Graymount House Action Group and Others v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Barr
• Judgment Date: 13 September 2024
• Neutral Citation: [2024] IEHC 542
• Court: High Court
• Docket Number: [Record No. 2022/1107JR]

Between

Graymount House Action Group, Darragh Richardson and Aoife Grimes

Applicants

and

An Bord Pleanála, Fingal County Council, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Trafalgar Capital Limited

Notice Party

[2024] IEHC 542

[Record No. 2022/1107JR]

THE HIGH COURT

Facts: The applicant submitted that there were four points of law of exceptional public importance in the substantive jugment of the court and that it desirable in the public interest that an appeal should be taken on them to the Court of Appeal. Question 1 "Does the test for interpretation of a development plan liad down in BallyBoden, and approved in Sherwin, when that a provision of the development plan is either an aspirational one...or doe it mean that the court must identify the legal limits of the provision, and the matters that are aspirational, and determine whether the Board has (a) exceeded the legal limits imposed by the plan and (b) before going on to consider whether, for matters within those legal limits imposed by the plan and (b) before going on to consider whether, for matters within those legal limits and within its discretion, the Board had acted reasonably? Question 2 "In providing reasons, is it sufficient for the Board to show that it has identified the specific, applicable provisions of the relevant development plan and guidelines, engaged with them in light of the submissions made, interpreted them correctly, and applied them in accordance with the law?" Question 3 "where a variation to a development plan revises figures stated in the parent plan and states that those revised figures are calculated to a particular date, but the plan came into force on a later date, should those revised figures be taken to be calculated from the date on which the variation came into force?" Question 4 "where standard condition one of the planing permission (requirement to build in accordance with the plans and particulars submitted) is relied on by the court as the basis for an enforceable obligation, is the court obliged to identify the specific document, paragraphs and plans providing the basis for that obligation?". The Judge refused leave to the applicants to appeal in this case

JUDGMENT of Mr Justice Barr delivered electronically on the 13 ^th day of September 2024 .

Introduction.

1 . This is an application for leave to appeal a judgment delivered by this Court on 31 May 2024, with neutral citation [2024] IEHC 327 (hereinafter “the substantive judgment”), to the Court of Appeal. The substantive judgment upheld the decision of An Bord Pleanála (“ABP”) to grant planning permission to the first respondent for a 32 unit apartment development to be carried out at Dungriffin Road, Howth, County Dublin.

2 . The chronology of relevant dates in this case can be set out as follows:-

07 September 2021	Fingal County Council gave intention to grant planning permission to the notice party for the development at Dungriffin Road.
04 October 2021	The applicants appealed the decision of the County Council to ABP.
21 October 2022	ABP decision granting planning permission for the development.
15 December 2022	Applicants first moved their application for leave to proceed by way of judicial review challenging the decision of ABP.
20 March 2023	After a number of adjournments to allow the applicants to amend their statement of grounds, the applicants were granted leave to proceed by way of judicial review.
09–12 April 2024	Application for judicial review heard in the High Court.
31 May 2024	Judgment delivered in the High Court.

The law.

3 . The law to be applied to an application for leave to appeal a judgment of this sort is well settled and need not be set out in full. Section 50A(7) of the Planning and Development Act 2000, as amended, states:

“(7) 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].”

4 . In Glancré Teoranta v ABP [2006] IEHC 250, McMenamin J set out the principles to be applied to such applications, at para. 7:-

“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 ( Kenny).

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 ( Raiu).

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 . These principles have been endorsed and applied on a number of occasions since that judgment: see Arklow Holdings v ABP [2008] IEHC 2; O'Brien v ABP [2018] IEHC 389; North East Pylon Pressure Campaign Limited v ABP [2018] IEHC 3; Dublin Cycling Campaign v ABP (No.2) [2021] IEHC 146; and An Taisce v ABP [2021] IEHC 422.

6 . In Monkstown Road Residents Association v ABP [2023] IEHC 9, Holland J discussed at para. 8 of his judgment further considerations to be applied by the court in considering an application for leave to appeal. In particular, Holland J noted that the threshold to obtain a grant of leave to appeal, is very high, and that most applications will fail. In reaching its determination herein, the court has had regard to the principles set out in the caselaw cited above.

Discussion.

7 . The applicant submits that there are four points of law of exceptional public importance in the substantive judgment of the court and that it is desirable in the public interest that an appeal should be taken on them to the Court of Appeal. The court will deal with each of the proposed points of law in turn.

Question 1 and Question 2.

8 . “Does the test for interpretation of a development plan laid down in Ballyboden, and approved in Sherwin, mean that a provision of the development plan is either an aspirational one (where all questions are within the discretion of the Board, or a legal one (subject to full review); or does it mean that the court must identify the legal limits of the provision, and the matters that are aspirational, and determine whether the Board has (a) exceeded the legal limits imposed by the plan and (b) before going on to consider whether, for matters within those legal limits and within its discretion, the Board has acted reasonably?

9 . The applicant submits that this question arises in the substantive judgment relating to the decision of ABP on density and guidelines; historic buildings; removal of trees; and the EIA issue.

10 . In essence, the applicant submits that this Court erred in approaching the issue by reference to para. 112 in Jennings v ABP [2023] IEHC 14, as approved by the Supreme Court in Sherwin v ABP [2024] IESC 13. The applicant submits that in applying the test simply along the lines set out in para. 112 in Jennings, the court has collapsed the test that should be applied, into a single question as to whether the provision in the development plan, or guidelines, was aspirational in its terms, and, if so, the only question was whether the decisionmaker acted irrationally in the legal sense.

11 . It was submitted that this approach ignores the test set out at para. 108 in the Jennings judgment, which indicated a five-step test. The applicant submitted that the correct test, which ought to have been applied by both ABP and this Court, was that ABP should have interpreted the limits of the development plan and determined if the proposed development was outside those limits. If it was concluded that the proposed development was outside the limits set down in the development plan, the Board could still grant permission, but would have to set out clearly that it had reached a decision that the application was outside the limits set down in the development plan and state clearly why it was appropriate to grant the permission notwithstanding that it fell outside those limits.

12 . It was submitted that if the...