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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Halpin v An Bord Pleanala (Approved) [2020] IEHC 218 (15 May 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC218.html
Cite as: [2020] IEHC 218
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APPROVED
THE HIGH COURT
JUDICIAL REVIEW
2016 No. 637 J.R.
BETWEEN
NIALL HALPIN
(SUING BY HIS MOTHER AND NEXT FRIEND EILEEN HALPIN)
APPLICANT
AND
AN BORD PLEANÁLA
MEATH COUNTY COUNCIL
GREENFIELD VENTURES LIMITED
RESPONDENT
NOTICE PARTIES
JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 15 May 2020
INTRODUCTION .................................................................................................................................................. 2
LEGAL TEST GOVERNING LEAVE TO APPEAL............................................................................................ 2
NEW APPELLATE ARCHITECTURE UNDER THE CONSTITUTION ........................................................... 5
DRAFT POINT OF LAW ...................................................................................................................................... 8
THE PROCEEDINGS BEFORE THE HIGH COURT.......................................................................................... 9
PLEADING POINT ............................................................................................................................................. 13
DETAILED DISCUSSION ................................................................................................................................ 17
PRINCIPAL JUDGMENT: THE “DECISION” OF THE HIGH COURT .......................................................... 17
NO UNCERTAINTY / PRECEDENTIAL VALUE IS NIL................................................................................ 21
APPEAL NOT DESIRABLE IN PUBLIC INTEREST ....................................................................................... 26
CONCLUSION AND FORM OF ORDER .......................................................................................................... 31
NO REDACTION REQUIRED
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2
INTRODUCTION
(“the principal judgment”), this court held that a decision of An Bord Pleanála to grant
planning permission for development consisting of an “anaerobic digester plant” was
invalid. This second, supplementary judgment is delivered in respect of an application
for leave to appeal to the Court of Appeal. The within proceedings are subject to the
special statutory judicial review procedure provided for under Sections 50 and 50A of
the Planning and Development Act 2000 (“the PDA 2000”). One of the features of the
procedure is that there is no automatic right of appeal to the Court of Appeal; rather, it is
necessary for a putative appellant to obtain leave to appeal from the High Court.
2. An Bord Pleanála has identified a point of law in respect of which it seeks leave to appeal
(“the draft point of law”). The parties have exchanged written legal submissions on this
point, and the application for leave to appeal was heard by way of a remote or virtual
hearing on 1 May 2020.
3. The applicant for planning permission, Greenfield Ventures Ltd, (hereinafter “the
Developer”) has not participated in the judicial review proceedings at any stage.
LEGAL TEST GOVERNING LEAVE TO APPEAL
4. Sub-sections 50A(7) and (8) of the PDA 2000 provide as follows:
(7) 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].
(8) Subsection (7) shall not apply to a determination of the Court in so
far as it involves a question as to the validity of any law having regard
to the provisions of the Constitution.
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5. The sub-sections had originally referred to “the Supreme Court”, but by virtue of
Section 75 of the Court of Appeal Act 2014, this is now to be read as a reference to “the
Court of Appeal”.
6. It should be noted that the form of the certified point of law operates to define the Court
of Appeal’s jurisdiction on the appeal. See Section 50A(11) of the PDA 2000, as follows:
(11) On an appeal from a determination of the Court in respect of an
application referred to in subsection (10), [the Court of Appeal]
shall—
(a) have jurisdiction to determine only the point of law certified
by the Court under subsection (7) (and to make only such
order in the proceedings as follows from such determination),
and
(b) in determining the appeal, act as expeditiously as possible
consistent with the administration of justice.
7. The leading judgment on the interpretation of the statutory criteria governing the grant
of leave to appeal remains that of the High Court (MacMenamin J.) in Glancré
out ten principles or considerations 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 (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.
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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.”
8. Several of these considerations are “in play” in this case. The parties are in disagreement
on the following issues (i) whether there is any uncertainty in the law; (ii) whether the
draft point of law transcends the facts of the case; and (iii) whether the second limb of
the statutory test is met, namely whether an appeal to the Court of Appeal is desirable in
the public interest.
9. There have been a number of legal developments since the delivery of the landmark
judgment in Glancré in July 2006 as follows.
10. The first development is the establishment of the Court of Appeal and the reordering of
the Supreme Court’s jurisdiction. This has implications for the High Court in the
discharge of its certifying role under Section 50A(7) of the PDA 2000. Moreover, the
case law of the Supreme Court in relation to the exercise of its constitutional jurisdiction
to grant leave to appeal may provide some guidance, by analogy, for the High Court in
the exercise of its own statutory jurisdiction. I will elaborate on this first development
under the next heading below.
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11. The second development is the introduction, under the Planning and Development
(Amendment) Act 2010, of special rules in relation to the legal costs of certain types of
environmental litigation. These rules are set out at Section 50B of the amended PDA
2000, and give effect to inter alia the requirements of the Environmental Impact
Assessment Directive (2011/92/EU) (“the EIA Directive”). Member States are obliged
to provide a “review procedure” which is “fair, equitable, timely and not prohibitively
expensive”. The “review procedure” is also applicable to development projects which
are subject to the public participation provisions of the Directive on the control of major-
accident hazards involving dangerous substances (2012/18/EU) (“the Seveso III
Directive”). I will return to this point at paragraph 81 below when discussing the second
limb of the statutory test, namely whether it is desirable in the public interest that an
appeal should be taken.
NEW APPELLATE ARCHITECTURE UNDER THE CONSTITUTION
12. Following on from the establishment of the Court of Appeal in October 2014, an appeal
from a decision of the High Court in respect of a challenge to a planning permission
might, in principle, be brought before either the Court of Appeal or the Supreme Court.
13. The gateway to the Supreme Court differs in four significant respects from that which
controls access to the Court of Appeal. First, access to the Supreme Court is controlled
by the Supreme Court itself; the High Court has no function in this regard and cannot
grant leave to appeal. Secondly, the criteria for leave to appeal are different for the two
appellate courts. In one respect, the criteria for leave to appeal to the Supreme Court are
less onerous: it is enough that the decision of the High Court involves a “matter” of
“general public importance”, which is a lesser standard than a “point of law” of
“exceptional public importance” under Section 50A(7) of the PDA 2000. In another
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respect, however, the criteria are more onerous: there is an additional requirement to
satisfy the Supreme Court that there are exceptional circumstances warranting a direct
appeal to it. Thirdly, the application to the Supreme Court is a paper-based application,
i.e. the Supreme Court usually determines the matter on the basis of the written notices
filed by the parties, and there is not normally an oral hearing. Fourthly, it seems that
access to the Supreme Court cannot be limited by legislation, whereas there can be
legislative exceptions to the Court of Appeal’s jurisdiction (save in cases which involve
questions as to the constitutional validity of any law). (Pepper Finance Corporation v.
