what is the correct interpretation of the references to “existing use” in the description of the Z15 zoning in the Dublin City Development Plan?”
Held by Humphreys J that while he did not think that the application met the criteria for leave to appeal under s. 50A of the 2000 Act, he accepted that the first four questions had a degree of public importance. He did not see the same dimension to the fifth question. He held that, in such a context, if the Supreme Court were to consider, notwithstanding the obiter character of the points the board was concerned about in the substantive judgment and the moot nature of any appeal, and presumably assuming that in such a context the board maintained its offer of a full indemnity for both sets of proceedings, that the first four questions could be worthy of clarification, then one could respectfully see some benefit in that. His primary reservation about special bespoke rules for interpretation of planning documents was that it is an ad hoc approach to law that situates individual subject areas in their own silo rather than seeking an approach that is coherent across different subject areas as seen from the overall perspective of the legal system as a whole. His secondary reservation was that an assumption of lack of relevant knowledge on the part of the interpreter does not make a lot of sense anyway, especially given all of the societal and legal changes in recent decades and other matters referred to in the substantive judgment; nor does it reflect reality. He held that on either or both points, the Supreme Court was the only court that could definitively resolve the matter because only that court could review how its own decision in In Re XJS Investments Ltd [1986] I.R. 750 sits in a modern and joined-up legal framework and in a modern society, and whether any clarification, nuancing or even evolution is appropriate.
Humphreys J held that the application for leave to appeal would be dismissed.
Application dismissed.
(No. 3)
JUDGMENT of Humphreys J. delivered on Friday the 4th day of February, 2022
In Clonres v. An Bord Pleanála (No. 1) [2018] IEHC 473, ( [2018] 7 JIC 3130 Unreported, High Court, 31st July 2018), Barniville J. granted certiorari of a permission granted by the board for a housing development on the lands to which the proceedings relate, and remitted the matter back for further consideration.
The board refused permission following that remittal, a decision that was successfully judicially reviewed by the notice party in Crekav Trading GP Ltd. v. An Bord Pleanála [2020] IEHC 400, [2020] 7 JIC 3108 (Unreported, High Court, Barniville J., 31st July, 2020).
In the meantime, a fresh application was made to the board, which was granted.
In Clonres CLG v. An Bord Pleanála (No. 2) [2021] IEHC 303, ( [2021] 5 JIC 0706 Unreported, High Court, 7th May, 2021), I granted certiorari of the latter board decision in the present two sets of proceedings (the Clonres and Conway matters) on the basis of domestic law issues, and adjourned a third challenge to the development ( Sweetman v. An Bord Pleanála [2020 No. 729 JR]), which was based on EU law grounds which I didn't reach, rather than domestic grounds.
The board now applies for leave to appeal to the Court of Appeal under s. 50A of the Planning and Development Act 2000.
There was a fairly long delay in making the application. The substantive judgment was given on 7th May, 2021, and I only received the board's written submissions and questions four and a half months later on 24th September, 2021.
The matter seems to have been first mentioned to the court on the last Monday of the legal year, 26th July, 2021 although there may have been reference to a possible appeal at some point prior to that.
I made the point in S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, [2016] 11 JIC 1404, ( 2016 WJSC-HC 439 Unreported, High Court, 14th November 2016), that a leave to appeal application should be made promptly and ideally within the normal appeal period of 28 days from the pronouncement of the substantive decision (bearing in mind that dating the time from pronouncement rather than perfection makes sense in this context because, but for the leave to appeal procedure, the order would be perfected as soon as costs are dealt with).
The delay did have one positive effect though because it gave an opportunity to find out whether the substantive judgment caused any problems in practice, and there is no evidence or basis whatsoever to demonstrate that having happened in the nearly nine months since the judgment.
No issue was raised by the applicants about the board's delay, but if an issue had been made of it I might have had to consider whether there was any real justification for that. The board predictably says the matter needed careful consideration – but everything to do with litigation requires careful...
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John Conway and Louth Environmental Group v an Bord Pleanála
...Humphreys J quashed a grant of permission by the board on foot of that further application. In Clonres CLG v An Bord Pleanála (No. 3) [2022] IEHC 42, Humphreys J refused leave to appeal. The most recent permission was challenged in three separate cases: Clonres CLG v An Bord Pleanála [2020 ......