THE HIGH COURT
[2025] IEHC 318
[2013 No. 783 JR]
BETWEEN
THOMAS GRALL
APPLICANT
– AND –
MEATH COUNTY COUNCIL AND AN BORD PLEANÁLA AND IRELAND AND THE ATTORNEY GENERAL (2)
RESPONDENTS
JUDGMENT of Mr Justice Max Barrett delivered on 27th May 2025.
Summary
This is a successful application for a certificate and leave to appeal
under s.50A(7) of the Planning and Development Act 2000.
1. This is an application for a certificate and leave to appeal under s.50A(7) of the Planning and Development Act 2000. It follows on my judgment in Grall v. Meath County Council and Ors [2024] IEHC 552. I do not propose, save as is necessary, to recite the background to, or the detail of, that judgment.
2. Section 50A(7) provides that:
'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 [Court of Appeal] 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 [Court of Appeal]'
3. There is a plethora of decisions on the legal principles relevant to an application for leave to appeal under s.50A(7). I have been referred in the written submissions to over a dozen such decisions. However, I propose to refer only to Monkstown Road Residents Association & Ors v. An Bord Pleanála & Ors [2023] IEHC 9. The decision in that case sets out a comprehensive account of the law applicable to an application such as the one now presenting.
4. The applicant contends that the following four points of law of exceptional public importance (they have been drafted as queries) arise from my original decision:
'1. In circumstances where the Board in making a determination under Section 261A is considering material not submitted by the owner/operator, what is the obligation on the Board to seek information on such material from such owner/operator?
2. In circumstances where an owner/operator does not anticipate that the Board may have regard to information other than that furnished by such owner/operator (whether culpably or not), are the consequences under the section (service of enforcement notice, closure of business) a proportionate response?
3. Given the severity of the consequences of the determination of An Bord Pleanála, and the lack of appeal therefrom is it sufficient for the Court to be satisfied simply that the decision of the Board was reasonable and/or there was material before it that supported its determination?
4. Are the lands permanently sterilised? Does this affect the standard of fair procedures and decision-making by the Board or the Court in reviewing same?'
5. Similar points were raised in McMonagle Stone v. An Bord Pleanála [2023] IEHC 487 and leave to appeal was refused. However, a close reading of that judgment suggests that the facts presenting were rather different. Counsel for the applicant before me identified the following differences. First, in McMonagle the court appears to have had some doubts as to the bona fides of the application before it. (I have no such doubts.) Second, in McMonagle there appears to have been no effort by the applicant to establish pre-1963 user. (In the case before me there was.) Third, the existence of a second extraction area that had become visible appears not to have been explained to the satisfaction of the court. (No such issue presented on the facts before me.) So, there is sufficient difference between the two cases for me to feel free, on the particular facts before me, to arrive at a different decision to that reached by the court in the section 50A(7) application in McMonagle. That said, I am also arguably proceeding consistent with the judgment in McMonagle given that there seems, on my reading, to be an implicit sense in that judgment that certification and leave might well have issued on the points of law which were deemed to be properly before the court in that case, had it not been for the three aspects of McMonagle just touched upon.
6. It has been submitted for the applicant in his counsel's written submissions that:
'There is a lack of any authoritative judgment at appellate court level on the interpretation of established pre-1963 user, and in particular the recent construction of same in the JJ Flood line of authority. This line of authority has created significant concern in the quarrying sector as it represents a significant departure from the established approach to established user.'
7. Counsel for the Board has suggested that this is not quite true, drawing my attention to the unsuccessful application for leave to appeal to the Supreme Court in McCaffrey & Sons Ltd v. An Bord Pleanála [2024] IEHC 315, [2024] IEHC 476, [2024] IESCDET 145. There, the Supreme Court in refusing leave to appeal, noted, at para.22 of its determination that:
'While JJ Flood has been frequently followed in the High Court, the Court notes that it has also recently been followed in the somewhat analogous case of peat extraction by the Court of Appeal in Harte Peat v. Environmental Protection Agency [2024] IECA 202.'
8. I respectfully accept the point made by counsel for the Board that JJ Flood has been followed by the Court of Appeal in, to borrow from the wording of the Supreme Court, 'the somewhat analogous case of peat extraction'. However, I do not see that this suffices to meet fully the point made by counsel for the applicant in this regard.
9. There is of course no requirement that a point of law should be determined by an appellate court before it can be considered to have become an essentially settled point of law. Nonetheless, it seems to me that a number of potential weaknesses can sometimes present where a point of law is ostensibly settled by the High Court without a full and complete consideration at the appellate level:
(a) Where legal principle is ostensibly settled by the High Court without the benefit of scrutiny by the Court of Appeal and/or the Supreme Court it may conceivably rest upon underdeveloped doctrinal foundations.
