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Cite as: [2002] 1 ILRM 68, [2001] IEHC 39, [2001] 1 IR 704

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Kenny v. An Bord Pleanála (No. 2) [2001] IEHC 39; [2001] 1 IR 704; [2002] 1 ILRM 68 (2nd March, 2001)

THE HIGH COURT

JUDICIAL REVIEW

2000 No. 532JR

BETWEEN

JAMES KENNY

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DARTRY AND DISTRICT PRESERVATION ASSOCIATION, MATT CROTTY, PROVOST FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE AND

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMAN

AND BURGESSES OF DUBLIN

NOTICE PARTIES

JUDGMENT of Mr. Justice McKechnie dated the 2nd day of March 2001

On the 4th August 2000, An Bord Pleanala granted a planning permission, to and in favour of the third named Notice Party, Trinity College. This permission authorised a substantial development at Trinity Hall, Dartry, Dublin 6, with the nature and details of such development being evident from the Grant itself. The Applicant and the first and second named Notice Parties, objected to the Board's decision and in furtherance of that objection, the Applicant decided to question its validity, in consequence of which he, Mr. Kenny had a Notice of Motion issued and duly served on the mandatory parties on 3rd October, 2000. In accordance with the statutory requirements of Section 82 (3A) of the 1963 Act, as inserted by Section 19 (3) of the 1992 Act, an application for leave was moved on his behalf. On 15th December, 2000 judgment on that application was delivered. Mr. Kenny was unsuccessful and the reliefs sought were refused. This, on the basis of his failure to satisfy the qualifying criteria of establishing “substantial grounds”. Subsequently he has applied for a certificate which if granted would enable him to appeal to the Supreme Court. It is in respect of this last mentioned application that I now give judgment.
Under Section 82(3A) and (3B) of the 1963 Act, a person cannot challenge the validity, inter alia, of a decision of An Bord Pleanála given on appeal unless:-

“The High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed”.

1. The Court’s ruling in this regard is final, unless a successful application is made under Section 82 (3 B) (b) (i) of the Act. That subparagraph reads as follows:-

“(b) (1) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High 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.”

2. This said provision does not apply to a determination by the High Court which involves a question as to the validity of any law having regard to the provisions of the Constitution. It is pursuant to the aforesaid subparagraph (b) (i) that the Applicant now moves.

In considering the relevant part of the appropriate section could I observe as follows:-

(a) The first portion of the provision prohibits, in express and positive terms, all appeals from the High Court to the Supreme Court on matters covered by the section,

(b) the second portion of the provision however, creates an exception when the High Court certifies in the manner so provided,

(c) it is the High Court only which can so certify and from a refusal to do so no appeal lies to the Supreme Court, see Irish Ashfelt Limited -v- An Bord Pleanala 1996 2 I.R.179,

(d) in the said provision the words “the determination of the High Court”, are used in one part thereof with the words “the decision of the High Court,” being used in another part; given the context in question, in my view there is no difference in meaning between either of these phrases, unless it be the case that ‘the decision’, should be regarded as meaning the actual Order of the Court

(e) to enable an appeal to be taken the High Court must be satisfied as to the point of law involved: once it is so satisfied an appeal is permissible,

(f) there is no statutory obligation to the effect that the certificate must contain the point of law involved, though it must surely be desirable that it should do,

(g) when authorised such an appeal is not confined to the point of law in question, indeed precedent shows that not infrequently such a point is abandoned during the currency of an appeal; rather the appeal is against the decision in its entirety with the appellant, becoming dominus litis in the sense that he controls the scope of the appeal: see the People (Attorney General) -v- Giles 1974 I. R. page 422,

(h) this control is achieved by the service of a Notice of Appeal and therein by setting out the grounds thereof , all of course within the parameters of the decision appealed from,

(i) the point of law involved must be of exceptional public importance and in the High Court’s view it must be desirable in the public interest that an appeal should be taken, and finally

(j) the requirement last mentioned would appear to suggest the existence of two independent components each of which by the use of the conjuntive word “and”, may have to be individually complied with:- a view which if correct, may involve separate and perhaps different considerations.

4. As might be imagined this provision of the 1963 Act has given rise to much litigation involving different parties. A central reoccurring issue, relates to the true meaning of the phrase “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”. In this context Fallon -v- An Bord Pleanala 1992 2 I.R. 380 is frequently cited. That case dealt with an application for security for costs. However, following the decision of Mr. Justice Walsh in Midland Bank Limited -v- Crosley-Cooke 1969 I.R. 26, it has been the established jurisprudence of the Courts not to entertain, without exceptional circumstances, an application for such costs if a relevant issue involves a question of law of public importance.

