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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Conway v An Bord Pleanala & ors [2020] IEHC 4 (14 January 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC4.html
Cite as: [2020] IEHC 4
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THE HIGH COURT
JUDICIAL REVIEW
[2020] IEHC 4
[2018 No. 1029 J.R.]
IN THE MATTER OF
THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED
BETWEEN
JOHN CONWAY
APPLICANT
AND
AN BORD PLEANALA, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
DUBLIN CITY COUNCIL
NOTICE PARTY
JUDGMENT of Mr. Justice David Barniville delivered on the 14th day of January, 2020
Introduction
1. On 16th July 2019, I gave judgment on the applicant’s application for leave to seek
judicial review of a decision of the first respondent, An Bord Pleanala (the “Board”), to
refuse to grant approval for a development proposed by the notice party, Dublin City
Council (the “Council”) consisting of a civic plaza and other ancillary works at College
Green in Dublin City Centre (the “principal judgment”). The principal judgment bears the
neutral citation [2019] IEHC 525.
2. In the principal judgment, I decided that the applicant did not have a “sufficient interest”
in the matter the subject of the application under the applicable national law (s. 50
A(3)(b) of the Planning and Development Act, 2000 (as amended) (the “2000 Act (as
amended)”), or a “sufficient interest” to bring the proceedings under the relevant
provisions of EU law (Article 11(3) of Directive 2011/92). I concluded, therefore, that the
applicant did not have the required standing to bring the proceedings. As a consequence,
I decided that I had to refuse to grant leave to the applicant to bring the proceedings.
3. The applicant has now sought the leave of the court to appeal from that decision to the
Court of Appeal under s. 50A(7) of the 2000 Act (as amended). The applicant has also
sought to have the principal judgment amended so as expressly to provide that the court
was not refusing to grant leave to the applicant to bring the proceedings, but rather that
the court “would not deal with the issue of leave on account of the applicant’s lack of
standing as so found”. This is my judgment on those applications.
4. For the reasons set out in this judgment, I have concluded that: -
(i) There is no basis for the applicant’s application to amend the principal judgment in
the terms requested by the applicant and I refuse that application;
and,
(ii) 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
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appeal should be taken from my decision to the Court of Appeal and, therefore, I
refuse the application for leave to appeal.
5. I will deal first with the applicant’s application to amend the principal judgment. I will
then deal with the applicant’s application for leave to appeal.
Application to amend principal judgment
The positions adopted by the parties
6. The applicant takes issue with the conclusion stated at para. 91 of the principal judgment
that, since the applicant does not have the requisite standing to bring the proceedings
(under national law or under EU law), I must refuse to grant leave to the applicant to
bring the proceedings. The applicant submits that para. 91 should be amended so as to
replace the reference to the court refusing to grant leave to the applicant to bring the
proceedings and instead to state that the court “would not deal with the issue of leave on
account of the applicant’s lack of standing as so found” (para. 2 of the applicant’s written
submissions).
7. The basis for the applicant’s application to amend seems to be that the court’s refusal to
grant leave to the applicant implies that the court considered all of the grounds upon
which the applicant sought leave to challenge the impugned decision of the Board
whereas, in its principal judgment, the court only dealt with and determined the issue of
standing and concluded that the applicant did not have standing to bring the proceedings.
The applicant submits that in the event that the court were to grant leave to the applicant
to appeal from the decision of the court to the Court of Appeal, it would be “artificial that
the applicant should have to appeal anything beyond the High Court’s findings of
standing” and that it would be “wrong to require the applicant to appeal a refusal of leave
where no argument at first instance was had in relation to that issue” (para 2. of the
applicant’s written submissions).
8. The applicant’s concern appears to be that in the event that the court were to grant leave
to appeal to the applicant, the applicant would be faced with the task of having to deal
not only with the court’s determination on the standing issue, but also all of the grounds
of challenge to the Board’s decision sought to be raised by the applicant, which would not
have been the subject of a decision of the court at first instance. The applicant’s
argument is predicated on there being a distinction between the court deciding not to
grant leave and the court refusing to grant leave.