(b) Litigation before the Court of Appeal and/or the Supreme Court often results in dynamic judicial discourse (in a judgment or 'behind closed doors') in which competing interpretations of the law are considered and discussed. A High Court decision, even successive High Court decisions on the same point may involve a somewhat monological approach to decision-making (potentially accentuated by the application of the rules of precedent).
(c) Absent robust testing of a principle at the appellate level, ostensibly settled legal propositions may be arrived at without latent ambiguities or unintended consequences being identified and considered - but with that principle becoming increasingly copper-fastened through the application of the rules of precedent.
(d) While decisions of the High Court possess significant legal authority, the absence of endorsement by the Court of Appeal and/or the Supreme Court may diminish the perceived weight of a particular line of authority.
(e) On a related note the ostensible settlement of legal principle by the High Court without the involvement of the Court of Appeal and/or the Supreme Court may result in a mere veneer of certainty in the presence of interpretive alternatives and/or ambiguity.
(f) Once a principle is considered to have been settled by the High Court, there may be understandable reluctance at High Court level (accentuated by the rules of precedent) to engage in re-examination of that principle. This may mean that inadequately reasoned doctrine is deprived of necessary reconsideration in response to evolving norms and contexts.
10. I note at this juncture that while decisions of the High Court are not binding on other judges of coordinate jurisdiction, such decisions often carry significant persuasive authority, particularly where they have been repeatedly followed or treat with issues that have been the subject of recent and thorough consideration by reference to the applicable law and case law. As noted by Clarke J. in Re Worldport Ireland Ltd (in liq.) [2005] IEHC 189, para.14:
'I have come to the view that it would not be appropriate, in all the circumstances of this case, for me to revisit the issue so recently decided by Kearns J. in Industrial Services. It is well established that, as a matter of judicial comity, a judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong....Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all of the relevant authorities and which was, as was noted by Kearns J., based on forming a judgment between evenly balanced argument. If each time such a point were to arise again a judge were free to form his or her own view without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered. In the absence of a definitive ruling from the Supreme Court on this matter I do not, therefore, consider that it is appropriate for me to consider again the issue so recently decided by Kearns J. and I intend, therefore, that I should follow the ratio in Industrial Services and decline to take the view, as urged by counsel for the Bank, that that case was wrongly decided.'
11. It follows, inter alia, that decisions by a judge of coordinate jurisdiction that are well-reasoned and widely cited may come to be treated as authoritative, even definitive, notwithstanding that they do not issue from an appellate or apex court. But there is, I would submit, a corollary to this, namely that any foundational weaknesses or ambiguities in such decisions may come to be cemented into law unless ventilated at appellate level. Viewed in this way, appellate scrutiny can be both corrective and constructive, facilitating the refinement of legal principle and the resolution of any (if any) latent ambiguities, tensions, or weaknesses in ostensibly settled law.
12. In passing, I fully accept that the legislative intent underpinning s.50A(7) appears to have been that litigation of a type that comes within the scope of s.50A(7) would typically end in the High Court. Even so, it seems to me that one or all of the potential weaknesses touched upon above can be borne in mind by a court as a factor of relevance when determining the cumulative issues arising for determination under s.50A(7).
13. In his judgment in Monkstown Road Residents Association, Holland J. observes as indicated in Bold text below. My application of his observations to the matter now before me appears in square brackets:
'5. There was little, if any, dispute as to the well-established principles of law applicable in an application for a certificate of leave to appeal. The starting point is identified by Barniville J in Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231:
"The clear intention of the Oireachtas in enacting s.50A(7) (and its statutory predecessors) was that, in most cases, the decision of the High Court on an application for leave to seek judicial review in respect of a planning decision or on an application for judicial review of such a decision should be final and should not be the subject of an appeal".
[Noted.]
6. The posited ground of appeal must involve a point, or points, of law.
[Here they do.]
7. I must assume for the purpose of this application that, as to that point of law, my decision may well be wrong...'
[Assumed also by me.]
14. Holland J. subsequently proceeds to make the points quoted below.
'a. The application for certification of leave to appeal should be made promptly - ideally within the normal appeal period.
[Here there has been some delay. However, it seems to me that one has to weigh in this context the desirability of early finality to cases versus the public interest in seeing points of law of exceptional public importance adjudicated upon. I have inclined in this judgment to the latter view, i.e. not only do I see my decision to present with points of law of exceptional public importance but I also consider it desirable in the public interest that an appeal should now be taken to the Court of Appeal.]
b. The jurisdiction to certify must be exercised sparingly. Most applications for a certificate to appeal fail.