5. Giving the judgment of the Court, Finlay CJ, in Fallon at pages 3 and 4 of the report said:-

“That, therefore, is the next issue that this Court must determine, and I am satisfied that the issue as outlined with regard to the powers of the planning authority under Section 28 of the Act of 1963, and the events that have happened in this case and in the manner in which the issue arises in this case is not, and could not be characterised as a point of law of public importance. It is a point of law of importance, but so is every point of law arising in any case, but it is peculiarly to deal with and arising from a series of complex facts in this particular case. A simple analogy, which I think is the standard I would be bound to apply, is that if this were a point of law arising of the same character and type, and in the same way on individual facts in a criminal case, there could be no question of giving a certificate under Section 29 of the Courts of Justice Act 1924, so as to lead to an appeal from the Court of Criminal Appeal to this Court.”

3. Evidently in that case the Supreme Court was of the view that an issue as to powers of a planning authority under Section 28 of the 1963 Act did not amount to a point of law of public importance and accordingly made the Order as sought.

6. Once again this phrase - “a point of law of public importance”, arose for the Supreme Court’s consideration in the case of Irish Press plc -v- Ingersoll Irish Publications Limited 1995 1ILRM p.117. Amongst the applications before the Court was one seeking security for costs. On being informed that an issue arose as to whether a Court, on a Petition under Section 205 of the Companies Act 1963 could, under subsection 3 thereof, award damages to a petitioning shareholder for the oppression complained of, the Supreme Court, concluded that such an issue was indeed a point of law of public importance and accordingly refused the relief sought. At p.120 of the judgment Finlay CJ said:-

“.........such a point of law in the view of the Court is clearly a point of law of public importance which transcends well beyond the individual facts of the case as they are in every case and in this case as well and as such the settled jurisprudence of the Court would indicate..........”.

7. These and other cases were considered by Morris P in Lancefort Ltd -v- An Bord Pleanala 1998 2 IR 511. Having followed the principles above identified, at p.516 of the report the Learned President continued;-

“I am of the view that while a challenge to the constitutionality of a section which permits An Bord Pleanála to materially contravene a development plan must be regarded as of importance, I am unable to conclude that the point is of such gravity and importance that it transcends the interest and considerations of the parties actually before the Court. On the facts of this case I find myself of the same view as the Chief Justice was in Fallon that it is a point of law of importance but so is every point of law rising in every case. The Chief Justice suggests that an analogy would be whether the question was one which would give rise to the granting of a certificate under Section 29 of the Courts of Justice Act 1924. I have been unable to discover any statement of principle upon which the Court of Criminal Appeal acts in granting or withholding such a certificate and Section 29 refers only to:- ‘a point of law of exceptional public importance’, however in the People (Attorney General) -v- Giles 1974 I.R. 422 Walsh J. reviews the circumstances in which certificates were granted in the 50 years prior to that hearing. He found that there were only 22. One related to the fundamental question of whether a successful appellant in the Court of Criminal Appeal was entitled to costs: several related to points fundamental to convictions: one dealt with the question of whether the sentence for murder was a mandatory sentence of penal servitude and another whether the mandatory sentence was death.

I am unable to identify any thread or common strain running through the cases in which the Court of Criminal Appeal granted the certificate, save this: it seems to me that in all cases the law, at the time of granting the certificate, remained in a state of uncertainty and it was in the common good that the law be clarified so as to enable the Courts to administer the law not only in the instance case but in future cases.

I see a clear distinction between that situation and the present case. Apart from the Applicant asserting that this section is unconstitutional and wishing to make a case to that affect, no uncertainty exists nor has existed. An Bord Pleanala can continue to operate as heretofore without the need for clarification or enlightenment from the Court.”

4. The President concluded, that the challenge to the constitutionality of Section 14 (8) of the 1976 Act did not so amount to a point of law of exceptional public performance.

8. During this application Counsel on behalf of Mr. Kenny submitted that from the earlier decision of this Court three points of law of exceptional public importance emerge.

Point of Law No. 1:-

5. Though expressed somewhat differently as between the written submissions and the oral presentation, the first point of law which the Applicant identifies is that the judge, when determining what constituted substantial grounds; (a) imposed a test higher than that permitted under Section 82 (3B) of the Act, (b) established requirements greater than those set forth in the McNamara case and (c) in any event even if he intended to apply the test last mentioned he failed to so do. In essence it is submitted that this approach manifested itself by the judge deciding that a ground could not be substantial if he, the judge, disagreed with the legal arguments advanced in support of that ground, and secondly, that whilst it is permissible to consider the merits of the application and of the legal argument, one cannot and should not make a determination thereon..

