Glancré Teoranta v an Bord Pleanála
 IEHC 250
THE HIGH COURT
2005/1309JR & 2005/120COM - MacMenamin - High (Commercial) - 13/7/2006 - 2006 26 5686 2006 IEHC 250
EEC DIR 91/156
EEC DIR 75/442 ART 5
WASTE MANAGEMENT (PLANNING) REGS 1997 SI 137/1997 PAR 5.5
WASTE MANAGEMENT ACT 1996 S60
NETHERLANDS v CHEMISCHE AFVALSTOFFEN DUSSELDORF
B v ECR 1998 I-04075 C-203/96
CONNAUGHT WASTE MANAGEMENT PLAN
PLANNING & DEVELOPMENT ACT 2000 S50(4)(f)(i)
KENNY v AN BORD PLEANALA
RAIU v REFUGEE APPEALS TRIBUNAL
LANCEFORT v AN BORD PLEANALA
FALLON v AN BORD PLEANALA
IRISH PRESS v INGERSOLL
ASHBOURNE HOLDINGS v AN BORD PLEANALA UNREP KEARNS 19.6.2001 2001/1/189
ARKLOW HOLIDAYS LTD v AN BORD PLEANALA UNREP CLARKE 29.3.2006 2006/3/463
COMHALTAS CEOLTEOIRI EIREANN, IN RE UNREP FINLAY 14.12.1977 1977/2/306
Judicial review - Leave to appeal to Supreme Court - Statutory interpretation - Words and phrases - Point of law of exceptional public importance - Test to be applied - Planning and environmental law - European law - Whether point of law of exceptional public importance raised - Planning and Development Act 2000, section 50(4)(f)(i).
Mr. Justice John MacMenamin delivered the 13th day of July, 2006 .
The court has previously delivered judgment wherein it declined the application made for judicial review. The background facts and the legal principles may be found in the text of the judgment itself.
The applicant now submits that the court should allow an application for leave to appeal to the Supreme Court on the following points of law:
1. Whether Council Directive 75/442/EEC, as substituted by Council Directive 91/156/EC (the "Waste Framework Directive"), is properly construed as meaning that the proximity principle does not apply to waste for recovery within national boundaries, and if so, whether An Bord Pleanála in its consideration of an appeal in respect of a waste recovery facility is required to interpret the proximity principle as set out in the relevant waste management plan in accordance with Article 5 of Council Directive 75/442/EEC, as amended by Council Directive 91/156/EEC ("the Waste Framework Directive") and paragraph 5.5 of the Schedule to the Waste Management (Planning) Regulations 1997, that is to not apply it in its consideration of the appeal;
2. Whether the policy direction issued by the Minister for the Environment Heritage and Local Government on 3 rd May, 2005 pursuant to s. 60 of the Waste Management Acts 1996 - 2005 in respect of the movement of waste is relevant or material to the determination by An Bord Pleanála of an appeal in relation to a proposed development of waste recovery facility, in circumstances where some of the waste to be treated is generated outside the waste management planning region in which that waste recovery facility is located;
3. Whether, where An Bord Pleanála is obliged to have regard to a ministerial direction issued pursuant to s. 60 of the Waste Management Acts 1996 - 2005 a rebuttable presumption arises that it did have such regard.
The determination of the court on the substantive issues involved, inter alia, the following findings:
(a) That a definition of the "proximity principle" contained within the judgment in Case C-203/96Chemische Afvalstoffen Dusseldorp BV v. Minister Van Volkhuisvesting Ruimtelijke Ordening En Milieubheer  ECR 1-4075 is not conclusive or definitive and that on the facts herein interpretations compatible with European law.
(b) That the interpretation and true meaning of the proximity principle in the Connaught Waste Management Plan was similar to the rectification at source principle and could not accordingly be considered to breach European Law;
(c) That it was the unambiguous intention as expressed in the body of the Connaught Waste Management Plan that the principle of proximity expressed therein applied to recovery;
(d) That the respondents decision was based on this broader proximity principle as set out in the Connaught Waste Management Plan and that the Board did not misapply that broader principle.
Appeals of this type are governed by s .50(4)(f)(i) of the Planning and Development Act 2000 (as amended). Such an appeal requires a certification from the High Court 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.
It is clear that the statutory regime which has been devised by the legislature indicates an interest to ensure that the planning process is not to be hampered by a completely unrestricted access to the court which may cause harmful delays. I am satisfied that it is a restriction to be lifted only in exceptional cases.
There have been a number of decisions in relation to the meaning of a test of exceptional public importance. Amongst these are Kenny v. An Bord Pleanála, Raiu v. Refugee Appeals Tribunal , Lancefort Limited v. An Bord Pleanála, Fallon v. An Bord Pleanála, Irish Press v. Ingersoll , Ashbourne Holdings v. An Bord Pleanála (Kearns J., 19 th June, 2001, Unreported) and Arklow Holidays Limited v. An Bord Pleanála (Clarke J., the High Court, 29 th March, 2006 Unreported).
I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein.
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 to the Supreme Court ( Kenny).
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 ( Raiu).
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...
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