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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Shillelagh Quarries Ltd v An Bord Pleanala [2020] IEHC 22 (24 January 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC22.html
Cite as: [2020] IEHC 22
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THE HIGH COURT
COMMERCIAL
JUDICIAL REVIEW
[2020] IEHC 22
[2017/542 J.R.]
BETWEEN
SHILLELAGH QUARRIES LIMITED
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
RACHEL MCCOY
(AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF MICHAEL MCCOY), (DECEASED)
NOTICE PARTY
JUDGMENT of Mr. Justice David Barniville delivered on the 24th day of January, 2020
Introduction
1. This is my judgment on an application by the applicant for leave to appeal to the Court of
Appeal pursuant to s. 50A(7) of the Planning and Development Act, 2000 (as amended)
(the “2000 Act (as amended)”) from a decision made by me in a judgment delivered on
12th June, 2019 in which I refused the applicant’s application for judicial review in respect
of a decision of the respondent, An Bord Pleanála (the “Board”) dated 18th May, 2017. In
its decision, the Board had refused to grant the applicant leave under s. 261A(24)(a) of
the 2000 Act (as amended) to apply for substitute consent in respect of the applicant’s
quarry under s.177C of the Act.
2. The applicant contends that leave to appeal should be granted on the basis of two points
or questions which it says involve points of law of exceptional public importance and in
respect of which the applicant says it is desirable in the public interest that an appeal
should be taken to the Court of Appeal.
3. For the reasons set out in this judgment, I have concluded that the applicant has not
established that my decision involves a point or points of law of exceptional public
importance or that it is desirable in the public interest that an appeal should be taken
from my decision to the Court of Appeal. Therefore, I refuse the applicant’s application for
leave to appeal.
Points of law raised by the applicant
4. The applicant has put forward two points or questions which it has asked the court to
certify as being points of law of exceptional public importance, which it is desirable in the
public interest should be taken by way of appeal to the Court of Appeal. Those questions
are as follows:-
“(1) What is the true construction of the phrase ‘the quarry commenced operation
before 1 October 1964’ contained in section 261A(24)(a)(i)(I) of the 2000 Act (as
amended)?
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(2) What is the true scope and application of the court’s jurisdiction to quash an
administrative decision on grounds of an error on the face of the record?”
The principal judgment
General
5. Before considering the provisions of s. 50A(7) of the 2000 Act (as amended) and the legal
principles applicable to the applicant’s application for leave to appeal, I should make
reference to some aspects of the judgment which I gave on 12th June, 2019, on the
applicant’s application for judicial review in respect of the Board’s decision (the “principal
judgment”). The principal judgment bears the neutral citation [2019] IEHC 479.
6. At para. 71 of the principal judgment, I identified the various issues which it was
necessary for me to decide. Among those issues were:-
(1) Whether the Board had correctly interpreted and applied the provisions of s.
261A(24)(a)(i)(I) of the 2000 Act (as amended) in reaching its conclusion that the
applicant’s quarry had not “commenced operation” before 1st October, 1964; and
(2) Whether the errors contained in the decision of the Board, which is recorded in the
Board Order of 18th May, 2017, were such as to require that decision to be
quashed.
7. The points or questions advanced by the applicant in its application for leave to appeal
are intended to address the conclusions which I reached in the principal judgment on
these two issues.
Interpretation of relevant statutory provision
8. I dealt with the question of the correct interpretation (and application) of s.
261A(24)(a)(i)(I) of the 2000 Act (as amended) at paras. 73 to 154 of the principal
judgment.
9. I approached the question of the interpretation of that provision from various
perspectives. First, I considered the terms of the provision itself (paras. 74 to 80 and
paras. 93 to 94 of the principal judgment). Second, I considered the statutory framework
and scheme into which ss. 261A(21)-(24) were inserted, with effect from 22nd July, 2015
(as discussed and considered by the Supreme Court in Sweetman v. An Bord Pleanála
considered the various “gateways” under which leave to apply for substitute consent, or
substitute consent itself, could be obtained and noted that a new “gateway” was provided
for under ss. 261A(21)-(24), with effect from 22nd July, 2015. I considered the particular
circumstances which that new “gateway” was intended to address. One of the
requirements to be met in order to avail of that “gateway” was that the quarry had to
have “commenced operation” before 1st October, 1964.
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10. Third, I considered the European context in which the provisions of ss. 261A(21) – (24)
must be seen (paras. 95 to 105). In that context, I considered the judgment of the CJEU
in Case C-215/06 Commission v. Ireland [2008] ECR I-04911 (“Case C-215/06”) and the
subsequent judgment of the CJEU in Joined Cases C-196/16 and C-197/16 Comune di
Corridonia and Ors v. Provincia di Macerata (judgment given on 26th July, 2017) (“Joined
Cases C-196/16 and C-197/16”) and the consideration given to those cases by the
Supreme Court in Sweetman and McTigue.
11. I particularly noted the comments of Clarke C.J. at paras. 7.6 and 7.7 of his judgment for
the Supreme Court in Sweetman. At para. 7.6, he noted that the jurisprudence of the
CJEU “makes clear that what is described as a system of regularisation in the
environmental context is permissible but only where the system ‘does not offer the
persons concerned the opportunity to circumvent the Community rules... and that it
should remain the exception’. He further noted that the CJEU had held that the previous
Irish system of retention permission, which the CJEU observed “could be issued even
where no exceptional circumstances are proved”, was found to be inconsistent with
European law. At para. 7.7, Clarke C.J. observed that the validity of any scheme for
obtaining retrospective consent, including the substitute consent procedure under the
2000 Act (as amended), in order to be compatible with European law, could “not operate
as a facilitation or encouragement to circumvention of Union rules and can only operate in
exceptional circumstances”.
12. I noted that the Supreme Court in McTigue considered the overall framework and scheme
of the 2000 Act (as amended) and observed that the words used in the section at issue in
that case were “consistent only with a legislative intention to comply with the EIA
Directive” and were “not consistent with a literal interpretation which would permit the
quarry continuing in operation without appropriate conditions as to that operation for
perhaps years to come” (per MacMenamin J. at para. 72). The Supreme Court held that
the literal interpretation of the section at issue in that case (s. 177O) would not reflect the
plain intention of the Oireachtas as ascertained from the Act as a whole, which was to
give effect to the EIA Directive. In that context, I noted that the judgment of the
Supreme Court in McTigue was significant as it highlighted the importance of carefully
considering not only the actual words of the section of the 2000 Act (as amended) which
had to be construed, but also the critical importance of the framework and scheme of the
legislation as well as the European context (paras. 104 and 105 of the principal
judgment).
