Neutral Citation:  IEHC 557
THE HIGH COURT
[2014 No. 320 J.R.]
ROSSMORE PROPERTIES LIMITED AND KILLROSS PROPERTIES LIMITED
AN BORD PLEANALA
FIRST NAMED RESPONDENT
IRELAND AND THE ATTORNEY GENERAL
SECOND AND THIRD NAMED RESPONDENTS
JUDGMENT of Mr. Justice Hedigan delivered on the 24th day of November 2014
1. This is an application for a certificate for leave to appeal the judgment herein pursuant to s. 50A(7) and s. 50A(11) of the Planning and Development Act, as inserted by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006.
2. Section 50A(7) of the Planning and Development Act 2000 ("the 2000 Act") provides:
(b) that is desirable in the public interests that an appeal should be taken to the Supreme Court.
3. The principles to be applied in an application such as this were outlined by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála and Mayo County Council  IEHC 250, 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.
4. 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.
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.
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' must 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."
(c) it must be desirable in the public interest that an appeal should be taken to the Supreme Court;
(d) there must be uncertainty as to the law and
(e) the importance of the point must be public in nature and transcend the individual facts and parties of a given case."
'The decision in O'Keeffe v. An Bord Pleanála related to a specialised area of decision making where the decision maker has special technical or professional skill. A court should be slow to intervene in a decision made with special competence in an area of special knowledge. The O'Keeffe v. An Bord Pleanála decision is relevant to areas of special skill and knowledge, such as planning and development'."
5. The second question raised by the applicants is:
40. The requirement for an appropriate assessment of the implications of a plan or project is thus conditional on its being likely to have a significant effect on the site.
41. Therefore the triggering of the environmental protection mechanism provided for in Article 6(3) of the Habitats Directive does not presume- as is, moreover, clear from the guidelines for interpreting that Article drawn up by the Commission entitled 'Managing Natura 2000 Sites: The Provisions of Article 6 of the Habitats Directive (92143/EEC)'- that the plan or project considered definitely has significant effects on the site concerned butfollows from the mere probability that such an effect attaches to that plan or project.
42. As regards Article 2(1) of Directive 85/337, the text of which, essentially similar to Article 6(3) of the Habitats Directive, provides that 'Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment . .. are made subject to an assessment with regard to their effects, the Court has held that these are projects which are likely to have significant effects on the environment (see to that effect Case C-117102 Commission v. Portugal  ECR 1-0000, para. 85).
43. It follows that the first sentence of Article 6(3) of the Habitats Directive subordinates the requirement for an appropriate assessment of the implications of a plan or project to the condition that there be a probability or a risk that the latter will have significant effects on the site concerned."
6. The third question raised by the applicants is:
7. The fourth and final question raised by the applicants is:
8. Thus, all four questions raised by the applicants for certification fail and I refuse leave to appeal.