Grall v Meath County Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Max Barrett
• Judgment Date: 27 May 2025
• Neutral Citation: [2025] IEHC 318
• Docket Number: [2013 No. 783 JR]

Between

Thomas Grall

Applicant

and

Meath County Council and an Bord Pleanála and Ireland and the Attorney General (2)

Respondents

[2025] IEHC 318

[2013 No. 783 JR]

THE HIGH COURT

Leave to appeal – Constitutionality – Planning and Development Act 2000 s. 261A – Applicant seeking leave to appeal – Whether points of law of exceptional public importance arose

Facts: The applicant, Mr Grall, came to the High Court seeking the following reliefs: (1) an order of certiorari quashing the decision of the first respondent, Meath County Council, purportedly made pursuant to s. 261A of the Planning and Development Act 2000 (PADA), which decision was made pursuant to s. 261A(4(a)) PADA on 26 July 2012; (2) an order of certiorari quashing the decision of the second respondent, An Bord Pleanála (the Board), to confirm the decision of Meath County Council, which decision was made on 5 September 2013; (3) a stay on the said determination and/or an order of prohibition preventing the service of an enforcement notice pursuant to s. 154 PADA; (4) a declaration that the provisions of s. 261A(4(a)) PADA are unconstitutional; (5) a declaration that s. 157(aa) and (ab) PADA as inserted by the Environment (Miscellaneous Provisions) Act 2011 are unconstitutional; and (6) certain further reliefs. On 31 July 2024, Barrett J refused all of the reliefs sought by Mr Grall: [2024] IEHC 552. Mr Grall applied for a certificate and leave to appeal under s. 50A(7) PADA, contending that four points of law of exceptional public importance arose from Barrett J’s decision: (1) In circumstances where the Board, in making a determination under s. 261A PADA, was considering material not submitted by the owner/operator, what is the obligation on the Board to seek information on such material from such owner/operator? (2) In circumstances where an owner/operator does not anticipate that the Board may have regard to information other than that furnished by such owner/operator (whether culpably or not), are the consequences under the section (service of enforcement notice, closure of business) a proportionate response? (3) Given the severity of the consequences of the determination of the Board and the lack of appeal therefrom, was it sufficient for the Court to be satisfied simply that the decision of the Board was reasonable and/or there was material before it that supported its determination? (4) Were the lands permanently sterilised? Did this affect the standard of fair procedures and decision-making by the Board or the Court in reviewing same?

Held by Barrett J that there is no requirement that a point of law should be determined by an appellate court before it can be considered to have become an essentially settled point of law. Nonetheless, it seemed to Barrett J that a number of potential weaknesses can sometimes present where a point of law is ostensibly settled by the High Court without a full and complete consideration at the appellate level.

Barrett J held that, having had regard to Holland J’s observations in Monkstown Road Residents Association & Ors v An Bord Pleanála & Ors [2023] IEHC 9, it was appropriate for Barrett J, acting pursuant to, and consistent with, s. 50A(7) PADA, to grant the certificate and leave to appeal sought in respect of each of the four points of law as posited by Mr Grall.

Leave granted.

JUDGMENT of Mr Justice Max Barrett delivered on 27 ^th May 2025 .

1 . This is an application for a certificate and leave to appeal under s.50A(7) of the Planning and Development Act 2000. It follows on my judgment in Grall v. Meath County Council and Ors [2024] IEHC 552. I do not propose, save as is necessary, to recite the background to, or the detail of, that judgment.

2 . Section 50A(7) provides that:

‘ 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 [Court of Appeal] 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 [Court of Appeal]’

3 . There is a plethora of decisions on the legal principles relevant to an application for leave to appeal under s.50A(7). I have been referred in the written submissions to over a dozen such decisions. However, I propose to refer only to Monkstown Road Residents Association & Ors v. An Bord Pleanála & Ors [2023] IEHC 9. The decision in that case sets out a comprehensive account of the law applicable to an application such as the one now presenting.

