McNamara v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 31 July 1996
• Neutral Citation: 1998 WJSC-HC 2486
• Docket Number: No. 355JR/94
• Court: High Court
• Date: 31 July 1996

1998 WJSC-HC 2486

THE HIGH COURT

No. 355JR/94

MCNAMARA v. BORD PLEANALA & KILDARE CO. COUNCIL

JUDICIAL REVIEW

BETWEEN

PATRICK McNAMARA

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

AND

THE COUNTY COUNCIL OF THE COUNTY OF KILDARE, THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN AND OTHERS

NOTICE PARTIES

Citations:

TREATY OF ROME ART 177(3)

TREATY OF EUROPEAN UNION ART G(56)

PETERBROECK V BELGIAN STATE 1995 1 ECR 4599

VAN SCHIJNDEL V VAN VEEN 1995 1 ECR 477

IRISH CREAMERY MILK SUPPLIERS ASSOCIATION V IRELAND 1981 ECR 735

CILFIT & ANOR V MIN FOR HEALTH 1982 ECR 3415

SPUC V GROGAN & ORS 1989 IR 752

Synopsis:

[1998] 3 IR 453

Mr. Justice Barr

1 The applicant has applied by Notice of Motion for, inter alia, the following relief:-

2 (a) An order of reference to the Court of Justice of the European Union under Article 177(3) of the Treaty of Rome on questions concerning the interpretation of Community law as set forth in the exhibit in the affidavit grounding the application.

3 (b) A stay on the Judgment and Order of the High Court delivered on 10th May, 1996.

4 (c) A stay on the Order of An Bord Pleanala under Reference PL.09.091910 (Co. Kildare, Planning Register Reference No. PRR 92/942) dated 29th July, 1994.

5 Briefly, the background chronology of events leading up to the application is as follows:-

6 The applicant is the chairman of the Kill Residents Group, a body which is opposed to the establishment and operation of a major domestic refuse dump near the village of Kill, Co. Kildare by the local authorities which serve the greater Dublin area. Planning permission for the dump was refused by Kildare County Council, being the planning authority concerned, but on appeal to An Bord Pleanala permission was granted subject to certain conditions. The applicant applied to this Court and was granted permission by Carroll J. to proceed by way an application for judicial review on certain specified grounds for, inter alia, an order quashing the planning permission for the dump granted by An Bord Pleanala. The substantive hearing came on before me at which all interested parties were represented and I delivered reserved judgment on 10th May, 1996. Subsequently, on 16th May following I ruled on the costs of the proceedings in an ex-tempore judgment. The next step was a motion on notice brought by the applicant in which he invited this Court to certify a particular point arising out of the substantive judgment for appeal to the Supreme Court on the ground that the point in question was one of exceptional public importance. I refused the application, being satisfied that the particular issue had been already determined by the Supreme Court.

7 The application now before the Court is made by Mr. O'Reilly on behalf of the applicant pursuant to Article 177(3) of the Treaty of Rome. He seeks an order of reference to the Court of Justice of the European Union of certain questions concerning the interpretation of Community law.

8 The relief sought by the applicant raises a crucial preliminary issue which is fundamental to the outcome of the motion i.e. whether the application is maintainable under Article 177(3), this Court having delivered its final judgment on the issues raised in the proceedings before it.

9 Article 177 of the Treaty of Rome , as amended by Article G(56) of the Treaty of the European Union, is in the following terms. Although not in the original, I have added paragraph numbers which also have been adopted by counsel for the parties in argument:-

10 2 "1. The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

11 (a) the interpretation of this Treaty;

12 (b) the validity and interpretation of acts of the institutions of the Community and of the ECB;

13 (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.

14 2. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

15 3. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decision there is no judicial remedy under national law, the court or tribunal shall bring the matter before the Court of Justice".

16 In interpreting Article 177, it will be observed that it provides the Court of Justice with jurisdiction to give preliminary rulings for the benefit of national courts within the European Union on matters pertaining to the interpretation of the Treaty of Rome as amended and other specified aspects of European law. The use of the word "preliminary" implies that the national court which receives such a ruling from the European Court has not completed its function by delivering final judgment, but will do so, inter alia, in the light of the ruling received from the Court of Justice.

17 Furthermore, paragraph 3 (which is the particular provision in Article 177 relied upon by the applicant) relates to a question raised "in a casepending [my emphasis] before a [national] court". When a court has delivered final judgment, the case which was before it is patently no longer "pending".

18 In the light of the wording of Article 177 I am satisfied that a ruling of the Court of Justice, being for the benefit of a national court, must be made while the case in question is pending before the latter i.e. prior to its final judgment. Furthermore, the objective of Article 177 bears out that interpretation. It is universally accepted, and it has not been challenged by Mr. O'Reilly, that the purpose of the Article is to provide a consultative procedure whereby national courts may obtain rulings on matters of European law from the Court of Justice. It is not an appeal procedure but is consultative only. In short, the purpose of such rulings is to guide national courts of the European Union on matters of European law in cases pending before such courts i.e. a procedure has been put in place the purpose...