Liscannor Stone Ltd v Clare County Council, an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Miriam O'Regan
• Judgment Date: 14 April 2021
• Neutral Citation: [2021] IEHC 258
• Docket Number: [Record No. 2013/941 JR]
• Court: High Court
• Date: 14 April 2021

Between

Liscannor Stone Limited

Applicant

and

Clare County Council, An Bord Pleanála, Ireland and The Attorney General

Respondents

[2021] IEHC 258

[Record No. 2013/941 JR]

THE HIGH COURT

Leave to appeal – Judicial review – Planning and Development Act 2000 s. 50A(7) – Applicant seeking leave to appeal to the Court of Appeal – In a judicial review of a decision of an appeal or review body, can a court refuse certiorari on the basis that if such an order was made it would result in the resurrection of the original order under review or appeal?

Facts: The applicant, Liscannor Stone Ltd, applied to the High Court for leave to appeal to the Court of Appeal pursuant to s. 50A(7) of the Planning and Development Act 2000 (as amended) following a judgment delivered on 4 December 2020. Nine questions were raised: (1) Is an EIA required in respect of a development that is being carried out under a pre-1964 established user? (2) In this regard, is there a difference in law between a development that is operating under a pre-EIA pre-1964 user and a development that is operating under a pre-EIA planning permission? (3) In the context of the determination pursuant to s. 261A, was it incumbent on the second respondent, An Bord Pleanála, to make a determination as to whether or not the site had a bona fide pre-1964 user? (4) Is it necessary in the context of a judicial review of a decision by An Bord Pleanála under s. 261A (wherein the Board decided not to consider whether or not a development was or was not pre-1964) for an applicant to establish that the development was pre-1964 in order to have locus standi to challenge the decision? (5) In circumstances where the lack of locus standi on this point is not pleaded by the respondent, and the matter is not raised in submissions before the Court (having regard to inter alia Article 11 of the EIA Directive and the requirements for fairness), can the Court hold against such an applicant? (6) Can a Court identify an uncertainty in terms of EU law, worthy of a reference to the CJEU but decline to make such a reference in the manner that it did herein? (7) In a judicial review of a decision of an appeal or review body, can a court refuse certiorari on the basis that if such an order was made it would result in the resurrection of the original order under review or appeal? (8) In circumstances where a decision of an authority has been reviewed or appealed to an appellant or review body, is it necessary for the applicant to separately challenge the substantive or procedural legality of the decision under appeal on its own merits? (9) If a legal infirmity is identified in the decision of the appellate or review body, does the order of the authority under appeal revive if the decision of the appellate body is quashed?

Held by O’Regan J that the first question was based on a factual set of circumstances which did not exist and therefore it was not an appropriate question to certify for appeal. She held that the second question was answered in the judgment, having considered prior jurisprudence where no contradictory jurisprudence was identified; there was therefore no uncertainty in the law. She held that the third question simply did not arise on foot of the judgment. She held that, in respect of queries four and five, no locus standi issue was raised in the judgment. In so far as query number six was concerned, she held that there was no uncertainty on the law, namely, a reference to the CJEU on a point of law from the High Court was not mandated, and in any event, the query would be more of an advisory opinion as opposed to necessary to determine the proceedings. She held that there was no refusal to grant certiorari on the basis of a resurrection of the original decision of the first respondent, Clare County Council; rather An Bord Pleanála’s decision was considered valid. Thereafter she did consider the position if she was wrong in relation to the validity of An Bord Pleanála’s decision. In the circumstances, assuming she was wrong in relation to para. 67 of the judgment, nevertheless, para. 66 would stand to the effect that the securing of an alternate answer to the seventh question would not alter the outcome of the matter. She held that neither queries eight or nine arose on foot of the judgment as An Bord Pleanála’s decision was not quashed and the decision was upheld.

O’Regan J held that the application for leave to appeal the decision of 4 December 2020, pursuant to s. 50A(7) of the 2000 Act would be refused.

Application refused.

JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 14th day of April, 2021.

Introduction

1 This judgment is dealing with an application on behalf of the applicant for leave to appeal to the Court of Appeal pursuant to s.50A(7) of the Planning and Development Act 2000 (as amended) (the PDA) following a judgment delivered on 4 December 2020.

2 Section 50A(7) aforesaid provides:

“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 Supreme Court 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 Supreme Court.”

3 Section 75 of the Court of Appeal Act 2014 provides that references to the Supreme Court are to be construed as references to the Court of Appeal unless the context otherwise requires.

Applicable principles

4 The principles guiding the test to be applied to the within application have been set out and subsequently followed extensively by McMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 as follows:

• “(1) The requirement goes substantially further than 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) [Not relevant as it deals with leave].

• (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...