Cannon [2020] IESC 2, [27]).
be appropriate for High Court judges, in considering whether to grant a certificate of
leave to appeal, to at least have regard to the new constitutional architecture. More
specifically, the High Court should have regard to the fact that an appeal to the Supreme
Court under the leapfrog provisions of Article 34.5.4° is open, but also have regard to the
fact that an appeal to the Court of Appeal should remain the more normal route for
appeals from the High Court.
15. Notwithstanding the differences between the constitutional test and the statutory test
governing access to the two appellate courts, the Supreme Court’s case law on the
determination of an application for leave to appeal provides valuable guidance to the
High Court. In particular, the distinction drawn between (i) the interpretation of, and
(ii) the application of, legal principles can usefully be applied by analogy. The case law
of the Supreme Court indicates that it will not normally be enough for a putative appellant
to complain that the High Court did not properly apply established legal principles to the
particular facts of the case; rather it seems that the basis of any appeal must be that the
very legal principles relied upon by the High Court judge were incorrect.
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16. This distinction has been explained as follows by the Supreme Court in B.S. v. Director
of Public Prosecutions [2017] IESCDET 134.
“It obviously follows from what has just been set out that it can rarely
be the case that the application of well established principles to the
particular facts of the relevant proceedings can give rise to an issue
of general public importance. It must, of course, be recognised that
general principles operate at a range of levels. There may be matters
at the highest level of generality which can be described as the
fundamental principles applying to the area of law in question.
Below that there may well be established jurisprudence on the proper
approach of a Court to the application of such general principles in
particular types of circumstances which are likely to occur on a
regular basis. The mere fact that, at a high level of generality, it may
be said that the general principles are well established does not, in
and of itself, mean that the way in which such principles may be
properly applied in different types of circumstances may not itself
potentially give rise to an issue which would meet the constitutional
threshold.
However, having said that, the more the questions which might arise
on appeal approach the end of the spectrum where they include the
application of any principles which might be described as having any
general application to the facts of an individual case, the less it will
be possible to say that any issue of general public importance arises.*
There will, necessarily, be a question of degree or judgment required
in forming an assessment in that regard in respect of any particular
application for leave to appeal. However, the overall approach to
leave is clear. Unless it can be said that the case has the potential to
influence true matters of principle rather than the application of those
matters of principle to the specific facts of the case in question then
the constitutional threshold will not be met.”
*Emphasis (italics) added.
17. An example of this approach being applied to a planning case is provided by Buckley v.
An Bord Pleanála [2018] IESCDET 45. The Supreme Court refused leave to appeal in
circumstances where the judgment of the High Court had merely entailed the application
of well-established principles of planning law to the facts of the case. An example of a
determination falling on the other side of the line is Fitzpatrick v. An Bord Pleanála
[2018] IESCDET 61. An Bord Pleanála has placed particular reliance on this
determination, and I will return to discuss it at paragraph 61 below.
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18. The most recent Supreme Court determination in respect of planning law proceedings
appears to be that in Heather Hill Management Company clg v. An Bord Pleanála
[2020] IESCDET 39. The determination found that the decision of the High Court (from
which it was sought to appeal) had involved the application of well-established law on
the interpretation of development plans to the facts of the case, and did not, itself, raise
any novel issue of law. Insofar as the High Court’s decision had addressed the test
governing screening for the purposes of Article 6 of the Habitats Directive, the Supreme
Court’s determination noted that the application of the same legal test to different facts
may give rise to different outcomes, but that does not itself give rise to any issue of law
of general public importance.
DRAFT POINT OF LAW
19. The point of law in respect of which An Bord Pleanála seeks leave to appeal is as follows:
“Is the O’Keeffe standard of review to be applied on the basis of the
Court’s own analysis and understanding of the technical material on
which the decision-maker made its decision, or is the question to be
asked whether the technical material was capable, on analysis by a
decisionmaker with relevant scientific expertise, of supporting the
decision reached?”
20. The concerns underlying this draft point of law have been explained as follows by leading
counsel for An Bord Pleanála in her submission on 1 May 2020. Whereas it is accepted
that the principal judgment “ostensibly” acknowledges and purports to apply the
principles in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, it is the actual application
of those principles which is a matter of concern for the Board. The principal judgment
is said to represent a “significant shift” in the established jurisprudence. It is most
unusual for an applicant to succeed on O’Keeffe grounds, especially in circumstances
where the Board’s decision or direction expressly identifies the material relied upon by
the Board for the purpose of making its decision.
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21. On the correct application of the O’Keeffe principles, a court cannot carry out a
“substantive analysis” of the material in order to form a view itself whether the material
is capable of sustaining the conclusion of the expert decision-maker. Whereas the court
can ascertain that the material relied upon by the decision-maker is what it says it is, the
court cannot “drill down” into the material.
22. The Supreme Court’s determination in Fitzpatrick v. An Bord Pleanála
[2018] IESCDET 61 is cited as authority for the proposition that the application, in a particular
case, of even well-established principles is capable of giving rise to important legal issues
which ought to be considered by the appellate courts.
23. The Board emphasises that considerations of legal costs do not form part of the statutory
test for the grant of leave to appeal. Whereas An Bord Pleanála has indicated that it
would not seek any order for costs in respect of the High Court proceedings in the event
an appeal were successful, no concession is offered in respect of the costs before the
Court of Appeal.
THE PROCEEDINGS BEFORE THE HIGH COURT
24. The within proceedings involved a challenge to a decision of An Bord Pleanála to grant
planning permission for development consisting principally of what has been described
as an “anaerobic digester plant”. The anaerobic digestion process has been described in
the planning application as involving the natural breakdown of organic material by
bacteria in the absence of oxygen. The process inputs will include cow slurry, hen
manure and silage. The products of this process are biogas (including a mixture of
methane, carbon dioxide, oxygen and hydrogen sulphide), and digestate (a compost like
organic fertiliser). The biogas is to be fed to a combined heat and power (“CHP”) plant
which will generate renewable electricity for export to the national grid.