9. Both the Board and the State respondents oppose the applicant’s application to amend
the principal judgment. They support the court’s conclusion, that as the applicant does
not have standing, it was appropriate to refuse to grant leave to the applicant to bring the
proceedings. In support of that position, the Board and the State respondents refer to the
provisions of s. 50 A(3)(b) and s. 50 A(7). Both the Board and the State respondents
made clear, at the hearing of the application to amend, that if the applicant were to
obtain leave to appeal to the Court of Appeal, and if the applicant were to succeed on the
standing issue, the applicant’s application would be remitted to the High Court so that the
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court could consider the substantive issues raised in the case and that there was no
question of the Board and the State respondents making the case that the court had
decided and, considered any of the substantive issues against the applicant in its principal
judgment.
Decision on application to amend
10. I can deal with the application to amend the principal judgment in very short order. In my
view, there is no basis whatsoever for the applicant’s application. While I do not disagree
that, in an appropriate case, the court may have jurisdiction to amend a judgment prior
to the perfection of the order giving effect to that judgment, the basis on which the
applicant seeks to have the principal judgment amended is simply wrong and he appears
to have proceeded on the basis of a misreading or misunderstanding of the principal
judgment.
11. It is the case, as the applicant contends, that, as a matter of effective case management,
I decided that it was appropriate to deal with the issue of the applicant’s standing in
advance of dealing with any of the substantive issues sought to be raised by the applicant
in his application for leave to seek judicial review in respect of the Board’s decision. I did
deal with the question of standing in isolation and without embarking upon any
consideration whatsoever of the merits of the grounds of challenge sought to be raised by
the applicant in respect of the Board’s decision in his application for leave to challenge
that decision. That course of action was taken with the agreement of the applicant and of
the Board and the State respondents.
12. Having received written submissions and having heard oral submissions, I gave my
decision in the form of the principal judgment, dealing only with the standing issue. I
concluded that the applicant did not have standing to bring the proceedings either under
national law or under EU law. In light of my conclusion that the applicant did not have the
requisite standing, I decided that I was required to refuse to grant leave to the applicant
to bring the proceedings and expressed that conclusion at para. 91 of the principal
judgment. I reached that decision, and decided to refuse to grant leave to the applicant to
bring the proceedings, on the basis of my conclusions on the applicant’s standing and not
on the basis of any assessment of the substantive grounds of challenge which the
applicant sought to advance in respect of the Board’s decision. There is no ambiguity in
the principal judgment in that regard. I do not accept that my judgment, and, in
particular, the conclusion expressed by me at para. 91 could be read as indicating or
inferring that I had considered, still less, decided, any of the substantive grounds of
challenge sought to be advanced by the applicant, in reaching my decision to refuse to
grant leave to the applicant.
13. In my view, the decision to refuse to grant leave to the applicant rather than merely to
state that the court was not prepared to deal with the issue of leave by reason of the
applicant’s lack of standing is supported by the relevant statutory provisions.
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14. 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. Section 50A(3)
provides that the court: -
“shall not grant section 50 leave unless it is satisfied that –
(a) …, and
(b)(i) The applicant has a sufficient interest in the matter which is the subject of the
application . . .”
15. I was not satisfied that the applicant had a “sufficient interest in the matter which is the
subject of the application” and, therefore, I was required under s. 50A(3) not to grant
leave to the applicant. I do not accept that there is any material difference between the
court deciding not to grant leave to the applicant and the court refusing to grant such
leave. In this particular context, a decision not to grant leave is synonymous with a
decision refusing to grant such leave.
16. It is the determination of the court of an application for section 50 leave which engages
the provisions of s. 50A(7) and requires the applicant to obtain leave of the court before
being in a position to appeal from the decision of the High Court to the Court of Appeal.
