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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Callaghan -v- An Bord Pleanala & ors [2015] IEHC 493 (24 July 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H493.html
Cite as: [2015] IEHC 493
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Judgment
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Neutral Citation [2015] IEHC 493 THE HIGH COURT COMMERCIAL [2014 No. 647 J.R.]
[2014 No. 170 COM] IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT 2000 ACT, AS AMENDED BETWEEN JOHN CALLAGHAN APPLICANT AND
AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND
ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND AND NORTH MEATH WIND FARM LIMITED NOTICE PARTIES JUDGMENT of Ms. Justice Costello delivered the 24th day of July, 2015 1. On 11th June, 2015, I gave judgment in this matter and I refused the applicant’s application for leave to seek judicial review in respect of a decision by An Bord Pleanála (“the Board”) to designate the proposed application for a wind farm by the first named notice party to be strategic infrastructure development within the meaning of the Planning and Development (Strategic Infrastructure) Act 2006. The applicant has applied for a certificate for leave to appeal in respect of that judgment. The applicant seeks a certificate on three points of law which he says are of exceptional public importance in the following terms:-
(a) It is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanala reaching an opinion pursuant to Section 37A of the Planning and Development Act 2000. (b) It precludes or effectively precludes An Bord Pleanala, when reaching its decision whether to grant or refuse permission, from reaching a decision on the question of whether the proposed development would be of strategic, economic or social importance to the State and/or would contribute substantially to the fulfilment of any of the objectives of the National Spatial Strategy or any regional planning guidelines for the time being in force different to that reached when forming its opinion pursuant to Section 37A(2) of the Planning and Development Act 2000. (c) It fails to properly transpose Directive 2011/92 into Irish law by failing to ensure that there is effective public participation in the decision-making process at a time when all options were still open to the decision maker.”
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 (Kenny). 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 (Raiu). 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.”
6. The point raised must be important to cases other than the case in issue, it must transcend the facts of the particular case and help in the resolution of future cases. It must also be of exceptional importance. I consider this aspect below. 7. It is a separate requirement that it is also desirable in the public interest that an appeal should be taken. As was pointed out by Baker J., clarity and certainty in the common law is a desirable end in itself and important for the administration of justice. So if it can be shown that the law is uncertain then the public interest suggests that an appeal is warranted. Obviously this is not always the case. In Arklow Holidays Limited v. An Bord Pleanála & Ors [2008] IEHC 2, Clarke J. held that there was a point of exceptional public importance but the delay in bringing forward absolutely necessary public infrastructure (a waste water treatment plant) meant that an appeal was not in the public interest. In this case there has been no significant delay in relation to necessary public infrastructure. 8. In the case of People Over Wind v. An Bord Pleanála & Ors [2015] IEHC 393, Haughton J. was asked to certify points of law in relation to a judicial review relating to a large wind farm which was to be developed by Coillte. In opposing the certificate, Coillte argued that the inevitable delay consequent upon such an appeal would have very damaging commercial consequences such that the development might in fact not proceed. It was pointed out that the proposed development, if carried out, would contribute very significantly to the renewable energy targets of the State. Haughton J. held that essentially this was a private commercial interest and while it was a factor to be taken into account in the court’s assessment as to whether or not the grant of a certificate was in the best interest of the public, it was not determinative. 9. Similar considerations apply in this case. The proposed development, if carried out, is likely to contribute significantly to the State’s renewable energy targets. However, it is a private development being carried out for commercial gain. Therefore, the fact that the delay may have an extremely detrimental impact upon the commercial viability of the project is a factor to which the Court may have regard but it is not determinative of the matter, notwithstanding the potential to contribute significantly to the State’s renewable energy targets. 10. It is, of course, clear that the intention of the Oireachtas was that in the majority of cases judicial review of decisions made under the planning code would be determined finally by the High Court and there would, in most cases, be no appeal. This is the reason why the jurisdiction to grant a certificate to appeal should be exercised sparingly. But this in no way detracts from the fact that in appropriate cases, if the court is otherwise satisfied that the point raised is of exceptional public importance and that it is in the best interest of the public that the appeal be taken then a certificate should properly be granted. 11. The crucial point I have to consider is whether there is uncertainty in the law in relation to each point of the applicant’s three points. If there is no uncertainty then it is clear from Glancré Teoranta (and the many cases in which it has been followed) that a certificate for leave to appeal must be refused. Uncertainty 13. The applicant argues that the point raised is novel and the law is uncertain because it is a new point raised for the first time (assuming, as I must for the purposes of determining of whether or not to grant a certificate for leave to appeal, that my judgment may be wrong) and therefore, would benefit from a ruling by the Court of Appeal or the Supreme Court. The respondents and the notice party argue that the law is certain and that the applicant cannot impute uncertainty to the law where none exists simply by raising an argument which, in fact, the court has rejected. This is in line with point 9 in MacMenamin J.’s judgment in Glancré Teotranta. 