Glancré Teoranta v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 13 July 2006
• Neutral Citation: [2006] IEHC 250
• Court: High Court
• Date: 13 July 2006

GLANCRE TEORANTA v BORD PLEANALA

BETWEEN

GLANCRÉ TEORANTA

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

MAYO COUNTY COUNCIL

NOTICE PARTY

[2006] IEHC 250

[No. 1309 JR/2005]

[No. 120 COM/2005]

THE HIGH COURT

COMMERCIAL

Abstract:

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).

Facts the High Court had declined the applicant’s application for judicial review of a decision of the respondent in respect of a waste recovery facility it planned to operate. The applicant applied for leave to appeal to the Supreme Court on points of law of exceptional public importance, being: whether Council Directive 75/442/EEC was properly construed as meaning that the proximity principle did not apply to waste for recovery within national boundaries; whether the policy issued by the Minister for the Environment pursuant to section 60 of the Waste Management Acts in respect of the movement of waste was relevant to the determination by the respondent of an appeal in relation to a proposed waste recovery facility in circumstances where some of the waste to be treated was generated outside the waste management planning region in which that facility was located and; whether, where the respondent was obliged to have regard to a ministerial direction issued pursuant to section 60 of the Waste Management Acts, a rebuttable presumption arose that it did have such regard.

Held by Mr Justice MacMenamin in refusing leave to appeal to the Supreme Court on a point of law of exceptional public importance that the restriction imposed by section 50(4) of the Planning and Development Act 2000 indicated an intention that the planning process not be hampered by an unrestricted access to the courts which could cause delays, which restriction was to be lifted only in exceptional cases. That the test of exceptional public importance in that context meant: (1) the requirement went further than that a point of law emerged in or from the case; (2) the jurisdiction to certify such a case had to be exercised sparingly; (3) that the law in question stood in a state of uncertainty; (4) where leave was refused in an application for judicial review, a question could arise as to whether, logically, the same material could constitute a point of law of exceptional public importance; (5) the point of law had to 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” were cumulative requirements which required separate consideration by the court; (7) the test was not whether the point of law transcended the individual facts of the case; (8) normal statutory rules of construction applied which meant that “exceptional” had to be given its normal meaning; (9) uncertainty could not be imputed to the law by an applicant simply by raising a question as to the point of law rather the uncertainty had to arise in the daily operation of the law in question and; (10) some affirmative public benefit from an appeal had to be identified. The fact that the finding by the High Court involved an interpretation of European Community law did not render it a point of law of exceptional public importance.

Reporter: P.C.

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 2002 1 ILRM 68

RAIU v REFUGEE APPEALS TRIBUNAL 2003 2 IR 63

LANCEFORT v AN BORD PLEANALA 1998 2 IR 511

FALLON v AN BORD PLEANALA 1992 2 IR 380

IRISH PRESS v INGERSOLL 1995 1 ILRM 117

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

1 Mr. Justice John MacMenamin delivered the 13th day of July, 2006 .

2 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.

3 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:

4 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;

5 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;

6 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.

7 The determination of the court on the substantive issues involved, inter alia, the following findings:

8 (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 [1998] ECR 1-4075 is not conclusive or definitive and that on the facts herein interpretations compatible with European law.

9 (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;

10 (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;

11 (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.

12 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.

13 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.

14 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 [2002] 1 ILRM 68, Raiu v. Refugee Appeals Tribunal [2003] 2 I.R. 63, Lancefort Limited v. An Bord Pleanála [1998] 2 I.R. 511, Fallon v. An Bord Pleanála [1992] 2 I.R. 380, Irish Press v. Ingersoll [1995] 1 ILRM 117, Ashbourne Holdings v. An Bord Pleanála (Kearns J., 19 ^th June, 2001, Unreported) and Arklow Holidays Limited v. An...