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25. The Applicant for judicial review had advanced his challenge under a number of grounds.
All but one of these were resolved in favour of An Bord Pleanála by the principal
judgment. Leave to appeal is sought in respect of the High Court’s decision in respect
of An Bord Pleanála’s approach to the Seveso III Directive (Directive 2012/18/EU on
the control of major-accident hazards involving dangerous substances).
26. The Seveso III Directive has been transposed into domestic law by the Control of Major
Accident Regulations 2015 (“the COMA Regulations 2015”), and by Part 11 of the
Planning and Development Regulations 2001 (as amended) (“the Planning
Regulations”). In brief, if an application for planning permission relates to a proposed
development which represents an “establishment” for the purposes of the Seveso III
Directive, then additional requirements must be complied with by the local planning
authority and by An Bord Pleanála in their processing of the planning application. These
requirements are set out inter alia at Part 11 of the Planning Regulations. There are also
obligations imposed by the COMA Regulations 2015 themselves (see, for example,
Regulations 8 and 24).
27. The dispute in the main proceedings turned on whether the proposed anaerobic digester
plant constitutes a “lower-tier establishment” for the purpose of the Seveso III Directive.
The anaerobic digestion process will give rise to the generation of biogas, which will
include methane, oxygen and hydrogen sulphide, all of which qualify as Seveso III
substances. (See page 3 of the Byrne Ó Cléirigh Consulting report). If the proposed
development is likely to involve the bulk storage of biogas in excess of 10 tonnes, then
it constitutes a “lower-tier establishment”.
28. The thresholds under the Seveso III Directive and the COMA Regulations 2015 are
referable to the maximum quantities which are present or are likely to be present at any
one time. See Note 3 to Schedule 1 of the COMA Regulations 2015 as follows.
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“3. The qualifying quantities set out above relate to each establishment.
The quantities to be considered for the application of the relevant
Regulations of these Regulations are the maximum quantities which
are present or are likely to be present at any one time. Dangerous
substances present at an establishment only in quantities equal to or
less than 2 % of the relevant qualifying quantity shall be ignored for
the purposes of calculating the total quantity present if their location
within an establishment is such that it cannot act as an initiator of a
major accident elsewhere at that establishment.”
29. One of the unusual features of the case is that the COMA Regulations 2015 came into
effect after the exchange of submissions in the planning appeal had ended. Thus, neither
the Developer nor the Applicant addressed An Bord Pleanála directly on this issue.
30. An Bord Pleanála made a decision, in principle, to grant planning permission on
2 September 2015. The Board subsequently identified a need for further clarification in
relation to the COMA Regulations 2015. The Board decided to seek “expert advice” on
this issue. More specifically, Byrne Ó Clearigh Consulting Engineers were “assigned”
to prepare an “independent report” on the matter. This report was prepared on 13 April
2016 (“the BOC report”). See the affidavit of the Secretary of An Bord Pleanála, Mr
Chris Clarke, of 2 November 2017 (page 5).
31. The conclusions of the BOC report are stated as follows:
“5. CONCLUSIONS AND RECOMMENDATIONS
The only material that we have identified at the proposed Greenfield
Ventures facility that qualifies as a Seveso substance is biogas.
Based on our assessment of the three vessels that will be used to store
biogas, the normal operating inventory of biogas at the site is likely to
be less than 10 tonnes, which is the threshold for qualification as a
lower tier establishment.
However, based on our understanding of the process the maximum
biogas storage capacity at the site will vary, depending on the liquid
levels in the vessels. The total capacities of these vessels is sufficient
to store up to 21.57 tonnes at atmospheric pressure, or 23.73 tonnes if
the vessels were pressurised to 1.1 bar.
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It is not credible that the full tonnes capacity could be used for biogas
storage, as this would require the removal of all liquid from the vessels
and that they were filled to capacity at the same time with biogas.
However, we cannot determine, based on the information available,
what the maximum capacity is and so we cannot determine if the site
could store more than 10 tonnes of biogas at one time.
For this reason we recommend that if, APB decides to grant permission
for the development, there would be a condition imposed so that the
operator would have to:
• Demonstrate that the maximum quantity of biogas present on
the site at one time could never exceed 10 tonnes. This would
have to be done by implementing suitable operational controls
to limit the biogas quantities (e.g. monitoring liquid levels in
tanks, monitoring biogas concentrations in the vapour spaces of
the tanks, use of flaring to manage inventory if required or other
measures).
OR
• Proceed on the basis that the site is a lower tier establishment
and prepare and issue a notification to that effect. In this case
the operator will also need to ensure that they meet the
requirements of SI 209 of 2015 (the Seveso III Regulations).”
32. The Board Direction of 12 May 2016 indicates that a condition “as recommended” by
the BOC report was being attached to the planning permission.
“[…] For the avoidance of doubt, and to align with the report
prepared by Byrne O’Cleirigh, the Board included a condition, as
recommended in the Byrne O’Cleirigh report, limiting the volume of
biogas that can be present on site at any one time to not exceed 10
tonnes.”
33. In fact, the condition actually imposed fell short of that recommended. Mr Boland in his
affidavit of 6 September 2019 acknowledges that the condition is
“not precisely the same" as that mooted in the BOC report. This is
because condition no. 3 does not require the developer to
‘demonstrate that the maximum quantity of biogas present on the site
at any one time could never exceed 10 tonnes’.”
34. The wording of the Board Direction in this regard is described in An Bord Pleanála’s
written submissions as containing “infelicitous language”.
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PLEADING POINT
35. As appears at paragraphs 54 to 66 of the principal judgment, An Bord Pleanála had raised
a pleading point during the course of the hearing in May 2019. This point was resolved
against the Board for the reasons set out in the principal judgment.
36. An Bord Pleanála has sought, for the purposes of the application for leave to appeal, to
place indirect reliance on the fact of the pleading point having been decided against it.
The Board states that it will not, generally, be concerned with the precedential value of a
decision as to whether a particular argument in a particular case has been properly
pleaded, and considers that such a point will usually be confined to the pleadings and
facts of the particular case and will be unlikely to constitute a “point of exceptional public
importance” within the meaning of section 50A(7) of the PDA 2000. (Written
submissions, 4 February 2020, paragraph 4).
