Harding v Cork County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 30 November 2006
• Neutral Citation: [2006] IEHC 450
• Court: High Court
• Date: 30 November 2006

HARDING v CORK CO COUNCIL & BORD PLEANALA

JUDICIAL REVIEW

BETWEEN

THOMAS HARDING

APPLICANT

AND

CORK COUNTY COUNCIL AND AN BORD PLEANÁLA

RESPONDENTS

AND

XCES PROJECTS LIMITED NOW KNOWN AS KINSALE HARBOUR DEVELOPMENTS LIMITED

NOTICE PARTY

[2006] IEHC 450

[No. 1323 J.R./2005]

THE HIGH COURT

COMMERCIAL

Abstract:

Planning and Environmental law- Judicial review proceedings - Applicant failed to meet substantial interest test - S. 50 Planning and Development Act, 2000

the applicant sought leave to bring judicial review proceedings concerning a notice by the first named respondent of intention to grant planning permission to the notice party. The application was in respect of an integrated tourism resort. The applicant failed to meet the substantial interest test as imposed b y s 50 of the Planning and Development Act, 2000. To appeal the decision, the applicant required leave of the court where the High Court certifies that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court.

Held by Mr Justice Clarke that the point of law concerned was one of exceptional public importance and goes to the constitutionally important question of the entitlement of persons to have access to the courts to challenge decisions in the planning and environmental field. Further, it was held that there would be a public benefit in having a determination by the Supreme Court as to the principles applicable to a consideration of whether a person has standing under the substantial interest test.

Reporter: E.C.

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50(2)(f)

GLANCRE TEORANTA v BORD PLEANALA UNREP MACMENAMIN 13.7.2006 2006 IEHC 250

BOLAND v BORD PLEANALA 1996 3 IR 435 1994 8 2149

O'SHEA v KERRY CO COUNCIL 2003 4 IR 143 2003 44 10591

RYANAIR LTD v AN BORD PLEANALA 2004 2 IR 334 2004 45 10252

HARRINGTON v BORD PLEANALA & ORS 2006 1 IR 388 2005 29 5917 2005 IEHC 344

O'BRIEN v DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP O'NEILL 1.6.2006 2006 IEHC 177

1. Introduction

2 2 1.1 In this case I delivered a judgment ("the leave judgment") on the 12th October, 2006 in relation to an application by the applicant ("Mr. Harding") in which he sought leave to bring judicial review proceedings concerning a notice by the First Named Respondent ("Cork Council") of intention to grant a planning permission to the notice party ("Kinsale Limited"). The application was in respect of a substantial project described an "integrated tourism resort". Further details of the nature of the project appear from the leave judgment.

3 3 1.2 As appears from the leave judgment I decided that it was appropriate to determine as, in effect, preliminary issues, two questions raised by both Cork Council and Kinsale Limited as to whether Mr. Harding had established the necessary standing to bring these proceedings and as to whether it was appropriate for this court to entertain a challenge to a notice of intention to grant permission given by a Planning Authority in circumstances where it was contended that an appeal to An Bord Pleanála would be a more appropriate remedy.

4 4 1.3 For the reasons set out in the leave judgment, I concluded that Mr. Harding had failed to meet the "substantial interest" threshold for standing as imposed by s. 50 of the Planning and Development 2000 ("the 2000 Act"). As appears from that judgment, and indeed other determinations of this court, it is clear that the 2000 Act introduced a higher threshold which must be met by persons wishing to challenge by way of judicial review decisions such as that made by Cork Council in this case. Having reviewed the law and the factual basis put forward on behalf of Mr. Harding in support of his contention that he had a substantial interest within the meaning of the 2000 Act, I set out (at paragraph 3.17 of the leave judgment) my principal conclusions in relation to this aspect of the case. I indicated that I was satisfied that, under the traditional test for stranding, it is probable that, in all the circumstances, Mr. Harding would have had sufficient connection to establish a sufficient interest in the matter so as to justify standing. However, I went on to conclude that the degree of connection which Mr. Harding had set out in his affidavits failed to meet the more stringent test introduced in the 2000 Act of a "substantial interest".

5 5 1.4 1 did, however, conclude that I was not satisfied that, if Mr. Harding had standing, it would be appropriate, at the stage at which the proceedings had reached, to regard an appeal as an adequate remedy.

6 6 1.5 Against that judgment, insofar as it is unfavourable to him, Mr. Harding wishes to appeal. Under the provisions of s. 50(2)(f) of the 2000 Act such an appeal can only be brought with leave of this court and that leave "shall only be granted where the High 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".

7 7 1.6 On that basis it is necessary for Mr. Harding to satisfy me that the test set out in s. 50 is met in order that I should give the certificate required to enable an appeal to be brought. For that reason a further hearing occurred at which argument was put forward on behalf of Mr. Harding to the effect that such a certificate should be given while Cork Council and Kinsale Limited put forward arguments in favour of refusal. This judgment is directed to the issue as to whether it is appropriate, in all the circumstances, to give the certificate sought.

2. The Legal Test

2 2 2.1 The principles and authorities applicable to the grant of a certificate were recently reviewed in Glancré Teoranta v. Mayo County Council [2006] IEHC 250. Having reviewed authorities both in the field of planning and environmental law and also in the procedurally analogous area of asylum law (where similar restrictions on the right of appeal apply), MacMenamin J. summarised the current state of the law in the following way:

"I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein.

1. The requirement goes substantially further than that the point of law emerges in and 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 verified that so as to enable the courts to administer that law not only in the instant, but in future 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 of 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 "exception public importance" and "desirable in the public interest" are cumulative requirement 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 words "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."

3 3 2.2 I respectfully adopt the above summary of the principles applicable to the question of whether a certificate should be granted. I would add only one limited caveat. While there is, as was pointed out by MacMenamin J., authority for the proposition that the point of law sought to be certified must arise out of the decision of this court and not from an issue arising in the course of argument in the case, I would not consider that it necessarily follows that an absolute rule exists to that effect. The requirement stems from the wording of the section itself. The section requires that the point of law, in order that it be certified, must, amongst other things, derive from "its decision", being the decision of this court against which the appeal is sought to be brought. There are, however, many circumstances in which an issue which may arise in the course of argument may not be dealt with in the course of the court's judgment. In the light of the view which the court takes on other issues, some points may just not arise. Similarly the court may not be satisfied that there is evidence of a necessary factual basis for a point to be relevant to its decision. In those, and other, circumstances, the court may come to the view that it is unnecessary to deal with some issues that arose in the course of argument because a resolution of the issue concerned is unnecessary to decide the case at hearing. In those circumstances it does not seem to me that there could be any basis for suggesting that the court should certify such a point where the point did not, in fact,...