6. To underpin this submission the Applicant, as he is perfectly entitled to so do, criticises the manner in which the Judge dealt with ground No. 4 of the Leave application. He says that no consideration was given to his fundamental argument under this heading, which was that he had raised a substantial ground for alleging that the gate lodge was a “protected structure” under the 1999 Local Government (Planning and Development) Act and secondly that no argument was advanced on his behalf to the effect that this Act was retrospective. Furthermore he also claims that the decision was wrong in its conclusion on the development plan issue.

9. I cannot agree that these arguments accurately reflect the judgment as delivered. As appears from paragraphs 5 and 6 thereof, the test, as to what constitutes substantial grounds, as applied in the judgment under review, was exactly the same as previously enunciated in many decision of both this Court and the Supreme Court. In essence the decision of McNamara -v- An Bord Pleanala 1995 2 ILRM p.125 was followed and applied, and even though at paragraph 6 thereof, the judgment contained some observations on these established principles, nonetheless, it is clearly stated in the body of that paragraph that such additional comments were purely “ an aside” in that the unquestioned approach to be followed was that as found in McNamara. Therefore unless it was intended to challenge the principles set forth in the McNamara Case I cannot agree that the incorrect test was postulated, much less applied. If there was a generalised challenge that McNamara should be less restrictive I am firmly of the view that the same is bound to fail and has no prospect of success. Consequently on this aspect of submission No. 1, I cannot identify any point of law of public importance, much less of exceptional public importance, which judicially I could certify under section 82(3B) of the relevant Act.

10. The second aspect of this submission proceeds on the basis that the approach adopted was to decide the case as between the Applicant and the Respondent/Notice Parties. In general I cannot accept that such an interpretation could objectively or reasonably be taken. In my view, in determining whether or not there exists substantial grounds, the Court has to embark upon some evaluation and some assessment of the fundamental basis of the application. In considering whether a ground is or is not substantial, one may have to look at the arguments and case law advanced in support. How else can one make this qualitative judgment? One does so, in my view, not for the purposes of adjudicating upon such arguments or offering an opinion on such case law, but rather as part of the overall function and process which leads to and enables the Court to make a determination which by statute it must so do. This in my respectful view is evident from many portions of the December judgment. In addition the approach followed, is I think fully in accordance with that adopted in several of the cases as can evidently be seen from the reported judgments thereof. See for example Scott -v- An Bord Pleanala 1995 1IRLM page 424, McNamara -v- An Bord Pleanala 115 2 IRLM 125 , Mulhall -v- An Bord Pleanála HC U/R 21/5/96, Boland -v- An Bord Pleanala 1996 3 I.R. 435 , Blessington and District Community Council Limited -v- Wicklow County Council 1997 1 I.R. 273 and Lancefort Ltd., -v- An Bord Pleanala H.C. U/R. I therefore reject the submission.

11. With regard to the gate lodge could I respectively point out the following. Under Section 82 (3A) of the ’63 Act, the Applicant had to establish that the question raised by him under this heading constituted a substantial ground. But not only that, he also had to establish that such a substantial ground existed for his contention in law, namely, that the decision of the Board was invalid or ought to be quashed. So the “substantial grounds” had to be focused on and related to this allegation of invalidity.

12. The judgment, of the 15th of December, on this point held:-

that the continuation and the conclusion of the planning process had to take place in accordance with the law, as it was, at its commencement; this unless there was statutory intervention. Since the 1999 Act did not have the force of law at the commencement of the process, it followed, in accordance with this view, that its provisions could not apply, unless, expressly or by necessary intendment, the Act itself, when operable, led to this conclusion. Unless that result came about it would in my view have been a pointless exercise to embark upon a definitional process when the underlying foundation therefore had yet to be established. And so the judgment dealt with this issue in the first place,
having so formed this opinion the Court, in ease of the Applicant, felt it desirable to consider the retrospection issue. This was potentially another mechanism by which the Act might apply and thus bring into play the issue as to whether a substantial ground existed for suggesting that the gate lodge was a protected structure. The conclusion in the judgment, was that no retrospection applied, which view seems to accord with that of the Applicant since, in the first place I am now reminded that he did not wish to argue this point, and finally
with regard to the development plan, the view expressed that no protection existed meant and must mean that the Applicant had failed to reach the threshold in this regard.