37. The Board nevertheless contends that the fact that it has not had an opportunity to respond
to the point on which certiorari has been granted is a relevant consideration in the
application for leave to appeal. In particular, the Board is seeking to adduce affidavit
evidence for the purposes of grounding this application for leave to appeal to the Court
of Appeal. In this regard, one of the Board members who made the decision impugned
in the proceedings, Mr Conall Boland, has sworn an affidavit, dated 6 September 2019,
to explain the basis on which the Board concluded that the proposed development would
not be a Seveso “establishment”. The affidavit sets out the relevant qualifications and
expertise of the members of An Bord Pleanála, including, in particular, that of Mr Boland
himself and of Dr Mary Kelly, the former chairperson of An Bord Pleanála. The affidavit
then summarises the BOC report; the planning application documentation; and the
Board’s expert analysis of same. Mr Boland summarises his conclusions as follows:
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“19. Conclusion: The three strands when brought together provided a
clear and satisfactory picture of the operation of the proposed AD
facility. The BOC report established that storage of gas in the tanks’
gas storage roof space (even combining all three tanks) would be well
below the SEVESO threshold. The application documentation
indicated that gas will be stored in the roofspace above the biomass
within the tank and tapped-off for combustion, as opposed to being
stored in large volumes within the tanks themselves. Operationally,
the scenario of the three tanks and roof spaces all being substantially
filled with gas at the same time such that the 10 tonne limit is
exceeded was considered by the Board to be implausible and clearly
inconsistent with both the developer’s stated position and our
knowledge and understanding of the normal operational approach to
AD.
20. The Board was therefore in a position to conclude that there was no
likelihood of the 10 tonne limit for biogas being exceeded. The
foregoing has already been summarised in paragraph 3 of the Board
Direction dated May 12th 2016. It is acknowledged that the
conclusion drawn was less tentative than that contained in the BOC
report referred to above, nevertheless this was a rational and informed
judgement on our behalf, informed by the documentation before us
as well as our knowledge and understanding of how AD facilities
work.
21. The imposition of Condition 3, taken with Condition 2 (which
restricts the quantity of feedstock and prohibits any change in the mix
of wastes indicated without a further grant of planning permission for
same), represented a ‘belt and brace’ approach, providing reassurance
that the capacity of biogas stored at any time would be maintained
within the appropriate limits. Operations have to be maintained in
accordance with the details provided (Conditions 1 and 2). This
ensured that no alterations to the physical or operational aspects of
the facility could take place that would push the facility into being a
SEVESO tier 2 facility.”
38. Counsel for the Applicant has objected to the introduction of this affidavit evidence. It
is submitted that it must follow from the absence of any attempted appeal on the pleading
point, that this court must assume that the pleading point had been properly decided. It
is not under appeal. On this assumption, the Board cannot be said to have been taken by
surprise at the hearing in May 2019, and there can be no basis for the Board seeking to
introduce evidence post-judgment.
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39. These submissions are, strictly speaking, correct. The Court of Appeal’s jurisdiction is
confined to the point of law as certified by the High Court: see section 50A(11) of the
PDA 2000. The pleading point would not, therefore, be before the Court of Appeal.
Moreover, a pleading point will rarely represent a point of law of “exceptional public
importance”, for the reasons identified by An Bord Pleanála in its own submission.
Indeed, there is a risk that were a certificate of leave to appeal to extend to a pleading
point, it might detract from the point of actual concern to An Bord Pleanála, namely the
application of the principles in O’Keeffe v. An Bord Pleanála. Had leave to appeal been
sought on the pleading point, and were the Court of Appeal to decide the pleading point
in favour of An Bord Pleanála, then the appeal would be resolved on that narrow case-
specific basis. It would not then be necessary for the Court of Appeal to decide the point
of actual concern to An Bord Pleanála.
40. Given these considerations, An Bord Pleanála cannot be faulted for formulating the draft
point of law as it has done. The drafting is admirably concise, and identifies with
precision the point of law of actual concern. It properly excludes the pleading point.
41. I have given careful consideration to the correctness of my finding on the pleading point,
and, indeed, the parties had been expressly invited by the court at an earlier stage to
consider whether it should exercise its exceptional jurisdiction to reopen the principal
judgment on that point. Written submissions were exchanged between the parties in this
regard. Both parties submitted that the principal judgment should not be reopened. The
ruling on the pleading point thus stands and is not under appeal.
42. Nevertheless, I have decided that the Board is entitled to rely on Mr Boland’s affidavit
for the following reasons. It follows by necessary implication from section 50A(11) of
the PDA 2000 that the parties to an appeal will, generally, be confined at the hearing of
the appeal to the affidavit evidence which had been filed before the High Court. It is
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16
important, therefore, that all parties be afforded an opportunity to present such evidence
as they wish to the High Court. Such evidence should, of course, normally be filed prior
to the substantive hearing before the High Court.
43. Given the unusual circumstances of the present case, however, an exception is justified,
and the affidavit evidence will be admitted. The Board has submitted that had it
understood from the pleadings that the Board’s own conclusion that the proposed
development did not constitute an “establishment” for the purposes of the Seveso III
Directive was being challenged in the judicial review proceedings (as opposed to a
challenge to the correctness of the BOC report), then it would have adduced evidence of
the type now contained in Mr Boland’s affidavit.
44. It seems to me, however, that one pragmatic solution to the potential difficulties
presented by section 50A(11) of the PDA 2000 is to admit the affidavit evidence. (I will
refer to the relevant extracts from the affidavit in context in the discussion below). The
belated admission of the affidavit can cause no prejudice to the Applicant. The details
provided as to An Bord Pleanála’s expertise cannot seriously be disputed. Insofar as the
explanation provided in the affidavit of the Board’s rationale for its decision on the
Seveso III Directive issues is concerned, this explanation is not new and had largely been
presaged by the submissions made by counsel for An Bord Pleanála at the hearing of the
substantive judicial review in May 2019. (The relevant arguments are summarised at
paragraphs 80 to 87 of the principal judgment. See also paragraph 11 of Mr Clarke’s
affidavit).
