Kenny v an Bord Pleanála (No 2)

• Jurisdiction: Ireland
• Judgment Date: 02 March 2001
• Date: 02 March 2001
• Docket Number: [2000 No. 532 JR]
• Court: High Court

Kenny v. An Bord Pleanála (No. 2)

James Kenny

Applicant

and

An Bord Pleanála, Respondent (No. 2)

[2000 No. 532 JR]

High Court

Planning - Judicial review - Refusal of leave to apply - Certificate for appeal from refusal - Point of law of exceptional importance - Whether refusal of leave to apply for judicial review implies no grounds for certificate to appeal - Local Government (Planning and Development) Act, 1963 (No. 28),s. 82(3B)(b)(i) - Local Government (Planning and Development) Act, 1992 (No. 14), s. 19(3).

The applicant unsuccessfully sought leave to apply for judicial review in a challenge to the validity of a planning permission granted by the respondent. The applicant applied for a certificate to appeal to the Supreme Court pursuant to s. 82 (3A) of the Local Government (Planning and Development), Act 1963, as inserted by s. 19(3) Local Government (Planning and Development) Act, 1992.

Held by the High Court (McKechnie J.), in refusing the relief sought, 1, that for certification to appeal to be appropriate there had to be a point of law of exceptional public importance that at least transcended beyond the individual facts and parties of any given case.

Obiter dicta: Where leave was refused in an application for judicial review, i.e. that substantial grounds had not been established, logically the same material could not have a point of law of exceptional public importance to justify certification for an appeal to the Supreme Court.

Cases mentioned in this report:-

Blessington and District Community v. Wicklow County Council [1997] 1 I.R. 273.

Boland v. An Bord Pleanála [1996] 3 I.R. 435.

Costco v. An Bord Pleanála (Unreported, High Court, Smyth J., 1st March, 1999).

Fallon v. An Bord Pleanála [1992] 2 I.R. 380; [1991] I.L.R.M. 799.

Irish Asphalt Ltd. v. An Bord Pleanála [1996] 2 I.R. 179; [1997] 1 I.L.R.M. 81.

Irish Press plc. v. Ingersoll Irish Publications Ltd. (No. 3) [1995] 1 I.L.R.M. 117.

Kraaijeveld B.V. & Ors v. Gedeputeerde Staten Van Zuid Holland (Case 72/95) [1996] E.C.R. I-5403.

K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R. 128; [1994] 2 I.L.R.M. 1.

Lancefort Ltd. v. An Bord Pleanála [1998] 2 I.R. 511.

Lancefort Ltd. v. An Bord Pleanála (Unreported, High Court, Morris P. 23rd July, 1997).

Luxembourg v. Linster (Case 287/98) [2000] E.C.R. I-6917.

Midland Bank Ltd. v. Crossley-Cooke [1969] I.R. 56.

Mulhall v. An Bord Pleanála (Unreported, High Court, McCracken J. 21st May, 1996).

McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, [1992] I.L.R.M. 237.

Scott v. An Bord Pleanála [1995] 1 I.L.R.M. 424.

The People (Attorney General) v. Giles [1974] I.R. 422; (1974) 110 I.L.T.R. 33.

Motion on notice.

The facts have been summarised in the headnote and are more fully set out in the judgment of McKechnie J., infra.

By order of the High Court (McKechnie J.) of the 15th December, 2000, the applicant was refused leave to apply by way of judicial review for, inter alia, an order of certiorari. The applicant applied for a certificate to appeal to the Supreme Court and the application was heard by the High Court (McKechnie J.) on the 6th February, 2001.

Cur. adv. vult

McKechnie J. 2nd March, 2001

On the 4th August, 2000, An Bord Pleanála granted a planning permission, to and in favour of the third 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 notice parties, objected to An Bord Pleanála's decision and in furtherance of that objection, the applicant decided to question its validity, in consequence of which he had a notice of motion issued and duly served on the mandatory parties on 3rd October, 2000. In accordance with the statutory requirements of s. 82 (3A) Local Government (Planning and Development) Act, 1963, as inserted by s. 19 (3) Local Government (Planning and Development) Act, 1992, an application for leave was moved on his behalf. On the 15th December, 2000, judgment on that application was delivered. The applicant 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.

Under s. 82(3A) and (3B) of the Act of 1963, 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."

The court's ruling in this regard is final, unless a successful application is made under s. 82(3B)(b)(i) of the Act of 1963. That subpara. reads as follows:-

"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."

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 sub-para. (b)(i) that the applicant now moves.

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

• (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;

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

• (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 Asphalt Ltd. v. An Bord Pleanála [1996] 2 I.R. 179;

• (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;

• (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,

• (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;

• (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. 422;

• (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;

• (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

• (j) the...