[Noted. As to most applications for a certificate to appeal failing, this seems to me to be but an inevitable consequence of the fact that counsel ambitious for a client to be allowed to bring an appeal are perhaps more inclined to see a point of law of exceptional public importance to present than a more detached court]
c. The point of law must arise out of the decision of the High Court and not merely from discussion or consideration of a point of law during the hearing. A point the court did not decide cannot amount to a point of law of exceptional public importance.
[The points now raised are inexorably connected with and arise from my decision. It seems to me that a point that a court did not decide despite it having been argued before it could yield a point of law of exceptional public importance; otherwise a judge whose judgment it was sought to appeal could benefit from their own error in not having decided a point that was argued, to the detriment of the party that had argued that point.]
d. I would add that it seems to me to be a necessary implication of the principle that "The point of law must arise out of the decision of the High Court" that the point of law must reflect a correct understanding of the decision of the High Court, read as a whole.
[Here neither party has contended that the other party possesses anything other than such a correct understanding. The points now raised are inexorably connected with and arise from my decision.]
e. The point of law should be actually determinative of the proceedings, not one which, if answered differently, would leave the result of the case unchanged...
[It seems to me that each of the four questions raised could yield a different answer in the case before me, if the Court of Appeal takes a different approach to the law from that which I have adopted.]
f. The point of law must be formulated with precision so that indicates how it is determinative of the proceedings and should not invite a discursive, roving, response from the Court of Appeal.
[It seems to me that the points of law before me have been so formulated. However, it also seems to me that the Court of Appeal is perfectly capable of policing itself so that it does not issue discursive, roving responses.]
g. It seems to me to be a necessary implication of the principle that the point of law should be determinative that certification should be refused if points of law otherwise certifiable would leave unimpugned one ground upon which certiorari was granted, such that the result of the case will remain unchanged.
[It seems to me that each of the four questions raised could yield a different answer in the case before me, if the Court of Appeal takes a different approach to the law from that which I have adopted.]
h. The requirement goes substantially further than that a point of law emerges in or from the case. That it be of exceptional public importance is a clear and significant additional requirement.
[The points of law raised before me seem to me to be of exceptional public importance. The decision of the Board, as affirmed by me, is perhaps one of the most consequential decisions likely to have been made about Mr Grall's lands during the period that he has owned them. If the effect is that his lands are, to borrow from the terminology of his counsel, essentially 'sterilised', that is a highly significant matter in which there must surely be a very real public interest in knowing and ensuring that it does not happen otherwise than in accordance with law. That interest imbues the points raised with the requisite exceptional public importance. Moreover, the profundity of the personal impact of my decision and of my reading of the law on Mr Grall (a profundity of effect which presents in all quarry-folk cases) is such that I consider it to be overwhelmingly desirable in the public interest that an appeal should now be taken to the Court of Appeal.]
i. Normal statutory rules of construction apply. So, inter alia, 'exceptional' must be given its normal meaning. That imposes a very high hurdle - the point of law must not just be important, but of unusual or untypical importance.
[See response to h.]
j. The test is not simply whether the point of law transcends the individual facts of the case. Such an interpretation would fail to apply the word 'exceptional'. Since most points of law are of some importance, the point of law must transcend well beyond the individual facts and the parties in the case.
[See response to h.]
k. Where leave is refused in an application for judicial review, (i.e. 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 appeal.
[Respectfully, it seems to me that the sole issue to be decided in the present application is solely whether the cumulative criteria identified in s.50A(7) are satisfied.]
l. The requirements of exceptional public importance and that appeal be desirable in the public interest are cumulative. They may overlap but to some extent may require separate consideration.
[See response to h.]
m. Some affirmative public benefit from an appeal must be identified. This suggests that, to be certified, a point must be such that it is likely to resolve other cases.
[See response to h.]
n. The law in question must be in a state of uncertainty, evolution or lack of clarity. 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.
[It seems to me to be clear from the repeated applications for appeals on grounds of the type presenting before me that there is some uncertainty or lack of clarity in the law, notwithstanding the commonality of approach evinced thus far by the High Court (albeit that this may in some instances be more the product of the application of the rules of precedent, rather than fulsome agreement with the point at which precedent has arrived). It seems to me that it is for the common good (not least in terms of public acceptance as to the legitimacy of decisions of the High Court and the profound consequences that can follow for impacted quarry-folk) that the points of law raised before me should receive consideration from the Court of Appeal so that lower courts may be confident that they are correctly applying the applicable law, not only in the instant but in future cases. I note in passing that the above-quoted proposition points to the need for the law in question to be in a state of uncertainty or in a state of evolution or to suffer from a lack of clarity.]
o. 'Uncertainty' cannot be 'imputed' to the law by an applicant simply by raising a question as to the point of law. Merely raising an argument on the proposed point of law which the Court has rejected does not mean that the law is uncertain. The uncertainty must arise over and above this, for example, in the daily operation of the law in question.
