Sweetman v an Bord Pleanála

JudgeMr. Justice McDermott
Judgment Date24 June 2016
Neutral Citation[2016] IEHC 374
CourtHigh Court
Docket Number[2013 No. 356 J.R.]
Date24 June 2016











(No. 2)

[2016] IEHC 374

[2013 No. 356 J.R.]



Planning & Development – S. 50A of the Planning and Development Act 2000 as amended – Leave to appeal – Point of law of exceptional public importance – Jurisdiction to refer a matter before CJEU

Facts: The applicants sought leave to appeal to the Court of Appeal. The applicants had raised two questions for certification. The question raised concerned extension of 'shadow protection' to a habitat designated as a priority habitat in Annex I to Council Directive 92/42/EEC. The applicant claimed that there existed uncertainty in relation to law between the judgment of the Court in the present case and that of the High Court (Charleton J.) in Sandymount and Merrion Residents Association v. An Bord Pleanala [2013] IEHC 542 (SAMRA) as to whether 'shadow protection' must be granted to an Annex I type site, which has not been submitted as part of the national list under art 4(1).

Mr. Justice McDermott refused to grant certificate of appeal to the Court of Appeal. The Court in conformity with the principles laid down by MacMenamin J. in Glancre Teoranta v. An Bord Pleanala and Mayo County Council [2006] IEHC 250 held that the jurisdiction to certify must be exercised with utmost care only in cases where there existed a point of law of exceptional public importance for which uncertainty loomed large in general public and whose resolution was desirable. The Court held that the point of law must emanate from the impugned judgment. The Court found that the questions raised by the applicants had already been resolved by the High Court and no uncertainty existed in relation to those questions and thus, the leave must be refused. The Court found that there was no inconsistency between the judgment of the Court in the present case and in the SAMRA case as it did not concern the issue of whether 'shadow protection' applies to a priority site, which the State had not proposed as part of its national list because it did not consider it a suitable site under art. 4 of Stage 1 of Annex III to do so.

JUDGMENT of Mr. Justice McDermott delivered on the 24th day of June, 2016

The applicant seeks a certificate from the court for leave to appeal the judgment delivered on the 4th May, 2016 pursuant to s. 50A (7) of the Planning and Development Act 2000 (as amended) (the Act) which provides:-

'The determination of the Court ... of an application for judicial review ... 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.'

The reference to the Supreme Court is now to be construed as a reference to the Court of Appeal pursuant to ss. 74 and 75 of the Court of Appeal Act 2014.


The principles applicable to the determination of whether a certificate should be granted on an application for judicial review pursuant to s. 50 of the Planning and Development Act 2000 were considered by McMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 and summarised 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.


(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 (Raiu).

(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' had to 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.'

These principles have been endorsed and applied in a number of decisions including Arklow Holidays Ltd. v. An Bord Pleanála [2008] IEHC 2, Ashbourne Holdings Ltd. v. An Bord Pleanála [2002] ILRM 321, Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 704, Ógalas Ltd. (t/a Homestore and More) v. An Bord Pleanála [2015] IEHC 205, Callaghan v. An Bord Pleanála (No. 3) [2015] IEHC 493 and Dunnes Stores v. An Bord Pleanála [2015] IEHC 387.


The draft point advanced by the applicant for certification is:-

'Whether 'shadow protection' or ' de facto protection' may extend to a habitat designated as a priority habitat in Annex I to Council Directive 92/43/EEC, notwithstanding the fact that, as occurs in the instant case, the site hosting such a natural priority habitat has not been identified and/or listed as a Site of Community Importance (SCI) and/or designated as a Special Area of Conservation (SAC) pursuant to the provisions of Article 6 of that Directive.'


The applicant submits that the question posed arises out of a number of findings made in the judgment of the 4th May. The applicant sought an order of certiorari of the decision of An Bord Pleanála made on the 25th March, 2013 to grant permission to Clare County Council under s. 51 of the Roads Act 1993 (as amended) in respect of the Killaloe By-Pass. It was submitted that habitats which could be classified as Annex I priority natural habitats on the basis of their ecological characteristics were entitled to de facto protection under Council Directive 92/43/EEC of the 21st May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora (the Directive). This included the habitats of alluvial wet willow/alder ( Alnus Glutinosa) woodland which constituted areas of natural habitats of community interest whose conservation required designation as Special Areas of Conservation (SAC) as contained in Annex I of the Directive. The 'shadow protection' issue arose in these proceedings in respect of an area of 0.15 hectares found to constitute an alluvial woodland. This area was not part of the lower River Shannon SAC, though it was situated on a nearby area of land. It was intended in the course of the development that this area would be removed and replaced. It was not a Site of Community Interest (SCI) and had not been submitted on the national list of proposed sites to the Commission for inclusion on a list of Sites of Community Interest under the Directive. It was not a 'European site' under Part XAB of the Planning and Development Act 2000.


This small area of 0.15 hectares would therefore be affected on a temporary basis if the proposed development were to proceed. However, it would be subject to re-colonisation and mitigation measures and an additional area of the same priority habitat would be developed nearby. These measures were adopted and approved as conditions to which the permission granted by An Bord Pleanála was subject. It was concluded that this area of wet alluvial woodland would not suffer adverse effects as the result of long term substantial loss or disturbance of the habitat. It would be restored, enhanced and expanded and that process would be subject to a system of professional monitoring and supervision to ensure compliance with the condition.


The applicant contended that the 0.15 hectares of alluvial woodland was properly the subject of 'shadow protection' even though it fell outside the statutory protection afforded to 'a European site' and/or an SCI or SAC under the Directive and/or a European site under Part XAB of the Act.


The extent of the legal protection applicable to an Annex I site was considered by the court. The judgment sets out the framework of protection provided under the Directive and the jurisprudence of the CJEU in respect of such sites. It is clear that the case law provides protection to Annex I type habitats once the Member State has determined that it should be proposed to the Commission on the national list. The Commission then considers whether the sites included on the national list should be nominated as Sites of Community Importance. Once nominated by the Commission as an SCI the site must be designated as an SAC by the Member State which then has a duty to protect the site in accordance with the provisions of Article 6 of the Directive.


The case law of the CJEU extended this protection to sites which have been identified by the Member State and notified to the Commission as Annex I Priority Habitats but which have not yet been designated as SAC in a series of...

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    ...inter alia, by the High Court in cases as various as Harding v. Cork County Council [2006] IEHC 450, Sweetman v. An Bord Pleanála [2016] IEHC 374 and in the decision of this Court in Dunnes. Indeed, although the law is in a constant state of evolution, the Glancré principles represented a ......
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    ...Sweetman v. An Bord Pleanála [2009 No. 202 JR] [2010] IEHC 53 Sweetman V Sweetman v. An Bord Pleanála [2013 No. 356 JR] [2016] IEHC 277 [2016] IEHC 374 [2016] IESCDET 133 Sweetman VI Sweetman v. An Bord Pleanála [2015 No. 2 JR] [2015] IEHC 285 [2016] IECA 123 [2016] IESCDET 92 [2018] IESC 1......

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