4 . The applicant contends that the following four points of law of exceptional public importance (they have been drafted as queries) arise from my original decision:

‘ 1. In circumstances where the Board in making a determination under Section 261A is considering material not submitted by the owner/operator, what is the obligation on the Board to seek information on such material from such owner/operator?

2. In circumstances where an owner/operator does not anticipate that the Board may have regard to information other than that furnished by such owner/operator (whether culpably or not), are the consequences under the section (service of enforcement notice, closure of business) a proportionate response?

3. Given the severity of the consequences of the determination of An Bord Pleanála, and the lack of appeal therefrom is it sufficient for the Court to be satisfied simply that the decision of the Board was reasonable and/or there was material before it that supported its determination?

4. Are the lands permanently sterilised? Does this affect the standard of fair procedures and decision-making by the Board or the Court in reviewing same?’

5 . Similar points were raised in McMonagle Stone v. An Bord Pleanála [2023] IEHC 487 and leave to appeal was refused. However, a close reading of that judgment suggests that the facts presenting were rather different. Counsel for the applicant before me identified the following differences. First, in McMonagle the court appears to have had some doubts as to the bona fides of the application before it. (I have no such doubts.) Second, in McMonagle there appears to have been no effort by the applicant to establish pre-1963 user. (In the case before me there was.) Third, the existence of a second extraction area that had become visible appears not to have been explained to the satisfaction of the court. (No such issue presented on the facts before me.) So, there is sufficient difference between the two cases for me to feel free, on the particular facts before me, to arrive at a different decision to that reached by the court in the section 50A(7) application in McMonagle. That said, I am also arguably proceeding consistent with the judgment in McMonagle given that there seems, on my reading, to be an implicit sense in that judgment that certification and leave might well have issued on the points of law which were deemed to be properly before the court in that case, had it not been for the three aspects of McMonagle just touched upon.

6 . It has been submitted for the applicant in his counsel's written submissions that:

‘ There is a lack of any authoritative judgment at appellate court level on the interpretation of established pre-1963 user, and in particular the recent construction of same in the JJ Flood line of authority. This line of authority has created significant concern in the quarrying sector as it represents a significant departure from the established approach to established user.’

7 . Counsel for the Board has suggested that this is not quite true, drawing my attention to the unsuccessful application for leave to appeal to the Supreme Court in McCaffrey & Sons Ltd v. An Bord Pleanála [2024] IEHC 315, [2024] IEHC 476, [2024] IESCDET 145. There, the Supreme Court in refusing leave to appeal, noted, at para.22 of its determination that:

‘ While JJ Flood has been frequently followed in the High Court, the Court notes that it has also recently been followed in the somewhat analogous case of peat extraction by the Court of Appeal in Harte Peat v. Environmental Protection Agency [2024] IECA 202.’

8 . I respectfully accept the point made by counsel for the Board that JJ Flood has been followed by the Court of Appeal in, to borrow from the wording of the Supreme Court, ‘ the somewhat analogous case of peat extraction’. However, I do not see that this suffices to meet fully the point made by counsel for the applicant in this regard.

9 . There is of course no requirement that a point of law should be determined by an appellate court before it can be considered to have become an essentially settled point of law. Nonetheless, it seems to me that a number of potential weaknesses can sometimes present where a point of law is ostensibly settled by the High Court without a full and complete consideration at the appellate level:

• (a) Where legal principle is ostensibly settled by the High Court without the benefit of scrutiny by the Court of Appeal and/or the Supreme Court it may conceivably rest upon underdeveloped doctrinal foundations.

• (b) Litigation before the Court of Appeal and/or the Supreme Court often results in dynamic judicial discourse (in a judgment or ‘behind closed doors’) in which competing interpretations of the law are considered and discussed. A High Court decision, even successive High Court decisions on the same point may involve a somewhat monological approach to decision-making (potentially accentuated by the application of the rules of precedent).

• (c) Absent robust testing of a principle at the appellate level, ostensibly settled legal propositions may be arrived at without latent ambiguities or unintended consequences being...