13. Fourth, I considered the meaning of the words “commenced operation” by reference to
prior case law (paras. 107 to 122). I stated that I found the judgment of Charleton J. in
of “most assistance and relevance for present purposes” (para. 112). In that case,
Charleton J. had interpreted the very same words as are found in the statutory provision
at issue in this case which are also contained in s. 261(7) of the 2000 Act (as amended),
which was the statutory provision at issue in An Taisce (2010), under that provision, in
order to be entitled to a grant of permission under the section, the quarry in question had
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to have “commenced operation” before 1st October, 1964. I set out at some length the
interpretation given to those words in that statutory provision by Charleton J. at paras. 3,
4, 6 and 12 of his judgment (see paras. 112 to 115 of the principal judgment). I then
referred to the subsequent endorsement and application of that approach by Charleton J.
in his subsequent judgment in the High Court in McGrath Limestone Works Limited v. An
14. I concluded that those cases clearly demonstrated the approach which had to be taken by
the Board in considering whether a quarry had “commenced operation” before 1st
October, 1964. The correct interpretation of the statutory words in question required that
there had to have been some quarry operation on the relevant site before 1st October,
1964 and that that operation had to have continued (and not have been abandoned) on a
proportionate basis since then (see para. 121 of the principal judgment). I stated (at
para. 122 of the principal judgment) that I had “no doubt” that that was the correct
approach to the interpretation of the requirement in s. 261A(24)(a)(i)(I) that the quarry
must have “commenced operation” before 1st October, 1964 before the Board could grant
leave to apply for substitute consent in respect of the quarry (as well as having to comply
with all the other requirements contained in ss. 261A(21)-(24)). I expressed the view that
it would be “most unsatisfactory” if that phrase, as used in connection with a quarry, were
to be interpreted differently in this case to the way in which it had been interpreted by
Charleton J. in An Taisce (2010), and elsewhere.
15. Fifth, I was also satisfied that that interpretation of the words at issue better gave effect
to the intention of the Oireachtas, as it could be inferred, not only from the subsection at
issue, but also from the legislative framework and scheme into which s. 261A(24) was
inserted in July, 2015 (paras. 123 to 125). My conclusion in that regard was also heavily
influenced by the European dimension and context as discussed by the Supreme Court in
Sweetman and McTigue.
16. Sixth, I considered that the Barras principle, as a presumption and a guide to
interpretation, was of some (albeit not decisive) assistance to my consideration of the
correct interpretation of the words “commenced operation”, in the context of a quarry in
s. 261A(24)(a) of the 2000 Act (as amended) (paras. 126 to 134).
17. Finally, I considered that the interpretation of the words in the subsection at issue
advanced by the applicant would not be compatible with EU law. In that regard, I was
heavily influenced by the judgments of the CJEU in Case 215/06 and Joined Cases C-
196/16 and C-197/16 (as discussed by the Supreme Court at paras. 7.6 and 7.7 of the
judgment of Clarke C.J. in Sweetman and, for example, at paras. 44, 72, 73 and 76 of the
judgment of MacMenamin J. in McTigue) (paras. 135 to 137 of the principal judgment).
18. I set out my conclusions on the correct interpretation of s. 261A(24)(a)(i)(I) at para. 138
of the principal judgment. I did so both by reference to national law and by reference to
EU law. I concluded that an interpretation of the statutory provision in question which
would allow the Board to find that a quarry had “commenced operation” before 1st
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October, 1964, in circumstances where only limited quarry operations were carried on
before that date and where those operations intensified and increased in the period up to
the date of the application for substitute consent (and I would add here, up to the date of
the application for leave to apply for substitute consent), would run completely counter to
the intention of the Oireachtas as ascertained from the framework and scheme of the
legislation and to the requirements of EU law, as interpreted by the CJEU in Case C-
215/06 and in the subsequent jurisprudence of that court. I concluded that the
interpretation advanced by the applicant did not properly reflect the requirement for the
existence of “exceptional circumstances” in order to enable an applicant to apply for
substitute consent (or, for that matter, for leave to apply for substitute consent) under
the statutory provision at issue and would also afford such an applicant the opportunity to
circumvent Community rules, for the reasons set out at para. 138 of the principal
judgment.
19. It was for those various reasons that I concluded that the interpretation of s.
261A(24)(a)(i)(I) which was advanced and applied by the Board in the impugned decision
was correct and that the interpretation advanced by the applicant was not.
Errors in Board’s decision
20. I dealt with the issue in relation to the errors in the Board Order, which recorded the
decision of the Board, at paras. 162 to 173 of the principal judgment. Four errors in the
Board Order were relied upon by the applicant in the statement of grounds. They were
not, however, addressed in the written submissions served on behalf of the applicant in
advance of the hearing or in the Board’s replying written submissions. The errors in the
Board Order were briefly referred to on behalf of the applicant in opening the application
at the hearing and were dealt with in response on behalf of the Board. Counsel for the
Board referred to some of the relevant cases. His submissions were then responded to on
behalf of the applicant in reply. That is the context in which the question of the errors in
the Board Order came to be considered in the principal judgment.
21. The four errors in the Board Order were referred to at para. 162 of the principal
judgment. I should observe that there is a typographical error at para. 162(2), where the
section referred to should be s. 261A(21)(c) of the 2000 Act (as amended) and not s.
261(21)(c). I considered the cases relied upon by the Board and the submissions made
on behalf of the applicant in relation to those cases in its reply in the principal judgment.
The judgments referred to and considered by me were the judgments of the High Court
v. District Judge Murphy and Others [2011] IEHC 359, of the High Court (Birmingham J.)
and of the Court of Appeal in Ahearn v. Judge Brady and the DPP and Joyce v. Judge
22. I considered each of the errors in the Board Order relied upon by the applicant and
concluded that, in respect of each of them, the error was minor, inconsequential and of
no substance and did not in any way prejudice or mislead the applicant or its advisors
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(paras. 170 to 173). In those circumstances, I was not satisfied that any of the errors in
the Board Order relied upon by the applicant were of any substance and that they were all
insubstantial and inconsequential and did not mislead or prejudice the applicant or its
advisors in any way. In those circumstances, I concluded that the errors did not provide
any basis on which the decision of the Board as recorded in the Board order could be
quashed.
23. Those are the portions of the principal judgment which appear to me to be relevant to the
two points or questions which the applicant has advanced as being points of law of
exceptional public importance which the court should certify for the purposes of an appeal
to the Court of Appeal. Before considering whether either of the two points satisfies the
statutory requirements as considered in the case law, I should briefly refer to the
applicable statutory provision and to the relevant legal principles.
Section 50A(7) of 2000 Act (as amended)
24. The relevant provision of the 2000 Act (as amended) under which leave to appeal from
the decision of the High Court to the Court of Appeal is required is s. 50A(7). Section
50A(7) provides as follows:
“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].”
25. Section 50A(7) originally referred to the Supreme Court. That reference was replaced by
the reference to the Court of Appeal by s. 75 of the Court of Appeal Act, 2014.
26. The term “section 50 leave” is defined in s. 50A(1) as meaning “leave to apply for judicial
review” under O. 84, RSC in respect of a decision of (inter alia) the Board in the
performance or purported performance of a function under the 2000 Act (as amended). It
was agreed between the parties that, in order for the applicant to appeal the decision
contained in the principal judgment, leave to appeal must be obtained under the
provisions of s. 50A(7).