The determination of the court of an application for section 50 leave can be a
determination to grant leave or a determination to refuse to grant or not to grant such
leave.
17. Even if there were a distinction, in the context of the statutory provisions at issue,
between a decision or determination to refuse to grant leave and one not to grant such
leave (and I do not accept that there is), it would in any event be completely pointless to
amend the principal judgment as requested by the applicant since the Board and the
State respondents do not contend that the court considered any of the substantive
grounds of challenge sought to be advanced by the applicant on his application for leave
to seek judicial review in respect of the Board’s decision. On no reading of the principal
judgment could it be inferred or understood that the court did consider or determine any
grounds or issues other than the issue of standing.
18. Therefore, I refuse the applicant’s application to amend the principal judgment on the
terms requested.
Application for leave to appeal
General
19. The applicant also seeks leave to appeal to the Court of Appeal pursuant to s. 50A(7) of
the 2000 Act (as amended). The applicant has put forward four points of law which he
asks the court to certify for the purposes of his intended appeal. The applicant contends
that the four points are points of exceptional public importance and that it is desirable in
the public interest that an appeal should be taken to the Court of Appeal on those points,
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thereby satisfying the requirements contained in s. 50A(7) as discussed and applied in the
judgments which have considered that statutory provision.
20. The Board and the State respondents disagree. They contend that none of the points put
forward by the applicant satisfies the first statutory requirement of being a point of law of
exceptional public importance and that, in any event, it is not desirable in the public
interest that an appeal should be permitted in respect of any of those points. They
address each of the points in turn and submit that in respect of each of them the
applicant has failed to comply with the cumulative requirements contained in s. 50A(7),
as discussed in the relevant judgments considered below.
Section 50A(7) of 2000 Act (as amended)
21. 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].”
22. 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.
Relevant legal principles
23. 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.
24. First, in considering the points 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 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.,
(“Callaghan”) (per Costello J. at para. 16)).
25. Second, as pointed out by the Supreme Court in Grace and Sweetman v. An Bord
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(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)
26. 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) that 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.
27. I have proceeded to consider the applicant’s application for leave to appeal having regard
to and taking full account of those considerations.
The Glancré principles
28. 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. of 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 and to demonstrate that I have considered and applied all of the principles in
considering the applicant’s application for leave to appeal in this case, I set them out
below.
29. MacMenamin J. summarized the applicable principle 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.
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1. The requirement [that there be a point of law that such no 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 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)
30. In Ógalas Limited (trading as Homestore and More Limited) v. An Bord Pleanala
[2015] IEHC 205 (“Ógalas”), Baker J. in the High Court referred with approval to the Glancré
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
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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)
32. 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
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 Pleanala & 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)
33. 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 four points put forward by the
applicant in light of the Glancré principles and the further discussion of those principles in
the judgments just referred to.
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The points of law put forward for certification by the applicant
The positions adopted by the parties
34. The applicant has advanced various general submissions in support of the four points put
forward by him. He contends that each of the points raised is a point of law of exceptional
public importance arising from the principal judgment. He asserts that the points raised
(or at least three of the four points) involve issues of EU law and that there is uncertainty
in the application of EU law when it comes to standing in environmental cases. He
contends that such uncertainty is illustrated by the judgment of the Supreme Court in
Grace and Sweetman. In particular, he refers to the determination of the Supreme Court
in that case ([2016] IESCDET 29) in which the Supreme Court granted the
applicants/appellants leave to appeal directly from the High Court to the Supreme Court
under Article 34.5.4 of the Constitution on a number of points. The first of the points in
respect of which leave to appeal was granted by the Supreme Court was: -
“Whether the jurisprudence of this Court on the question of standing in
environmental matters requires to be revised in the light of recent judgments of the
Court of Justice and, if so, the application of any such revised jurisprudence to the
facts of this case;”
35. The applicant relies on the fact that that question remained unanswered following the
judgment of the Supreme Court, as it was unnecessary for that court to determine the
point in light of its decision that Ms. Grace had standing under national law. The applicant
contends that the fact that the point was not determined by the Supreme Court in that
case demonstrates that there is uncertainty in the law and that the existence of such
uncertainty means that the points put forward by the applicant are points of law of
exceptional public importance. The applicant further contends that the existence of such
uncertainty further means that it is desirable in the public interest that the applicant be
permitted to appeal to the Court of Appeal in the respect of the points advanced by him.
