Heather Hill Management Company v an Bord Pleanála

JudgeMr. Justice Garrett Simons
Judgment Date05 December 2019
Neutral Citation[2019] IEHC 820
Docket Number2019 No. 20 J.R.
CourtHigh Court
Date05 December 2019



[2019] IEHC 820

Garrett Simons

2019 No. 20 J.R.



Planning and development – Planning permission – Judicial review – Grant of permission held invalid in earlier High Court decision – Application for leave to appeal – Sections 50, 50A Planning and Development Act 2000

Facts: The High Court had in earlier proceedings held that a grant of planning permission to the developer by the respondent board was invalid (see [2019] IEHC 450. The respondent now sought to apply for leave to appeal on three points of law under ss 50 & 50A of the Planning and Development Act 2000.

Held by the Court, that the application for leave to appeal under s 50A would be dismissed. The Court considered the submissions before it in the light of the provisions of s 50A and found that none of the three points of law argued were of public importance. Further, even if those grounds had been made it, the Court would have held an appeal was not in the public interest.

JUDGMENT of Mr. Justice Garrett Simons delivered on 5 December 2019

By judgment delivered on 21 June 2019, Heather Hill Management Company v. An Bord Pleanála [2019] IEHC 450 ( “the principal judgment”), this court held that a decision of An Bord Pleanála to grant planning permission for a “strategic housing development” 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.


An Bord Pleanála has identified three points of law in respect of which it seeks leave to appeal (“the draft points of law”). The parties have exchanged written legal submissions on these points and the application for leave to appeal was heard on 13 September 2019.


The applicant for planning permission, Burkeway Homes Ltd (hereinafter “the Developer”) had indicated earlier that it did not intend to participate in the application for leave to appeal.


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.


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”.


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.


The leading judgment on the interpretation of the statutory criteria governing 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.”


As discussed presently, almost all of these considerations are “in play” in this case. The parties are in disagreement on the following issues (i) whether the draft points of law actually arise from the principal judgment; (ii) whether there is any uncertainty in the law; (iii) whether the draft points of law transcend the facts of the case; and (iv) 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.


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


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.


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”. An issue arises as to whether it would be consistent with these requirements to allow an appeal in circumstances where the appeal is moot. Even if An Bord Pleanála were to succeed in the putative appeal, the decision to grant planning permission would nevertheless be invalid by reference to other (unchallenged) findings in the principal judgment. I will return to this point at paragraph 56 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.


Following on from the establishment of the Court of Appeal in October 2014, an appeal from a decision of the High Court in respect of a challenge to a planning permission might, in principle, be brought before either the Court of Appeal or the Supreme Court.


The gateway to the Supreme Court differs in four significant respects from that which controls access to the Court of Appeal. First, access to the Supreme Court is controlled by the Supreme Court itself; the High Court has no function in this regard and cannot grant leave to appeal. Secondly, the criteria for leave to appeal are different for the two appellate courts. In one respect, the criteria for leave to appeal to the Supreme Court are less onerous: it is enough that the decision of the High Court involves a “matter” of “general public importance”, which is a lesser standard than a “point of law” of “exceptional public importance” under Section 50A(7) of the PDA 2000. In another respect, however, the criteria are more onerous: there is an additional requirement to satisfy the Supreme Court that there are exceptional circumstances warranting a direct appeal to it. Thirdly, the application to the Supreme Court is a paper-based...

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