Relevant legal principles
General
27. Before referring to the leading summary of the principles to be applied by the court in
considering an application for leave to appeal, which is to be found in the judgment of
(“Glancré”), it is necessary for the court to bear a number of considerations in mind.
I discussed these considerations and the relevant legal principles in a judgment recently
delivered on 14th January, 2020 in John Conway v. An Bord Pleanála and ors [2020] IEHC4.
Page 7 ⇓
28. First, in considering the points or questions put forward by the applicant as amounting to
points of law of exceptional public importance, the task of the court is not to assess the
merits of the arguments which may be made by the parties in respect of those points or
the strength or prospects of any appeal based upon them. That is not part of the exercise
required to be undertaken by the court. As can be seen from several of the judgments in
this area, the main task of the court in considering whether a point of law is of
exceptional public importance is to determine whether the law with respect to the
particular point advanced is unclear or uncertain (see: Lancefort Limited v. An Bord
Pleanála (unreported, High Court, Morris J., 23rd July, 1997), Arklow Holidays Ltd v. An
29. Second, as pointed out by the Supreme Court in Grace and Sweetman (at para. 3.9), and
as noted recently by Simons J. in Heather Hill Management Company CLG v. An Bord
Pleanála [2019] IEHC 820 (at para. 14), it is necessary for the court which is asked to
grant leave to appeal under s. 50A(7), and to certify a point or points of law under that
section, to have regard to the effect of the 33rd Amendment to the Constitution and the
enactment of the Court of Appeal Act 2014 and to the new “constitutional architecture”
created thereby, whereby an appeal from a decision of the High Court in respect of an
application for leave or for judicial review of a planning decision might potentially be
brought to the Court of Appeal or directly to the Supreme Court. In that regard, in Grace
and Sweetman the Supreme Court stated:
“We would merely add that we consider that it would be appropriate for High Court
judges, in considering whether to grant a certificate, to at least have regard to the
new constitutional architecture, to the fact that an appeal to this Court under the
leapfrog provisions of Article 34.5.4. is open but also to the fact an appeal to the
Court of Appeal should remain the more normal route for appeals from the High
Court.” (para. 3.9, p. 8)
30. Third, as has been pointed out in many of the judgments (including that of Costello J. in
the High Court in Callaghan, at para. 10), the clear intention of the Oireachtas in enacting
s. 50A was that, in most cases, the decision of the High Court on an application for leave
to seek judicial review of a planning decision or on an application for judicial review of
such a decision will be final and, in most cases, there will be no appeal. That is why s.
50A(7) was enacted. An appeal to the Court of Appeal is available where the statutory
requirements of that subsection are complied with. To that it must be added that an
appeal to the Supreme Court may also be available where the requirements of Article
34.5.4 of the Constitution are satisfied.
31. I must consider the applicant’s application for leave to appeal having regard to and taking
full account of those considerations.
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The Glancré principles
32. The leading summary of the principles to be applied by the Court in considering an
application for leave to appeal under s. 50A(7) is that provided by MacMenamin J. in the
High Court in Glancré. The principles set out by MacMenamin J. in that summary (the
“Glancré principles”) have been adopted and applied in almost all, if not all, the available
judgments on such applications. So well-known and so widely applied are those
principles that it is scarcely necessary to repeat them here. However, for ease of
reference, I set them out below.
33. MacMenamin J. summarised the applicable principles in Glancré as follows:
“I am satisfied that a consideration of [the] authorities demonstrates that the
following principles are applicable in the consideration of the issues herein.
1. The requirement [that there be a point of law of exceptional public
importance] 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 the
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
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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” (Per MacMenamin J. at pp. 4- 5)
34. In Ógalas Limited (trading as Homestore and More Limited) v. An Bord Pleanála
principles and continued: -
“ . . . . it is not sufficient for an applicant for a certificate to show that a point of law
emerges in or from a case, but an applicant must show that the point is one of
exceptional public importance and must be one in respect of which there is a
degree of legal uncertainty, more than one referable to the individual facts in a
case. There must be a public interest in requiring that the point of law be clarified
for the common good, but to an extent, if there exists uncertainty in the law, and
because clarity and certainty in the common law is a desirable end in itself, and
important for the administration of justice, if it can be shown the law is uncertain
the public interest suggests an appeal is warranted”
(Per Baker J. at para. 4)
reduced the ten Glancré principles to four essential principles to be applied in an
application such as this. They were: -
“(a) the decision must involve a point of exceptional public importance;
(b) it must be desirable in the public interest that an appeal shall be taken to the
Supreme Court;
(c) there must be an uncertainty as to the law; and
(d) the importance of the point must be public in nature and transcend the individual
facts and parties of any given case.” (per McGovern J. at para. 5)
36. In a helpful discussion and consideration of the applicable principles, Costello J. in the
High Court in Callaghan, discussed the two cumulative requirements under s. 50A(7) as
follows: -
“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. [in Ógalas], clarity and
certainty in the common law is a desirable end in itself and important for the
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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 wastewater
treatment plant) meant that an appeal was not in the public interest. . ..” (Per
Costello J. at paras. 6 and 7)
37. I will proceed to consider the applicant’s application for leave to appeal from the decision
contained in the principal judgment on the basis of the two points or questions put
forward by the applicant in light of the Glancré principles and the further discussion of
those principles in the judgments just referred to, as well as the other considerations
discussed earlier.
Consideration of points of law advanced by the applicant for certification
(A) The first point raised: construction of term that quarry must have “commenced operation”
before 1st October, 1964
Applicant’s position
38. The applicant contends that the first point advanced by him amounts to a point of law of
exceptional public importance and that it is desirable in the public interest that an appeal
should be taken in respect of it to the Court of Appeal. It contends that that the
construction of the phrase at issue, namely, that the quarry must have “commenced
operation” before 1st October, 1964, in order for the Board to be in a position to grant
leave to seek substitute consent under s. 261A(24)(a) of the 2000 Act (as amended) is a
net point of statutory interpretation. It argues that it is a matter of very significant public
importance and notes that the same phrase, namely, “the quarry commenced operation
before 1 October 1964” is contained in at least nine other subsections or subparagraphs
of s. 261A, apart from the subparagraph at issue in this case. While the applicant accepts
that the High Court has addressed the true construction of the phrase on two occasions,
namely, in An Taisce (2010) and in the principal judgment, it maintains that the issue
should be determined by an appellate court and that that is desirable in the public
interest.