In that regard he further relies on the judgment of Cooke J. in the High Court in
Lofinmackin (an infant) v. Minister for Justice [2011] IEHC 16. However, the applicant
accepts that that judgment is not directly applicable to the present case, having regard to
the establishment of the Court of Appeal since the judgment and the possibility that the
applicant might be entitled to appeal directly to the Supreme Court. For those reasons, I
do not believe that the judgment is of any great assistance in the present case. The
applicant contends that it is in any event desirable in the public interest that he should be
permitted to appeal in respect of the points raised on the grounds that the issues raised
in those points transcend the facts of the present case and are likely to arise in other
cases.
36. The Board and the State respondents do not accept any of this. They maintain that there
is no uncertainty in the law in relation to standing and, in particular, in relation to the
points raised by the applicant, whether as a matter of national law or EU law. They
contend that in respect of the court’s decision that the applicant does not have the
necessary standing under national law, the court was merely applying the relevant legal
Page 10 ⇓
principles set out by the Supreme Court in Grace and Sweetman. Insofar as the points
raised by the applicant concern standing under EU law, they contend that in the principal
judgment, the court identified the relevant judgments of the CJEU and the principles to be
derived from those judgments and applied them to the very particular facts of this case.
They maintain that the court’s decision on standing very much turned on the specific facts
of the case. They highlight the particular findings of fact made in the principal judgment
and note the fact that the impugned decision was to refuse rather than to grant
permission in respect of the development proposed by the Council. They contend,
therefore, that the points put forward by the applicant do not transcend the facts of the
particular case and that a resolution of those points is not likely to resolve other cases
likely to arise.
General consideration of the points raised
37. While I will deal with these respective contentions when considering each of the points
put forward by the applicant, I should state at this point that I accept the submissions
advanced by the Board and the State respondents and reject those advanced by the
applicant. I do not accept that the points raised by the applicant transcend the very
particular and specific facts of this case or that a resolution of those points on appeal is
likely to resolve or determine other cases. I noted at the very outset of the principal
judgment that this is one of the most unusual planning cases to have come before the
Irish courts, where the applicant, an environmental activist, seeks to challenge a decision
to refuse to grant approval in respect of a development, as opposed to challenging a
decision granting such permission.
38. Nor do I accept that the relevant national law on standing in cases such as this is in a
state of uncertainty. The Supreme Court identified and discussed the relevant national
rules on standing in Grace and Sweetman. I applied those principles to the very unusual
facts of the present case. Nor has the applicant persuaded me that there is any
uncertainty in the rules on standing under EU law, in general, or under EU environmental
law, in particular. I identified the relevant decisions of the CJEU in the principal judgment
and applied the principles derived from those judgments to the very particular facts of the
present case. The fact that the Supreme Court did not ultimately have to consider one of
the questions certified by it for the purposes of the appeal in Grace and Sweetman, as the
court was in a position to decide the standing issue under national rules, does not mean
that uncertainty exists in the law. I considered the relevant CJEU judgments, including a
case C – 664/15 Protect Natur, (“Protect Natur”) which post–dated the judgment in Grace
and Sweetman, in the principal judgment. The applicant did not advance any reasons as
to how or why it was to be suggested that the court had incorrectly identified or applied
the principles derived from those judgments. While it is, of course, not the task of the
court to consider the merits of the arguments raised or indeed the strength of any appeal
which might be permitted, the court is entitled to expect that some arguments are
advanced on the basis of which it might be considered that another view of the law is
reasonably or potentially open. The court was not provided with any such arguments in
the present case on the basis of which it might form that view.
