Dunnes Stores v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 18 June 2015
• Neutral Citation: [2015] IEHC 387
• Court: High Court
• Docket Number: [2014 No. 685 J.R.]
• Date: 18 June 2015

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000,

AND IN THE MATTER OF AN APPLICATION

BETWEEN

DUNNES STORES

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

INDEGO

FIRST NAMED NOTICE PARTY

AND

SOUTH DUBLIN COUNTY COUNCIL

SECOND NAMED NOTICE PARTY

[2015] IEHC 387

McGovern J.

[2014 No. 685 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Government – S. 50 A (7) of the Planning and Development Act 2000 – Leave to Appeal – S. 37 (1) (b) of the Planning and Development Act 2000 – Issues of Exceptional public importance

Facts: The applicant sought a grant of leave to appeal the order of the Court refusing the applicant's application for leave by judicial review of the decision of the second named noticed party that granted planning permission to the first named noticed party. The applicant contended that the impugned order amounted to grant of immunity to the decision of the planning authority save on appeal to the first named respondent.

Mr. Justice Brian J. McGovern refused to grant leave to appeal the impugned order. The Court held that the law regarding grant of leave to appeal to the Court of Appeal required that the Court must use the power sparingly and only in cases involving exceptional public importance having ambiguity in law arising out of various opinions held by the Court that if not resolved would likely result in miscarriage of justice for future litigants. The Court found that the words of s. 37 (1) (b) being clear and categorical did not leave an iota of doubt that any person aggrieved by the decision of the planning authority had the recourse either by way of judicial review or appeal to the Board indicating appropriate curbs were in place to supervise the acts of the planning authority. The Court observed that the question posed presented no grave issue of public interest and did not warrant grant of leave to appeal.

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 18th day of June, 2015

1 This is an application brought for leave to appeal an order of this Court made on 21st May, 2015. In that order, the court refused the applicant's application for leave to apply by way of judicial review to challenge the decision of South Dublin County Council to grant planning permission to Indego, the first named notice party and also to join South Dublin County Council as respondent to the judicial review proceedings and amend those proceedings to add additional relief and grounds against both the Council and An Bord Pleanála. The court also refused an application to extend time for bringing the application to join South Dublin County Council. The judicial review application concerned a determination of the meaning of s. 37(1)(b) of the Planning and Development Act 2000, and this Court determined that the meaning of the section was clear and unambiguous.

2 The application now before the court is brought pursuant to s. 50A(7) of the Act which states:-

'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 Supreme Court 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 Supreme Court.'

While this would now encompass the Court of Appeal, it is likely that in cases certified for appeal on the grounds that they involve a point of law of exceptional public importance and that the appeal is desirable in the public interest that such matters would go straight to the Supreme Court. This would involve an application to the Supreme Court having regard to Article 34.5.4o of the Constitution.

3 The point of law advanced by the applicant for consideration of the Appeal Court is:-

'Whether section 37(1)(b) of the Planning and Development Act 2000, which provides that the decision of An Bord Pleanála on appeal shall operate to annul the decision of the planning authority as and from the time when it was given, precludes challenging the decision of the planning authority after the Board has made its decision when the grounds of challenge against the planning authority raise grounds of pre-determination bias and/or a reasonable apprehension that the planning application has been prejudged which only came to light after the Board had made its decision.'

4 Objection has been taken to the question posed on the grounds that it assumes certain matters to be established whereas these are in dispute. The notice parties do not accept that there was any pre-determination of the planning application.

5 The principles governing an application for a certificate are those set out by the High Court in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, and Arklow Holidays Limited v. An Bord Pleanála [2008] IEHC 2. These principles are as follows:-

(a) the decision must involve a point of exceptional public importance;

(b) it must be desirable in the public interest that an appeal shall be taken to the Supreme Court;

(c) there must be an uncertainty as to the law; and

(d) the importance of the point must be public in nature...