39. The applicant submits that, on the ordinary meaning of the words used in s.
261A(24)(a)(i)(I), all that the applicant was required to establish in order to obtain leave
to seek substitute consent was that its quarry had commenced prior to 1st October, 1964
(in circumstances where there was no issue that the applicant operated a quarry). It
contends that the provisions of this statutory provision must be contrasted with the words
used in s. 2(1) of the 2000 Act (as amended) which contains definitions of the terms
“unauthorised use” and “unauthorised works”, as being a use or works, as the case may
be, which “commenced on or after 1 October 1964”. An intensification of use may amount
to a change of use which, if it is “material for planning purposes”, could amount to
development within the 2000 Act (as amended), on the existing authorities. However, the
applicant contends that the words used in the statutory provision at issue in this case are
quite different. It argues that that provision does not require the Board to identify the
Page 11 ⇓
date of commencement of the use of the lands as a quarry or satisfy itself that such use
did not materially intensify over time, such that it might amount to a new use of the
lands. On the contrary, the applicant maintains that all that it had to establish was that it
was the operator of a quarry and that the quarry had “commenced operation” prior to the
relevant date. The applicant contends that, as the Oireachtas is presumed to know the
law, it could have required the quarry operator to prove that the development in question
had commenced prior to 1st October, 1964 but did not do so. It used different words in
the statutory provision at issue which simply required an applicant for leave to apply for
substitute consent to establish that its quarry “commenced operation” prior to 1st
October, 1964. The applicant maintains that if the Oireachtas had intended that the
statutory provision at issue had to be interpreted as requiring the applicant to prove that
the development of a quarry had commenced before the relevant date and had not
materially intensified after that date, it could have expressly so provided but did not.
40. While accepting that the decision contained in the principal judgment is consistent with
the judgment of Charleton J. in the High Court in An Taisce (2010), where the court
construed the same phrase in s. 261(7) of the 2000 Act (as amended), the applicant
submits that the construction given to the section by Charleton J. in that case, and by me
in the principal judgment, is contrary to the plain meaning of the words used in the
statutory provision in question and that it is, therefore, desirable that the correct
construction of the provision should be determined by an appellate court. The applicant
also notes that the phrase construed by Charleton J. in An Taisce (2010) arose in a
different statutory and factual context. Finally, the applicant maintains that EU law does
not require the court to construe the provision at issue as it had done in the principal
judgment. It contends that the provision was intended to remedy a problem for certain
quarry operators who were unable to avail of other “gateways” and to enable them to
obtain leave to apply for substitute consent.
41. For these reasons, the applicant contends that the first point of law advanced by it
amounts to a point of law of exceptional public importance. It further contends that it is
desirable in the public interest that an appeal should be permitted in respect of that point
for a number of reasons. It argues that the point is one of great importance and arises in
several other subsections and subparagraphs of s. 261A and also in s. 261(7) of the 200
Act (as amended). It maintains that the point of law raised transcends the particular facts
of this case and applies to other cases. Finally, it argues that the provision in question is a
remedial one which affords another “gateway” to quarry operators who were unable to
avail of other “gateways” to apply for substitute consent, or leave to apply for substitute
consent, and that there is, therefore, a public interest in the proper construction of the
statutory phrase used being determined by an appellate court.
The Board’s position
42. The Board disputes the contention that the first point raises a point of law of exceptional
public importance. It contends that there is no uncertainty in the law and notes that the
applicant accepts that the construction given by the court in the principal judgment to the
phrase in the provision at issue is consistent with the existing jurisprudence of the High
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Court and, in particular, is identical to that given by Charleton J. in the High Court in An
Taisce (2010). The Board notes that the applicant did not contend in its written
submissions or at the oral hearing that the interpretation given to the phrase by
Charleton J. in An Taisce (2010) was wrong. The Board further argues that it could not be
said that the law in this area is evolving (as was the case in People Over Wind v. An Bord
The Board also disputes the existence of any uncertainty in the law in light of the existing
jurisprudence applied by the court in construing the phrase in question in the principal
judgment.
43. The Board further contends that the applicant has not sought to address how the
construction of the phrase which it has put forward is consistent with EU law and, in
particular, with the judgment of the CJEU in Case C-215/06.
44. The Board also disputes the contention that the issues in this case and, in particular, the
point of statutory interpretation at issue, transcend the facts of the case. It points to the
relatively narrow window of time in which quarry operators could seek to avail of the new
“gateway” introduced by s. 261A(24)(a) of the 2000 Act (as amended). For those
reasons, but principally for the reason that it says there is no uncertainty in the law, the
Board maintains that the first point advanced by the applicant is not a point of law of
exceptional public importance.
45. The Board further contends that it is not desirable in the public interest that an appeal
should be permitted to the Court of Appeal on this point. It takes that position for a
number of reasons. First, it relies on the absence of any uncertainty in the law on the
point or question at issue. Second, it relies on the fact that there has already been an
extensive history of planning applications and appeals and litigation involving the quarry
and its operators. The Board submits that the court is entitled to have to consider
whether facilitating a further court challenge in light of the history of the quarry is in the
public interest. The Board says that it is not. Finally, it argues that the statutory provision
in question has a very narrow focus and that it is unlikely that the particular question
which the court has to determine will arise again or in other cases and, therefore, there is
little public benefit to be associated with an appeal.
Decision on first point
46. I am prepared to accept that the first point advanced by the applicant is an important
point of law. The phrase in question appears in at least ten subsections and
subparagraphs of s. 261A of the 2000 Act (as amended), as well as in s. 261(7), which
was the provision at issue in An Taisce (2010). A decision on the correct construction of
that phrase does, therefore, give rise to a point of law which, I accept, is an important
one. I also accept that a decision on the correct construction of the phrase may be
potentially relevant to other cases, although the issue may not necessarily arise in
relation to the particular statutory provision at issue in this case in many other cases
having regard to the various hurdles which must be overcome under ss. 261A(21)-(24) in
order to avail of the final “gateway” created under those provisions, with effect from 22nd
Page 13 ⇓
July, 2015. While recognising that there may be relatively few, if any, other cases
affected by the construction of the particular statutory provision in question, I cannot rule
out the possibility that some other cases, or another case, may exist within the system to
which the proper construction of the statutory provision may be relevant. I am prepared,
therefore, to accept that the first point advanced by the applicant raises an important
point of law and that it may transcend the facts of this case. However, that is not the end
of the matter. The court must be satisfied that the point of law advanced is one of
“exceptional public importance”. I do not consider that the first point advanced by the
applicant is a point of law of “exceptional public importance” for reasons which I will now
explain.
47. In considering whether a point of law is of “exceptional public importance”, an important
task for the court is to determine whether 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”. In
Callaghan, Costello J. in the High Court referred to the judgment of Haughton J. in the
High Court in People Over Wind where he had rejected the submission that the law on the
correct interpretation of the provision at issue was “settled and certain”. He concluded
that the law was “still evolving” in relation to the point in question and that it was a
“novel issue that has not previously been decided in the Irish courts or, I believe, in the
CJEU” (per Haughton J. in People Over Wind at para. 20) (quoted by Costello J. in
Callaghan at para. 17). Costello J. then observed:-
“Haughton J. [in People Over Wind] referred to the fact that the law in relation to
the Habitats Directive (with which he was concerned) was evolving. It seems to me
that the combination of a novel point in an area of law which is evolving is likely to
lead to the conclusion that the law is unclear and that it would be in the public
interest that the law be clarified.”
