Kenny v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice McKechnie
Judgment Date02 March 2001
Neutral Citation[2001] IEHC 39
CourtHigh Court
Date02 March 2001

[2001] IEHC 39

THE HIGH COURT

No. 532JR/2000
KENNY v. BORD PLEANALA
JUDICIAL REVIEW

BETWEEN

JAMES KENNY
APPLICANT

AND

AN BORD PLEANÁLA
RESPONDENT

AND

DARTRY AND DISTRICT PRESERVATION ASSOCIATION, MATT CROTTY, PROVOST FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE AND THE RIGHT HONOURABLE THE LORD MAYOR ALDERMAN AND BURGESSES OF DUBLIN
NOTICE PARTIES

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1994 ART 35

EEC DIR 85/337

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1999 S8(10)(B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

SCOTT V BORD PLEANALA 1995 1 ILRM 424

BYRNE V WICKLOW CO COUNCIL UNREP KEANE 3.11.1994

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

JACKSON WAY PROPERTIES LTD V MIN FOR ENVIRONMENT UNREP GEOGHEGAN 2.7.1999 1999/14/3977

ROADS ACT 1993 S55(A)

ROADS (AMDT) ACT 1998 S6

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 IR 128

IN THE MATTER OF ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

G V DPP 1994 1 IR 374

RSC O.84 r20

R V INLAND REVENUE COMMISSIONERS EX-PARTE NATIONAL FEDERATION OF SELF EMPLOYED & SMALL BUSINESS LTD 1982 AC 617

XJS INVESTMENTS LTD, RE 1987 ILRM 659

BOYNE GROVE FRUIT LTD V J MURPHY DEVELOPMENTS LTD UNREP EX-TEMP LAFFOY (NOTED IN O'SULLIVAN & SHEPHERD IRISH PLANNING LAW & PRACTICE)

O'CONNOR V DUBLIN CORP & BORG DEVELOPMENTS 2001 1 ILRM 58

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(4)(G)

O'KEEFE V BORD PLEANALA 1993 1 IR 39

WICKLOW TRUST LTD V WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998

GREGORY V DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP GEOGHEGAN 16.7.1996 1998/20/7705

GREGORY V DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP GEOGHEGAN 28.7.1997 1998/20/7685

HOULIHAN V BORD PLEANALA UNREP MURPHY 4.10.1993 1993/12/3737

BOLAND V BORD PLEANALA 1996 3 IR 435

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(4)

Synopsis:

Planning

Planning; judicial review; planning permission was granted to third-named notice party; application for leave to seek judicial review of decision granting same was refused as applicant had failed to show substantial grounds; applicant seeks certificate to enable him to appeal refusal of leave decision to Supreme Court; whether applicant had established that High Court decision refusing leave involved a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to Supreme Court; whether point of law at issue is of such gravity and importance that it transcends the interest and considerations of parties actually before the Court; whether assessment, evaluation and views expressed by judge at leave stage, both on factual and legal aspects of case, constituted approach required on an application for judicial review itself, so as to raise a point of law of exceptional public importance; whether aspect of leave decision dealing with role of Court once procedural statutory requirements with regard to Environmental Impact Statement have been complied with gives rise to point of law of exceptional public importance; s. 82(3B)(b)(i), Local Government (Planning and Development) Act, 1963.

Held: Certification denied.

Kenny v. An Bórd Pleanála - High Court: McKechnie J. - 02/03/2001 - [2001] 1 IR 704 - [2002] 1 ILRM 68

The applicant had been refused judicial review in respect of planning permission granted to Trinity College. The applicant sought a certificate to enable the case to be taken to the Supreme Court. McKechnie J held that no grounds had been raised which would justify issuing the certificate in question.