Page 11 ⇓
39. I have concluded that the applicant has not established that any of the points raised by
him are points of law of exceptional public importance. I have further concluded that it is
not desirable in the public interest that an appeal should be taken to the Court of Appeal
in respect of any of those points. I will explain why, both in the context of each of the
points raised by the applicant and in further observations at the conclusion of the
judgment.
First point of law put forward by applicant for certification
40. The first point advanced by the applicant which he contends is a point of law of
exceptional public importance which should be certified is as follows: -
“Does the applicant’s non–participation in the planning process before the first
respondent and his explanation for such non–participation together with the other
factors identified in the judgment of the court mean that the applicant does not
have a ‘sufficient interest’ in the matter the subject of the proceedings and
therefore lead to the conclusion that the applicant has no standing to bring a
challenge to the first respondent’s decision?”
41. While it is unclear from the manner in which the point or question is drafted as to whether
this point is specifically directed to that part of the principal judgment in which I found
that the applicant did not have standing under national law to challenge the Board’s
decision. On the face of it, the point appears to be directed to those parts of the principal
judgment which found that the applicant did not have standing under national law and
under EU law. The applicant has not persuaded me that there is any uncertainty in the
law in either area.
42. As regards national law, in reaching my conclusion that the applicant did not have
standing under national law, I have reached my conclusion based on the principles of law
set out and discussed by the Supreme Court in Grace and Sweetman. This is clear, for
example, from paras. 31 – 52 of the principal judgment. It is not necessary for me to
repeat here what I said in those paragraphs, but a cursory reading of them should
demonstrate to the reader that what I was doing was identifying and then discussing the
principles set out by the Supreme Court in Grace and Sweetman. Having done so, I then
set out (at paras. 53 – 62 of the principal judgment) my conclusion on the applicant’s
standing under national law, applying the principles set out and discussed in Grace and
Sweetman. I did so in light of the very particular findings of fact made by me at para. 29
of the principal judgment.
43. It was clear from para. 8.5 of the judgment of the Supreme Court in Grace and Sweetman
that, as a matter of national law, a failure to participate in the planning process would not
of itself lead to a conclusion that person did not have standing to challenge the decision
but that it might be a factor which could, in an appropriate case, be taken into account in
determining the question of standing. It is clear from several other paragraphs in the
judgment in Grace and Sweetman (such as, for example, paras. 8.2, 8.3, 8.6, 8.7 and
8.8) that many factors may be taken into account in determining the question of standing
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as a matter of national law, including a failure to participate in the planning process. That
is precisely the approach which was taken in the principal judgment (see, for example,
paras. 53 – 62). I made clear at para. 61 of the principal judgment that the applicant’s
non–participation in the planning process was only one of several factors which I had
taken into account in coming to the conclusion that the applicant did not have a “sufficient
interest” in challenging the Board’s decision. A myriad of other factors were taken into
account, as is clear from paras. 53 – 62 of the principal judgment. I am satisfied that it
was open to me to take all of those factors into account, having regard to the principles
set out and discussed by the Supreme Court in Grace and Sweetman and that I was doing
no more than applying these principles to the facts of this case. I do not, therefore,
accept that there is any uncertainty in the law in relation to the applicant’s standing under
national law.