(per Costello J. at para. 18).
48. Costello J. concluded that, in respect of one of the points of law advanced, namely, the
extent of the requirements of fair procedures in light of Dellway Investments Limited v.
NAMA [2011] 4 I.R. 1, the law was “evolving and [was] to that extent uncertain” (para.
22). She continued:-
“This is not to say that in every case where a point of fair procedures is raised that
it will follow that the law is uncertain and that a certificate of leave to appeal will
usually be granted (all other factors in Glancré being satisfied). The strategic
infrastructure designation legislation has not been the subject of judicial scrutiny.
Page 14 ⇓
The interface between a novel point on this legislation with the evolving law of fair
procedures and how it is to be applied to this legislation is open to debate. As
Haughton J. said, another view of the law is possible. In my opinion this issue can
be described as uncertain within point 3 of MacMenamin J's decision in Glancré.”
(per Costello J. at para. 22).
49. Unlike the position in Callaghan and in People Over Wind, the correct construction of the
statutory phrase at issue in this case was previously decided in the Irish courts by
Charleton J. in the High Court in An Taisce (2010). Therefore, when the court came to
construe the same phrase in the statutory provision at issue in this case, in the principal
judgment, it was not dealing with a novel point but rather a point which had already been
decided by the High Court. Nor could it be said that the point arose in an area of law
which was evolving or uncertain. On the contrary, the High Court had already construed
the phrase in question, albeit in relation to a different section of the 2000 Act (as
amended), in An Taisce (2010). The position is totally different to that which arose in
People Over Wind and in Callaghan. In both those cases, the issues raised were novel,
had not been the subject of any previous judgment of the Irish courts and arose in the
context of an area of law which was evolving. That is not the case here. I stated at para.
112 of the principal judgment that “of most assistance and relevance” on the question of
the correct construction of the phrase at issue was the judgment of Charleton J. in An
Taisce (2010). Later, at para. 122 of the principal judgment, I stated that it would be
“most unsatisfactory if the phrase ‘commenced operation’ in connection with the quarry
(which is used in various subsections of s. 261A) were to be interpreted differently to the
way in which the phrase was interpreted by Charleton J. in An Taisce (2010) …”. In those
circumstances, while accepting that Charleton J. in An Taisce (2010) was dealing with
same words used in a different statutory provision (s. 261(7)), the interpretation which
he gave to that phrase was one which I followed and applied in the principal judgment.
50. If I had reached a different conclusion on the correct construction of the phrase as used in
s. 261A(24)(a) to that given by Charleton J. in An Taisce (2010) in relation to the same
phrase used in s. 261(7), then it might reasonably be said that some uncertainty exists in
the law and that, as a consequence, the correct construction of the phrase gives rise to a
point of law of “exceptional public importance” for the purposes of s. 50A(7) of the 2000
Act (as amended). However, that is not what happened. I formed the same view as
Charleton J. did and approved of and applied the same construction of the phrase used as
Charleton J. had done. I do not accept that the fact that Charleton J. was dealing with the
phrase in a different section is significant, as both sections are contained in Part XVIII of
the 2000 Act (as amended) concerning quarries and both require consideration as to
whether the quarry had “commenced operation” before the relevant date.
51. In those circumstances, I am not satisfied that any uncertainty exists in the law in
relation to the correct construction of the relevant phrase used in s. 261A(24)(a) of the
2000 Act (as amended), which would enable the court to conclude that the first point
advanced by the applicant gives rise to a point of law of “exceptional public importance”.
Page 15 ⇓
52. I should add that I am not at all satisfied that the applicant has addressed the
consequences and significance of EU law and the EU law context in which the statutory
provision at issue must operate. The construction of the statutory phrase at issue
advanced by the applicant does not, in my view, adequately accommodate the EU law
requirements considered by the CJEU in Case C-215/06 and in subsequent cases, as
discussed and considered by the Supreme Court in Grace and Sweetman and in McTigue.
While submitting that EU law and the context in which the statutory provision at issue
must operate did not require the court to construe the provision in the way in which it did
in the principal judgment, the applicant has not attempted at all to address the EU law
context and the issues raised by it, as they were considered in the principal judgment. In
those circumstances, while accepting, of course, that it is not the task of the court at this
stage to consider the merits of the arguments raised or indeed the strength or prospects
of success of any appeal which might be permitted, the court is entitled to expect that
some argument is advanced on the basis of which it might reasonably be considered that
another view of the law is reasonably or potentially open. However, the court was not
provided with any such arguments directed to the EU law issues in the present case on
the basis of which it might reasonably form that view.
53. In conclusion, therefore, I am not satisfied that the first point advanced by the applicant
amounts to a point of law of “exceptional public importance” as required by s. 50A(7) of
the 2000 Act (as amended), as that provision has been considered in the case law
discussed earlier. In light of that conclusion, it is, strictly speaking, unnecessary for me to
consider whether the applicant has demonstrated that “it is desirable in the public
interest” that an appeal should be permitted on this point since the requirements in s.
50A(7) are cumulative requirements. Nonetheless, I consider this issue separately
towards the end of this judgment by reference to both points of law advanced by the
applicant. I conclude there that the applicant has not demonstrated that it would be
desirable in the public interest to permit the applicant to advance an appeal on this point
or, indeed, on the second point raised it.
(B) The second point raised: errors of law in Board’s decision
Applicant’s position
54. The second point or question put forward by the applicant for certification as a point of
law of “exceptional public importance” is:-
“What is the true scope and application of the court’s jurisdiction to quash an
administrative decision on grounds of an error on the face of the record?”
55. The applicant relies on the errors contained in the Board Order which records the Board’s
decision. It says that the Board Order contains errors on the face of the record and
argues that the scope of the court’s jurisdiction to quash administrative decisions on the
basis of errors of law on the face of the record remains unclear. It refers to the case of
Simple Imports Limited v. Revenue Commissioners [2000] 2 I.R. 243 (“Simple Imports”)
and, in particular, to the judgment of Keane J. in that case, where it was held that a
warrant which contained on its face a statement that it was issued on a basis which was
Page 16 ⇓
not authorised by the statute in question was not valid. The Supreme Court found that
the warrants in question in that case were invalid and had to be quashed. The applicant
also relies on other cases which deal with the jurisdiction to quash administrative
decisions which contain errors of law on the face of the decisions and seeks to rely on
some Irish case law in that regard (including Bannon v. Employment Appeals Tribunal
[1993] I.R. 500). The applicant also notes that more recent authority suggests that an
error on the face of the record may be excused when it is inconsequential, where the
errors are harmless and insubstantial and where nobody was prejudiced or misled by the
errors (referring to the cases considered in the principal judgment including KK, Ahearn
and O’Brien).