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DETAILED DISCUSSION
PRINCIPAL JUDGMENT: THE “DECISION” OF THE HIGH COURT
45. The “decision” of the High Court in respect of which leave to appeal is sought under
section 50A(7) of the PDA 2000 comprises three principal findings as follows. First, that
An Bord Pleanála’s screening assessment for the purposes of the Seveso III Directive
was subject to the attenuated form of review allowed under the O’Keeffe v. An Bord
Pleanála principles. As expressly stated in the principal judgment, the court accepted
that An Bord Pleanála’s decision attracted curial deference. Secondly, that there was no
material before An Bord Pleanála capable of supporting its decision that the anaerobic
digester plant was not likely to exceed the 10,000 tonnes threshold. Thirdly, that there
was a material error of fact in An Bord Pleanála’s decision insofar as the Board appears
to have thought that it was attaching a condition “as recommended” by the BOC report.
46. Each of these three findings is consistent with the well-established domestic case law in
respect of the High Court’s supervisory jurisdiction in judicial review proceedings. Put
otherwise, none of these three findings can be said to give rise to “uncertainty” in the
law, as required under the Glancré test.
47. The first finding follows, by analogy, from the judgment of the High Court in
Harrington v. An Bord Pleanála [2005] IEHC 344; [2006] 1 IR 388.
48. The second finding involves a faithful application of the O’Keeffe v. An Bord Pleanála
principles. The oft-quoted passage from Finlay C.J. explains that one of the
circumstances in which a court can intervene to set aside a planning decision is where
there had been no material before the decision-maker capable of supporting the decision.
The High Court must thus consider the material before the decision-maker. Counsel for
An Bord Pleanála accepts that the High Court is entitled to consider the material to a
limited extent, but submits that the court cannot “drill into” the substance of the material.
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This, it is said, is especially so where, as in the present case, An Bord Pleanála had
expressly identified the material relied upon, namely the two extracts from the
Developer’s submission on the planning application cited in the Board Direction.
49. With respect, this is precisely the nature of the exercise carried out in the principal
judgment. The court was not seeking to “second-guess” An Bord Pleanála’s assessment
or to substitute its views for those of An Bord Pleanála. Rather, the court made the
obvious point that the very limited material before An Bord Pleanála was inadequate to
allow it to reach a definitive determination that there was no likelihood of the 10,000
tonnes threshold being exceeded. This is explained as follows in the principal judgment:
“92. Even applying curial deference, I am satisfied that—on the very
unusual facts of the present case—the conclusions which An Bord
Pleanála reached in relation to the Seveso III Directive were
unreasonable and irrational in the sense that there was simply no
material before the board capable of justifying its conclusions.
93. In this regard, there are two aspects of the board’s direction of 12
May 2016 which are of concern. First, the board concluded that there
was no likelihood of the 10 tonne limit for biogas being exceeded.
This conclusion was said to be based on the “technical information”
provided by the Developer. However, when one considers the
documentation actually relied upon by An Bord Pleanála, it is
incapable of supporting this conclusion. (The relevant extracts have
been set out at paragraphs 69 and 70 above).
94. The information is presented in the most vague and general terms.
There is no detail provided as to how the proposed anaerobic digester
plant is to be operated. No indication is given of the volume of gases
to be produced. There is no attempt to identify what fractions of the
biogas produced will constitute substances for the purposes of the
Seveso III Directive or the COMA Regulations 2015. The statement
that ‘long term storage (build-up) of gas’ does not occur at the site is
unexplained: no figures are given for the volume of gas involved nor
what is meant by ‘long term’. No explanation is provided for the
statement that the ‘combined storage capacity on site is less than
24 hrs’.
95. There is no express reference to the threshold of 10 tonnes nor any
statement that this would not be exceeded. Indeed, both submissions
on the part of the Developer predated the coming into force of the
COMA Regulations 2015 on 1 June 2015.
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96. These omissions have to be seen against a factual background where
the actual capacity of the tanks could, in theory, accommodate in
excess of 21 tonnes of biogas. (See BOC report, page 10). Even
allowing that the full of capacity would not be dedicated to biogas,
no one reading these two submissions on behalf of the Developer
could know whether the lesser figure of the 10 tonne threshold would
be exceeded.
97. The lack of detail in the information provided by the Developer had
previously been criticised by the inspector in her report of 23 April
2013 (albeit not in the specific context of the Seveso III Directive).
The BOC report also states that the authors could not determine,
based on the information available, what the maximum capacity of
the vessels/tanks is and could not determine if the site could store
more than 10 tonnes of biogas at one time. Whereas An Bord
Pleanála is not, of course, bound by the recommendation in these
reports as a matter of law, it is telling that both the inspector and the
experts considered the information to be deficient.
98. I have carefully considered the materials relied upon by An Bord
Pleanála, and there is nothing which supports the conclusion
purported to have been reached by An Bord Pleanála.
99. As appears from An Bord Pleanála’s verifying affidavit, the members
of An Bord Pleanála, in October 2015, had been alive to the
possibility that the development might trigger the then newly
commenced COMA Regulations 2015, and this is the reason the
board had commissioned the BOC Report. See paragraph 4(q) of
Chris Clarke’s affidavit of 2 November 2017, and the exhibited board
direction of 30 October 2015. Notwithstanding this, the board
ultimately purported to resolve this issue by reference to the
documentation previously submitted by the Developer and not by
reference to the expert report.”
50. There is nothing surprising in this finding. It is entirely consistent with the earlier
decision of An Bord Pleanála to seek independent expert advice on the application of the
Seveso III Directive by way of the BOC report. It is implicit in this that An Bord Pleanála
did not consider that it had the competence to determine this issue itself. The finding is
also consistent with the conclusions of the report produced by the external experts,
namely the BOC report. It is also consistent with the earlier warning by An Bord
Pleanála’s inspector that the information was inadequate.
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51. None of this is changed by the content of the post-judgment affidavit of Mr Boland. The
most that Mr Boland suggests is that, in his experience, the controlled operation of an
anaerobic digester plant is unlikely to result in a build-up of gas in excess of the threshold.
52. The difficulty, however, is that the independent experts engaged by An Bord Pleanála
had indicated that a condition regulating the operation of the plant was necessary to
demonstrate that the maximum quantity of biogas present on the site at one time could
never exceed 10 tonnes. As discussed below, An Bord Pleanála failed to attach a
planning condition “as recommended” by the BOC report.
