M28 steering Group v an Bord Pleanala
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 17 November 2020 |
| Neutral Citation | [2020] IEHC 706 |
| Docket Number | [2018 No. 708 J.R.] |
| Court | High Court |
| Date | 17 November 2020 |
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)
[2020] IEHC 706
MacGrath
[2018 No. 708 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Planning and development – Leave to appeal – Points of law – Applicant seeking a certificate for leave to appeal from a decision of the High Court – Whether points of law arose for certification pursuant to s. 50A(7) of the Planning and Development Act 2000
Facts: The applicant, M28 Steering Group, applied to the High Court pursuant to s. 50A(7) of the Planning and Development Act 2000, as amended, for a certificate for leave to appeal from the decision of the court delivered on the 20th December, 2019 ([2019] IEHC 929). In its decision the court refused the applicant’s application for an order quashing the decision of the respondent, An Bord Pleanala, of 29th June, 2018 whereby it granted approval for a road development scheme known as the Cork County Council N28 Cork Ringaskiddy Project Motorway Scheme, Protected Road Scheme and Service Area Scheme 2017. The applicant maintained that certain points of law arose for certification pursuant to s. 50A(7) of the Act. It was also contended that certain of these issues ought to be referred to the CJEU under Article 267 of the Treaty of the Functioning of the European Union: (a) Under what consent is the extraction of materials for the road in the quantities required authorised? (b) What assessments have been undertaken in respect of this extraction and where is it to be found? (c) Are the assessments “as complete as possible” in accordance with the requirements of European Commission v Ireland (Case C-50/09)? (d) In circumstances where the applicant sought to challenge the failure of a competent authority to carry out a complete Environmental Impact Assessment and Appropriate Assessment, and the failure to grant a development consent in respect of all necessary components of the developments (the quarrying work) are the requirements of Article 11 the Environmental Impact Directive satisfied in proceedings where a court has not identified either a consent authorising the said work, or any assessment of same? (e) Where a development consent is granted that depends on, or will be implemented together with, an earlier development consent (that has not been commenced) which earlier consent was granted pursuant to a provision of national law which did not properly implement the Habitats Directive and was granted in a manner not in accordance with the requirements of the said Directive, can such a grant of consent be lawful having regard to the requirements of EU law? (f) Is there an obligation on the competent authority to assess such earlier consent to ensure its compliance of EU law?
Held by MacGrath J that the issues which had been raised in the first three questions were fact specific, did not give rise to points of law, or points of law which arose out of the decision of the court or concern matters of legal uncertainty. A fortiori, he was not satisfied that the applicant had raised points of law of exceptional public importance. He refused the application for a certificate in respect of questions (a), (b) and (c). For similar reasons outlined by the court in respect of questions (a), (b) and (c), he was also not satisfied that a point of law arose in respect of the contention that the requirements of Article 11 of the Directive had not been satisfied. He was not satisfied that it had been established that the court ought to refer the suggested questions to the CJEU or that it was necessary, desirable or incumbent on the court to do so. He found that the questions as phrased were predicated on a factual basis which the court had not accepted and the answer to those questions were not necessary for the court to arrive at its conclusions. For similar reasons, he was also not satisfied that arising from the court’s judgment, a point or points of law of exceptional public importance arose in respect of the issues raised at questions (e) and (f), and/or that it was desirable in the public interest that certificate should issue in respect of leave to appeal this issue.
MacGrath J held that the application would be refused.
Application refused.
This is an application pursuant to s. 50A(7) of the Planning and Development Act, inserted by s. 13 of the Planning and Development (Strategic Infrastructure) Act, 2006, (“ the Act”) for a certificate for leave to appeal from the decision of this court delivered on the 20th December, 2019 ( [2019] IEHC 929). In its decision the court refused the applicant's application for an order quashing the decision of the respondent of 29th June, 2018 whereby it granted approval for a road development scheme known as the Cork County Council N28 Cork Ringaskiddy Project Motorway Scheme, Protected Road Scheme and Service Area Scheme 2017 (“ the scheme”).
Section 50A (7) of the Act 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.”
The appellate jurisdiction of the Supreme Court referred to in the section is now vested in the Court of Appeal.
The applicant maintains that certain points of law arise for certification pursuant to s. 50A (7) of the Act. It is also contended that certain of these issues ought to be referred to the CJEU under Article 267 of the Treaty of the Functioning of the European Union (“ TFEU”):
(a) Under what consent is the extraction of materials for the road in the quantities required authorised?
(b) What assessments have been undertaken in respect of this extraction and where is it to be found?
(c) Are the assessments “ as complete as possible” in accordance with the requirements of European Commission v. Ireland ( Case C-50/09).
(d) In circumstances where the applicant sought to challenge the failure of a competent authority to carry out a complete Environmental Impact Assessment (“ EIA”) and Appropriate Assessment (“ AA”), and the failure to grant a development consent in respect of all necessary components of the developments (the quarrying work) are the requirements of Article 11 the Environmental Impact Directive satisfied in proceedings where a court has not identified either a consent authorising the said work, or any assessment of same?
(e) Where a development consent is granted that depends on, or will be implemented together with, an earlier development consent (that has not been commenced) which earlier consent was granted pursuant to a provision of national law which did not properly implement the Habitats Directive and was granted in a manner not in accordance with the requirements of the said Directive, can such a grant of consent be lawful having regard to the requirements of EU law?
(f) Is there an obligation on the competent authority to assess such earlier consent to ensure its compliance of EU law?
The principles to be applied on an application such as this were outlined by MacMenamin J. in Glancré Teoranta v. An Bord Pleanala [2006] IEHC 205. They are as follows:-
“1. The requirement goes substantially further than that 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. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court.
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
7. 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 that the uncertainty must arise over and above this, for example in the daily operation of the law in question.
10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.”
In Harding v. Cork County Council [2006] 1 I.R. 294 Clarke J. (as he then was) added that there might be some cases where the point did not arise from the decision simply because through inadvertence it was not considered.
Clarke J. also pointed out in Arklow...
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