Ogalas Ltd (t/a Homestore & More) v Bord Pleanála and Others

JurisdictionIreland
JudgeMs. Justice Baker
Judgment Date20 March 2015
Neutral Citation[2015] IEHC 205
CourtHigh Court
Date20 March 2015
Ogalas Ltd (t/a Homestore & More) v Bord Pleanala & Ors
JUDICIAL REVIEW
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

BETWEEN

ÓGALAS LIMITED (TRADING AS HOMESTORE AND MORE)
APPLICANT

AND

AN BORD PLEANÁLA
RESPONDENT

AND

SLIGO COUNTY COUNCIL
FIRST NAMED NOTICE PARTY

AND

SLIGO CHAMBER OF COMMERCE
SECOND NAMED NOTICE PARTY

AND

PATRICK DOHERTY ANSON LOGUE AND WILLIAM MOFFETT C/O THE JOINT RECEIVERS KEIRAN WALLACE AND PATRICK HORKAN
THIRD NAMED NOTICE PARTIES

[2015] IEHC 205

[No. 505 J.R./2013]

THE HIGH COURT

S. 5 of the Planning and Development Act 2000 (the Act of 2000) – Inspector's report – Roles of the inspector and the Board – Certificate of leave to appeal.

Facts: The applicant sought a certificate of leave to appeal a decision delivered in October 2014, refusing to quash the decision pursuant to s. 5 of the Planning and Development Act 2000 (the Act of 2000). The applicant asserted the existence of a point of law regarding the methodology of the Board, uncertainty in the law, and claimed that it involved exceptional public importance. The applicant contended that the jurisprudence required the Board to expressly identify the errors and expressly distance itself from them.

Ms. Justice Baker held that the certificate of leave to appeal a decision delivered in October 2014, refusing to quash the decision pursuant to s. 5 of the Planning and Development Act 2000 (the Act of 2000) would be refused. The Court held that the point sought to be certified would not be considered a point of law. The Court observed that no uncertainty in the law with regard to the requirement on the part of a decision making body to come to a reasoned decision would be established. The Court further held that the respective roles of an inspector and the Board in the decision making process would be free from uncertainty. The Court stated that the Board correctly performed its statutory function.

1

JUDGMENT of Ms. Justice Baker delivered the 20th day of March, 2015

2

1. This judgment relates to an application by the applicant for a certificate of leave to appeal a decision delivered by me on the 23 rd October, 2014 by which I refused to quash the decision of An Bord Pleanála made on the 23 rd May, 2013 pursuant to s. 5 of the Planning and Development Act 2000 (the Act of 2000).

3

2. There is no dispute between the parties as to the legal principles applicable to the granting of a certificate from the court to appeal a decision under the Planning Code, and the law is well established. The application is made to the court which delivers the judgment at first instance pursuant to s.50A(7) of the Act of 2000 (as amended). An appeal lies only with leave of the court, which leave shall only be granted where the court certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken. By virtue of s.75 of the Court of Appeal Act 2014 reference to the Supreme Court in s. 50A(7) of the Act of 2000 are to be construed as a reference to the Court of Appeal.

4

3. Two questions then arise for this court in deciding whether to grant the certificate namely:

5

a) Whether a point arises of exceptional public importance.

6

b) That it is desirable in the public interest that an appeal should be taken.

7

4. McMenamin J. summarised the law applicable to a grant of certificate in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 and I will not repeat the ten criteria outlined by him at pp. 4 and 5 of his judgment but accept his proposition that it is not sufficient for an applicant for a certificate to show that a point of law emerges in or from a case, but an applicant must show that the point is one of exceptional public importance and must be one in respect of which there is a degree of legal uncertainty, more than one referable to the individual facts in a case. There must be a public interest in requiring that the point of law be clarified for the common good, but to an extent, if there exists uncertainty in the law, and because clarity and certainty in the common law is a desirable end in itself, and important for the administration of justice, if it can be shown the law is uncertain the public interest suggests an appeal is warranted

8

5. The applicant seeks a certificate on what it asserts is a point of law, and one of exceptional public importance, and this was initially formulated as follows:

"In what circumstances is a decision of An Bord Pleanála pursuant to s. 4 of the Planning and Development Act 2000 not vitiated by identifiable errors in the report of its appointed Inspector?"

9

6. The question has been reformulated following argument in the course of the hearing before me and the following is now the question proposed:

10

What are the appropriate criteria for determining whether a decision of the Board under s.5 of the Planning and Development Act 2000 is invalid by reason of identifiable errors of law in the inspector's report, and were those criteria applied correctly in the present case?

The judgment sought to be appealed
11

7. I delivered judgment on the 23 rd October, 2014 in which I refused the applicant's application for an order that the Board had erred in coming to a decision made pursuant to s. 5 of the Act of 2000 regarding the use by a store operated by the applicant at Sligo Retail Park, Sligo. In the course of my judgment I found that the Inspector appointed by the Board had made some errors in her analysis, and in particular she fell into an interpretative error in that she incorrectly placed emphasis for the purposes of her analysis on the 2012 Retail Guidelines, rather than the applicable Guidelines, those of 2000.

12

8. I held however that while the Inspector did fall into this error, that the error was not reflected in the decision of the Board, and that the Board engaged in a reasoned analysis of the material before it, came to a decision which was within jurisdiction, and did not slavishly follow the Inspector's report such that the decision of the Board was not impacted by the identified errors in this report.

The submissions of the applicant
13

9. The applicant argues that a point of law arises from my decision, namely one as to the methodology of the Board, and if and how it must expressly distance itself from erroneous reasoning of an inspector. In particular it is argued that it is uncertain whether the judgments of Ryan J. in Michael Cronin (Readymix Limited) v. An Bord Pleanála [2009] 4 I.R. 736 and of Kelly J. in Cork City Council v. An Bord Pleanála [2007] 1 I.R. 761 require the Board to expressly, clearly and unambiguously distance itself from erroneous reasoning of its Inspector, or whether in the light of O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, it is sufficient...

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