[See response to n.]
p. The fact that the point of law raises a novel issue does not necessarily mean that the law is uncertain or evolving. It is not, however, necessary to point to other decisions which conflict with the decision of the High Court on the point of law...
[See response to n.]
q. The intending appellant must not use the application for leave to appeal as an opportunity merely to reargue the merits which the Court has already decided against that party in its substantive decision. However, it may sometimes be difficult to avoid doing so (or at least giving the impression of doing so) in order to persuade the Court that the law in the area is uncertain or evolving and that the posited point of law is of exceptional public importance.
[It seems to me that a distinction falls to be drawn in this regard between 're-argument' and reminding a judge of one or more points that were addressed at a hearing. At the hearing of the present application, counsel for the applicant reminded me of some aspects of what was argued before me at the previous (substantive) hearing. But that was by way of reminder, not by way of re-argument.]
r. Generally, where, on the posited point of law, the intending appellant has lost in the High Court on the basis of the application of clear and well-established principles to the facts of the case, it will be very difficult to satisfy the cumulative requirements of s.50A(7) of exceptional public importance and that an appeal be desirable in the public interest. Certification is not in principle ruled out in such circumstances but is likely only in exceptional circumstances and is not in any sense the normal or usual position. The closer on the spectrum the posited point of law is to the application of well-established legal principles to the facts of an individual case, the further it is from exceptional public importance. Ordinarily, the basis of any appeal must be that the very legal principles relied upon by the High Court judge were incorrect.
[Noted. I have already explained why I see the points of law posited by the applicant in this case to come within s.50A(7).]
s. Conversely, the failure by the Court to apply well-established legal principles to the particular facts of the case may well give rise to a point of law of exceptional public importance, subject to complying with the other principles referred to here.
[Noted. I have already explained why I see the points of law posited by the applicant in this case to come within s.50A(7).]
t. Where the decision which it is sought to appeal was made in the exercise of a wide discretion, the exercise of which is governed by criteria of fairness and justice, the applicant for a certificate of leave to appeal faces a particularly uphill task.
[Noted. I do not see this point to be of relevance in the case before me, nor was it contended to be of any especial relevance at the hearing of this application.]
u. Generally, it will not be appropriate to grant leave to appeal in respect of a point of law which has not been properly pleaded.
[See response to t.]
v. A broad range of factors and considerations may bear on whether an appeal is desirable in the public interest. Those factors include, but are not limited to, the nature of the particular development and the potential consequences of significant further delay in final determination of the case by the courts. Factors relevant to whether an appeal is desirable in the public interest may overlap with other criteria, such as whether it is in the public interest to clarify uncertainty or evolution in the law.
[I have already indicated why I consider an appeal to be desirable in the public interest in the case before me.]
w. In this context, the grant of leave should provide some added value to any matters already before the Court of Appeal.
[See response to t.]
x. The Court must have regard to the effect of the 33rd Amendment to the Constitution and the Court of Appeal Act 2014 and, in particular, the "constitutional architecture" they created. While a "leapfrog" appeal from the High Court directly to the Supreme Court is possible, appeal to the Court of Appeal remains the more normal route.
[Noted.]
y. It seems to me to follow from the principles set out above, which assume that the judgment which it is sought to appeal may well be wrong in point of law, that the mere assertion that such judgment may set an erroneous precedent which may be followed in later decisions of the High Court will not suffice to justify certification. That observation can be made of more or less any judgment wrong in point of law. Certification merely on that basis would be inconsistent with many of the Glancré principles, including that certification of what is ex hypothesi a good appeal on a point of law should nonetheless be "exceptional" and issue "sparingly". Any implications of these principles for the operation of stare decisis as between decisions of the High Court derive from the clear principle of S.50A(7) PDA 2000 that in most cases of error, even as to a point of law, there should be no appeal. While it is in strictness undesirable as a matter of stare decisis that any judgment in error in point of law should survive, in truth this situation is not at all unusual. Many must be the cases in which arguable - even very arguable - appeals do not proceed for one reason or another or very many possible reasons: for example, the case may settle, or the potential appellant may be risk-averse and decide against appeal.
[Noted. I have already indicated why I consider an appeal to be desirable in the public interest in the case before me.]
15. Having regard to all of the foregoing, I am satisfied that it is appropriate for me, acting pursuant to, and consistent with, s.50A(7) of the Planning and Development Act 2000, to grant the certificate and leave to appeal sought in respect of each of the four points of law as posited by counsel for the applicant.