High Court of Ireland Decisions

 


HC 307/04

[2001 No. 808 J.R.]

THE HIGH COURT JUDICIAL REVIEW

Between:

ROY BEGLEY and GERARD CLARKE

Applicants

-and- AN BORD PLEANÁLA

Respondent

-and- SOUTH DUBLIN COUNTY COUNCIL, PATRICK WHITE and SÍLE NÍ SHÉ, MARGARET BOYLE, SHEILA LYNCH, MARY MURCHAN and MÁIRE MULLARNEY, TOM SHAW, KATE SHAW and AN TAISCE

Notice Parties

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 23^rd May, 2003.

On the 14^th January, 2003, the applicants were declined leave to institute proceedings by way of an application for judicial review of a decision of the respondent (hereinafter referred to as 'the Board') made on the 3^rd October, 2001, refusing the applicants' permission, per South County Dublin Planning Register Reference Number S00A/0447, for a development comprising the erection of 18 two bedroom apartments in two storey with attic blocks (Block A – 14 and Block B – 4 apartments) with ancillary on and off-site development works, including car parking and landscaping at Riversdale House, a protected structure, which is being retained and the subject of a separate planning application (Planning Register Reference Number S00A/0621) at Ballyboden Road, off Boden Wood, Rathfarnham, Dublin 14. This development includes the demolition of a derelict gate lodge and further preservation and restoration of the arched bridge, gates and piers at the old entrance at Ballyboden Road, which are also protected structures, being specified features within the attendant grounds of the said protected structure, Riversdale House. In addition to the relief of certiorari sought, the applicants sought a declaration that the Board erred in law in its decision to refuse planning permission for the development for the reason given, which error of law appears on the face thereof.

In the view of this Court the applicants had failed to show substantial grounds as required. The applicants now seek a certificate for leave to appeal to the Supreme Court. The right of appeal from this Court is essentially limited by law to circumstances 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.

The points identified by the applicants are submitted to be points of exceptional public importance upon which it is desirable in the public interest that an appeal should be taken to the Supreme Court. These are:

1. Whether a planning authority when adding "specified elements" of a structure to the record of protected structures, thereby, by reason of the definition of "structure" in the Local Government (Planning and Development) Act, 1999, or the Planning and Development Act, 2000 adds to that record the land lying within the curtilage of the structure, all structures lying within that curtilage and their interiors, and all fixtures and features which form part of any such structures within the curtilage;

2. Whether on an application for leave to apply for judicial review of a planning decision the court has jurisdiction to make findings of fact in relation to the matters put forward by the applicant, or whether the jurisdiction of the court is confined to assessing, on the basis of the facts as put forward by the applicant, whether the grounds advanced for impugning the decision are substantial.

Counsel for the applicant refers this Court to the cases of Irish Press plc. v. Ingersoll Irish Publications Limited [1995] 1 I.L.R.M. 117 and Neville v. An Bord Pleanála (Unreported, High Court, 12^th October, 2001). It is submitted that it is clear from the established case law that a point of law of exceptional public importance is one which transcends the facts of the individual case. It is submitted that the decision in question must "involve" a point of law of exceptional public importance and that the point of law need not be decisive in the particular case concerned and that such a point may arise even where the applicant fails to satisfy the court that the point is a substantial ground, notwithstanding the obiter remarks of McKechnie J. in Kenny v. An Bord Pleanála (No. 2) [2001] 1 IR 704.

Counsel submits that the approach to be taken by this Court should be to ask whether if the determination of this Court is incorrect the point raised would be one of exceptional public importance.

The Court has been referred to the judgment of Finlay Geoghegan J. in the case of Raiu v. Refugee Appeals Tribunal, Ireland and the Attorney General (Unreported, High Court, 26^th February, 2003) in which a similar section contained in the Illegal Immigrants (Trafficking) Act, 2000 was at issue. In her judgment, the learned High Court judge held that the requirement that the point of law is of "exceptional public importance" and that "it is desirable in the public interest that an appeal should be taken to the Supreme Court" are cumulative requirements, which whilst they may overlap to some extent, require separate consideration by the High Court. In her judgment she indicates that the use of the word "exceptional" indicates that not all points of law of public importance may be certified. I agree. She indicates that it is the point of law, irrespective of how it is decided, which must be of exceptional public importance.

Counsel submits that the first point which is asked to be certified is one where the Court has taken the view that the definition of "structure" in s. 1 (1) of the Act is clear in its scope. It is submitted that the Court's ruling is that the legal effect of the specification of "Riversdale House" as part of a proposal to add "specified elements of a structure to the record of protected structures". A reading of the notice published by South Dublin County Council at the time shows that it proposed to make an addition to its record of protected structures by the addition of Riversdale House which was described in the notice as "the structure". The notice did not refer to "specified elements of a structure" or even to "part of a structure". Neither did the decision of this Court purport to hold that "a specified part of a structure" necessarily included the curtilage of the structure such that the curtilage could not be excluded from the "protected structure". Counsel for the Board has submitted that the phrase "specified elements" is not the language used by the planning authority in its notice of intention to add Riversdale House to the record of protected structures. It is further submitted that to construe Riversdale House as a "specified element of a structure" is not borne out of the language of the planning authority in adding it to the record of protected structures.

The planning authority did not make any submissions in the hearing before me in support of the applicants' case to suggest that its intention had been misconstrued. It is clear that if the intention of the planning authority is other than as perceived by the Board and by this Court it can take the necessary steps to clarify the position. Furthermore, the decision of this Court pertained to the facts of this case and should not be construed as suggesting that a "specified part of a structure" may not result in land lying within the curtilage of a structure being excluded from the ambit of a "protected structure".

In all the circumstances I am satisfied that the decision of this Court delivered on the 14^th January, 2003, does not involve the point of law identified by the applicants on this application and furthermore that in the circumstances it has not been shown that the point of law is one of "exceptional public importance."

With regard to the second point identified there were on the hearing of the application before this Court no disputed facts between the parties and accordingly no such question arises. The determination of this Court was on an interpretation of the statute and on an agreed factual matrix. I accept the submission of counsel for the Board that the judgment of this Court was not one predicated on actual factual findings. Accordingly, I am satisfied that the second point of law identified by the applicants is in all the circumstances neither one of exceptional public importance nor is it one that is involved in the decision of this Court. I am furthermore satisfied that the points identified cannot be such that it is desirable in the public interest that an appeal should be taken to the Supreme Court. In the circumstances I will refuse this application.

Approved: Ó Caoimh J.