North East Pylon Pressure Campaign Limited & anor -v- An Bord Pleanála & ors, [2018] IEHC 3 (2018)

Docket Number:2017 151 JR
Party Name:North East Pylon Pressure Campaign Limited & anor, An Bord Pleanála & ors
 
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THE HIGH COURT2017 No. 151 JRIN THE MATTER OF AN APPLICATION PURSUANTTO THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50B

OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

IN THE MATTER OF AN APPROCAL GRANTED UNDER SECTION 182B OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

Between:

NORTH EAST PYLON PRESSURE CAMPAIGN LIMITEDFirst Named Applicant– and –

MAURA SHEEHYSecond Named Applicant– and –

AN BORD PLEANÁLAFirst Named Respondent– and –

THE MINISTER FOR COMMUNICATIONS, ENERGY

AND NATURAL RESOURCESSecond Named Respondent– and –

IRELAND AND THE ATTORNEY GENERALThird and Fourth Named Respondents– and –

EIRGRID PLCNotice Party

JUDGMENT of Mr Justice Max Barrett delivered on 11th January, 2018.

I

Background1. On 22nd August, 2017, the court delivered its judgment (the ‘principal judgment’) in North East Pylon Pressure Campaign Ltd & anor v. An Bord Pleanála & ors [2017] IEHC 338. The within application is brought by the applicants pursuant to s.50A(7) of the Planning and Development Act 2000, as amended, which provision requires, as a pre-requisite to the bringing of an appeal from the principal judgment, here by the applicants, that this Court certify that its decision in the principal judgment involves (1) a point of law of exceptional public importance, and (2) that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

2. By way of preliminary remark, the court recalls its observations in Connolly v. An Bord Pleanála [2016] IEHC 624, para.14, concerning current general practice whereby the judge who hears a principal planning dispute also decides on a later, related s.50A application, a practice the optics of which appear open to criticism and the necessity for which is open to question. However no objection has been made by any of the parties to the within proceedings to the fact that the principal application has been, and the within application is being, adjudicated upon by the same judge.

II

Guiding Law and Principle3. The court respectfully adopts the legal principles identified by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, 4-5, as the guiding principles that inform its adjudication of the within application. Some additional points might usefully be noted in the context of the within proceedings:

(1) what the court is concerned with is identifying and certifying issues of law. Issues of fact are not appropriately the subject of certification and issues which depend on the Court of Appeal reversing findings of fact which have been made by this Court are not amenable to certification. This first point assumes a particular significance when one realises that a number of the purported points of law of exceptional public importance contended for by the applicants in the within application rest on factual predicates that are the complete opposite to what was determined by the court in the principal judgment.

(2) the court is concerned with issues of law that arise out of the principal judgment. (This is the fifth point made by MacMenamin J in Glancré). By definition, issues that were not argued before the High Court do not arise out of the principal judgment. By the same token, issues which are justified on the basis of arguments which were never advanced to the court are not capable of certification by reference to those arguments.

(3) a point well traversed in the authorities (see e.g., Dunnes Stores v. An Bord Pleanála [2016] IEHC 263) is that discrete questions which may be of importance in the context of the facts of a particular case but which are constrained in their likely future application by those very facts, and are thus in no sense systemic, ought not to be certified.

(4) the court is concerned only with issues of law in respect of which the law stands in a state of uncertainty. (That is the third point identified in Glancré). The court, obviously, is not entitled to assume that its decision was correct; however, it is entitled to interrogate each of the issues that are advanced to see if, based upon the arguments advanced in favour of certification, there can be identified any argument which is likely to generate actual and genuine uncertainty in the future. If the law, objectively viewed, is clear, there is no issue capable of certification.

(5) the first limb of the test for certification is focused on whether the point(s) of law contended for is (are) exceptional, i.e. unusual or untypical in terms of importance. All points of law are important to the parties in the case. What is required for a certificate to issue under s.50A(7) is an importance which, to use a colloquialism, ‘stands out’. It should be obvious that there is an issue of law that is of a kind that is untypical in its implication.

(6) the court is solely concerned with permitting the invocation of an appellate jurisdiction. It is not concerned with permitting a consultative case stated or an advisory opinion from the court on an issue of law that may or may not appear interesting, or which may or may not appear, in the abstract, to be significant. It follows that it is appropriate for the court to ask itself ‘What difference will it make in the event that an appeal is permitted and the matter that is the subject of appeal is determined in a particular way?’ Or, to put matters in a more colloquial style ‘Does the issue raised have ‘real world’ consequence?’ Issues that do not strike to the heart of the relief which is claimed are not properly certifiable. Issues that have no practical consequence in the litigation should not be certified.

(7) a point touched upon in the second point in Glancré, the jurisdiction to certify falls to be exercised sparingly. Proposed certified questions which are based on future hypotheses which may never happen cannot appropriately be certified.

(8) it must be the case, by definition, that an issue of law which is of exceptional public importance is one capable of precise expression, precise definition, and clear and concise justification. Because the jurisdiction is concerned with issues which transcend the facts of a case; such issues must be capable of expression in a manner that stands independently of the facts of the case. In the within application most, if not all, of the questions presented to the court fail that test. They are based upon predicate upon predicate, factual assumption upon factual assumption and, in many cases, factual assumptions which are directly the opposite of determinations made by the court.

4. When the court brings the just-mentioned eight propositions to bear in the context of the application now before it, all of the applicants’ issues fall by reference to one of them, some of them fall by reference to all of them, and most of them fail most of them…and that is before one comes to the second limb of the certification test and the question of whether it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

III

Purported Points of Law of Exceptional Public Importance

(i) Points 1 and 2.

  1. Text.5. Points 1 and 2 read as follows

    “1. Whether, for the purposes of national/domestic law, where a European Regulation has direct effect on a Member State, and in circumstances where the Member State seeks to designate functions contained within said Regulation to a domestic statutory body, does such designation require a national implementing measure, such as domestic legislation so as to create a legislative basis upon which the functions of the domestic statutory body can be extended and upon which such a body can act, or whether there is any degree of formality required to designate such a body?

    2. Whether it is permissible to designate new functions to and/or extend the functions and role of a domestic statutory body by way of private letter from a representative of a Minister of Government where the referable European Regulation requires designation by the State?”

  2. Analysis.6. If the court looks to the text of Points 1 and 2, what is striking about both questions is that there is no follow-through as to what the consequences might be for the decision in this case. There is no suggestion that if either those questions are answered in a way favourable to the applicants that it has any practical outcome for the decision-making process. Instead there are abstract questions, but nothing in those questions which has any real world consequence. In particular, there is nothing which would affect the outcome of these proceedings. From start to finish, the applicants make no complaint as to what An Bord Pleanála did, no complaint that An Bord Pleanála was not qualified to be designated as a competent authority, no suggestion that designation was done by mistake or that the Government is seeking to resile from that designation. It is a purely technical point, a point which, to borrow from the wording of Clarke J. in Arklow Holidays Ltd v. An Bord Pleanála [2008] IEHC 2, para.5.5 “could have had no possible bearing on the merits of the process under review other than formal compliance”, such technicality being, and Arklow Holidays is testament to this, a feature that can be factored into this Court’s discretion whether or not to grant leave to appeal.

    7. There was nothing new or novel in the court’s judgment in relation to the PCI Regulation, i.e. Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17th April, 2013 on guidelines for trans-European energy infrastructure (O.J. L115, 25.4.2013, 39). The court applied well-established principles of European Union law, and it is significant that the case-law relied upon by the court in this regard was of particularly seasoned vintage, dating, in the case of European case-law, from the 1970s (Case...

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