McNamara v an Bord Pleanála

JurisdictionIreland
Judgment Date25 March 1998
Date25 March 1998
Docket Number[1994 No. 355 JR; S.C. No. 70 of 1997]
CourtSupreme Court
McNamara v. An Bord Pleanála
Patrick McNamara
Applicant
and
An Bord Pleanála
Respondent
The County Council of the County of Kildare, The County Council of the County of Dublin and Others, Notice Parties
[1994 No. 355 JR; S.C. No. 70 of 1997]

High Court

Supreme Court

European Communities - Application for Article 177 reference - Preliminary issue - Whether application maintainable after national court has given final judgment in proceedings before it - Duty of national court when application made for Article 177 reference - Jurisdiction - Treaty of Rome, 1957, Article 177.

Procedure - Preliminary issue - Interpretation of Article 177 - Whether application for Article 177 reference maintainable after national court has given final judgment in proceedings before it - Treaty of Rome, 1957, Article 177.

Local Government - Planning and development - Appeal - Whether cases involving questions of European Union law treated less favourably than cases involving questions of domestic law - Local Government (Planning and Development) Act, 1963 (No. 28), s. 82 (3B).

Section 82 (3B)(a) of the Local Government (Planning and Development) Act, 1963, provides, inter alia, that an application for leave to apply for judicial review of a decision of a planning authority shall be made within two months of the date of the making of the decision.

Section 82(3B)(b) (as amended) of the Act of 1963 provides:-

"(i) The determination of the High Court of an application for leave to apply for judicial review [of a decision of a planning authority] 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."

Article 177 of the Treaty of Rome, 1957, provides as follows:-

"The Court of Justice shall have jurisdiction to give preliminary rulings concerning:-

  • (a) the interpretation of this Treaty;

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

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

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.

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

The applicant applied, by way of judicial review, forinter alia, an order quashing the decision of the respondent to grant planning permission for a domestic refuse dump at Kill, County Kildare. The High Court (Barr J.) refused to grant the relief sought and granted liberty to the applicant to apply for an order of reference to the European Court of Justice pursuant to Article 177 of the Treaty of Rome. At the hearing of that motion a preliminary issue arose as to whether the application was maintainable in circumstances where the High Court had delivered final judgment on the issues raised in the proceedings before it.

Held by Barr J., in refusing to make the reference sought, 1, that the procedure provided by Article 177 was a consultative procedure rather than an appeal procedure.

2. That the purpose of the Article 177 procedure was to allow national courts to obtain rulings on matters of European law from the Court of Justice in order to ensure, as far as possible, that European law was uniformly interpreted and applied by national courts in their final judgments.

Irish Creamery Milk Suppliers Association v. Ireland (Cases 36 and 71/80) [1981] E.C.R. 735 applied.

3. That the function of the European Court of Justice in the context of an Article 177 reference was to make rulings on European law for the benefit of national courts before which particular cases were pending. Accordingly, the advice of the European Court must be sought before the national court had made its final decision.

Irish Creamery Milk Suppliers Association v. Ireland (Cases 36 and 71/80) [1981] E.C.R. 735;C.I.L.F.I.T. v. Ministry of Health (Case 283/81)[1982] E.C.R. 3415 andS.P.U.C. v. Grogan[1989] I.R. 753 applied.

4. That once the national court had delivered its final judgment, as in this case, its decision was made and it had no further function in the matter.

Held by the Supreme Court (Hamilton C.J., Barrington, Keane, Murphy and Lynch JJ.), in dismissing the appeal, 1, that the purpose of the procedure provided by Article 177 was to enable a national court to obtain any guidance as to European law which it might require in order to decide the case pending before it. Where a national court had given judgment, there was no case pending in respect of which any such question could be referred.

2. That, in this case, there was no case pending before the High Court in respect of which a preliminary ruling by the European Court of Justice could have any relevance. Furthermore, no question of European Union law had been identified which could have properly been the subject of a reference pursuant to Article 177.

3. That the time limit imposed by s. 82(3B)(a) of the Act of 1963 applied to all proceedings in which a person sought to question the validity of decisions to grant planning permissions whether the challenge was based on domestic law or on European Union law. It could not be said, therefore, that cases involving questions of European Union law were treated any less favourably than cases involving questions of domestic law.

Irish Asphalt Ltd. v. An Bord Pleanála [1996] 2 I.R. 179 considered.

Cases mentioned in this report:-

C.I.L.F.I.T. v. Ministry of Health (Case 283/81)[1982] E.C.R. 3415.

Irish Asphalt Ltd. v. An Bord Pleanála [1996] 2 I.R. 179.

Irish Creamery Milk Suppliers Association v. Ireland (Cases 36 and 71/80) [1981] E.C.R. 735.

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

Peterbroeck v. Belgian State (Case C-312/93)[1995] E.C.R. I-4599.

S.P.U.C. v. Grogan [1989] I.R. 753.

Van Schijndel and Van Veen v. SPF (Cases C-430 and 431/93) [1995] E.C.R. I-4705.

Application for Article 177 reference.

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

By notice of motion dated the 12th July, 1996, the applicant sought, inter alia, an order of reference to the Court of Justice of the European Union pursuant to Article 177 of the Treaty of Rome of certain questions concerning the interpretation of Community law.

The motion was heard by the High Court on the 22nd and 23rd July, 1996.

By notice of appeal dated the 21st February, 1997, the applicant appealed the order of the High Court (Barr J.).

By an amended notice of appeal dated the 24th October, 1997, the applicant sought an order disapplying the provisions of s. 82(3B)(b) of the Act of 1963 to the extent that those provisions prevented the applicant from relying on European Union law, the time for lodgment of such notice of appeal having been extended by order of the Supreme Court (Hamilton C.J., Barrington and Lynch JJ.) dated the 21st November, 1997.

Both appeals were heard together by the Supreme Court (Hamilton C.J., Barrington, Keane, Murphy and Lynch JJ.) on the 3rd March, 1998.

Cur. adv. vult.

Barr J.

31st July, 1996

The applicant has applied by notice of motion for,inter alia, the following reliefs:-

  • (a) An order of reference to the Court of Justice of the European Union under Article 177 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.

  • (b) A stay on the judgment and order of the High Court delivered on the 10th May, 1996.

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

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

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