56. In relation to the errors in the Board Order, the applicant submits that at least one of the
errors in the order is of clear importance to the validity of the decision as a whole, as it
purports to recite a legislative basis for the decision where the provision referred to does
not provide a basis for it. The applicant contends that that error shows that the decision
was made on a basis not authorised by the 2000 Act (as amended). The error referred to
here is the error recited at para. 162(2) of the principal judgment, which was addressed
at para. 171 of that judgment. The applicant contends that the decision has a very
significant effect on the applicant’s constitutional right to earn a livelihood and that the
errors should be seen in that context. The applicant further contends that the cases
demonstrate that there is a genuine doubt as to whether the jurisdiction to quash
administrative decisions on the basis of an error of law on the face of the record has any
place in the modern law of judicial review. It suggests that if the court were correct in its
principal judgment in describing the errors (including the error referred to at para.
162(2)) as being inconsequential, it follows that the jurisdiction to quash administrative
decisions on this basis can only be exercised in the most exceptional circumstances. The
applicant maintains that there is a tension between the authorities and, in particular,
between the decision of the Supreme Court in Simple Imports and cases such KK and that
it is a matter of public importance that the nature and extent of the court’s jurisdiction to
quash decisions on the basis of an error or errors on the face of the record is clarified.
The Board’s position
57. The Board rejects the contention that the second point advanced by the applicant raises a
point of law of “exceptional public importance”. It notes that in its principal judgment, the
court considered the various arguments on this issue and set out the applicable principles
(at paras. 162-169). The Board asserts that, critically, the applicant does not dispute the
principles set out in the principal judgment and appears to accept that the court correctly
identified those principles. Rather, the applicant appears to contend that the court erred
in the application of the principles to the particular facts of the case. It maintains that the
decision of the court on this issue could not be said, therefore, to transcend the facts of
the case so as to give rise to a point of law of “exceptional public importance”. The Board
further argues that the suggestion by the applicant that there is doubt as to the
jurisdiction to quash decisions which contain an error or errors on the face of the record
does not flow from the authorities relied on or from the decision of the court, as contained
Page 17 ⇓
in the principal judgment. The Board further maintains that the submissions advanced by
the applicant on this point on the application for leave to appeal were not advanced at the
hearing of the substantive application. The applicant did not advance the argument at the
hearing of the substantive application that there are competing authorities in relation to
the jurisdiction of the court to quash an administrative decision which contains an error
on the face of the record.
Decision on second point
58. I do not accept that the second point advanced by the applicant is a point of law of
“exceptional public importance” for the purposes of s. 50A(7) of the 2000 Act (as
amended). I have reached that conclusion for a number of reasons.
59. First, this point of law or question put forward by the applicant was not raised by the
applicant before its application for leave to appeal. As I indicated earlier, while the
applicant did plead in the statement of grounds that the Board Order contained errors on
its face such that the decision should be quashed, the applicant did not provide any
written submissions on that point prior to the hearing of the substantive application and,
as a consequence, the Board did not deal with the point by way of its responding written
submissions. While the applicant did refer to the relevant paragraphs of the statement of
grounds when opening the application at the hearing, no authorities were opened in
support of that part of its application. In its response, the Board referred to the judgment
in KK. The applicant then addressed that case by way of reply and sought to distinguish
it. The applicant did not refer, either in opening the application or in reply, to the
judgment of the Supreme Court in Simple Imports. The applicant did not at any stage
argue during the course of the substantive application that the approach taken in KK was
inconsistent with that taken in Simple Imports or that there was any tension between the
relevant authorities or any doubt as to the jurisdiction of the court to quash decisions,
where appropriate, as containing an error or errors on the face of the record.
60. The issue as to the “true scope and application of the court’s jurisdiction to quash an
administrate decision on grounds of an error on the face of the record” (being the second
point of law put forward by the applicant for certification) was not raised in the
proceedings and was not addressed in the principal judgment. The cases addressed in the
principal judgment were KK and other cases such as Ahearn and O’Brien. It was not
argued by the applicant that those cases did not correctly reflect the relevant law. Nor
was it argued that the court should approach the assessment of the impact of the errors
in the Board’s order by reference to the decision of the Supreme Court in Simple Imports.
In those circumstances, the second point put forward by the applicant for certification
does not arise out of the decision of the High Court as contained in the principal judgment
(as required by the fifth of the Glencré principles).
61. Second, in the principal judgment, the court referred to and applied the judgment brought
to its attention (KK) and other relevant judgments (such as Ahearn and O’Brien). It was
not argued during the course of the substantive application, and is not argued on the
application for leave, that those cases were wrong. However, the applicant now seeks to
Page 18 ⇓
advance a fresh argument based on Simple Imports, which was not made at the
substantive application and was not opened to the court at that stage. In my view, it is an
abuse of the procedure under s. 50A(7) to seek to raise points or arguments at the leave
stage which were not argued at the hearing in order to secure leave to appeal.
62. Third, I am not satisfied that there is any uncertainty in the law in this area. In its
principal judgment, the court referred to the relevant case law and applied the principles
derived from that case law in addressing the claim advanced by the applicant in relation
to the errors contained on the face of the Board Order. The applicant now wishes to rely
on Simple Imports in support of its contention that the court ought to have quashed the
decision of the Board, as recorded in the Board Order, by reason of the errors on the face
of the order. However, apart from the fact that no reference was made to Simple Imports
during the substantive application, it appears to me that that case dealt with an entirely
different situation and has no application in the context of the present case.
63. The decision of the Supreme Court in Simple Imports concerned a challenge to the
validity of warrants issued by a number of District Court judges on foot of which officers
of the Revenue Commissioners entered and searched premises and seized goods which
were alleged to be prohibited and in contravention of customs and excise legislation. The
applicants challenged the validity of the warrants on a number of grounds including on
the ground that the warrants on their face showed a lack of jurisdiction. They failed in the
High Court but succeeded in the Supreme Court. The Supreme Court held that, given the
draconian nature of the powers conferred by the statute, a warrant could not be regarded
as valid which contained on its face a statement that the warrant had been issued on a
basis which was not authorised by statute. The Court held, therefore, that the warrants
were invalid and had to be quashed (see, in particular, the judgment of Keane J. at p.
255). That is completely different to what occurred in the present case.