44. As regards the applicant’s standing under EU law, I considered the relevant legal
principles at paras. 63 – 68 of the principal judgment. I referred to the relevant terms of
Article 11(3) of Directive 2011/92 and to the observations of the Supreme Court in Grace
and Sweetman in relation to that provision. At para. 35, and again at para. 65, of the
principal judgment, I referred to what the Supreme Court stated at para. 4.4 of Grace and
Sweetman, where the Court had stated that Member States have a “material margin of
appreciation” in determining the standing rules to be applied in respect of challenges
covered by Article 11, subject to the requirement to ensure that they confer “wide access
to justice”. Further, at para. 65 I also referred to para. 8.4 of the judgment in Grace and
Sweetman where the Supreme Court stated that the fact that Article 11 of Directive
2011/91 (and Article 9 of the Aarhus Convention) gives status to national standing rules
“necessarily implies that it is open to subscribing or Member States to impose some
limitations on those who may have standing”. I then referred to the two judgments of the
CJEU on which the applicant relied (Case C – 263/08 Djurgarden and Case C – 137/14
Commission v. Germany) and to the more recent judgment of the CJEU in Protect Natur
(on which the Board and the State respondents relied). I proceeded to consider those
judgments in some detail, at paras. 71 – 84 of the principal judgment. I concluded that
there was nothing in any of those judgments which prevented a national court, as a
matter of EU law, from considering, among the factors to be taken into account in
determining standing, the non–participation by the applicant in the planning process and
any explanation for that non–participation (see. para. 84 of the principal judgment).
45. While contending that EU law on standing in environmental cases is uncertain, the
applicant did not put forward any arguments as to why that was so or as to how it might
be suggested that the court had incorrectly identified and applied the principles derived
from the CJEU judgments to the facts of the case. In order to determine whether there is
any basis for the position advanced by the applicant that the law is uncertain in this area,
it was incumbent upon the applicant to advance arguments as to why that was so, so that
the court could satisfy itself that contrary arguments were reasonably open and that the
law was therefore in a state of some uncertainty. However, the court was not provided
with such arguments or indeed any basis from which it could conclude that the law is and
continues to be uncertain. I have not, therefore, been persuaded by the applicant that
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there is any such uncertainty in the law which would support his contention that the point
which he seeks to raise is one of exceptional public importance.
46. Nor am I satisfied that the first point raised by the applicant transcends the facts of this
case. As observed earlier, I made a series of findings of fact in the principal judgment
which were highly relevant to my conclusion that the applicant had no standing under
national law or under EU law. The applicant’s non–participation in the planning process
was merely one of the facts or factors which were taken into account in reaching that
conclusion. It was not the main or determining factor as is perhaps implicit in the first
point raised by the applicant (see, for example, para. 70 of the principal judgment). The
applicant has not sought to challenge the court’s reliance on any of the other factors
taken into account in reaching its conclusions on the question of standing under national
law or under EU law.
47. In summary, therefore, I am not satisfied that there is any uncertainty in the law, or that
the first point raised by the applicant transcends the particular facts of this case. In those
circumstances, the applicant has not persuaded me that the first point put forward by him
is a point of law of exceptional public importance. Even if the applicant had persuaded me
of this, I would not have been satisfied that it is desirable in the public interest that the
applicant should be permitted to appeal in respect of this first point to the Court of
Appeal. The absence of uncertainty in the law is one reason for this conclusion. My further
reasons for this are set out separately at the end of this judgment.
The second, third and fourth points of law put forward by the applicant for certification
48. The second point which the applicant wishes to have certified is:
“Are Irish national rules on standing in conformity with the EU law requirement in
Article 11 of Directive 2011/92 that there be ‘wide access to justice’?”
49. The third point is:
“Must Irish national rules on standing, be interpreted in such a way as to confer
standing on the applicant to bring these proceedings by virtue of Article 11 of
Directive 2011/92 or otherwise in EU law?”
50. The fourth point is:
“Does EU law require the court to uphold the applicant’s standing to bring these
proceedings?”
