Sweetman v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Clarke J.,MacMenamin J.,Laffoy J.
• Judgment Date: 17 November 2016
• Neutral Citation: [2016] IESCDET 133
• Court: Supreme Court
• Date: 17 November 2016

[2016] IESCDET 133

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Laffoy J.

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000

AS AMENDED

BETWEEN

PETER SWEETMAN

AND

THE SWANS AND THE SNAILS LIMITED

APPLICANTS

AND

AN BORD PLEANÁL

ARESPONDENT

AND

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

CLARE COUNTY COUNCIL

NOTICE PARTY

AND

NORTH TIPPERARY COUNTY COUNCIL

NOTICE PARTY

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the first named applicant to appeal to this Court directly from the High Court.

Reasons given:

1. Jurisdiction

1 This determination relates to an application by the first named applicant in the underlying proceedings (‘Mr. Sweetman’) for leave to appeal under Art. 34.5.4 of the Constitution directly from judgments of the High Court (McDermott J.) delivered respectively on the 4th May 2016 and 24th June 2016. The order appealed against (which encompassed both judgments) was made on the 24th June 2016 and perfected on the 1st July 2016. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition because this is an application for leave to appeal directly from the High Court it is also necessary that it be established that there are ‘exceptional circumstances warranting a direct appeal’ to this Court.

2 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

3 Mr. Sweetman sought, in the underlying proceedings, to quash the decision of the first named respondent (‘the Board’) to grant permission to the first named notice party (‘Clare County Council’) under s.51 of the Roads Act 1993 relating to the construction of the so-called Killaloe bypass. Certain connected declarations relating to the effect of Council Directive 94/43/EC (‘the Habitats Directive’) were also sought for it was to what was alleged to be failure properly to comply with obligations arising under that directive that the principal focus of the case concerning the validity of the permission given to construct the Killaloe bypass was directed.

4 Leave to seek judicial review was given by Peart J. on the 13th May 2013.

3. The Order appealed against

5 The High Court (McDermott J.) gave two judgments. In the first judgment McDermott J. dismissed Mr. Sweetman's application for judicial review following a detailed consideration of the wide range of grounds canvassed.

6 Thereafter Mr. Sweetman sought a certificate from the Court for leave to appeal to the Court of Appeal under s.50A(7) of the Planning and Development Act 2000 as amended. As appears from para.3 of the judgment delivered by McDermott J. in respect of that question, the draft point advanced on behalf of Mr. Sweetman for certification was as follows:-

‘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/EC, 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’.

7 For the reasons set out in his second judgment, McDermott J. declined to issue the certificate sought.

4. The Contentions of the Parties

8 The notice of application for leave to appeal together...