Conway v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 30 June 2023
• Neutral Citation: [2023] IEHC 365
• Court: High Court
• Docket Number: [2022 No. 474 JR]

In the Matter of An Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000, As Amended

Between

John Conway

Applicant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Silvermount Limited

Notice Party

[2023] IEHC 365

[2022 No. 474 JR]

THE HIGH COURT

JUDICIAL REVIEW

(No. 2)

JUDGMENT of Humphreys J. delivered on the 30th day of June, 2023

Judgment history

1 . In ( [2023] IEHC 178 Conway v. An Bord Pleanála and Others (No. 1) Unreported, High Court, 18th April, 2023), I rejected the applicant's challenge to the constitutional validity of s. 28(1C) of the Planning and Development Act 2000 and the legal validity of two guidelines made under that provision.

2 . The facts and procedural history are set out in that judgment. I am now dealing with leave to appeal and costs.

Application for leave to appeal

3 . The applicant doesn't need leave to appeal the decision on the validity of the primary legislation (see s. 50A(8) of the 2000 Act).

4 . The initial suggestion was that the applicant did by contrast need leave to appeal in relation to the guidelines. But that view doesn't stand up to a whole lot of scrutiny. The basic problem for that argument is that s. 50(2) of the 2000 Act generally only applies to decisions of the board and councils, not to decisions of the Minister (such as to adopt the guidelines here).

5 . The fact that the case began under s. 50 of the 2000 Act is explained by the fact that the applicant initially challenged a particular decision of the board, but it was agreed to extricate the developer from that and allow the case to proceed without the formality of needing to also challenge a specific board order. That wasn't intended to worsen the applicant's position regarding costs, and it would be unfair and indeed unconscionable to try to revisit that in a way that would disadvantage the applicant. Thus he should logically be entitled to continued s. 50B costs protection for the duration, as the parties in fact agreed.

6 . In any event, s. 50B is wider than s. 50 (s. 50B(1)(a)(i) doesn't limit the decision-makers to which it applies in the way that s. 50(2) does), and therefore merely because the action comes within, or is treated as coming within, s. 50B doesn't mean that it automatically also comes within s. 50. Even if costs protection technically doesn't apply, it has been afforded as an agreed concession. But constitutional rights of appeal can't be cut back as a consequence, only by virtue of a statutory provision.

7 . Any restriction of rights of appeal needs to be construed reasonably strictly. So the mere fact that a challenge includes, or as here included, an element that was subject to leave to appeal (in this case, a challenge to a decision of the board) doesn't have the effect that such a requirement seeps across to elements of the case that would not otherwise require leave to appeal, such as a challenge to guidelines.

8 . There is simply no statutory restriction on the right to appeal an order of the High Court regarding the validity of a decision of the Minister under the 2000 Act, such as to make guidelines, because that falls outside s. 50(2). So leave to appeal...