Dunnes Stores v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 26 May 2016
• Neutral Citation: [2016] IEHC 263
• Court: High Court
• Docket Number: 2015/49JR
• Date: 26 May 2016

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

AND IN THE MATTER OF AN APPLICATION

BETWEEN:

DUNNES STORES

Applicant

– and –

AN BORD PLEANÁLA

Respondent

– and –

KILKENNY COUNTY COUNCIL

First-Named Notice-Party

– and –

DEERLAND CONSTRUCTION LIMITED

Second-Named Notice-Party

[2016] IEHC 263

Barrett J.

2015/49JR

THE HIGH COURT

Planning & Development – S. 50 A (7) of the Planning and Development Act 2000 – Leave to appeal to the Court of Appeal – Issues of public importance – Dismissal of judicial review on grounds of abuse of process of law

Facts: Following the dismissal of the applicant's application for a judicial review of the decision of the first named respondent, the applicant now sought a certificate of leave to the Court of Appeal. The first point of law of exceptional public importance contended by the applicant was whether the Court was correct in observing that the applicant had a collateral purpose for initiating judicial review in the absence of some wilful act in the use of the process that was improper in the regular conduct of proceedings. The second question raised by the applicant was whether the dismissal was correct on the basis of existence of collateral purpose without there being any consideration of the grounds mentioned in that judicial review to ascertain the veracity of that statement.

Mr. Justice Max Barrett refused to grant leave to the Court of Appeal. The Court held that power to grant a certificate to appeal to the Court of Appeal should be exercised rarely in cases involving issues of exceptional public importance which were lying in uncertainty and whose resolution were needed for the common good provided that such issues must emanate from the impugned judgment. The Court found that the applicant had failed to present some countervailing public interest for grant of leave and it was clear that the judicial review application was filed with an ulterior motive. The Court rejected the contention of the applicant that the Court must show an existence of wilful act on part of the applicant before dismissing the judicial review proceedings on the sole basis of improper motive. The Court found that the applicant's conduct in retaining experts to frame a planning issue while it had no real objection to the planning permission and pursuing the matter to avoid its contractual obligations were all indicative of its ill-intent to seek the judicial review remedy.

JUDGMENT of Mr Justice Max Barrett delivered on 26th May, 2016.

TABLE OF CONTENTS

SECTION A

GENERAL

Part 1

Overview

1 On 13th November, 2015, this Court gave judgment in Dunnes Stores v. AnBord Pleanála and Ors [2015] IEHC 716. In its judgment the court dismissed Dunnes' application for judicial review of a decision of An Bord Pleanála, having arrived at the conclusion that the sole object of the application was to enable Dunnes ‘to delay or avoid compliance with its contractual obligation to fit-out and occupy the anchor store [in Ferrybank Retail Centre] and/or to facilitate the creation of a contrived legal justification for Dunnes' long-time failure to comply with those obligations’ (para.81).

2 Dunnes considers that the court's decision of last November involves two points of law of exceptional public importance and argues that it is desirable in the public interest that an appeal should be taken to the Court of Appeal. So what, one might ask, is Dunnes doing back before the High Court? After all, an appeal from the decision of a trial court would usually proceed without further regard to the trial judge, save perhaps as to the commencement of any order that falls to be formulated, and such necessary arrangements as require to be effected, pending such appeal.

3 The difficulty which presents for Dunnes is that by means 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 at the earliest possible opportunity, that no appeal shall lie from a decision such as that of 13th November last,

‘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…’.

4 Dunnes has therefore returned to this Court to seek such leave. As can be seen from the quoted text, it has two hurdles to jump before it can be granted the leave sought. First, it must establish that there is a point of law of exceptional public importance arising. One will suffice, though Dunnes (mistakenly) considers that it has identified two. Second, Dunnes must establish that it is desirable in the public interest that an appeal should be brought on the said point(s) of law.

Part 2

Purported Points of Law Arising

5 Dunnes considers that the following two points of law of exceptional public importance arise from the court's decision of last November:

(1) Is it correct as a matter of law for the court to dismiss proceedings brought by way of judicial review as an abuse of process on the sole basis that the applicant (here Dunnes) had a collateral purpose or motive in bringing the proceedings, in the absence of some wilful act (or omission) in the use of the process that is not proper in the regular conduct of proceedings?

(2) Is it correct as a matter of law for the court to dismiss proceedings brought by way of judicial review as an abuse of process on the sole basis that the applicant had a collateral purpose or motive in bringing the proceedings, without entering into a consideration of the grounds in the proceedings to determine whether the proceedings would have been brought “but for” the collateral purpose?

[Emphasis added].

6 Both questions are concerned with the court's power to dismiss judicial review proceedings as an abuse of process with the underlined text being the text that renders each of the questions different.

Part 3

Principles Applicable to Present Application

I. Overview.

7 In a rare moment of agreement, all of the parties to the within proceedings consider that the principles broadly applicable to applications for a certificate such as that now sought were fairly summarised a decade ago by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, at pp. 4–5:

‘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….

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….

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.’

[Emphasis in original]

8 Each of the above-mentioned points is considered in greater detail in Sections B and C below. Section B is concerned with the first proposed ground of appeal, i.e. the purported requirement for some act that is not proper in the regular conduct of proceedings. Section C is concerned with the second ground of appeal, i.e. the purported need for the court to decide on the planning issues first.

II. Acceleration of Planning Process.

9 The statutory purpose of the requirement for a certificate to appeal is, per Clarke J. in Arklow Holidays v. An Bord Pleanála [2007] 4 I.R. 112, 115, that ‘there should be a greater degree of certainty and expedition in the determination of planning judicial reviews’. The courts have repeatedly emphasised that applications for a certificate to appeal must be considered in light of this purpose. In Irish Asphalt v. An Bord Pleanála [1996] 2 I.R. 179, Hamilton C.J. observed, at 186, that:

‘[T]he purpose of this Act[the applicable statute was then the Local Government (Planning and Development) Act 1992] was to speed up the planning process by shortening litigation and by eliminating applications for judicial review which were devoid of substance.’

10 In KSK Enterprises v. An Bord Pleanála [1994] 2 I.R. 128, Finlay C.J. observed, at 135, again in the context of the Act of 1992, that:

‘[I]t is clear that the intention of the legislature was greatly to...