Kerins and Another v an Bord Pleanala and Others
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 25 May 2023 |
| Neutral Citation | [2023] IEHC 280 |
| Court | High Court |
| Docket Number | [2020 No. 830 JR] |
In the Matter of an Application Pursuant to Section 50, 50A and 50B of the Planning and Development Act, 2000 and in the Matter of an Application
and
[2023] IEHC 280
[2020 No. 830 JR]
THE HIGH COURT
JUDICIAL REVIEW
Planning and development – Leave to appeal – Costs – Applicants seeking leave to appeal – Whether it was open to the High Court at the leave to appeal stage to reformulate the questions involved
Facts: The High Court (Humphreys J), in Kerins v An Bord Pleanála (No. 1) [2021] IEHC 369, dismissed the case of the applicants, Ms Kerins and Mr Stedman, on domestic law grounds. In Kerins v An Bord Pleanála (No. 2) [2021] IEHC 612, Humphreys J issued certain clarifications of the No. 1 judgment at the request of the opposing parties. In Kerins v An Bord Pleanála (No. 3) [2021] IEHC 733, Humphreys J made a formal order for reference to the Court of Justice of the European Union (CJEU). In Case C-9/22 N.J. v An Bord Pleanála (ECLI:EU:C:2023:176), the CJEU ruled on the questions referred. In Kerins v An Bord Pleanála (No. 4) [2023] IEHC 186, Humphreys J dismissed the proceedings on foot of the CJEU judgment. The applicants applied for leave to appeal and costs. The applicants propose four questions on the basis of which leave to appeal was sought.
Held by Humphreys J that it is open to the court at the leave to appeal stage to reformulate the questions involved, and there are numerous instances of that happening, both where questions were proposed by applicants and by opposing parties. Adopting that approach, Humphreys J held that there were a number of questions implicit in the applicants’ submissions that satisfied the criteria for leave to appeal: (i) Was it open to the first respondent, An Bord Pleanála (the board), to find that the specific terms of para. 16.4.3 of the 2016 to 2022 Development Plan (the plan) were “further strengthened” by different and more permissive specific terms of para. 16.10.3? (ii) Does the difference in the provisions give rise to “conflicting objectives”, triggering the provisions of s. 37(2)(b) of the Planning and Development Act 2000 as applied by s. 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016 relating to material contravention; or alternatively does the difference amount to a conflict of text not related to objectives which falls qua conflict outside s. 37, and thus is a situation whereby preferring either provision amounts to a material contravention of the other provision, which cannot be resolved under s. 37? (iii) Was it open to the board to rely on paras. 16.4.3 and/or 16.10.3 as a reason to depart not just from the 10% open space provision required by chapter 16 of the plan, but also from the 20% open space required by chapter 15? (iv) Was it open to the board to approve the development without either compliance with the 20% requirement within the development site itself, or a legally enforceable means of ensuring that the 20% requirement overall would be achieved in another way? Humphreys J granted leave to appeal by certifying those questions. Humphreys J held that the bar for costs to be awarded to the losing side is materially higher even than the high bar for leave to appeal; there has to be some reasonable degree of fairness for opposing parties, and, not for the first time, this was a case where the default position of no order as to costs under s. 50B(2) of the 2000 Act was the obvious and appropriate outcome. Regarding costs of the leave to appeal issue, Humphreys J proposed including a default order in favour of the applicants.
Humphreys J ordered that: (i) leave to appeal be granted on the basis of certifying the four re-worded questions set out in the No. 5 judgment; (ii) there be no order as to costs (including costs in the CJEU) in the proceedings, up to and including the No. 4 judgment; and (iii) in the absence of submissions to the contrary lodged with the court within 7 days, the substantive order in the proceedings on foot of the No. 4 judgment and the order on foot of the No. 5 judgment be perfected with an order for the applicants’ costs against the board in relation to the leave to appeal application including the costs of written submissions.
Application granted.
(No. 5)
JUDGMENT of Humphreys J. delivered on the 25th day of May, 2023
. In Kerins v. An Bord Pleanála (No. 1) [2021] IEHC 369, ( [2021] 5 JIC 3102 Unreported, High Court, 31st May, 2021) I dismissed the applicants' case on domestic law grounds.