13. It is entirely incorrect to suggest that the approach adopted was the same as that required on an application for judicial review itself. Equally so, the assessment, evaluation and views expressed, both on the factual and legal aspects of the case, were undertaken and carried out solely to determine the single question for the Courts consideration, namely did the Applicant establish substantial grounds for contending the invalidity as alleged. Any different reading of the judgment would be erroneous.

14. So, applying the relevant provisions of the law as set forth earlier in this judgment I cannot accept, however one precisely phrases Point No. 1 and however one examines the judgment in respect thereof, that there exists within it, a point of law envisaged by Section 82 (3B) (b) (i) of the Act. I believe that the McNamara test is well established, that it was applied in accordance with case law and that the limited embarkation of the assessment of the facts and law was correctly undertaken so as to determine the issue before the Court. I also believe that the question of the gate lodge was dealt with in exactly the same way and that all aspects of the relevant law are well established.

7. Even if I am incorrect in the views last mentioned I would still refuse to certify this suggested point of law arising out of Ground No. 1. I do not accept that it is of such importance or of such moment that it could rightfully be classified as exceptional even if I was only to apply the dicta of Finlay CJ in the Fallon Case. If the constitutionality of section 14(8) of the 1976 Act is not deserving of the required recognition, then in my view, this point is most certainly not.

15. Point of Law No. 2 :-

8. At paragraph 19 of the judgment, when dealing with a challenge to the E.I.S. as submitted, the Court said:-

“Once the statutory requirements had been satisfied I should not concern myself with the qualitative nature of the E.I.S. or the debate on it had before the Inspector. These are not matters of concern to this Court. The planning authority and An Bord Pleanala, as these bodies must under the regulations, were satisfied as to the E.I.S., with the Inspector and the Board also being satisfied with the evidence, both documentary and oral, produced at the oral hearing. That in my view concludes the matter. However less there should be any doubt about it, my own opinion is that the E.I.S. did address adequately, as did the oral hearing, any and all significant impacts which a decentralised boiler system could have on this development.”

9. It is alleged that from this passage a point of law of exceptional public importance arises ,in that it contains a fundamental error because, if accepted it would mean that An Bord Pleanála expressly, and every Planning Authority by implication, would have exclusive jurisdiction to decide the adequacy of an E.I.S.

16. Many cases were referred to in support. For example Luxembourg -v- Linster , E.C.J. 19/9/2000. In the context of the discretion vested in a Member State in how a community provision is implemented at National level, the following quotation is taken form the Court’s Judgment:-

“However this discretion which a member state may exercise when transposing that provision, Article 5, into National Law does not preclude judicial review of the question whether it has been exceeded by the National Authority.”

10. A second decision of that Court, entitled Kraaijeveld B.V. & Ors -v- Gedeputeerde Staten Van Zuid Holland , given on the 24th of October 1996 was also relied upon in support of the continuing power of a domestic Court to review an E.I.S.

17. In the leave application it was expressly acknowledged, or conceded, that the Irish Regulations in all material respects, accurately and fully implemented into domestic Law, Counsel Directive 85/337/E.E.C. and in particular Annex III thereof. Consequently unlike what had been an issue in the Lancefort proceedings, there was no challenge to the transposing requirement in the instant case. Equally so there was no challenge, per se, to the validity of the Irish Regulations. Against this background, reference should be made to the material portion of the judgment, which is outlined above, with the ratio of the expressed view being predicated on the relevant statutory and regulatory provisions having been complied with. This statement, of course meant that the statutory requirements of an E.I.S had to be satisfied, otherwise it would undoubtedly be open to challenge, at least on ultra vires grounds. Recalling that there was no pursued E.I.S issue on the O’Keeffe principles, which would always remain open, and in light of Article 58 of the 1994 Regulations, I firmly believe that the views expressed, on the further involvement of the Court, were correct. See Keane J, as he then was, at p. 442 of the report in Boland -v- An Bord Pleanala 1996 3 I.R. 435.

11. I therefore cannot accept that from the passage of my earlier judgment as given, a point of law of exceptional public importance arises.

18. Point of Law No. 3 :-

12. This suggested point arises out of Ground No. 4, as numbered on the application for leave. That ground as pleaded involved a challenge concerning the gate lodge. This in two respects. Firstly it’s alleged protective nature as given to it under the 1999 Act and secondly its interplay with the relevant development plan. The submissions made under this heading are, I am satisfied, covered in the earlier part of this judgment and thus any further consideration thereof would essentially be repetitive. Accordingly as is evident from the views given above, I do not believe that any point of law of exceptional public importance arises under this heading.