53. Moreover, the first condition to the planning permission, which is a standard type
condition requiring that the development be carried out in accordance with the plans and
particulars lodged with the planning application, does not refer to the submission made
on behalf of the Developer by Simon Clear & Associates on 30 March 2015. These
particulars, accordingly, do not form part of the planning permission. See, by analogy,
Lanigan v. Barry [2016] IESC 46; [2016] 1 I.R. 656.
54. The assumption underlying the Board Direction and Mr Boland’s affidavit would only
hold good had An Bord Pleanála actually put a condition in place requiring the controlled
operation of the proposed development. The Board did not do so.
55. An Bord Pleanála was not a neutral observer in the decision-making process, rather they
were the competent authority for the purposes of the PDA 2000 and for the Seveso III
Directive. An Bord Pleanála had an obligation to ensure compliance with the Seveso III
Directive in the context of land use planning.
56. The third finding is closely related to the second finding discussed above. The Board
Direction indicated that it was attaching a condition “as recommended” in the BOC
report. The issue is addressed as follows in the principal judgment:
“100. The second aspect of concern is that the members of An Bord
Pleanála appear to have thought that they were attaching the
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21
condition as recommended in the BOC report. In truth, the condition
actually imposed, namely Condition No. 3, falls far short of the type
of condition envisaged by the authors of the BOC report. Contrary
to the recommendation, Condition No. 3 does not require the
Developer to demonstrate that the maximum quantity of biogas
present on the site at one time could never exceed 10 tonnes. The
condition is not prescriptive in respect of the ‘suitable operational
controls’ to be implemented in order to limit the biogas quantities,
e.g. monitoring liquid levels in tanks, monitoring biogas
concentrations in the vapour spaces of the tanks, use of flaring to
manage inventory if required or other measures.
101. Put shortly, Condition No. 3 merely states an outcome, but does not
require the Developer to demonstrate compliance with that outcome,
nor does the condition put in place any controls to ensure that that
outcome is achieved.
102. Thus the board was mistaken in thinking that it had attached the
recommended condition. Notwithstanding the skilful submissions of
counsel, I cannot accept that the board merely attached a condition
“for the avoidance of doubt” but that this condition was not intended
to be the condition recommended by the BOC report. The board’s
direction expressly states that the board included a condition as
recommended in the BOC report. See also paragraph 11 of Mr
Clarke’s affidavit.”
57. This is a material error of fact, and, as such, vitiates the decision to grant planning
permission.
NO UNCERTAINTY / PRECEDENTIAL VALUE IS NIL
58. The judgment in Glancré indicates that, in order for leave to appeal to be granted, the
law in question must stand in a “state of uncertainty”. Uncertainty cannot be “imputed”
to the law by an intended appellant simply 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.
59. The principles have been summarised very recently by the High Court (Barniville J.) in
Shillelagh Quarries Ltd v. An Bord Pleanála [2020] IEHC 22, [47].
“In considering whether a point of law is of ‘exceptional public
importance’, an important task for the court is to determine whether
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22
the law in question, to which the point of law relates, is in a state of
uncertainty or is evolving. That was one of the fundamental
principles summarized by MacMenamin J. in Glancré. It was also
stressed by Baker J. in the High Court in Ógalas, by McGovern J. in
the High Court in Dunne Stores, by Haughton J. in the High Court in
People Over Wind and by Costello J. in the High Court in Callaghan.
If the law is not uncertain, then the court will generally conclude that
the point of law raised is not of ‘exceptional public importance’.
Where the law is in a state of uncertainty and, in particular, where the
law is evolving in the area, the court will generally be satisfied that
the point of law in question is one of ‘exceptional public importance’
[…].”
60. The principal judgment cannot realistically be said to give rise to a “state of uncertainty”.
Nor can the law in this area be said to be “evolving”. First, the principal judgment
expressly endorses the principles in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 and
Meadows v. Minister for Justice Equality and Law Reform [2010] IESC 3;
[2010] 2 IR 701. Indeed, An Bord Pleanála accepts that the principal judgment
“ostensibly” applied these principles, but the Board goes on to suggest that the
application of same was erroneous. For the reasons set out by the Supreme Court in
B.S. v. Director of Public Prosecutions [2017] IESCDET 134; Buckley v. An Bord
Pleanála [2018] IESCDET 45; and Heather Hill Management Company clg v. An Bord
Pleanála [2020] IESCDET 39, the application of well-established principles will rarely
give rise to a point of law of “general importance” (nor, by analogy, to a point of law of
exceptional public importance”).
61. It is correct, of course, to say that the application of a general principle may require
further consideration. This was the approach adopted, for example, in Fitzpatrick v. An
Bord Pleanála [2018] IESCDET 61.
6. However, it must also be acknowledged, as this Court pointed out in
its recent decisions in B.S. and PWC that issues of principle can
operate at differing levels of generality. The mere fact that there may
not be a dispute as to the overall broad principles applicable to a case
does not mean that there may not still potentially be issues of
importance concerning the way in which those general principles are
to apply in a particular category of case although, of course, as has
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23
been pointed out, the closer one comes to the application of such more
detailed matters of principle to the facts of an individual case the
further one gets away from there being an issue of general public
importance or, indeed, an issue of European law which would require
a reference to the Court of Justice. In saying that, the Court would not
wish to express any view on whether the threshold for issues of
‘general public importance’ as specified in the 33rd Amendment may
or may not be the same or similar to the criteria by reference to which
a court of final appeal would have to identify whether there truly was
an issue of European Union law involved in the case whose resolution
was necessary to resolve the proceedings thus requiring a reference.
7. There is no doubt that the case law of the Court of Justice and
Opinions of Advocates General in this area give considerable
guidance as to the general principles which are to be applied in a case
where, as here, there is a prospect that the project for which specific
permission is sought may involve expansion or continuation. The
question is whether it is possible to resolve this case by the
application of that established jurisprudence without having to
consider issues concerning the potential application of broad general
principles to the particular type of case with which the Courts are here
involved.
8. At this point the Court is not persuaded that it can safely be said that
there might not be a point of general importance concerning the
application of the broad general principles identified in the case law
to a category of case such as this. In saying so the Court would wish
to emphasise that it is not, at this stage, to be taken as in any way
indicating that such a point necessarily arises but rather that one of
the matters which the Court will have to consider is whether such a
point arises and whether, if that be so, this Court is obliged to make
a reference to the Court of Justice under the CILFIT jurisprudence.