. In Kerins v. An Bord Pleanála (No. 2) [2021] IEHC 612, ( [2021] 10 JIC 0408 Unreported, High Court, 4th October, 2021) I issued certain clarifications of the No. 1 judgment at the request of the opposing parties.
. In Kerins v. An Bord Pleanála (No. 3) [2021] IEHC 733, ( [2021] 11 JIC 3001 Unreported, High Court, 30th November, 2021) I made a formal order for reference to the CJEU.
. In Case C-9/22 N.J. v. An Bord Pleanála (Court of Justice of the European Union, 9th March, 2023, ECLI:EU:C:2023:176), the CJEU ruled on the questions referred.
. In ( [2023] IEHC 186 Kerins v. An Bord Pleanála (No. 4) Unreported, High Court, 24th April, 2023), I dismissed the proceedings on foot of the CJEU judgment.
. The applicants now apply for leave to appeal and costs.
. The caselaw on leave to appeal has been recently summarised by Barniville J., as he then was, in Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231, ( [2022] 4 JIC 2601 Unreported, High Court, 26th April, 2022) at para. 32 and by Holland J. in Monkstown Road Residents' Association v. An Bord Pleanála [2023] IEHC 9, ( [2023] 1 JIC 1907 Unreported, High Court, 19th January, 2023) so I do not need to rehearse the jurisprudence in further detail.
. Above and beyond the abstract criteria, whether one is seeking leave to appeal or arguing the point at appellate level, it is important in practical terms to engage with the process and explain how the appeal points arise. In an ideal world, a party seeking leave to appeal, or who is actually appealing, would proceed as follows:
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(i) identify how the point arises on the facts and in the applicable legal context;
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(ii) address the pleadings and identify where the point was made;
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(iii) move to the written submissions and identify how it was developed;
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(iv) then move to the first instance judgment to explain how the point was addressed;
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(v) if, hypothetically, a point properly pleaded and argued was not addressed in the judgment, the appropriate application would be one to re-open the judgment to address the issue before going on to seek leave to appeal; and
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(vi) finally, the submissions on leave to appeal would demonstrate that doubt arises in relation to the decision of the court or, if one prefers, show how the decision could plausibly be wrong, which effectively amounts to the same thing.
. If, sub-optimally, any given applicant does not do that, the court has the option of itself considering those issues and evaluating whether the point is an appropriate one for appeal. But it is far better for the applicant to do the spadework.
. The applicants here propose four questions on the basis of which leave to appeal is sought. Questions 3 and 4 can be disposed of summarily before turning to the key issue which arises under questions 1 and 2.
. Question 3 is as follows:
“Whether the Sustainable Urban Housing Design Standards for New Apartments are such as to permit the interference with and undermining of a fundamental element of the ownership of lands, namely the restriction on the right of alienation provided for and protected under Article 40.3 and 43 and of the Constitution, and under the European Convention of Human Rights, and whether it is appropriate to this by means of guidelines issued under Section 28.”
. This question involves a reconfiguration of the pleaded case. Sub-ground 6.1 as pleaded asserted that “[c]onditions 2 and 3 are void as they are a restriction on the right of alienation, are contrary to public policy and are matters which are inappropriate to and inconsistent with the provisions of the Planning and Development Act, 2000 and in particular Section 34(4) thereof.” Ground 8.2.1.2(g) alleged that there was an obligation to comply with the guidelines. On that basis it does not seem to be open to the applicants now to argue that the guidelines are not “appropriate”. The basis on which I rejected the pleaded argument was that the restriction on the right of alienation was envisaged in the guidelines. The applicants now pivot at the proposed appellate stage and effectively challenge those guidelines when they did not do so originally. Insofar as question 3 involves an issue of the interpretation of the guidelines, the applicants do not engage with the interpretation as set out in the judgment.
. There is no reference to the Constitution in this context or possibly any context in the fifth amended statement of grounds, and the only reference to the European Convention on Human Rights appears to be in relation to pre-application consultation. In any event, these applicants cannot argue third parties' constitutional rights. As the State correctly submits, “proposed Question 3 does not engage any alleged property rights of the Applicants.”
. Question 4 is as follows:
“Whether a Masterplan which under the provisions of the Dublin City Development Plan has the same status and fulfils the same functions for the purposes of that Development Plan as a Local Area Plan, and where both options i.e. Masterplan and Local Area Plan have been selected as the appropriate vehicle for detailing the principles for the detailed...
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