Grace v an Bord Pleanála

 
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[2016] IESCDET 29

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Dunne J.

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED

BETWEEN
EDEL GRACE

AND

PETER SWEETMAN
APPLICANTS
AND
AN BORD PLEANÁLA
RESPONDENT
AND
ESB WIND DEVELOPMENT LIMITED

AND

COILLTE
FIRST AND SECOND NAMED NOTICE PARTIES
AND
THE DEPARTMENT OF ARTS, HERITAGE AND THE GAELTACHT
THIRD NAMED NOTICE PARTY
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The Court grants leave to the Applicants to appeal to this Court directly from the High Court.
REASONS GIVEN:
1. Jurisdiction
1

This determination relates to an application by Ms. Grace and Mr. Sweetman for leave to appeal, under Art. 34.5.4 of the Constitution, directly from two judgments of the High Court (Fulham J.) delivered on respectively the 1st October, 2015 and the 4th December, 2015. The orders appealed against were both made on the 4th December and perfected on the 15th December, 2014. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition because this is an application for leave to appeal directly from the High Court it is also necessary that it be established that there are ‘exceptional circumstances warranting a direct appeal’ to this Court.

2. The Proceedings
2

In these proceedings generally the applicants seek to quash the decision of the respondent (‘the Board’) of the 22nd July, 2014 to grant planning permission in respect of what is known as the Bunkimalta Windfarm being a proposed development comprising of 16 wind turbines at Keeper Hill in Co. Tipperary. The applicants also seek various declarations concerning what was said to be the inadequacy of the assessment carried out prior to that grant of the permission in question.

3. The Order appealed against
3

The High Court held that the assessment concerned was valid. Furthermore, the High Court held that the applicants did not have a sufficient interest so as to give them standing to bring the application most particularly because of the failure by the applicants to raise the issues sought to be advanced in the judicial review application in the course of the hearings before the Board.

4

Thereafter, the applicants sought a certificate for leave to appeal to the Court of Appeal on two questions. The first was the question of standing or sufficient interest. The second concerned certain issues relating to foraging habitat which are set out more fully in the applicants' notice. The High Court refused the relevant certificate and declined to make a reference to the Court of Justice under Art. 267 of the Treaty on the Functioning of the European Union. It is as against both the substantive decision of the High Court and the decision refusing leave that the applicants seek leave to appeal directly to this Court.

4. The Contentions of the Parties
5

The notice of application for leave to appeal together with both the response of the Board and that of the first and second named notice parties (‘the Developers’) are published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis on which the applicants suggest that the constitutional threshold for leave to appeal has been met.

6

So far as the issue concerning standing is concerned it is said that an issue of general public importance arises in relation to whether the previous jurisprudence of this Court on standing (in particular in environmental matters) must now be revised in the light of recent case law of the Court of Justice. On the issue of the proposed appeal against the refusal of leave to appeal it is said that the question of whether a proper construction of relevant Irish legislation, in the light of the jurisprudence of the Court of Justice, ought lead to the conclusion that an appeal should lie to the Court of Appeal against a refusal of a certificate for leave to appeal is also an issue of general public importance. Thirdly, the applicants raise the substantive grounds on which leave to appeal was sought and refused by the High Court and suggest that those issues also meet the constitutional threshold.

7

On behalf of the Board it is said that the question of whether an appeal lies against a refusal of a certificate of leave to appeal is a matter which is well settled. It is said that the relevant European measures and the jurisprudence of the ECJ do not require that there be an appeal at all and that, thus, the question of the Irish regime in respect of leave to appeal (including the question of whether it is possible to appeal against a refusal of leave to appeal) is not, it is said, in any way influenced by European law.

8

Next, it is said that, even if this Court were persuaded to grant leave to the applicants to appeal on the question of whether or not there is an appeal against a refusal of leave to appeal, it is said that the consequences of the applicants being successful on that point ought simply be that the Court...

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