Stanley v an Bord Pleanála (No. 2)

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 28 November 2022
• Neutral Citation: [2022] IEHC 671
• Court: High Court
• Docket Number: [Record No. 2020/239JR]

Between:

Brendan Stanley

Applicant

and

An Bord Pleanála

Respondent

and

John McGuirk and Dublin City Council

Notice Parties

[2022] IEHC 671

[Record No. 2020/239JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Leave to appeal – Reasoning – Applicant seeking a certificate for leave to appeal the judgment refusing an application by way of judicial review – Whether the decision involved a point of law of exceptional public importance

Facts: The applicant, Mr Stanley, applied to the High Court for a certificate for leave to appeal the judgment of the 28th of March, 2022 where Phelan J refused an application by way of judicial review. The judicial review proceedings concerned a challenge to a refusal to grant a declaration that a development was exempt development because it did not involve a material change in use. The applicant accepted that there had been a change of use but argued that it was not material. It was also accepted that the Inspector of the respondent, An Bord Pleanála (the Board), had identified the correct test for identifying a material change of use. However, the applicant contended that the test was not properly applied in the absence of any specific or ‘granular’ reasoning as to what factors were considered and as a consequence was unreasonable. Having found that the reasons for the decision were sufficiently clear to a reasonable observer carrying out a reasonable enquiry, Phelan J held that the decision did not fail for lack of reasons. The reasons being apparent, Phelan J held it was not unreasonable to conclude that the change of use was sufficiently material as to require an application for planning permission. The applicant’s written submissions urged there were four questions which warranted a certificate for leave to appeal, asserting (para. 38) that the court’s judgment “throws the law on reasons into considerable uncertainty” and that the court was engaged in ‘presumption’ and ‘conjecture’. The four questions identified were as follows: (i) In circumstances where a Court finds that reasons are not expressly stated, is a Court entitled to conclude that all material before the decision maker actually formed part of the reasoning of the Board? (ii) If not, what criteria are to be applied to determine if the material actually formed part of the reasoning of the Board? (iii) If so, what, if any, duty is there to give express reasons and considerations for decisions, if same can be made out from the material before the Court? (iv) In a challenge to a decision based on a lack of stated reasons, can a Court look at the information before the Board and extrapolate, presume and/or infer that the Board considered same and reached certain conclusions where these conclusions are nowhere recorded or apparent?

Held by Phelan J that the jurisdiction to certify a case should be exercised sparingly. In terms of the questions of law identified by the applicant in making the application for a certificate for leave to appeal, Phelan J did not consider that they properly arose from her judgment. To Phelan J’s mind the questions framed were answered in Connelly v An Bord Pleanála [2018] IESC 31 from which it was clear that the reasons for a decision may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. Accordingly, Phelan J held that it was not necessary that all of the reasons must be found in the decision itself or in other documents expressly referred to in the decision but it must be sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. Accepting that she may have erred in her application of those principles, even so, Phelan J held that the decision did not involve a point of law of exceptional public importance.

Phelan J held that as her decision in the matter involved the application of general principles which were well established and in respect of which no uncertainty or need for clarification arose, the statutory test in s. 50A(7) of the Planning and Development Act 2000 had not been met.

Application refused.

RULING OF Ms. Justice Siobhán Phelan, delivered on the 28 ^th day of November, 2022

INTRODUCTION

1 . This is my ruling on the Applicant's application for a certificate for leave to appeal the judgment of the 28 ^th of March, 2022 where I refused an application by way of judicial review (the “judgment”) in this matter. I received written submissions from the parties in respect of this application and heard oral argument on the 8 ^th day of July, 2022.

BACKGROUND

2 . By way of context for this application, it is recalled that in this case, the Applicant made request for a s. 5 declaration to Dublin City Council and subsequently referred the matter to the Respondent [hereinafter “the Board”]. The evidence that was before the Board was the information submitted by the Applicant's Architect as well as the planning authority file. There were no third-party submissions or reports submitted by other parties. It is also clear from the Inspector's Report the matters to which the Inspector had regard including the report from the Council's Planning Officer, the planning history of the site and enforcement investigations, a recent referral to the Board from February, 2014 as well as the previous refusal of retention permission in May 2012. Accordingly, the file in this case was relatively small and did not require a wide-ranging trawl of documents to identify the matters which informed the Board's impugned decision.

STATUTORY PROVISION

3 . This application is governed by the terms of s. 50A(7) the Planning and Development Act 2000 (the “2000 Act”) which provides:

“(7) 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 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 . The clear intention of the Oireachtas in enacting s.50A(7) of the Planning and Development Act 2000 (the “2000 Act”) is that the decision of the High Court is generally intended to be final (see Callaghan v An Bord Pleanála [2015] IEHC 493). This is because one of the objectives of the 2000 Act is to facilitate certainty (see Irish Asphalt Ltd. v An Bord Pleanála [1996] 2 IR 179).

5 . As the questions raised turn on the correct approach to determining whether a decision is adequately reasoned, rather than the reasonableness of the decision (which was also a ground of challenge pursued in the proceedings), it is useful to consider where the law stands in the wake of the seminal decision of the Supreme Court in Connelly v. An Bord Pleanála [2018] IESC 31; [2018] 2 I.L.R.M. 453 [hereinafter referred to as “ Connelly”].

THE LAW ON REASONS

6 . The law on reasons in the planning context is well settled since the decision of the Supreme Court in Connelly. The case before me was argued on the basis that Connelly properly identified the test to be applied. The clear principle identified in Connelly is that it is possible that the reasons for a decision may be derived in a variety of ways, either from a range of documents, from the context of the decision, or in some other fashion. This is subject to the requirement that the reasons must actually be ascertainable and capable of being determined. In that regard, context is important, and the nature of the inquiry will depend on the decision-making process. As the Supreme Court stated in Connelly (p. 778):

“a party cannot be expected to trawl through a vast amount of documentation to attempt to discern the reasons for a decision. However, it is not necessary that all of the reasons must be found in the decision itself or in other documents expressly referred to in the decision. The reasons may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. If the search required were to be excessive then the reasons could not be said to be reasonably clear.”

7 . From the decision in Connelly it is apparent that the test is satisfied if it is sufficiently clear from a reasonable inquiry that the matters contended actually form part of the reasoning (as acknowledged at para. 29 of the Applicant's submissions). The test is met where the reasons can be identified, following a reasonable inquiry. Such an inquiry includes both the Inspector's Report as well as the materials and documents referred to in that Report as Connelly establishes that the reasons for a decision may be derived in a variety of ways, either from a range of documents or from the context of the decision, or in some other fashion provided that the reasons are ascertainable.

8 . It follows from Connelly that where the reasoning is not expressly stated in the Board decision, or indeed the Inspector's Report, it can be inferred or implied so long as it is ascertainable elsewhere on reasonable enquiry. It is clear that where the reasons are not included in the text of the decision itself and are “ inferred”, “ implied” or indeed “ extrapolated” (to repeat words used in my judgment and the subject of some focus in submissions on behalf of the Applicant in support of this application), they must be capable of being readily determined.

9 . At para. 9.8 of his judgment, Clarke CJ for the Supreme Court in Connelly refers to the reasons for the Board's development consent decision in that case as being capable of being found...