64. The particular error in the Board Order relied upon by the applicant was the statement in
the Board Order that the Board was refusing leave to apply for substitute consent
pursuant s. 261A(21)(c) of the 2000 Act (as amended) whereas the refusal of leave was
not pursuant to that provision and the Board had expressly noted that the requirements
of that provision were satisfied. The Board’s decision was taken on foot of an application
for leave to apply for substitute consent made by the applicant under the applicable
statutory provisions, namely, ss. 261A(21)-(24) of the 2000 Act (as amended) which
provided for the new “gateway” for obtaining leave to apply for judicial review. I was
satisfied that the Board Order made clear that the applicant’s application for such leave
was considered by the Board in accordance with the provisions of ss. 261A(21)-(24) and
that the Board had decided that such leave should not be granted having regard to the
failure by the applicant to satisfy the requirements of s. 261A(24)(a)(i). I was further
satisfied that the Board Order could have left the applicant in no doubt about that. On
that basis, I concluded that error was minor, inconsequential and of no substance and did
not prejudice or mislead the applicant or its advisors (see para. 171 of the principal
judgment). That is a world apart from what had occurred in Simple Imports, where the
warrants were not issued on foot of an application by the applicants themselves but
Page 19 ⇓
rather by the Revenue Commissioners. The applicants had had no involvement in the
application for the warrants or in the process which led to the decision of the various
District Court judges to issue the warrants. The applicant in the present case made the
application for leave to seek substituted consent and was involved in the process under
which the Board’s decision was ultimately made. In my view, even if the applicant had
referred to and relied upon Simple Imports in the course of the substantive application, it
would not have been of any benefit to him. That case was fundamentally different,
involving as it did a draconian power to enter and search a premises and to seize goods
which were alleged to be prohibited and in contravention of customs and excise
legislation. I do not believe that the Simple Imports would have assisted the applicant at
all, leaving aside the fact that the case was not referred to in any way or relied upon by
the applicant in support of its challenge to the Board’s decision. The case was completely
different for the reasons just outlined.
65. Fourth, I am not satisfied that there is any uncertainty in the law or that the law is
evolving in this area (as it was in People Over Wind and in Callaghan). I applied settled
legal principles derived from well-established case law such as KK and the other
judgments referred to, in dealing with this issue. Since there is no uncertainty in the law,
it cannot be said that an appeal is necessary to resolve any such alleged uncertainty.
66. Fifth, I am not satisfied that the second point advanced by the applicant transcends the
facts of this case. On the contrary, the point was resolved by reference to the particular
errors in the Board Order and the particular context in which they arose. The assessment
was very much dependent on the facts of the particular case and it is, I believe, highly
unlikely that the court’s decision on the point will assist in the resolution of other cases.
67. For these reasons, I am not satisfied that the applicant has shown that the second point
put forward by him is a point of law of “exceptional public importance” as that term is
properly understood under s. 50A(7) of the 2000 Act (as amended) as considered and
discussed in the cases referred to earlier.
68. As I have concluded that the applicant has not satisfied the first of the requirements in s.
50A(7), it is, strictly speaking, unnecessary for me to consider whether he has satisfied
the second requirement, namely, that it is desirable in the public interest that an appeal
should be permitted in respect of this point, as the requirements are cumulative.
However, I have nonetheless proceeded to consider that question in the next section of
this judgment. I have concluded that it would not be desirable in the public interest to
permit an appeal to be taken on either of the points raised by the applicant.
Appeal not desirable in public interest
69. I have found that neither of the points or questions advanced by the applicant in support
of is application for leave to appeal is a point of law of “exceptional public importance”, as
that term is properly understood under s. 50A(7). Even if I were of the view that one or
both of the points advanced by the applicant satisfied that requirement (and I am not),
the applicant would also have to establish that it is “desirable in the public interest” that
an appeal should be taken to the Court of Appeal. I am not satisfied that it is “desirable in
Page 20 ⇓
the public interest” that an appeal be taken to the Court of Appeal in respect of either of
the points advanced by the applicant for the reasons outlined below.
70. It is open to the court to consider a range of different factors and considerations in
forming its view as to whether it is desirable in the public interest that an appeal be taken
from its decision. Various examples of the sort of factors and considerations which can be
taken into account by the court in deciding whether this requirement is satisfied can be
that the particular point raised on behalf of the applicant was a point of law of exceptional
public importance. However, he went on to consider whether it was desirable in the public
interest to grant the certificate sought. He came to the view that it was not. In reaching
that view, Clarke J. considered that the public interest had to take into the account the
nature of the proposed development (in that case a wastewater plant) and “the potential
consequences of a significant further delay in the matter being finally disposed of before
the courts” (para. 24). Clarke J. continued:-
“While it is undoubtedly the case that issues and questions concerning the public
nature of the project involved are not necessarily decisive (it would be wrong to say
that the public importance of the project concerned must necessarily outweigh all
other considerations in the case), such factors are, nonetheless, in my view,
matters which have to be taken into account by the court in assessing whether it is
in the public interest to grant the certificate.” (para. 24)
71. Clarke J. concluded that having regard to the importance of the issue raised by the
applicant, on the one hand, and the importance of the project and the consequences of
the likely delay (were an appeal permitted), it would not be in the public interest to grant
the certificate sought. It should, however, be noted that in a subsequent judgment in
(No.2)”), Clarke J. did grant a certificate to enable the applicant to appeal from his
decision that the applicant was precluded, by virtue of the rule in Henderson v. Henderson
[1843] 3 Hare 100, from pursuing any of the issues in respect of which leave to challenge
the planning permission at issue had been granted. He was satisfied that the first of the
two requirements in s. 50A(7) was satisfied, namely, the point which the applicant sought
to raise was one of “exceptional public importance”. He was also satisfied that the second
requirement was satisfied, namely, that it was desirable in the public interest that an
appeal should be permitted on that point.
72. In Glancré, MacMenamin J. in the High Court held that the applicant had not satisfied
either of the two requirements in s. 50A(7). Among the factors which he took into account
in deciding that it was not desirable in the public interest to permit an appeal in that case
was that the applicant had already had an adequate opportunity of ventilating its
complaints and concerns. MacMenamin J. stated as follows:-
“The applicant has already ventilated his concerns in respect of the proximity
principle once in its appeal before the Board, and once, in rather different fashion in
Page 21 ⇓
these judicial review proceedings. On neither occasion has its arguments been
accepted. I do not consider that the public interest will be served in permitting
those arguments to be made on a third occasion, having regard to the findings
herein. The respondents state that it is not apparent that there is any basis on
which the applicant should be permitted to ask a fourth body (that is the Supreme
Court) to adjudicate on its entitlement to construct a waste recovery plant at
Muingmore following adjudication by Mayo County Council, the Board, and the High
Court. I agree.” (at p. 8)
73. A number of the judgments demonstrate that the existence of uncertainty in the law and
the evolving nature of the law are factors which may be considered not only in relation to
the question as to whether the point of law is one of “exceptional public importance”, but
also on the question as to whether it is “desirable in the public interest” that an appeal
should be permitted. (See: Ógalas (per Baker J. at para. 4) and Callaghan (per Costello J.
at paras. 7, 18 and 26)).
74. These cases illustrate the broad range of factors and considerations which may be taken
into account by the court in determining whether the second of the two requirements in s.
50A(7) is complied with on an application for leave to appeal to the Court of Appeal under
that provision.
75. I have concluded that it not desirable in the public interest that an appeal should be taken
from the decision contained in the principal judgment to the Court of Appeal in respect of
either of the points put forward by the applicant. I have reached that conclusion for a
number of reasons.
