Donal McMonagail agus a mhic teoranta trading as McMonagle Stone v an Bord Pleanála and Others; Donal McMonagail agus a mhic teoranta trading as McMonagle Stone v Ireland and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice Cian Ferriter |
| Judgment Date | 31 July 2023 |
| Neutral Citation | [2023] IEHC 487 |
| Court | High Court |
| Docket Number | RECORD NO. 2013/966 J.R. |
In the Matter of Section 50 of the Planning & Development Act 2000 (As Amended)
[2023] IEHC 487
RECORD NO. 2013/966 J.R.
RECORD NO. 2020/497 J.R.
THE HIGH COURT
JUDICIAL REVIEW
Judgment of Mr Justice Cian Ferriter delivered this 31 st day of July 2023
This is my decision on the applicant's application for leave to appeal from my judgment of 28 April 2023 ( [2023] IEHC 223) (the “judgment”) in relation to two sets of judicial review proceedings commenced by the applicant in respect of its quarry at Largybrack, Co. Donegal.
The first set of proceedings (“the 2013 proceedings”) concerned a challenge by the applicant to a decision of Donegal County Council (the “Council”), in 2012 under s.261A of the Planning and Development Act 2000 as amended (the “2000 Act”) that the quarry required a mandatory Environmental Impact Statement (“EIS”) and an Appropriate Assessment (“AA”). This decision was upheld by An Bord Pleanála (the “Board”) by decision of 25 October 2013 and the 2013 proceedings challenged that decision also. Following the Board's decision, the Council subsequently served an enforcement notice on the applicant.
On 10 October 2018, the applicant made an application seeking leave to apply for substitute consent in respect of the quarry. This was an application made directly to the Board pursuant to s.177C of the 2000 Act. Leave to apply for substitute consent to regularise the development was sought under the “exceptional circumstances” criteria set out in s.177D of the 2000 Act. On 16 April 2020, the Board gave its decision refusing leave to apply for substitute consent under s.177D. The second set of proceedings (“the 2020 proceedings”) concerned a challenge to the Board's substitute consent decision.
I gave a single judgment on both sets of proceedings. The judgment upheld the Board's decision and the enforcement notices the subject of the 2013 proceedings and the decision of the Board to refuse the applicant leave to apply for substitute consent which was the subject of the 2020 proceedings.
Following the dismissal of the applicant's challenges in both cases it now seeks a certificate of leave to appeal from the High Court pursuant to section 50A(7) of the 2000 Act on the basis that the Judgment involves points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.
The applicant says the following points of law arise from the judgment and meet the statutory criteria for certification of leave to appeal:
The 2013 Proceedings
1. Having regard to the consequences that flow from the determinations made pursuant to section 261A of the PDA 2000, what obligation is there on An Bord Pleanála to seek information from the owner or operator of a quarry?
2. In circumstances where the Board in making a determination under section 261A is considering material not submitted by the owner/operator, what is the obligation on the Board to seek information on such material from such owner/operator?
3. In circumstances where an owner/operator does not anticipate that the Board may have regard to information other than that furnished by such owner/operator (whether culpably or not), are the consequences under the section (service of enforcement notice, closure of business) a proportionate consequence?
4. Given the severity of the consequences of the determination of An Bord Pleanála, and the lack of appeal therefrom, is it sufficient for the Court to be satisfied simply that the decision of the Board was reasonable and/or there was material before it that supported its determination?
The 2020 Proceedings
5. What are the consequences for lands the subject of a refusal of an application for leave to seek substitute consent on the basis of a lack of exceptional circumstances?
6. Is there another application that can be made, if so what does this comprise? If not, are the lands permanently sterilised? Does this affect the standard of fair procedures and decision making by the Board or the Court in reviewing same?
7. Having regard to the consequences that flow from a refusal of an application for leave to seek substitute consent made pursuant to section 177C/D of the PDA 2000, what obligation is there on An Bord Pleanála to seek information from the owner or operator of a quarry?
8. In circumstances where the Board in making a determination on an application under section 177C/D is considering material not furnished by the owner/operator, what is the obligation on the Board to seek information on such material from such owner/operator?
9. In circumstances where an owner/operator does not anticipate that the Board may have regard to information other than that submitted by such owner/operator (whether culpably or not), are the consequences under the section (closure of business/sterilisation of lands) a proportionate consequence?
10. Given the severity of the consequences of the determination of An Bord Pleanála, and the lack of appeal therefrom, is it sufficient for the Court to be satisfied simply that the decision of the Board was reasonable and/or there was material before it that supported its determination?
Section 50A(7) of the 2000 Act 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 [Court of Appeal] 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 [Court of Appeal].”
Section 50A(7) originally referred to the Supreme Court rather than the Court of Appeal. The reference to the Supreme Court was replaced by the reference to the Court of Appeal by section 75 of the Court of Appeal Act 2014.
In Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231 at para 32 ( “CHASE”), Barniville J. (as he then was) set out the principles applicable to an application for a certificate under section 50A(7), analysing much of the earlier case-law including the seminal case of Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250:
“32. While not intended to be exhaustive of the legal principles applicable to applications for leave to appeal in planning cases, the following appear to me to be the most potentially relevant for the purposes of this application:
(1) The clear intention of the Oireachtas in enacting s.50A(7) (and its statutory predecessors) was that, in most cases, the decision of the High Court on an application for leave to seek judicial review in respect of a planning decision, or on an application for judicial review of such a decision, should be final and should not be the subject of an appeal.
(2) In order for a party to appeal from the High Court to the Court of Appeal, the intended appellant must obtain leave of the High Court under s.50A(7) and must satisfy the requirements of that section.
(3) S.50A(7) requires an intended appellant, in order to obtain leave to appeal, to persuade the Court that (a) its decision involves a point of law of exceptional public importance and (b) it is desirable in the public interest that an appeal should be taken to the Court of Appeal. While there may be some overlap between the factors relevant to these two requirements, they are cumulative requirements and require separate consideration.
(4) The jurisdiction of the Court to grant leave to appeal under s.50A(7) must be exercised sparingly.
(5) When asked to grant leave to appeal under s.50A(7) and to certify a point or points of law under that section, the Court must have regard to the effect of the 33rd Amendment to the Constitution and the enactment of the Court of Appeal Act 2014 and, in particular, the new “constitutional architecture” created under those provisions. While an appeal from a decision of the High Court in a planning case might potentially be brought directly to the Supreme Court, the High Court, in considering whether to grant a certificate giving leave to appeal, must have regard to the fact that an appeal to the Court of Appeal remains the more normal route for such appeals.
(6) It is not sufficient for an intended appellant to merely show that the decision of the High Court involves a point of law. The point of law must be one of exceptional public importance. This is a clear and significant additional requirement which must be satisfied in respect of the proposed point of law.
(7) The point of law proposed by the intended appellant must arise out of the decision of the High Court itself and not from the discussion, argumentation or consideration of the point during the course of the hearing. A point the court did not decide in its judgment could not amount to a point of law of exceptional public importance.
(8) In most circumstances, in order to establish that the point of law is one of exceptional public importance, the intended appellant must demonstrate that there is some uncertainty or lack of clarity in the law or that the law in the area is still evolving.
(9) Merely raising an argument on a proposed point of law which the Court has rejected...
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