James Clifford and Peter Sweetman v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 15 October 2021
• Neutral Citation: [2021] IEHC 642
• Court: High Court
• Docket Number: [2021 No. 20 JR]

In the Matter of Section 50B, Section 214 and Section 215 of the Planning and Development Act 2000 as Amended

and

Section 51 of the Roads Act 1993 as Amended

and

Section 10 of the Local Government (No. 2) Act 1960

Between

James Clifford and Peter Sweetman

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Kerry County Council

Notice Party

In the Matter of an Application Pursuant to Section 76 of and the Third Schedule to the Housing Act 1986 as Extended by Section 10 of the Local Government (No. 2) Act 1960 and Substituted by Section 86 of the Housing Act 1966

And in the Matter of the Planning and Developments Acts 2000 to 2019

And in the Matter of Section 50B of the Planning and Development Act 2000

And in the Matter of an Application Pursuant to Section 51 of the Roads Act 19993 (As Amended)

And in the Matter of an Application

Between

Denis O'Connor, Christy McDonnell, Mary O'Neill McDonnell and The Greenway Information Group

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Kerry County Council

Notice Party

[2021] IEHC 642

[2021 No. 20 JR]

[2021 No. 19 JR]

THE HIGH COURT

JUDICIAL REVIEW

Leave to appeal – Judicial review – Development – Applicants seeking leave to appeal – What are the obligations on a competent authority under the EIA directive and implementing legislation where it modifies a development proposal?

Facts: The High Court (Humphreys J), on 12th July, 2021, in Clifford v An Bord Pleanála (No. 1) [2021] IEHC 459, dismissed an application for certiorari of development consent for the South Kerry Greenway under s. 51 of the Roads Act 1993. The applicants, Mr Clifford, Mr Sweetman, Mr O’Connor, Ms McDonnell, Ms O’Neill McDonnell and the Greenway Information Group, sought leave to appeal under s. 50A(7) of the Planning and Development Act 2000. The applicants’ proposed question of exceptional public importance was: “What are the obligations on a competent authority under the EIA directive and implementing legislation where it modifies a development proposal? Have they been satisfied in this case?”

Held by Humphreys J that the question was extremely general, no provision of the EIA directive was identified, no provision of implementing legislation was identified, the question presupposed that the first respondent, An Bord Pleanála (the board), was modifying a development proposal, and the arguments made in support of the question majored on the alleged breach of public participation requirements of the directive rather than inadequate assessment by the board. He held that the applicants could not reconfigure the case for the purposes of the leave to appeal application. He held that this was a poor case to raise this issue on the particular facts. He held that the judgment answered the question posed by the applicants in a way that the applicants could not really complain about at the level of broad generality. He held that the applicants had not demonstrated any inconsistency between the approach he took and the jurisprudence in relation to project-splitting.

Humphreys J dismissed the application for leave to appeal. He was provisionally minded to make no order as to costs in the absence of (and if made, subject to) any submission to the contrary within 7 days. He held that the issue of the stay would remain listed on 19th October, 2021 for further submissions.

Application dismissed.

(NO. 2)

JUDGMENT of Humphreys J. delivered on Friday the 15th day of October, 2021

1 In ( [2021] IEHC 459 Clifford v. An Bord Pleanála (No. 1) Unreported, High Court, 12th July, 2021) I dismissed an application for certiorari of development consent for the South Kerry Greenway under s. 51 of the Roads Act 1993.

2 The applicants now seek leave to appeal under s. 50A(7) of the Planning and Development Act 2000.

The form of the question

3 It is true that in ( [2008] IEHC 2 Arklow Holidays Ltd. v. An Bord Pleanála Unreported, High Court, 11th January, 2008), Clarke J. drew distinction between a broad question of principle and the narrow question of its application to the case. But the concept of a broad question of principle is not to be entirely conflated with writing an essay. It ideally would involve an actual question – is the legal situation X? Another form (maybe a better form) is – is the legal situation X or alternatively is it Y?

4 Why is this better than an open-ended non-leading question like “what is the legal situation in these circumstances”? There are a number of reasons.

5 Firstly, it's clear that for a question to be one of exceptional public importance warranting an appeal to the Court of Appeal, the question (either alone or in combination with other questions) normally has to be decisive. That is obscured by an open-ended question. If the question is “is the legal situation X or is it Y”, then that permits the court to consider that the losing party would be the loser under either scenario, thereby generally rendering the appeal on such a point otiose.

6 Also, by defining the scenarios to be discussed, the reality or otherwise of those scenarios comes into precise focus. “What is the legal situation here” is a question we might all think is reasonable and worthy of lengthy debate and discussion “Is the legal situation X?” immediately focuses the mind on X, which may compel us to acknowledge the obvious implausibility or otherwise of X.

7 Ultimately the dynamic encouraged by the open-ended question is for the would-be appellant to say “look at this interesting point of law, don't look at how it actually impacts on the actual case, in the context of the actual evidence and actual pleadings”. Pandering to such an approach may even create a perverse incentive to inaccurately represent the import of the substantive decision in order to make the point of law as interesting and relevant as thought necessary (speaking generally – not about the applicants here). Dangling an interesting point in front of a court to obscure shortcomings in the case may seem good bare-knuckle practical tactics but doesn't do anything for the coherence of the legal system. The caselaw is clear that the point has to actually arise from the judgment and therefore from the pleadings and evidence as they actually stand.

8 Hence as suggested in S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November, 2016), at para. 2, it is far better to formulate the question with precision in a manner that indicates how it is determinative of the proceedings, rather than inviting a discursive, roving response from the Court of Appeal.

9 While it is true that some previous certification decisions and indeed by analogy some Supreme Court leave to appeal determinations do involve general questions, and so the need for precision in the question might best be regarded not as an absolute rule (but as against that, the pros and cons of general questions probably aren't fully teased out in such decisions and virtually nothing in law is so fixed that it can't be capable of review and if necessary development), a lack of precision in a question is nonetheless a pertinent factor going to the exercise of the court's jurisdiction to grant leave to appeal. It is also true that the court can reformulate the question proposed by a would-be appellant. But as noted above one of the obvious problems with the absence of a precise question is that it invites the court to stray some distance from the actual issues raised by the case. It also potentially invites the court to decide something which isn't in fact determinative. Hence, precision serves multiple needs in such a context and it is most certainly open to the court to decline to certify a question that is impermissibly imprecise.

Law in relation to leave to appeal

10 I have considered the law in relation to leave to appeal, in particular Boland v. An Bord Pleanála [1996] 3 I.R. 435, Arklow Holidays Ltd. v. An Bord Pleanála [2006] IEHC 102, [2007] 4 I.R. 112, Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, [2006] 7 JIC 1302 (Unreported, High Court, MacMenamin J., 13th July, 2006), Harding v. Cork County Council [2006] IEHC 450, [2006] 11 JIC 3001 (Unreported, High Court, Clarke J., 30th November, 2006), ( [2008] IEHC 2 Arklow Holidays Ltd. v. An Bord Pleanála Unreported, High Court, 11th January, 2008) (where Clarke J. noted (endorsing the view expressed at p. 641 of the 2nd Ed. of Simons on Planning and Development Law) that a decision based on narrow grounds such as factual grounds might not give rise to a point of law and that it is not permissible to allow an appeal “on a moot or on theoretical points of law which might have arisen for discussion or consideration during the Hearing, but which did not go the actual determination or decision of the High Court”), Ógalas Ltd. v. An Bord...