76. First, as I have sought to demonstrate in respect of each of the points put forward for
certification by the applicant, neither point or question arises in circumstances where the
law in the particular area is uncertain or is evolving. In the absence of any such
uncertainty or lack of clarity, it cannot be said that it is desirable in the public interest
that an uncertainty or lack of clarity be resolved by an appellate court. If the law were
uncertain or evolving in the particular areas concerned, such as in People Over Wind and
Callaghan, the position might well be different. However, in light of my conclusions that
the law is not uncertain or evolving and does not require clarification, it is not in the
public interest that an appeal should be permitted from my decision.
77. Second, if the applicant in Glancré was found to have had an adequate opportunity to
ventilate its concerns and complaints on the facts of that case (as MacMenamin J. so
found), then that factor applies with even greater force to the applicant in the present
case.
78. At paras. 43 to 70 of the principal judgment, I set out the extensive planning and legal
history of the quarry at issue in these proceedings, starting with the judgment of Costello
J. in Patterson v. Murphy [1978] ILRM 85 (“Patterson”) and continuing up to the
applicant’s second application for leave to apply for substitute consent in November,
2015, which led to the decision of the Board which the applicant sought to challenge in
Page 22 ⇓
these proceedings. I summarised the relevant history in relation to the quarry, at para.
69 of the principal judgment. There, I noted the following:
(1) There is no existing planning permission for the quarry;
(2) Planning permission was refused for the quarry by the Board in December, 2010
following an application brought by the applicant after it was served with a notice
by the planning authority under s. 261(7) of the 2000 Act (as amended). The Board
decided that it was precluded from granting permission in respect of the proposed
development for a number of reasons which were summarised at para. 51 of the
principal judgment;
(3) A challenge to that decision of the Board was rejected by the High Court (Hedigan
(“Shillelagh (2012)”) and a certificate to appeal was refused by the court in 2013.
The various findings made, and conclusions drawn by Hedigan J. were summarised
at paras. 52 to 54 of the principal judgment;
(4) The Board decided in its s. 5 determination in December, 2010 that the
intensification of the use of the quarry, including the use of explosives, constituted
the carrying out of operations which were materially different to the development
carried out on the lands before 1st October, 1964 and that there had, therefore,
been development which was not exempted development (see. paras. 57 to 62 of
the principal judgment);
(5) The s. 5 determination made by the Board was not challenged by the applicant and
the High Court held that it was bound by that determination (McCoy v. Shillelagh
(6) The High Court held that it was bound by the Board’s decision of December, 2010
refusing permission for the quarry (McCoy). The Court of Appeal dismissed the
applicant’s appeal in May, 2017;
(7) The Board refused a previous application by the applicant for leave to apply for
substitute consent in respect of the quarry in a decision made in February, 2014 (as
outlined at paras. 65 to 67 of the principal judgment). Among the findings made by
the Board was that the applicant had not established “exceptional circumstances”,
that regularization of the development would circumvent the purpose and
objectives of the EIA Directive, that the ability to carry out an EIA and for the public
to participate in such an assessment had been impaired, that the development had
and was having significant effects on the environment and that the adverse effects
on the environment could not be remediated to any great extent;
(8) The applicant then made its second application for leave to apply for substitute
consent in November, 2015 which led to the Board’s decision of May, 2017 which
was the subject of the proceedings.
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79. I believe the court is entitled to take into account this history in considering whether it is
desirable in the public interest that an appeal should be permitted. It is, in my view,
relevant that the various proceedings taken, and applications to the Board made, by the
applicant all took place in circumstances where the quarry was unauthorised. A number of
judgments of the High Court have held the quarry to involve unauthorised development
(Patterson, Shillelagh (2012) and McCoy). On two prior occasions (in 2010), the Board
concluded that the use of the lands where the quarry is situated was unlawfully
intensified. The Board’s decision which the applicant sought to challenge in the
proceedings was the second decision of the Board refusing to grant leave to the applicant
to apply for substitute consent. The applicant has brought a number of unsuccessful
applications for judicial review in respect of the quarry (Shillelagh (2012) and McCoy).
The applicant failed to obtain a certificate from Hedigan J. to appeal to the Supreme Court
from his decision in Shillelagh (2012). The judgment on the certificate application is
(2013)”). The applicant did appeal from the decision of Baker J. in McCoy. However, the
Court of Appeal dismissed its appeal in May, 2017 and allowed the applicant a period of
time to enable it to wind down its operations. Quarry operations ceased on 23rd May,
2017 (see para. 64 of the principal judgment).
80. It seems to me that the applicant has had adequate opportunity to persuade the planning
authority, the Board and the courts that it should obtain the various permissions and
consents sought by it and has failed at almost every turn. The findings made and
conclusions drawn in the various decisions of the Board and in the judgments of the
courts to which I have referred in relation to the planning and environmental status of the
quarry are very serious. I believe that I am entitled to take all of this into account in
determining whether the public interest would be served in permitting the applicant to
appeal from the decision contained in the principal judgment. Having done so, I have
concluded that it would not be desirable in the public interest that the applicant should be
permitted to appeal from my decision to the Court of Appeal.
81. Finally, while, I cannot rule out the possibility that some other cases may exist within the
system to which the particular “gateway” provided for in s. 261A(24) may apply, it is
likely that those cases will be very few and far between, in light of the particular
requirements that have to be met in order for a quarry operator to avail of that
“gateway”. This is not a case, therefore, where there are likely to be many cases to which
the court’s decision on the correct construction of the statutory provision at issue will be
relevant. That conclusion applies even more so in the case of the second point advanced
by the applicant in relation to the errors in the Board’s order. Those errors must be seen
in the particular factual context in which they arose, and they are, to that extent, very
fact specific. It seems to me that I am entitled to take into account, in considering the
question of the public interest, that even if the points decided in the principal judgment
may have an effect beyond the particular facts of this case, that effect is likely to be very
limited.
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82. For all of these reasons, in my view, even if the applicant had satisfied the first
requirement in s. 50A(7) and had established that one or both of the points advanced by
it amounted to a point of law of “exceptional public importance”, the applicant has not
satisfied the second requirement of demonstrating that it would be “desirable in the public
interest” that an appeal should be permitted. In my view, for the various reasons
mentioned, it would not be desirable in the public interest that an appeal should be
permitted from my decision.
Conclusion
83. In conclusion, I am not satisfied that either of the points or questions put forward by the
applicant involve points of law of exceptional public importance arising from the decision
contained in the principal judgment. Nor am I satisfied that it is desirable in the public
interest that an appeal should be taken to the Court of Appeal from that decision. On the
contrary, I have concluded that it would not be desirable in the public interest that such
an appeal should be brought. In those circumstances, the cumulative requirements
contained in s. 50A(7) of the 2000 Act (as amended) have not been satisfied by the
applicant.
84. Accordingly, I refuse to grant leave to appeal to the applicant.
Result: Application was refused.