People Over Wind, Environmental Action Alliance Irl v an Bord Pleanála and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Haughton |
| Judgment Date | 19 June 2015 |
| Neutral Citation | [2015] IEHC 393 |
| Court | High Court |
| Docket Number | [2014/487JR] |
| Date | 19 June 2015 |
[2015] IEHC 393
THE HIGH COURT
COMMERCIAL
Haughton J.
[2014/487JR]
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)
Government – S. 50 A (7) of the Planning and Development Act, 2000 – Certificate for leave to appeal – Art. 6 of the Habitats Directive – Art. 267 of the Treaty on the Functioning of the European Union – Issues of exceptional public importance
Facts: The applicants separately applied for grant of a certificate for leave to appeal to the Court of Appeal arising out of the judgment of the Court contending that those issues needed to be resolved for the benefit of the common good. The first named applicant sought certification on points of law concerning appropriate assessment under the Habitats Directive.
Mr. Justice Haughton granted the certificate for leave to appeal to the first named applicant in part while refusing the certificate to the second named applicant. The Court held that before granting a leave, the Court must see whether there existed points of law of utmost public importance arising out of the decision of the Court, which posed with uncertainties regarding its interpretation would likely effect the future decisions. The Court held that the question as to whether art. 6(3) of the Habitats Directive imposed an obligation on the respondent in conducting an appropriate assessment to ensure that proposed development would not affect the objective of restoration of protected species called for certification as the law concerning that was not clear and still evolving. The Court opined that the questions concerning procurement of best scientific evidence by the authorities needed to be certified as there existed no precise definition of what could be best and what not and that the objectives of protection and conservation of the species could not be left upon whimsical notions made by the relevant authorities.
The applicants have separately applied for certificates for leave to appeal to the Court of Appeal the judgment delivered herein by me on 1st May, 2015 pursuant to s.50A(7) of the Planning and Development Act, 2000 ('the PDA 2000'), as inserted by s.13 of the Planning and Development (Strategic Infrastructure) Act, 2006.
The first named applicant has the same legal representation as at the substantive hearing, but the second named applicant is no longer legally represented. The second named applicant is an unincorporated entity led by Mr. David Malone ('Mr. Malone') and the Court permitted Mr. Malone to represent himself and the second named applicant ('EAA-I') in respect of its application. Mr. Malone's application is based on entirely different grounds to that of the first named applicant.
The first named applicant has also applied for:-
'An order referring to the Court of Justice pursuant to Article 234 of the Treaty, the question of the interpretation of Article 6 of the Habitats Directive and in particular, the questions of the interpretation of this Honourable Court of interaction between Article 6(1) – (3) of the Directive and the obligation to restore a European site to favourable conservation status and the question of the leaving over of mitigation measures to post consent conditions'.
Article 234 TEC has been renumbered as Article 267 of the Treaty on the Functioning of the European Union ('TFEU').
Section 50A(7) of the PDA 2000 provides that:-
'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 [Court of Appeal] 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 [Court of Appeal].'
Section 50A(11) confers the Court of Appeal with jurisdiction to only determine the point(s) of law certified by the trial judge and to only make orders consequent upon that determination.
The applicant seeking certification must satisfy the Court that:-
(a) the points of law which are proposed are of exceptional public importance and
(b) that it is desirable in the public interests that an appeal should be taken to the Court of Appeal.
The principles to be applied in applications such as this were outlined by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála and Mayo County Council [2006] IEHC 250, 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. 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.'
Point 4 has no application to this case.
The above principles were followed by Clarke J. in Arklow Holidays Ltd. v. An Bord Pleanála [2008] IEHC 2, where he held that:-
(a) the decision must involve a point of law of exceptional public importance;
(b) it must be desirable in the public interest that an appeal should be taken to the Supreme Court;
(c) there must be uncertainty as to the law; and
(d) the importance of the point must be public in nature and transcend the individual facts and parties of a given case.
Citing with approval a passage from p. 641 of Simons on Planning and Development Law (2nd Ed.), Clarke J. accepted that 'regard must be had to the decision itself, and not to the merits of the arguments which resulted in that decision', and as to point (d) above he accepted that '...if the decision of the High Court was based on narrow grounds (in particular, on factual grounds) it may be that no point of law can properly be isolated.'
I adopt the foregoing principles in addressing these applications.
In Glancré MacMenamin J. also stated (p. 3):-
'It is clear that the statutory regime which has been devised by the legislature indicates an interest to ensure that the planning process is not to be hampered by a completely unrestricted access to the court which may cause harmful delays. I am satisfied that it is a restriction to be lifted only in exceptional cases.'
Counsel for the first named applicant submitted that this statutory intention can no longer be assumed in the light of Article 11 of the Environmental Impact Assessment ('EIA') Directive and the decision of the Court of Justice of the European Union ('CJEU') in Case C-72/12 of Altrip and Others v. Land Rheinland-Pfalz. Article 11 provides:-
'1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively;
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.'
Counsel relied on the following passages from the decision in Altrip:-
'27. However, neither the new requirements arising from Article 10a of Directive 85/337, nor the actual requirement that [the] project be subject to an environmental assessment, can in themselves be considered to make administrative procedures more cumbersome and time-consuming. As the Advocate General observed in point 59 of his Opinion, the legislation at issue in the main proceedings does not create new requirements of that kind but is instead designed to improve access to a legal remedy....
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