GOCE Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Emily Farrell
• Judgment Date: 31 January 2025
• Neutral Citation: [2025] IEHC 43
• Docket Number: Record No.: 2023/ 748 JR

In the Matter of Section 50, 50A, 50B of the Planning and Development Act, 2000

Between/

GOCE Limited

Applicant

and

An Bord Pleanála

Respondent

and

Cork County Council and Shane Williamson and Eva Williamson and Denis Healy and Michael O'Mahony and Lucy O'Mahony and Mark Ginn and Billy Bermingham and Jackie Bermingham

Notice Parties

[2025] IEHC 43

Record No.: 2023/ 748 JR

THE HIGH COURT

PLANNING AND ENVIRONMENT

Planning permission – Points of law – Public interest – Respondent seeking certification that two points were points of law of exceptional public importance – Whether it was desirable in the public interest that an appeal should be taken on each point

Facts: The applicant, GOCE Ltd, applied for planning permission for sixteen residential units and associated works on a site at Kilnagleary, Carrigaline, Co. Cork. Planning permission was granted by the first notice party, Cork County Council, but was refused on appeal by the respondent, An Bord Pleanála (the Board). On 25th September 2024, the principal judgment was delivered, in which the High Court (Farrell J) held that the Board had misinterpreted Objective ZU18-10 of the Development Plan and that this error went to jurisdiction. Farrell J found that the Board’s reasons were insufficient to comply with its obligation to provide adequate reasons for its decision on the appeal. The Board asked the court to certify that the following two points were points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal on each point: (a) Having regard to the requirements of the Planning and Development Act 2000, and in particular s. 10, can a development plan zoning objective allow for residential development without an express statement that development of that type is regarded as appropriate on lands subject to that zoning objective? (b) If land is not zoned for a particular use can the Board conclude on that basis alone that a proposed development would therefore be contrary to proper planning and sustainable development and refuse permission for that reason alone?

Held by Farrell J that, as stated in Glancré Teoranta v An Bord Pleanála [2006] IEHC 250, the jurisdiction to certify a point of law should be exercised sparingly. She held that the first point did not arise from the principal judgment; that point was neither pleaded, argued nor decided. She noted that the principal judgment was based on the wording of the particular objective in the specific Development Plan and the argument sought to be advanced was an entirely new argument. She was satisfied that, whilst there is not a bar on an appellate court entertaining an argument which was not made at first instance, it is not desirable in the public interest that a certificate should be granted to enable the Board to rely on a new case on appeal. If she applied the well-established principles regarding the adequacy of reasons incorrectly as the Board contended, she was not satisfied that the principal judgment had the potential to influence true matters of principle rather than the application of the well-established principles to the facts of an individual case. She found that the second point was not a point of law of exceptional public importance which arose from the judgment. It did not have the potential to be determinative of the proceedings as she had found that the Board had misinterpreted the relevant provision of the Development Plan; this was an error of law which goes to jurisdiction.

Farrell J decided that it was not desirable in the public interest that an appeal should be brought to the Court of Appeal in respect of either of the points sought to be certified. She held that the cumulative requirements contained in s. 50A(7) of the 2000 Act had not been satisfied by the Board. She refused to grant leave to appeal.

Leave refused.

JUDGMENT of Ms. Justice Emily Farrell delivered the 31 ^st day of January 2025

Introduction

1 These proceedings relate to an application for planning permission for sixteen residential units and associated works on a site at Kilnagleary, Carrigaline, Co. Cork. Planning permission had been granted to the Applicant by Cork County Council but was refused on appeal by An Bord Pleanála. On 25 ^th September 2024 the principal judgment was delivered, in which I held that An Bord Pleanála had misinterpreted Objective ZU18-10 of the Development Plan and that this error went to jurisdiction.

2 The Board interpreted Objective ZU18-10 as permitting development only in respect of development of the type listed as Appropriate Uses but did not consider whether the proposed development was supportive of, or would threaten, the vitality or integrity of employment uses of the area. Objective ZU18-10 stated that “ Development that does not support or threatens the vitality or integrity of the employment uses of these areas shall not be permitted”. A list of Appropriate Uses is also included. That list is not stated to be exhaustive.

3 Secondly, I found that the Board's reasons were insufficient to comply with its obligation to provide adequate reasons for its decision on the appeal, including in this case its departure from the recommendation of its Inspector. The Board found that the proposed development was contrary to the proper planning and sustainable development of the area solely by reason of the contravention of Objective ZU18-10. The Board did not find that contravention to be material.

4 The Respondent asks this court to certify that the following two points are 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 on each point.

• (a) Having regard to the requirements of the 2000 Act, and in particular section 10, can a development plan zoning objective allow for residential development without an express statement that development of that type is regarded as appropriate on lands subject to that zoning objective?

• (b) If land is not zoned for a particular use can the Board conclude on that basis alone that a proposed development would therefore be contrary to proper planning and sustainable development and refuse permission for that reason alone?

5 An affidavit was sworn for the purposes of this application, by Pierce Dillon on behalf of the Board. A number of documents are exhibited to this affidavit, all but one of which were already before the court when the substantive application was heard and determined. A colour draft map of 2024, prepared by Cork County Council identifying lands for the purposes of the Residential Zoned Land Tax has been exhibited for the first time. The Applicant objects to additional materials being placed before the court at this time. For the reasons set out herein, I have not considered it necessary to decide the Applicant's application to exclude the new evidence and I have considered the contents thereof de bene esse. The introduction of fresh evidence may be appropriate to explain why a certificate should be granted in a given case.

6 The test for the certification of an appeal is set out in section 50A(7) of the Planning and Development Act 2000, subject to the reference to the Supreme Court being read as the Court of Appeal, by virtue of section 74 of the Court of Appeal Act, 2014. The interpretation of the test was not in issue between the parties. Section 50A(7) provides:

“ 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.”

7 This test has been interpreted in numerous judgments of the Superior Courts since Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, including in Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9 and Sherwin v. An Bord Pleanála (No. 2) [2023] IEHC 232.

8 The principles set out in Glancré Teoranta are as follows:

“ 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….

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...