19. Finally on this aspect of the case it should be said of course, with regard to each of the three suggested points of law, that they are of importance but in many ways so also is any point of law which is worth seriously making in any litigation. But importance alone is not sufficient. For certification the point has to be of exceptional public importance and at least has to transcend well beyond the individual facts and parties of any given case. As I am satisfied that the Applicant has failed to satisfy the test last mentioned, it must follow, that he has also failed the test specified in section 82(3B) of the Act, on which, I would expressly reserve, for a case in which the argument becomes critical, the meaning, in its entirety, of the relevant part of sub paragraph (b)(i).

20. Leave Refused - Certification Granted:

Section 82(3B)(b)(i) seems to have its foundation, at least it’s modern foundation, in Sec. 29 of the Courts of Justice Act, 1924. That section enabled an appeal to be taken from the Court of Criminal Appeal to the Supreme Court if, but only if, either the Court or the Attorney General certified that the decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken.. For a detailed consideration of this Section see the People (Attorney General) -v- Giles 1974 I.R. 422 - a case referred to at paragraph 3 above.

21. In it’s incorporation into the Planning Legislation, which of course is a Civil and not a Criminal Code, one major point of distinction is immediately evident. It is, that given the requirement to obtain leave and in the process to establish “substantial grounds”, the relevant part of sub paragraph (b) applies not only to the Court’s decision on an application for Judicial Review but it also applies to its decision when dealing with the leave application. This unlike the background to Sec. 29 where a full hearing only is envisaged. Whereas I can see no difficulty in applying the sub section after a determination of an application for Judicial Review, where the resulting decision either granting or refusing relief, may indeed contain a point of law of exceptional public importance, I have however some difficulty in reconciling its ability to operate on and after a negative decision is given on the leave application.

22. The decision of the Court on such an application is usually arrived at from a consideration of the facts and any appropriate inferences, and from some assessment of the law -- with the precise extent of the Court’s involvement, at this stage of the process, being irrelevant to the point at hand. To obtain leave, “substantial grounds” must be shown and where so established the decision granting leave may or may not contain such a point. However when the Applicant is unsuccessful matters may well be different.

23. When leave is refused, it is, I feel, so refused by reason of and resulting from the decision of the Court which must mean that the threshold of substantial grounds had not been established. Otherwise leave should be granted. If this is so, I ask how logically can it then be said, that within the same decision, one can have, on the one hand, a failure to establish substantial grounds and yet, on the other, on the same material, whether this be fact, inference or law, have a point of law of exceptional public importance? If such a point exists, surely the ground thereof must meet the required threshold and therefore leave should be granted. If the Court is not so satisfied how can such a point emerge? No matter what standard is applied to the existence of “substantial grounds”, it cannot be less than that applicable to establishing a point of law of exceptional public importance. Assuming that a court would not incorporate into its judgment such a point, on any basis other than that which falls squarely within the ratio of a case, and assume, reasonably I feel, that such a point must derive from the relevant facts, inferences or law, I have in the circumstance some trouble in seeing how at the same time, leave can be refused and yet certification follow.

24. These remarks apply to a situation where the Court has entered into a full determination of all relevant matters on the leave application, involving as it would some appraisal of the facts, inferences and law. If such a hearing was not possible or necessary but nonetheless leave refused, one could see how in certain circumstances certification would still be possible. For example, if the Motion of Notice was not served within time or on the mandatory parties then a Court, because of this non-compliance, would have no jurisdiction to embark upon the leave application proper. In such instances it might well certify a point of law. See the case of K.S.K.,-v- An Bord Pleanala, supra and Costco -v- An Bord Pleanala, Smyth J., U/R. One could also see how the subsection could apply where, unusual as it might be, an unsuccessful Respondent on a leave application might seek certification as a means of appeal to the Supreme Court. Even here, though this example is unlikely to have been a priority in the legislative mind, the required threshold would have been met and hence no possible inconsistency. But it is difficult to see how an unsuccessful Applicant having had the type of hearing above described, can thereafter in his favour invoke the certification process.

25. In conclusion I am of course aware of many cases where, notwithstanding refusal, certification has followed. In making the above remarks therefore, which are entirely obiter, I intend no more than to raise an issue which in an appropriate case may require further consideration..