Rossmore Properties Ltd and Another v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 24 November 2014
• Neutral Citation: [2014] IEHC 557
• Court: High Court
• Date: 24 November 2014

[2014] IEHC 557

THE HIGH COURT

[No. 320 J.R./2014]

Rossmore Properties Ltd & Killross Properties Ltd v Bord Pleanala & Ors

JUDICIAL REVIEW

BETWEEN

ROSSMORE PROPERTIES LIMITED AND KILLROSS PROPERTIES LIMITED

APPLICANTS

AND

AN BORD PLEANÁLA

FIRST NAMED RESPONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

SECOND AND THIRD NAMED RESPONDENTS

AND

EIRGRID PLC.

NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S50A(7)

PLANNING & DEVELOPMENT ACT 2000 S50A(11)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

GLANCRE TEORANTA v BORD PLEANALA UNREP MACMENAMIN 13.7.2006 2006/26/5686 2006 IEHC 250

ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS UNREP CLARKE 11.1.2008 2008/2/340 2008 IEHC 2

CRAIG v BORD PLEANALA UNREP HEDIGAN 26.8.2013 2013/11/3205 2013 IEHC 402

KELLY v BORD PLEANALA UNREP FINLAY GEOGHEGAN 25.7.2014 2014 IEHC 400

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

FRANK HARRINGTON LTD v BORD PLEANALA UNREP HEDIGAN 23.11.2010 2010/19/4789 2010 IEHC 428

LANDELIJKE VERENIGING TOT BEHOUD VAN DE WADDENZEE v STAATSSECRETARIS VAN LANDBOUW NATUURBEHEER & VISSERIJ 2004 ECR I-7405 2005 2 CMLR 31 2005 AER (EC) 353 2005 ENV LR 14

R (HART DISTRICT COUNCIL) v SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVT 2008 2 P & CR 16 2009 JPL 365 2008 EWHC 1204 (ADMIN)

ALTERNATIVE A5 ALLIANCES APPLICATION FOR JUDICIAL REVIEW, IN RE 2014 NI 96 2013 NIQB 30

ELECTRICITY (SUPPLY) ACT 1927 S53

EUROPEAN COMMUNITIES (INTERNAL MARKET IN ELECTRICITY) REGS 2000 SI 445/2000 ART 29

Planning and Development – 50A(7) and s. 50A(11) of the Planning and Development Act – s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006 – Certification – Assessment of Competent Authority

Facts: The applicants applied for a certificate for leave to appeal pursuant to s. 50A(7) and s. 50A(11) of the Planning and Development Act, as inserted by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006. Section 50A(11) stipulates that the Supreme Court only has jurisdiction to determine a point of law certified by the trial judge. An applicant seeking certification must satisfy the Court that (a) the point or points of law proposed were of exceptional public importance and (b) that it is in the public interests that the appeal be taken to the Supreme Court. The applicant raised four questions for certification;

1.Firstly, the standard by which the courts should assess the decisions taken by a Competent Authority on an appropriate assessment and the screening for an appropriate assessment?

2.Secondly, what criteria must the Court assess the Competent Authority Stage One screening decision on whether an appropriate assessment was required? For example, was an appropriate assessment required if there was a possibility of there being a significant effect?"

3.The third question was to what extent the Competent Authority was entitled to take account of mitigating measures in the Stage One screening decision in determining that there would be no likely significant effect on an SAC?"

4.The fourth and final question was whether the powers of the ESB - as the persona designata - pursuant to section 53 of the Electricity (Supply) Act 1927 were transferred to Eirgrid by Article 29 of the European Communities (Internal Market in Electricity) Regulations 2000. Did the answer to the above dispose of the issue as to whether Eirgrid was a statutory undertaker/or the purposes of the exemptions in the Planning Code?''

Hedigan J: In relation to the first question the court held on the basis of the Eirgrid and FERS report that there was no need for a Stage Two appropriate assessment because the project did not have a significant effect on the site. The court upheld the Boards decision at Stage One not to have a Stage Two assessment. The Stage One decision required a lower standard of reasoning than that required for a Stage Two assessment. The court was satisfied that the Board fulfilled its obligations to give reasons for its determination by way of the findings made by the Board”s Inspector.

In relation to question two, the court referred to case law setting out the relevant criteria. The case law stated that the requirement for an appropriate assessment of the implications of a plan or project is conditional on the likelihood of it having a significant effect on the site. The criteria was likelihood or probability, not possibility and the question did not therefore arise.

The court determined in relation to question three that the mitigation measures proposed were an intrinsic part of the work to be carried out. For this reason mitigation measures may be considered in the Stage One screening process. The court decided there was no uncertainty in relation to this point and there was no need to litigate further when the work had already been done.

The court found no merit in question four because it was clear from the legislation that Eirgrid was a statutory undertaker. This was a finding of fact that disposed of the issue meaning there was no public uncertainty with regard to the matter. The court refused leave to appeal because all four questions put forward by the applicant failed the test for certification.

1 JUDGMENT of Mr. Justice Hedigan delivered on the 24th day of November 2014

2 1. This is an application for a certificate for leave to appeal the judgment herein pursuant to s. 50A(7) and s. 50A(11) of the Planning and Development Act, as inserted by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006.

3 2. Section 50A(7) of the Planning and Development Act 2000 ("the 2000 Act") provides:

"that the determination of the Court of an application for leave to apply for judicial review or of the substantive application is final.. and no appeal shall lie from the decision of the Court to the Supreme Court 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 Supreme Court."

4 Section 50A(11) confers the Supreme Court with jurisdiction to only determine the point of law certified by the trial judge and to only make orders consequent upon that determination. An applicant seeking certification must satisfy the Court that

5 (a) the point or points of law which are proposed are of exceptional public importance and

6 (b) that is desirable in the public interests that an appeal should be taken to the Supreme Court.

7 3. The principles to be applied in an application such as this were outlined by MacMenamin J. in Glancré Teoranta v. An Bord Pleándla and Mayo County Council [2006] IEHC 250, as follows:

8 2 "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.

9 2. The jurisdiction to certify such a case must be exercised sparingly.

10 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.

11 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.

12 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.

13 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.

14 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'.

15 8. Normal statutory rules of construction apply which mean inter alia that 'exceptional' must be given its normal meaning.

16 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.

17 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."

18 The above principles were followed by Clarke J. in Arklow Holidays Ltd. v....