14. It seems to me the fact that a point of law is novel does not of itself answer the question whether or not the law on this point is certain or uncertain. The fact that the point is novel and the issue was raised in the case for the first time logically does not mean that there is no uncertainty in the law. There must always be a first case when a point is raised. However, equally logically (as was accepted by counsel for the applicant), the law may be clear even though there is no decided authority on the point. 15. The respondents and the notice party pointed to the fact that this legislative regime has been in operation for nine years and there had been no challenge along the lines advanced by the applicant during those nine years and therefore, they argued it was clear there was no uncertainty in the day to day operation of the law. The applicant pointed to the fact that in Arklow Holdings, the relevant provision had been in operation for twelve years and no challenge had been taken and nonetheless Clarke J. held that there was uncertainty in the law (even though he had refused the application for judicial review) and he refused to grant a certificate on the grounds that it was not desirable in the public interest that an appeal be taken. It follows that I cannot conclude that the law is clear simply because no challenge was brought to these provisions in the nine years since the statute was enacted. 16. It seems to me that the Court, therefore, must have regard to the individual point of law raised in order to assess whether that particular point is unclear or uncertain. In doing so, I wish to emphasise that the Court is not assessing the merits of the argument or assessing the strength of the appeal. This was made abundantly clear by Morris J. in Lancefort Limited v. An Bord Pleanála (Unreported, High Court, Morris J., 23rd July, 1997) when he held that the court was not to look at the merits of the arguments which resulted in the decision (which it was sought to appeal) but to the decision itself. 17. In People Over Wind v. An Bord Pleanála, Haughton J. stated at para. 20:-
19. In Dunnes Stores v. An Bord Pleanála & Ors [2015] IEHC 387, McGovern J. at paras. 14-16 stated:-
15. In circumstances where the court has held that s. 37(1)(b) is clear and unambiguous, there is no difficult point of law in which the views of the Court of Appeal or Supreme Court are required for the public interest. The court is also entitled to take into account the nature of the development and the issues involved in the case and the potential consequences of a significant further delay in the matter being resolved by the court. 16. Merely raising a question as to a point of law does not point to its uncertainty. The decision of this Court on the judicial review applies the legislative scheme in an unexceptional fashion and was stated to be clear and unambiguous. In those circumstances, there is no difficult point of law in which the views of the Court of Appeal or Supreme Court are required for the public interest….” 20. In my view the law is clear in relation to the applicant’s points (b) and (c). In relation to point (b), the issue was resolved by applying ordinary rules of statutory interpretation. There is no evolving jurisprudence in relation to prejudgment which can give rise to uncertainty as to its application in this instance. For the reasons outlined in my judgment of 11th June, 2015, I was satisfied that this argument was incorrect and I am not satisfied that the law is uncertain in relation to this point and following Dunnes Stores therefore I refuse a certificate of leave to appeal in respect of this point. 21. Point (c) was resolved by the application of established decisions of the CJEU (or the EJC) to the statutory scheme. Of particular significance in this regard is the fact that the case of C-416/10 Križan and Others v. Slovenská inšpekcia životného prostredia says that it is a matter for the national courts to assess whether or not there is effective public participation in the decision-making process at a time when all options were still open to the decision-maker. This effectively is the first point of appeal raised by the applicant. On the basis of my analysis of the national law, I concluded that all options were open and I do not believe that the law is evolving or uncertain in relation to the application of the Križan test to the national procedure. I therefore refuse a certificate in respect of this point. 22. The situation is different in relation to the first issue. The first issue raises the question as to whether or not the applicant is entitled to fair procedures in respect of the pre-application process mandated by the s.37A procedure in the Act of 2000, as amended. In Dellway Investments Limited v. NAMA [2011] 4 I.R. 1 at para. 460, Fennelly J. stated:-
23. I reached the conclusion that there was no substantial ground raised by the applicant in relation to this point because of my construction of the operation of s.37A procedure. Based on that construction, I therefore concluded that any right to fair procedures was not triggered. As was the case of Morris J. in Lancefort, my opinion has not changed in that regard. However, the very point of leave to appeal is that the High Court may have made an error. It is salutatory to note that in Dellway, a divisional court of the High Court held that the applicant’s claimed rights to fair procedures were not engaged and this decision was overturned unanimously by a Supreme Court of seven judges. 24. If the applicant has a right to participate in the pre-application procedures under s.37A, which right is not afforded to him in the present statutory scheme, in my opinion that is a matter of exceptional public importance and it is desirable in the public interest that an appeal be taken in respect of this question. Therefore a certificate for leave to appeal should be granted. In my judgment this is so even taking into account the contribution the proposed development, if carried out, would make to the State’s renewable energy targets and the risk that the project might fail entirely on commercial grounds by reason of the delay inherent in an appeal against my judgment. Kenny v An Bord Pleanála
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 was 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. Enterprise Ltd. v. An Bord Pleanála [1994] 2 I.R. 128 and Costco v. An Bord Pleanála (Unreported, High Court, Smyth J., 18th March, 1999). 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. 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.” Conclusion 28. On the other hand I am satisfied that in point (a) the applicant has raised a point of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal or the Supreme Court. I certify that the applicant may appeal the judgment of 11th June, 2015, as follows:-
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