The Court would emphasise that the CILFIT jurisprudence places a
significant obligation on a court of final appeal in cases such as this.”
62. The present case is distinguishable from that under consideration in Fitzpatrick. In that
case, the principles governing the assessment of development projects which were
subject to potential future expansion were said to be found in an Advocate General’s
Opinion which had been delivered in 1994, in Case C-396/92, Bund Naturschutz in
Bayern (EU:C:1994:179). The Opinion had never been formally endorsed by the Court
of Justice. Indeed, the specific issue does not appear to have been discussed in any detail
in the subsequent case law of either the Court of Justice or of the domestic courts.
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24
63. By contrast, the principles in issue in the present case, namely the O’Keeffe principles,
are ones which have been cited and consistently endorsed by the courts for almost thirty
years. There are literally hundreds of cases endorsing those principles.
64. More fundamentally, perhaps, the draft point of law does not actually seek clarification
of the O’Keeffe v. An Bord Pleanála principles. The question as formulated admits of
only one answer, namely that the correct application of the O’Keeffe principles is that
posited in the second limb:
“[T]he question to be asked [is] whether the technical material was
capable, on analysis by a decisionmaker with relevant scientific
expertise, of supporting the decision reached?”
65. In truth, An Bord Pleanála is seeking to correct what it believes to be the incorrect
application of the O’Keeffe v. An Bord Pleanála principles to a particular case, rather
than seeking any clarification as to the underlying principles. In the context of nearly
any other statutory decision-making, the decision-maker would be entitled to bring an
appeal to correct such an alleged error. However, in the specific context of the planning
legislation, the Oireachtas have chosen, for policy reasons, to strike a different balance
between finality in planning matters and an entitlement to appeal.
66. For reasons similar to those expressed by the Supreme Court in B.S. v. Director of Public
Prosecutions [2017] IESCDET 134, the more the questions which might arise on appeal
approach the end of the spectrum where they concern the application of general principles
to the facts of an individual case, the weaker the grounds for saying that an appeal would
raise a point of law of exceptional public importance.
67. An Bord Pleanála’s expressed concern is that the principal judgment may represent a
“significant shift” in the jurisprudence. With respect, any such concern is not well
founded. The principal judgment is of almost nil precedential value because it arose out
of a very unusual set of circumstances, as follows.
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25
(i). The principal judgment was concerned with the determination made by An Bord
Pleanála in respect of the threshold issue of whether the proposed anaerobic
digester plant constituted an “establishment” for the purposes of the Seveso III
Directive. Whereas the principal judgment held that even this threshold
determination attracted curial deference, the decision-making involved is very
different from that involved in a decision to grant or refuse planning permission.
The latter decision entails the exercise of a very wide discretion in respect of
planning policy. The principal judgment cannot be “read across” to such
decisions.
(ii). The sequence of events in respect of the planning appeal were very unusual. In
particular, the COMA Regulations 2015 came into effect after the exchange of
submissions in the planning appeal had ended. Thus, neither the Developer nor
the Applicant addressed An Bord Pleanála directly on this issue. Indeed, it
appears that a decision in principle to grant planning permission had already been
made by An Bord Pleanála before the implications of the 2015 Regulations were
addressed by the Board itself. (See Chris Clarke’s affidavit, paragraph 4(p)).
(iii). Whereas the ultimate decision resides with An Bord Pleanála, and the Board is
not bound by the recommendation of the BOC report, it is nevertheless significant
that An Bord Pleanála felt the need to seek independent expert advice. (See Chris
Clarke’s affidavit, paragraph 4(r)). It is also significant that the Board reached its
decision based on precisely the same information which had been available to it
prior to its referring the matter to the external experts. (This is to be contrasted
with a number of recent High Court judgments where the Board’s decision not to
follow a recommendation of its inspector had been based on further information
obtained subsequent to the date of the inspector’s report).
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26
(iv). An Bord Pleanála had purported to impose a condition “as recommended” by the
BOC report. The Board Direction is factually incorrect in this respect.
68. It seems highly unlikely that a similar confluence of events will arise in another case.
69. It is also telling that—notwithstanding that twelve months have passed since the principal
judgment was delivered—An Bord Pleanála has not specifically identified any other
proceedings in which that judgment has been relied upon as a precedent by a party.
Counsel for An Bord Pleanála pointed out that had the principal judgment been cited, the
Board would have objected to its being relied upon on the basis that it was the subject of
an application for leave to appeal to the Court of Appeal. Nevertheless, the very fact that
little or no attempted reliance has been placed on the principal judgment in the
intervening twelve months suggests it has not created any “uncertainty” in the law.
APPEAL NOT DESIRABLE IN PUBLIC INTEREST
70. The second limb of the statutory test under section 50A(7) of the PDA 2000 requires the
High Court to consider whether an appeal to the Court of Appeal is “desirable in the
public interest”. This is a separate consideration from the first limb (Glancré, point 6).
[2007] 4 IR 112, the High Court may decide to refuse leave to appeal even in cases
where the first limb of the test had been met.
71. Given that I have concluded that the draft point of law does not constitute a point of law
of exceptional public importance, it is not, strictly speaking, necessary to consider the
second limb of the test. For the sake of completeness, however, I should say that leave
to appeal would have been refused in any event on the basis that the second limb of the
statutory test is not met. It seems to me that an appeal is not desirable in the present case
for the following two reasons.
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27
72. First and foremost, there is a real risk that the proceedings will become moot before any
appeal can be heard. This is because the impugned planning permission is set to expire
in July 2021. (The permission was granted in 9 June 2016, and will cease to have effect
in accordance with the withering provisions under section 40 of the PDA 2000 unless
implemented within five years and 45 days).
73. Counsel for An Bord Pleanála suggested that an application might be made for an early
hearing of the appeal. However, in circumstances where the Developer has not
participated in the judicial review proceedings at any stage, and, in particular, has not
sought to expedite the proceedings, there would appear to be an air of artificiality in
seeking an early hearing. If the beneficiary of the planning permission does not take any
steps to progress judicial review proceedings, then it would appear difficult to justify
those proceedings gaining priority over other cases.
