Sweetman v an Bord Pleanála : an Taisce v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Eagar
• Judgment Date: 14 January 2019
• Neutral Citation: [2019] IEHC 40
• Date: 14 January 2019
• Court: High Court
• Docket Number: [RECORD NO. 2016 542 JR] [RECORD NO. 2016 868 JR]

[2019] IEHC 40

THE HIGH COURT

JUDICIAL REVIEW

Eagar J.

[RECORD NO. 2016 542 JR]

[RECORD NO. 2016 868 JR]

BETWEEN

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANALA, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

SHARON BROWNE

NOTICE PARTY

BETWEEN

AN TAISCE

APPLICANT

AND

AN BORD PLEANALA, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

SHARON BROWNE

NOTICE PARTY

Certification – Points of law – Exceptional public importance – Applicants seeking certification of points of law – Whether the High Court’s decision involved points of law of exceptional public importance

Facts: The High Court, on the 19th October 2017, delivered a judgment in related proceedings and refused the reliefs sought. The applicants, Mr Sweetman and An Taisce, applied to the court seeking to obtain a certificate pursuant to s. 50 A (7) of the Planning and Development Act 2000. The applicants proposed the following points of law for certification: (1) Is the public entitled to participate in the determination as to the existence of exceptional circumstances and/or the circumvention of EU law in the decision to grant substitute consent? If so, where does such participation occur? (2) In particular, is the public entitled to make submissions on the issues of exceptional circumstances and circumvention of EU law after leave has been granted to apply for substitute consent and can or must the first respondent, An Bord Pleanála, consider same in its ultimate determination on the subject of the substantive application? (3) Does the absence of an express statutory provision mandating the receipt of submissions mean that an administrative decision maker must refuse to accept and/or consider any submissions received? (4) In particular does s. 117(2)(g) entitling An Bord Pleanala to consider any matters it considers relevant give a discretion to An Bord Pleanala to consider third party submissions and/or have regard to the matters contained therein?

Held by Eagar J that, in respect of the first two questions, there was no uncertainty raised by the judgment of the court as argued by counsel for the applicants; they had clearly failed to demonstrate any point which was even of public importance, much less exceptional importance. Eagar J held that the clear legislative intention was that planning cases should be generally confined to the High Court and the applicants had failed to show that an appeal was required to the Court of Appeal in the public interest to deal with the points identified. The court stated that the law and the jurisprudence were clear and that no point could arise. In relation to the third question, the court was satisfied that the point did not arise from the judgment of the court and in those circumstances could not be the subject of a certification by the court. Eagar J agreed with counsel for the respondents that it was a point of law based on an incorrect interpretation of the judgment. In relation to the fourth question, the court was satisfied that the applicants had made no effort to submit that there was a question of law that arose in the court’s judgment, and in those circumstances was satisfied that the court should not certify pursuant to s. 50 A (7).

Eagar J held that he would refuse to certify that the court’s decision involved a point of law of exceptional public importance and that it was desirable in the public interest that the case should be put to the Court of Appeal.

Certification refused.

JUDGMENT of Mr. Justice Robert Eagar delivered on the 14th day of January 2019

1 On the 19th October 2017, this Court delivered a judgment in these related proceedings and refused the reliefs sought.

2 The applicants now seek to obtain a certificate pursuant to s. 50 A (7) of the Planning and Development Act 2000, as amended. S. 50 A (7) provides as follows: -

‘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.’

3 The appellate jurisdiction of the Supreme Court referred to in s. 50 A (7) is now vested in the Court of Appeal by virtue of s. 7 A (2) of the Courts Act 1961, inserted by s. 8 of the Court of Appeal Act 2014.

4 This Court adjourned this application from time to time, pending the decision of the Supreme Court in Callaghan v. An Bord Pleanala [2018] IESC 39.

5 The applicable principles in respect of an appeal under s. 50 A (7) are set out in Glancre Teoranta v. An Bord Pleanala & Anor [2006] IEHC 250. The following principles were outlined by MacMenamin J. having reviewed a number of authorities: -

(a) 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.

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

(c) 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.

(d) 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).

(e) 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.

(f) 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).

(g) 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’.

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

(i) ‘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.

(j) 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.

6 In Glancre, McMenamin J. said in considering the requirement to obtain leave to appeal: -

‘It is clear that the statutory regime which has been devised by the legislature indicates an interest to ensure that the planning process is not to be hampered by a completely unrestricted access to the court which may cause harmful delays. I am satisfied that it is a restriction to be lifted only in exceptional cases.’

7 The principles identified by MacMenamin J. in Glancre were adopted and followed by Clarke J. in Harding v. Cork County Council [2006] IECH 450, which added a caveat that there might be some cases where the point did not arise from the decision because, due to inadvertence it might not have been considered in the judgment.

The questions to be certified

8 In para. 55 of the court's judgment, counsel for the applicant submitted that in this para., the court appears to determine that the applicants in the within proceedings would be entitled to participate fully in the application for substitute consent and that there would be a full panoply of participation.

9 Para. 55 of the court's judgment is as follows: -

‘The application for leave is limited to input (in accordance with the legislation) to that of the developer and the planning authorities. However, once leave is granted actual application for substitute consent then involves the full panoply of participation. The legislative intention of the Oireachtas is clear.’

10 The applicant proposes the following points of law for certification: -

(1) Is the public entitled to participate in the determination as to the existence of exceptional circumstances and/or the circumvention of EU law in the decision to grant substitute consent? If so, where does such participation occur?

(2) In particular, is the public entitled to make submissions on the issues of exceptional circumstances and circumvention of EU law after leave has been granted to apply for substitute consent and can or must the Board consider same in its ultimate determination on the subject of the substantive application?

(3) Does the absence of an express statutory provision mandating the receipt of submissions mean that an administrative decision maker must refuse to accept and/or consider any submissions received?

(4) In particular does section 117(2)(g) entitling the Board to consider any matters it considers relevant give a discretion to An Bord Pleanala to consider third party submissions and/or have regard to the matters contained therein?

11 Turning first to questions 1 and 2, counsel for the applicant stated that these questions arise from the uncertainty in the court's judgment. The court's judgment suggested there is no right to participate at the leave stage and that full participatory rights will be available later in the process.

12 Counsel for the applicants submitted that the full panoply must mean that the issue remains live in the substitute consent application and can be revisited in the ultimate determination.

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