Connolly v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] IEHC 624
• Court: High Court
• Docket Number: [2014 No. 488JR]
• Date: 08 November 2016

[2016] IEHC 624

THE HIGH COURT

Barrett J.

[2014 No. 488JR]

IN THE MATTER OF SECTION 50 OF THE PLANNING & DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

KATHLEEN CONNOLLY

APPLICANT

– AND –

AN BORD PLEANÁLA

RESPONDENT

– AND –

CLARE COUNTY COUNCIL

AND

MCMAHON FINN WIND ACQUISITIONS LTD

NOTICE PARTIES

Planning and Development – S. 50 of the Planning and Development Act 2000 (as amended) – Certification of questions – Point of law of exceptional public importance – Legal obligations arising for the Board

Facts: The respondent in the present case, in order to bring an appeal against the judgement of the Trial Court, sought certification of certain questions under s. 50 A (7) of the Planning and Development Act 2000. The respondent contended that those questions contained point of law of exceptional public importance and their resolution was desirable. The questions concerned the practice and procedures to be adopted by the respondent in case it had disagreed with the recommendation of the inspector in relation to carrying out an environmental impact assessment.

Mr Justice Max Barrett declined to certify the questions sought by the respondent. The Court found that there was no point of law arising in the said questions. The Court held that the statutory duty that arose on the part of the respondent was clear. The Court found that there was no uncertainty or doubt as regards the legal obligations arising. The Court held that the statutory duty that arose was clearly given in the European law.

JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.

I. Overview

1 On 14th June last, the court gave judgment in the above-titled proceedings. An Bord Pleanála, which was unsuccessful in those proceedings, considers that certain points of law of exceptional public importance arise from that judgment and that it is desirable in the public interest that an appeal be brought. An appeal from the judgment of a trial court usually proceeds without further regard to the trial judge, save perhaps as regards seeking that the trial judge put certain incidental or transitional arrangements in place pending such appeal. The difficulty that presents for An Bord Pleanála as regards bringing an appeal from the court's decision of 14th June is that, by virtue of s.50A(7) of the Planning and Development Act 2000, as amended, the Oireachtas has decided, it would appear with the intention of bringing some finality to planning matters, that no appeal shall lie from a decision, such as that of 14th June, ' save with leave of the [High] Court which leave shall only be granted 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...'. An Bord Pleanála has therefore returned to ask the court to grant the requisite certificate in respect of one or more of seven points of law of exceptional public importance that it contends to arise from but a single judgment.

II. Applicable Law and Legal Principles

2 In its judgment in Dunnes Stores v. An Bord Pleanála [2016] IEHC 263, the court has considered the law applicable to an application such as that now presenting and proceeds by reference to the law as identified there. The critical principles applicable were identified by McMenamin J. in Glancré Teoranta v. Mayo County Council [2006] IEHC 250 and have been accepted as correct, inter alia, by the High Court in cases as various as Harding v. Cork County Council [2006] IEHC 450, Sweetman v. An Bord Pleanála [2016] IEHC 374 and in the decision of this Court in Dunnes. Indeed, although the law is in a constant state of evolution, the Glancré principles represented a correct statement of relevant law in their time and continue to represent a correct statement of relevant law at this time. This Court would but emphasise that, to borrow from s.50A(7), what must be identified is ' a point of law of exceptional public importance'. That a point of law may relate to a matter of some private significance does not suffice to convert it into ' a point of law of exceptional public importance', even where the party claiming such a point to arise is a public body. Moreover, a point of law of exceptional public importance is, by its nature, not just a point of law of public importance (itself a difficult enough hurdle to jump) but of a degree of public importance that is exceptional (a still higher hurdle to be vaulted). In this last regard, the court cannot but note that in the within case it is claimed that the court's judgment of 14th June last raises up to seven points of law of exceptional public importance; in Aherne & ors v. An Bord Pleanála & ors [2016] IEHC 536, a very recent s.50 judgment that issued while the text of the within judgment was being finalised, some six points of law of exceptional public importance were claimed to arise (all of which were rejected by the court in that case). That two judgments would be contended to raise, between them, some thirteen points of law of exceptional public importance suggests, at the very least, that there is something of a yawning chasm growing between bar and bench as to the true nature of exceptionality.

III. Alleged Divergence in Authority

3 The court's decision in its judgment of 14th June last rested to a significant extent on the decision of the Court of Justice of the European Union in Mellor [2009] ECR I-3799, the decision of Clarke J. in Christian v. Dublin City Council [2012] IEHC 163, and the decision of Finlay Geoghegan J. in Kelly v. An Bord Pleanála [2014] IEHC 400. An Bord Pleanála maintains that the court has interpreted s.172(1J) of the Act of 2000 to require more from An Bord Pleanála than one finds in four decisions by three judges of the High Court last year, viz. Ratheniska v. An Bord Pleanála [2015] IEHC 18, People Over Wind v. An Bord Pleanála [2015] IEHC 271, McEntee v. An Bord Pleanála (Unreported, High Court, Moriarty J., 10th July, 2015) and Aherne v. An Bord Pleanála [2015] IEHC 536. This is a contention that does not hold true when one engages in even a limited analysis of those other cases. So, for example:

- Ratheniska concerned a case in which An Bord Pleanála followed a broadly positive inspector's analysis. In the present case, there was a rather contrary inspector's report which was not unfailingly positive and was overtaken by further information that involved a complete re-design of the relevant development. There is therefore a striking divergence in the facts and no conflict between the decisions made in that case and this.

- in People Over Wind, s.172(1J) was considered. However, the court concluded in that case that there was no deficiency in the assessment; in effect it was the manner in which An Bord...