Shillelagh Quarries Ltd v an Bord Pleanála and Others

CourtHigh Court
JudgeMr. Justice Hedigan
Judgment Date05 March 2013
Neutral Citation[2013] IEHC 92
Date05 March 2013

[2013] IEHC 92


[No. 154 J.R./2011]
Shillelagh Quarries Ltd v Bord Pleanala


Shillelagh Quarries Limited


An Bord Pleanála


South Dublin County Council and Dublin Mountain Conservation and Environmental Group
Notice Parties


EEC DIR 85/337




HARDING v CORK CO COUNCIL & ORS UNREP CLARKE 30.11.2006 2007/28/5735 2006 IEHC 450

KENNY v BORD PLEANALA (NO 2) 2001 1 IR 704 2002 1 ILRM 68

COMMISSION v IRELAND 2008 CASE NO C-215/06 2008 ECR I-04911


Judicial Review – Planning permission – Quarries – Substantial grounds – Public Interest

Facts: The case involved an application to certify that a decision affecting the applicant involved a point of law of exceptional public importance which should be heard by the Supreme Court pursuant to s. 50(a)(7) Planning and Development Act 2000. The applicant had been denied leave to appeal for judicial review regarding the refusal of planning permission for a quarry which prevented its continued use by the applicant

The applicant contended that the court had taken into account an undetermined finding previously made by the board, which the applicant claimed had therefore failed to take legal effect. Hedigan J held the application for judicial review had not been sought on that ground, and that it was of substantial significance that the grounds had not been amended. Further, the applicant was fully aware that the finding would have been taken into account in the decision making process, Urrinbridge v An Bord Pleanála [2011] IEHC 400 not applied.

Hedigan J also held that the public interest would not be served in questioning the status of an unauthorised quarry which had been used for many years.


Judgment of Mr. Justice Hedigan delivered on the 5th day of March 2013.


1. The applicant applies to this Honourable Court for a certificate that the court's decision of the 27 th June, 2012, whereby the applicant was denied leave to apply for judicial review of the decision of the respondent dated the 24 th December, 2010, involves a point of law of exceptional public importance and it is therefore desirable and in the public interest that an appeal should be taken to the Supreme Court.


2. The principles applicable in considering an application for leave to apply to the Supreme Court were set out by Mac Menamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 as being:-


(i) 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.


(ii) The jurisdiction to certify such a case must be exercised sparingly.


(iii) 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.


(iv) 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 ( Kenny).


(v) 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.


(vi) 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 ( Raiu).


(vii) 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".


(viii) Normal statutory rules of construction apply which mean inter alia that "exceptional" must be given its normal meaning.


(ix) "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.


(x) 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.

Factual background

3. On the 24th December, 2010, the respondent refused planning permission for the continued use of the applicant's quarry based on the fact that the proposed development required an Environmental Impact Assessment in accordance with the requirements of EU Directive 85/337/EEC (as amended) and also that it included a significant element of retention permission. The applicant sought leave to have this refusal judicially reviewed which leave was refused by this court.

Applicant's Submissions

2 4.1 In Urrinbridge v. An Bord Pleanála [2011] IEHC 400 (decision of 26 th January, 2012, MacMenamin J. granted a certificate of leave to appeal, finding at para. 17:-

"Clearly, the issue as to when the board 'determines' an appeal may arise in a number of cases. It is therefore important and in the public interest that this issue be finally determined in the context of the PDA 2000 ..... I am also satisfied that an affirmative public benefit from an appeal can be identified (Criterion 10).It is self-evident that the point may determine other cases."


In Harding, the court also placed emphasis on the fact that the point then in question had the potential to arise in a significant number of cases.


The applicant submits that applying the principles and authorities applicable to the grant of a certificate and taking into account examples of points of law that have already been certified or deemed to be of exceptional public importance ( Urrinbridge), that the points of law involved in the Court's determination in these proceedings should be certified.


3 4.2 The respondent claims it had regard to its decision in respect of a s. 5 referral when deciding the appeal the subject of these proceedings. The respondent also admits its decision in relation to the s.5 referral was taken at a meeting on the 23 rd December, 2010, although its decision on the matter was not in fact determined until at least the 24 th December, 2010, being the date of the decision. Thus, when it was deciding the appeal, the board had regard to its own decision regarding the s.5 referral which was not in fact determined until at least the day after it had regard to it.


In Urrinbridge v. An Bord Pleanala [2011] 400 IEHC (decision of the 28 th October, 2011) MacMenamin J. quashed a decision of the board to refuse planning permission on an appeal. The board claimed that it had determined the appeal at its meeting (although it had not yet issued and given notice of its determination) and therefore the subsequent withdrawal of the appeal was invalid. MacMenamin J. held at para. 26 that:-

"… while the Board may 'determine' matters at its meeting, this is not the final step in the decision making process at all".


Thus, following this, where a decision is made by the board at a meeting, it has no legal effect until notice is given of the decision and it has not determined the matter until the board's formal order is signed. MacMenamin J. granted a certificate of leave to appeal that judgment and that appeal has yet to be determined by the Supreme Court.


There is a question regarding the legal status of an undetermined decision of the board, and in particular if the board may have regard to a decision it had made but which it has not determined. It is submitted by the applicant that this is a point of law of exceptional importance and it is in the public interest to have it determined.


It is further submitted that this also raises serious questions about the public's right to fair...

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