74. It would not seem fair to put the Applicant to the hazard on costs in respect of an appeal
which may well become moot. In this regard, whereas An Bord Pleanála has indicated
that it would not seek any order for costs in respect of the High Court proceedings in the
event an appeal were to be successful, no concession is offered in respect of the costs
before the Court of Appeal.
75. Secondly, there has already been inordinate delay in the progress of these proceedings.
The relevant chronology is as follows.
Page 28 ⇓
28
9 June 2016
An Bord Pleanála’s decision to grant planning permission
29 July 2016
Leave to apply for judicial review granted
6 November 2017
An Bord Pleanála files opposition papers
30 April 2019
Hearing of substantive application for judicial review
24 May 2019
Reserved judgment delivered
1 May 2020
Hearing of application for leave to appeal to Court of
Appeal
15 May 2020
Reserved judgment delivered
76. There appears to have been significant delay on the part of An Bord Pleanála in filing its
opposition papers in the within proceedings. The Applicant had to issue two motions in
this regard.
77. The overall delay in the planning process is even greater when one considers the earlier
procedural history. The planning application itself had been made to the planning
authority on 20 March 2012, that is over eight years ago. An Bord Pleanála’s initial
decision on the planning appeal (30 May 2013) had been set aside by the High Court,
with the consent of the parties, on 8 July 2014 in separate judicial review proceedings
(Record Number 2013 No. 609 J.R.). The planning appeal was then remitted to An Bord
Pleanála for further consideration.
78. The case law indicates that the High Court may take “delay” into account when
considering whether an appeal is desirable in the public interest. In most instances, this
will work in favour of a developer. Leave to appeal a decision which upholds a planning
permission may be refused where the court considers that it would be contrary to the
public interest to allow an appeal which would further delay an important development
[2007] 4 IR 112, [24].
“The public interest, in an issue such as this, needs to take into
account the nature of the development proposed and the potential
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29
consequences of a significant further delay in the matter being finally
disposed of before the courts.”.
79. The issue of delay can, however, cut the other way. Judicial review proceedings should
not remain outstanding for years at a time. A party seeking judicial review is entitled to
have his or her proceedings determined in a timely manner. This principle is stated as
follows in Glancré, at paragraph 36 of the judgment.
“Secondly it has been well established that it is an aim of the
legislature in enacting the planning legislation that certainty and
finality be promoted in planning decisions and that challenges hereto
should be dealt with expeditiously. To permit a further appeal would
not serve that aim.”
80. The courts are under a statutory obligation “to act as expeditiously as possible consistent
with the administration of justice” in determining statutory judicial review proceedings
under the PDA 2000 (see section 50A(10)). It would not be in keeping with the spirit of
this statutory obligation to prolong these 2016 judicial review proceedings further by
allowing leave to appeal. This is especially so where, as in the present case, there has
been a significant legislative development during the course of the planning appeal,
namely the transposition of the Seveso III Directive into domestic law by the Control of
Major Accident Regulations 2015.
81. Although not decisive, I note that Member States are obliged under article 11 of the EIA
Directive to provide a “review procedure” which is “fair, equitable, timely and not
prohibitively expensive”. The “review procedure” is also applicable to projects which
are subject to the public participation provisions of the Seveso III Directive (see
article 23(b)). The requirement that the review procedure be “timely” resonates with the
statutory obligation “to act as expeditiously as possible consistent with the administration
of justice”.
82. In the event that the Developer continues to have an intention to pursue the development
of an anaerobic digester plant, then it would seem preferable that this be done by way of
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30
its making a fresh application for planning permission, by reference to the amended
legislation, rather than for leave to appeal to the Court of Appeal to be granted, and a
planning application first submitted in 2012 to be kept alive.
83. Finally, for the sake of completeness, it should be recorded that An Bord Pleanála relies
on the fact of the pleading point having been decided against it as being relevant to the
second limb of the statutory test. It is said that it would not be in the public interest for
a decision of the High Court which is regarded as significant by An Bord Pleanála to go
unappealed in circumstances where, it is suggested, the Board had not had a full
opportunity to address the issue by way of affidavit evidence. Counsel cites the judgment
84. Such considerations would only ever arise in a case where the first limb of the statutory
test has been met. These considerations could not convert a point of law, which does not
reach the threshold of an “exceptional” point of law, into a certifiable point. The two
limbs of the statutory test are cumulative. For the reasons set out earlier, there is no
uncertainty in the law which would justify granting leave to appeal on the draft point of
law. Moreover, any alleged prejudice to An Bord Pleanála has, in any event, been
addressed by the admission of Mr Boland’s affidavit. Further, the content of that
affidavit had largely been presaged by the submissions made by counsel for An Bord
Pleanála at the hearing of the substantive judicial review in May 2019. (The relevant
arguments are summarised at paragraphs 80 to 87 of the principal judgment. See also
paragraph 11 of Mr Clarke’s affidavit).
Page 31 ⇓
31
CONCLUSION AND FORM OF ORDER
85. The application for leave to appeal pursuant to Section 50A(7) of the PDA 2000 is
dismissed.
86. The attention of the parties is drawn to the practice direction issued on 24 March 2020 in
respect of the delivery of judgments electronically, as follows.
“The parties will be invited to communicate electronically with the
Court on issues arising (if any) out of the judgment such as the precise
form of order which requires to be made or questions concerning
costs. If there are such issues and the parties do not agree in this
regard concise written submissions should be filed electronically with
the Office of the Court within 14 days of delivery subject to any other
direction given in the judgment. Unless the interests of justice require
an oral hearing to resolve such matters then any issues thereby arising
will be dealt with remotely and any ruling which the Court is required
to make will also be published on the website and will include a
synopsis of the relevant submissions made, where appropriate.”
87. The parties are invited to engage in correspondence inter se on the question of costs, to
include the costs of the substantive application for judicial review, and the costs of the
application for leave to appeal to the Court of Appeal. In the event that the parties cannot
reach a consensus as to the appropriate costs order to be made, then each side should file
short written legal submissions electronically in the Central Office of the High Court,
and send a copy of same by email to the Registrar assigned to this case, within twenty-
one days of the date of this judgment.
Appearances
Neil Steen, SC and Niall Handy for the Applicant instructed by O’Reilly & Co Solicitors
Nuala Butler, SC and Fintan Valentine for An Bord Pleanála instructed by Fieldfisher Ireland
Result: Leave To Appeal To The Court of Appeal Refused.