Sweetman v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 03 March 2017
• Neutral Citation: [2017] IEHC 133
• Docket Number: [2016 No. 715 JR]
• Court: High Court
• Date: 03 March 2017

[2017] IEHC 133

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Haughton Robert J.

[2016 No. 715 JR]

BETWEEN

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANÁLA

AND

CORK COUNTY COUNCIL, KERRY COUNTY COUNCIL, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

ESB WIND DEVELOPMENT LIMITED

NOTICE PARTY

Environment, Transport & Planning – S. 5 of the Planning and Development Act 2000 – Refusal to grant leave to appeal – "Free Standing" challenge to validity of a statute – Lack of sufficient interest

Facts: The applicant was granted leave to seek judicial review of the determinations made by the second and third respondents. Subsequently, the present Court set aside that order of the High Court in part and thus, the leave was refused on three issues on the basis that it was out of time and there was lack of sufficient interest in relation to the other issue. The Court, however, adjourned the hearing on the certification of its judgment pending the judgment of the Supreme Court in Grace and Sweetman v An Bord Pleanala and others [2016] IEHC Det 29. Since the judgment in the aforesaid case had been pronounced to the benefit of the applicant, the applicant now sought leave to appeal the impugned judgment of the High Court denying leave to the applicant on the basis that the applicant did not have sufficient interest for making "free standing" challenging the validity of s. 5 of the Planning and Development Act 2000 as being contrary to Aarhus Convention and various relevant Directives. The applicant had been granted leave to apply an order of certiorari for quashing the determination of the first respondent to grant planning permission for the construction of wind farm by way of impugned judgment.

Mr. Justice Robert Haughton granted certificate to appeal to the applicant only on the question as to whether the applicant had sufficient interest or locus standi for making a free standing challenge to s. 5 of the Planning and Development Act to the validity of EU law. The Court, however, adjourned the present case for substantive hearing. The Court held that since the pronouncement of the judgment of the Supreme Court in Grace, the term "sufficient interest" was given liberal interpretation in public interest. The Court held that the Supreme Court made it clear that a person having sufficient interest would have a standing to mount challenge to the legality of a statute even without participation given the nature of the development.

JUDGMENT ON APPLICATION FOR CERTIFICATION

Judgment of Mr. Justice Robert Haughton delivered on the 3rd day of March, 2017.

Background

1 This judgment concerns an application by the applicant to certify leave to appeal my judgment and decision dated 2nd February, 2017, ('the principal judgment').

2 In the principal judgment I granted orders setting aside in part an order of Humphreys J. made on 10th October, 2016, granting the applicant leave to seek judicial review ('the Leave Order'). The part set aside was leave to seek the reliefs claimed in subparagraphs 2, 3 and 4 in para. (c) of the Statement of Grounds, namely:-

'(2) An order of certiorari by way of application for judicial review quashing the determinations of the second and third named respondents pursuant to section 5 of the Planning and Development Act 2000 as amended dated the 1st day of April 2015, and the day of 6th of May 2015 determining that the construction of the grid connection servicing the proposed development was exempted development.

(3) A declaration that the decisions of the first, second and third named Respondent was in breach of and contravenes Directive 92/43/EEC on the contravention of wild habitats and flora and fauna (the Habitats Directive) and Direction 2011/92/EU of 13th December, 2011 on the assessment of the effects of certain public and private projects on the environment ('the consolidated Environmental Impact Assessment (EIA) Directive'), the Birds Directive 2009/147/EU and the jurisprudence of the European Court of Justice (ECJ) and the Court of Justice of the European Union (CJEU).

(4) A declaration that section 5 of the Planning and Development Act 2000 is contrary to European law and the Aarhus Convention and in particular, the said provisions violate the public participation provisions of the EIA Directive, Birds Directive, Habitats Directive and the Public Participation Directive 2003/35/EC.'

3 The basis upon which I determined that leave to seek the reliefs at (2) and (3) should be set aside was that the application for leave was made outside the period of eight weeks provided for in s. 50(6) of the Planning and Development Act 2000 (as amended) ('the 2000 Act'), and that there was not, within the meaning of s. 50(8) of the 2000 Act, 'good and sufficient reason' for extending time. It is important to note that, contrary to written and oral submissions made by counsel for the applicant at the certification hearing, I did not set aside the leave order in respect of (2) and (3) on the basis that the applicant lacked or might be said to lack locus standi or 'sufficient interest' for the purpose of seeking such reliefs.

4 In relation to the setting aside leave to seek the relief sought at (4), the reasons for this are set out in para. 18 of the principal judgment. I found that the applicant did not have 'sufficient interest' within the definition of that term in s. 50(a)(3) and (4) of the 2000 Act to make a "free-standing" and general challenge to the validity of s. 5 on the basis that it infringes EU law (see para. 18.6 – 18.10). In particular I found that the applicant was not entitled to pursue by way of judicial review under s. 50 a "free-standing" challenge to a provision of the 2000 Act unless the challenge engaged a particular act or decision of a planning authority (see para. 18.9). I also determined that the applicant did not have 'sufficient interest' to raise such challenge by reason of the principles enunciated in Cahill v. Sutton [1980] I.R. 269, and applied in Nawaz v. Minister for Justice [2013] 1 I.R. 142 (see para. 18.11 in the principal judgment). I further found at para. 18.14:-

'Further to now permit a general challenge to s. 5 would be to permit a collateral attack on the s. 5 declarations, or at least the validity of those declarations insofar as they were relied upon by the Board in reaching its approval decision. ...'

Preliminary Issue

5 A preliminary issue arose as to the extent to which (if any) the applicant required certification in order to pursue an appeal to the Court of Appeal. The requirement for a certificate is set out in s. 50A(7) of the 2000 Act (as amended):-

'(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.'

6 The applicant argued that, in relation to his challenge to the validity of s. 5 under EU law – his "freestanding claim" - he does not require certification because this is not a challenge coming within s. 50(2) of the 2000 Act. which provides that:-

'2. A person shall not question the validity of any decision made or other act done by –

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,

(b) the Board in the performance or purported performance of a function transferred under Part XIV, or

(c) a local authority in the performance or purported performance of a function conferred by an enactment specified in section 214 relating to the compulsory acquisition of land, otherwise than by way of application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986) (the 'Order').'

Counsel argued that his freestanding challenge to s. 5 did not question the validity of 'any act made or other act done by' a planning authority and was not therefore captured by subsection (2).

7 Firstly, I am satisfied that the applicant does require certification in relation to any appeal on points of law related to the principal judgment arising out of the setting aside of the leave to challenge the two s.5 declarations. These were clearly decisions of a local planning authority having a status in law that was confirmed by the Court of Appeal in Killross v. ESB [2016] IECA 207, which decision was followed and discussed in the principal judgment (see para. 12.4 – 12.9).

8 Secondly, I am of the view that certification under s. 50A(7) is required if the applicant is to pursue an appeal to the Court of Appeal related to the freestanding s.5 challenge in this case. In this regard I accept the submission by counsel on behalf of the State that the challenge of s.5 was initially presented as an adjunct to the challenge to the s.5 declarations of Cork County Council and Kerry County Council, and connected with the challenge to those declarations. In attempting to decouple the relief sought at (4) from the reliefs at (2) and (3) the applicant was belatedly deconstructing his original claims.

Of course if my view on this preliminary issue is not correct, then the applicant is entitled to take an appeal in the normal way from the principal judgment insofar as it sets aside the leave to seek the relief sought at (4).

The Test for Certification

9 The test for certification for leave to appeal that should be applied to the court under s. 50A(7) is that the 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...