1

JUDGMENT of Mr. Justice McKechnie dated the 2nd day of March 2001

2

1. On the 4th August 2000, An Bord Pleanala granted a planning permission, to and in favour of the third named Notice Party, Trinity College. This permission authorised a substantial development at Trinity Hall, Dartry, Dublin 6, with the nature and details of such development being evident from the Grant itself. The Applicant and the first and second named Notice Parties, objected to the Board's decision and in furtherance of that objection, the Applicant decided to question its validity, in consequence of which he, Mr. Kenny had a Notice of Motion issued and duly served on the mandatory parties on 3rd October, 2000. In accordance with the statutory requirements of Section 82 (3A) of the 1963 Act, as inserted by Section 19 (3) of the 1992 Act, an application for leave was moved on his behalf. On 15th December, 2000 judgment on that application was delivered. Mr. Kenny was unsuccessful and the reliefs sought were refused. This, on the basis of his failure to satisfy the qualifying criteria of establishing "substantial grounds". Subsequently he has applied for a certificate which if granted would enable him to appeal to the Supreme Court. It is in respect of this last mentioned application that I now give judgment.

3

2. Under Section 82(3A) and (3B) of the 1963 Act, a person cannot challenge the validity, inter alia, of a decision of An Bord Pleanála given on appeal unless:-

"The High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed".

4

The Court's ruling in this regard is final, unless a successful application is made under Section 82 (3B) (b) (i) of the Act. That subparagraph reads as follows:-

"(b) (1) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case save with the leave of the High Court which 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."

5

This said provision does not apply to a determination by the High Court which involves a question as to the validity of any law having regard to the provisions of the Constitution. It is pursuant to the aforesaid subparagraph (b) (i) that the Applicant now moves.

6

3. In considering the relevant part of the appropriate section could I observe as follows:-

7

(a) The first portion of the provision prohibits, in express and positive terms, all appeals from the High Court to the Supreme Court on matters covered by the section,

8

(b) the second portion of the provision however, creates an exception when the High Court certifies in the manner so provided,

9

(c) it is the High Court only which can so certify and from a refusal to do so no appeal lies to the Supreme Court, see Irish Ashfelt Limited -v- An Bord Pleanala 1996 2 I.R.179,

10

(d) in the said provision the words "the determination of the High Court", are used in one part thereof with the words "the decision of the High Court," being used in another part; given the context in question, in my view there is no difference in meaning between either of these phrases, unless it be the case that "the decision", should be regarded as meaning the actual Order of the Court

11

(e) to enable an appeal to be taken the High Court must be satisfied as to the point of law involved: once it is so satisfied an appeal is permissible,

12

(f) there is no statutory obligation to the effect that the certificate must contain the point of law involved, though it must surely be desirable that it should do,

13

(g) when authorised such an appeal is not confined to the point of law in question, indeed precedent shows that not infrequently such a point is abandoned during the currency of an appeal; rather the appeal is against the decision in its entirety with the appellant, becoming dominus litis in the sense that he controls the scope of the appeal: see the People (Attorney General) -v- Giles 1974 I.R. page 422,

14

(h) this control is achieved by the service of a Notice of Appeal and therein by setting out the grounds thereof, all of course within the parameters of the decision appealed from,

15

(i) the point of law involved must be of exceptional public importance and in the High Court's view it must be desirable in the public interest that an appeal should be taken, and finally

16

(j) the requirement last mentioned would appear to suggest the existence of two independent components each of which by the use of the conjuntive word "and", may have to be individually complied with:- a view which if correct, may involve separate and perhaps different considerations.

17

4. As might be imagined this provision of the 1963 Act has given rise to much litigation involving different parties. A central reoccurring issue, relates to the true meaning of the phrase "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". In this context Fallon -v- An Bord Pleanala 1992 2 I.R. 380 is frequently cited. That case dealt with an application for security for costs. However, following the decision of Mr. Justice Walsh in Midland Bank Limited -v- Crosley-Cooke 1969 I.R. 26, it has been the established jurisprudence of the Courts not to entertain, without exceptional circumstances, an application for such costs if a relevant issue involves a question of law of public importance.

18

5. Giving the judgment of the Court, Finlay CJ, in Fallon at pages 3 and 4 of the report said:-

"That, therefore, is the next issue that this Court must determine, and I am satisfied that the issue as outlined with regard to the powers of the planning authority...

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