Grace and anor v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Malley,Mr. Justice Clarke
• Judgment Date: 24 February 2017
• Neutral Citation: [2017] IESC 10
• Court: Supreme Court
• Docket Number: [Appeal No: 2/2016],[S.C. No. 2 of 2016]
• Date: 24 February 2017

[2017] IESC 10

THE SUPREME COURT

Clarke J.

O'Malley J.

O'Donnell J.

Clarke J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

O'Malley J.

[Appeal No: 2/2016]

In the Matter of Section 50 of the Planning and Development Act, 2000 as amended

Between/

Edel Grace

and

Peter Sweetman

Applicants/Appellants

and

An Bórd Pleanála

Respondent

and

ESB Wind Development Limited, Coillte

and

the Department of Arts, Heritage

and

the Gaeltacht

Notice Parties

Environmental law – European law – Standing – Appellants seeking to challenge a permission granted by the respondent to permit the development of a wind farm – Whether appellants had standing to pursue the proceedings

Facts: The appellants, Ms Grace and Mr Sweetman, challenged a permission granted by the respondent, An Bórd Pleanála (the Board), to permit the development of a wind farm on lands owned by the second notice party, Coillte. The wind farm was intended to be developed and operated by the first notice party, ESB Wind Development Ltd. As required by s. 50 of the Planning and Development Act 2000, the proceedings were commenced by judicial review and were heard in the High Court. Fullam J dismissed the claim ([2015] IEHC 593). As further required by s. 50A(7) of the 2000 Act, no ordinary appeal could be pursued from that decision except with a certificate of the High Court to the effect that a point of law of exceptional public importance arose and that it was desirable in the public interest that an appeal be pursued. An application for such a certificate was made and, on the 4th December, 2015, was refused (2015] IEHC 870). An application was brought seeking leave to appeal to the Supreme Court directly from the High Court utilising the provisions of Art. 34.5.4 of the Constitution as introduced by the 33rd Amendment. For the reasons set out in a determination of the Supreme Court ([2016] IESCDET 29), the Court granted leave to bring a leapfrog appeal from the decision of Fullam J directly to the Supreme Court and specified three issues or grounds which met the constitutional threshold: (a) Whether the jurisprudence of the Court on the question of standing in environmental matters requires to be revised in the light of recent judgments of the Court of Justice and, if so, the application of any such revised jurisprudence to the facts of this case; (b) Whether the jurisprudence of the Court concerning the absence of an entitlement to appeal against a refusal of leave to appeal by the High Court in environmental matters requires to be revised in the light of the new constitutional architecture consequent on the adoption of the 33rd Amendment and the jurisprudence of the ECJ and, if so, the application of such revised jurisprudence to the facts of this case; and (c) Should it prove both appropriate and necessary in the light of the finding of the Court on issues (a) and (b) whether a substantive appeal against the decision of the High Court should be allowed by the Court on either or both of the grounds in respect of which the appellants sought leave to appeal before the High Court.

Held by Clarke J and O'Malley J that at least Ms Grace had standing to pursue these proceedings and this appeal. In those circumstances they did not consider it necessary, for the proper resolution of this appeal, to reach a final determination on whether Mr Sweetman also had standing. They concluded that it was not necessary to revisit the existing jurisprudence in respect of the absence of an entitlement to appeal from the refusal of a certificate of leave to appeal by the High Court in a case such as this; an appellant has an independent possibility of appealing directly to the Court under Article 34.5.4. Clarke J and O'Malley J held that while an appeal to the Court of Appeal must always remain the most normal route for any appeal to follow, nonetheless a party who is refused a certificate which has the effect of preventing them from invoking the jurisdiction of the Court of Appeal has a constitutional route open to them.

Clarke J and O'Malley J held that it was necessary, for the proper resolution of this appeal, to consider the merits of the substantive issue. They were of the view that not all of the issues of European law which were necessary to determine this appeal were clear and they, therefore, proposed to refer certain issues of European law to the Court of Justice of the European Union.

Referral to the Court of Justice of the EU.

Joint Judgment of Mr. Justice Clarke and Ms. Justice O'Malley delivered the 24th February, 2017.

