Halpin v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 15 May 2020
• Neutral Citation: [2020] IEHC 218
• Docket Number: 2016 No. 637 J.R.
• Court: High Court
• Date: 15 May 2020

BETWEEN

NIALL HALPIN (SUING BY HIS MOTHER AND NEXT FRIEND EILEEN HALPIN)

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

MEATH COUNTY COUNCIL

GREENFIELD VENTURES LIMITED

NOTICE PARTIES

[2020] IEHC 218

Garrett Simons J.

2016 No. 637 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Point of law – Planning permission – Development – Respondent seeking leave to appeal – Whether there was uncertainty in the law which would justify granting leave to appeal on the draft point of law

Facts: The High Court, by judgment delivered on 24 May 2019, [2019] IEHC 352 (the principal judgment), held that a decision of the respondent, An Bord Pleanála, to grant planning permission for development consisting of an “anaerobic digester plant” was invalid. An Bord Pleanála applied to the High Court for leave to appeal to the Court of Appeal. An Bord Pleanála identified a point of law in respect of which it sought leave to appeal (the draft point of law): “Is the O’Keeffe [O’Keeffe v An Bord Pleanála [1993] 1 I.R. 39] standard of review to be applied on the basis of the Court’s own analysis and understanding of the technical material on which the decision-maker made its decision, or is the question to be asked whether the technical material was capable, on analysis by a decision maker with relevant scientific expertise, of supporting the decision reached?”

Held by Simons J that there was no uncertainty in the law which would justify granting leave to appeal on the draft point of law. Moreover, Simons J held that any alleged prejudice to An Bord Pleanála had, in any event, been addressed by the admission of the affidavit of Mr Boland, one of the Board members who made the decision impugned in the proceedings. Further, Simons J held that the content of that affidavit had largely been presaged by the submissions made by counsel for An Bord Pleanála at the hearing of the substantive judicial review in May 2019.

Simons J held that the application for leave to appeal pursuant to s. 50A(7) of the Planning and Development Act 2000 would be dismissed.

Leave to appeal refused.

JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 15 May 2020

INTRODUCTION	2
LEGAL TEST GOVERNING LEAVE TO APPEAL	2
NEW APPELLATE ARCHITECTURE UNDER THE CONSTITUTION	5
DRAFT POINT OF LAW	8
THE PROCEEDINGS BEFORE THE HIGH COURT	9
PLEADING POINT	13
DETAILED DISCUSSION	17
PRINCIPAL JUDGMENT: THE “DECISION” OF THE HIGH COURT	17
NO UNCERTAINTY / PRECEDENTIAL VALUE IS NIL	21
APPEAL NOT DESIRABLE IN PUBLIC INTEREST	26
CONCLUSION AND FORM OF ORDER	31

INTRODUCTION

1 By judgment delivered on 24 May 2019, Halpin v. An Bord Pleanála [2019] IEHC 352 ( “ the principal judgment ”), this court held that a decision of An Bord Pleanála to grant planning permission for development consisting of an “anaerobic digester plant” was invalid. This second, supplementary judgment is delivered in respect of an application for leave to appeal to the Court of Appeal. The within proceedings are subject to the special statutory judicial review procedure provided for under Sections 50 and 50A of the Planning and Development Act 2000 ( “ the PDA 2000 ”). One of the features of the procedure is that there is no automatic right of appeal to the Court of Appeal; rather, it is necessary for a putative appellant to obtain leave to appeal from the High Court.

2 An Bord Pleanála has identified a point of law in respect of which it seeks leave to appeal ( “ the draft point of law ”). The parties have exchanged written legal submissions on this point, and the application for leave to appeal was heard by way of a remote or virtual hearing on 1 May 2020.

3 The applicant for planning permission, Greenfield Ventures Ltd, (hereinafter “the Developer”) has not participated in the judicial review proceedings at any stage.

LEGAL TEST GOVERNING LEAVE TO APPEAL

4 Sub-sections 50A(7) and (8) of the PDA 2000 provide as follows:

(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].

(8) Subsection (7) shall not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

5 The sub-sections had originally referred to “the Supreme Court”, but by virtue of Section 75 of the Court of Appeal Act 2014, this is now to be read as a reference to “the Court of Appeal”.

6 It should be noted that the form of the certified point of law operates to define the Court of Appeal's jurisdiction on the appeal. See Section 50A(11) of the PDA 2000, as follows:

(11) On an appeal from a determination of the Court in respect of an application referred to in subsection (10), [the Court of Appeal] shall—

(a) have jurisdiction to determine only the point of law certified by the Court under subsection (7) (and to make only such order in the proceedings as follows from such determination), and

(b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice.

7 The leading judgment on the interpretation of the statutory criteria governing the grant of leave to appeal remains that of the High Court (MacMenamin J.) in Glancré Teoranta v. An Bord Pleanála (No. 2) [2006] IEHC 250 ( “Glancré”). The judgment sets out ten principles or considerations 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 ( 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.”

8 Several of these considerations are “in play” in this case. The parties are in disagreement on the following issues (i) whether there is any uncertainty in the law; (ii) whether the draft point of law transcends the facts of the case; and (iii) whether the second limb of the statutory test is met, namely whether an appeal to the Court of Appeal is desirable in the public interest.

9 There have been a number of legal developments since the delivery of the landmark judgment in Glancré in July 2006 as follows.

10 The first development is the establishment of the Court of Appeal and the reordering of the Supreme Court's jurisdiction. This has implications for the High Court in the discharge of its certifying role under Section 50A(7) of the PDA 2000. Moreover, the case law of the Supreme Court in relation to the exercise of its constitutional jurisdiction to grant leave to appeal may provide some guidance, by analogy, for the High Court in the exercise of its own statutory jurisdiction. I will elaborate on this first development under the next heading below.

11 The second development is the introduction, under the Planning and Development (Amendment) Act 2010, of special rules in relation to the legal costs of certain types of environmental litigation. These rules are set out at Section 50B of the amended PDA 2000, and give effect to inter alia the requirements of the Environmental Impact Assessment Directive (2011/92/EU) ( “ the EIA Directive ”). Member States are obliged to provide a “review procedure” which is “fair, equitable, timely and not prohibitively expensive”. The “review procedure” is also applicable to development projects which are subject to the public participation provisions of the Directive on the control of major-accident hazards involving dangerous substances (2012/18/EU) ( “the Seveso III Directive”). I will return to this point at paragraph 81 below when discussing the second limb of the statutory test, namely whether it is desirable in the public interest that an appeal should be taken.

NEW APPELLATE ARCHITECTURE UNDER THE CONSTITUTION

12 Following on from the establishment of the Court of Appeal...