Grace v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Fullam
• Judgment Date: 04 December 2015
• Neutral Citation: [2015] IEHC 870
• Docket Number: Record No. 2014 533 J.R.
• Year: 2015
• Date: 04 December 2015
• Court: High Court

IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMMENDED

BETWEEN

EDEL GRACE

AND

PETER SWEETMAN

Applicants

AND

AN BORD PLEAN�LA

Respondent

AND

ESB WIND DEVELOPMENT LIMITED & COILLTE

First & Second Named Notice Party

AND

THE DEPARTMENT OF ARTS, HERITAGE

AND

THE GAELTACHT

Third Named Notice Party

[2015] IEHC 870

Record No. 2014 533 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Planning & Development – S. 50A of the Planning and Development Act 2000 as amended – Leave to appeal – Point of law of exceptional public importance – Jurisdiction to refer a matter before CJEU

Facts: The applicants sought leave to appeal to the Court of Appeal. The applicants had raised two questions for certification. The applicants also sought an order to the effect of submitting the proposed questions for reference to the Court of Justice of the European Union (CJEU) under art. 267 of the Treaty on the Functioning of the European Union (TEFU).

Mr. Justice Fullam refused to grant certificate of appeal to the Court of Appeal. The Court in conformity with the principles laid down by MacMenamin J. in Glancre Teoranta v. An Bord Pleanala and Mayo County Council [2006] IEHC 250 held that the jurisdiction to certify must be exercised with utmost care only in cases where there existed a point of law of exceptional public importance for which uncertainty loomed large in general public and whose resolution was desirable. The Court held that the point of law must emanate from the impugned judgment. The Court found that the questions raised by the applicants had already been resolved by the High Court and no uncertainty existed in relation to those questions and thus, the leave must be refused. The Court held that the jurisdiction to refer a question before the CJEU could only be exercised by the High Court in the course of conducting the proceedings or in advance of judgment being given, and hence, in those circumstances, the Court could not refer the said questions to the CJEU. The Court, following the judgment of Srl CILFIT and Lanificio di Gavardo SpA v Ministry for Health [1982] ECR, held that there was no point in referring to the question to the CJEU if those questions had already been decided by the CJEU earlier. The Court found that one of the questions raised concerning the application of criteria for assessment of a project under art. 6 (3) of the Habitats Directive had been adequately laid down by the CJEU and Advocate General in Briels v Minister van Infarstuctur en Millieu C-521/12.

JUDGMENT of Mr. Justice Fullam delivered the 4th day of December, 2015.

Introduction

1 This is an application for a certificate for leave to appeal the judgment herein pursuant to s. 50A(7) and s. 50A(11) of the Planning and Development Act 2000, as inserted by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006.

2 2. Section 50A(7) of the Planning and Development Act 2000 (‘the PDA’) provides:

‘that the determination of the Court of an application for leave to apply for judicial review or of the substantive application is 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.’

3 Section 50A(11) confers the Court of Appeal with jurisdiction to only determine the point of law certified by the trial judge and to only make orders consequent upon that determination. An applicant seeking certification must satisfy the Court that:

‘(a) the point or points of law which are proposed are of exceptional public importance and

(b) that is desirable in the public interests that an appeal should be taken to the Court of Appeal.’

4 The principles to be applied in an application such as this were outlined by MacMenamin J. in Glancr� Teoranta v. An Bord Plean�la and Mayo County Council [2006] IEHC 250, 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 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 certified be such that it is likely to resolve other cases.’

5 The above principles were followed by Clarke J. in Arklow Holidays Ltd. v. An Bord Plean�la [2008] IEHC 2. Clarke J. held that:

‘(a) The decision must involve a point of law of exceptional public importance;

(b) it must be desirable in the public interest that an appeal should be taken to the Supreme Court;

(c) there must be uncertainty as to the law and

(d) the importance of the point must be public in nature and transcend the individual facts and parties of a given case.’

6 The high bar in the...