1. Introduction

1.1 Not for the first time this Court is confronted with issues of environmental law in respect of which there is potentially a significant European law dimension. In these proceedings generally a challenge is brought to a permission granted by the respondent ('the Board') to permit the development of a wind farm on lands owned by the second named notice party ('Coillte'). The wind farm is intended to be developed and operated by the first named notice party ('ESB Wind').

1.2 As required by s.50 of the Planning and Development Act, 2000, as amended, ('the 2000 Act'), the proceedings were commenced by judicial review and were heard in the High Court. For the reasons set out in a judgment delivered on 1st October, 2015, that Court (Fullam J.) dismissed the claim ( Grace & anor v. An Bórd Pleanála [2015] IEHC 593). As further required by s.50A(7) of the 2000 Act, no ordinary appeal could be pursued from that decision except with a certificate of the High Court to the effect that a point of law of exceptional public importance arose and that it was desirable in the public interest that an appeal be pursued. An application for such a certificate was made and, on the 4th December, 2015, was refused (see judgment of the High Court ( Grace & anor v. An Bórd Pleanála [2015] IEHC 870)).

1.3 Of course when the 2000 Act first came into force the appeal which might have been pursued, should such a certificate have been granted, would have been an appeal to this Court. However, on foot of the 33rd Amendment to the Constitution and the Court of Appeal Act, 2014 enacted to give practical effect to that Amendment, the normal role of this Court in such matters was transferred to the Court of Appeal. On that basis, and in the light of the existing jurisprudence (to which it will be necessary briefly to refer in due course), the refusal of a certificate by Fullam J. prevented any appeal from being pursued to the Court of Appeal for that jurisprudence made clear that a refusal to certify could not itself be the subject of an appeal.

1.4 However, in the light of the new constitutional architecture which has come into place as a result of the 33rd Amendment, that was not the end of the road. An application was brought seeking leave to appeal to this Court directly from the High Court utilising the provisions of Art. 34.5.4 of the Constitution as introduced by the 33rd Amendment. Such direct appeals have come to be known as leapfrog appeals. For the reasons set out in a determination of this Court ( Grace & anor v. An Bórd Pleanála [2016] IESCDET 29), the Court granted leave to bring a leapfrog appeal from the decision of Fullam J. directly to this Court and specified three issues or grounds which met the constitutional threshold. As this Court has pointed out in McEnery v. Commissioner of An Garda Síochána [2016] IESC 26, subject to certain issues which may legitimately be raised by a respondent, the only questions which are properly addressed by this Court on appeal are the issues which can fairly be said to come within the ambit of the grounds on which leave to appeal is given. It is, therefore, necessary to turn briefly to those grounds.

2. The Grounds on which leave was given

2.1 The Court specified those grounds in its determination in the following terms:-

'(a) Whether the jurisprudence of this Court on the question of standing in environmental matters requires to be revised in the light of recent judgments of the Court of Justice and, if so, the application of any such revised jurisprudence to the facts of this case;

(b) Whether the jurisprudence of this Court concerning the absence of an entitlement to appeal against a refusal of leave to appeal by the High Court in environmental matters requires to be revised in the light of the new constitutional architecture consequent on the adoption of the 33rd Amendment and the jurisprudence of the ECJ and, if so, the application of such revised jurisprudence to the facts of this case; and

(c) Should it prove both appropriate and necessary in the light of the finding of the Court on issues (a) and (b) whether a substantive appeal against the decision of the High Court should be allowed by this Court on either or both of the grounds in respect of which the applicants sought leave to appeal before the High Court.'

2.2 For ease of reference we will refer to those issues as, respectively, the 'standing issue', the 'appeal issue' and the 'substantive issue'. For reasons which we hope will become apparent we propose addressing the appeal issue first for there was little between the parties on that question at least by the time the oral hearing had concluded. We then propose to deal with the standing issue before finally turning to the substantive issue.

2.3 However, it is also relevant to note the position of the Minister who is, in substance, the second named notice party. The Minister did not participate in the High Court. However, during the case management process in this Court, the Minister applied to be allowed participate in the appeal with particular reference to making submissions on the standing issue. The Court gave the Minister leave to participate on the basis that the standing issue gave rise to issues of significant general importance. Indeed, leave to appeal had been granted on the...