51. The basis upon which the applicant contends that leave to appeal should be granted on
the basis of these questions for the purposes of s.50(A)(7) is that some uncertainty exists
in relation to standing under EU law as the Supreme Court in Grace and Sweetman
ultimately did not have to decide the question of standing in that case on the basis of EU
law since the Court found that Ms. Grace had standing under national law and once she
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had standing, the Court could proceed to address the further issues in the case without
reaching a final determination on the question of Mr. Sweetman’s standing.
52. It is appropriate to deal with these three questions together, as in essence they raise one
central question, namely, whether EU law requires that the applicant be found to have
standing to bring the proceedings. In my view, the points raised by the applicant do not
satisfy the Glancré principles.
53. The second point raised by the applicant is a hypothetical point and does not directly arise
from the decision contained in the principal judgment. The decision was very fact
dependent as is clear from the nature of the decision being challenged and from the
detailed findings of fact set out in para. 29 of the principal judgment as well as from the
conclusions on the applicant’s standing under national law and his standing under EU law.
In effect, the point raised by the applicant for certification seeks an advisory opinion for
the Court of Appeal, completely isolated from the very specific and unusual facts of the
case, which is not compatible with s. 50A(70) and the Glancré principles.
54. The third and fourth points are also directed to the very particular facts of this case in
that they address the question as to whether EU law requires standing to be given to the
applicant to bring the proceedings. The particular factual circumstances of the applicant
are highly relevant to the determination of that question. Having regard to the very fact
sensitive nature of the case and the particular circumstances of the applicant, I do not
accept that a resolution of any of these three points is such as would transcend the
particular facts of the case and would enable or assist the resolution of other cases. The
case is a highly unusual one and several factors were taken into account in the principal
judgment for concluding that the applicant did not have standing under Irish law or under
EU law. Some of those factors can be seen at paras. 54-61 of the principal judgment.
While those factors included the applicant’s non-participation in the planning process, this
was only one of several factors taken into account. As explained at para. 70 of the
principal judgment, the applicant’s non-participation in the planning process (and the
explanation given by him for that non-participation) were relevant factors but were by no
means the only such factors or the decisive factors taken into account. My conclusions on
the applicant’s standing under national and under EU law were very fact dependent and,
in my view, the application of the principles identified in the existing case law (of the
Supreme Court and of the CJEU) to the particular facts of this case do not have the
required transcendent effect which the Glancré principles, and the cases which discuss
and apply those principles demand.
55. Apart from that, while professing that the law is uncertain in light of the fact that the
Supreme Court in Grace and Sweetman did not need to determine the question of
standing under EU law, the applicant has not identified any real basis for suggesting that
the analysis contained in the principal judgment on his standing under EU law is wrong
whether in terms of the principles identified or in the application of those principles. As
observed earlier, the task of the court at this stage is not to assess the merits of the
arguments or the strength of any appeal which might be permitted and I do not do so.
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However, having considered the case law from the CJEU relied upon by the applicant and
by the Board and the State respondents, having considered the principles derived from
that case law and applied those principles to the particular facts in the principal judgment,
it was incumbent upon the applicant to identify some arguments from which it might be
considered that a different view might be formed by another. However, the applicant did
not undertake that exercise and did not put any such arguments before the court. Nor
did the applicant advance any submissions identifying any particular environmental
concerns with respect to the impugned decision of the Board which refused permission for
the development proposed by the Council.
56. While the Supreme Court in Grace and Sweetman did not ultimately have to determine
the question of standing under EU law, the judgment of the Court in that case did make
important observations in relation to the question of standing under EU environmental
law, as I observed at paras. 65 and 70 of the principal judgment. Those paragraphs
made reference to Article 11(3) of Directive 2011/92 and to the “material margin of
appreciation” given to member states in determining the standing rules to be applied to
challenges covered by Article 11, subject, of course, to the requirement to ensure “wide
access to justice”. Having regard to the very particular facts of this case, it is impossible
to see a court concluding that “wide access to justice” requires that a person such as the
applicant be permitted, in the very particular circumstances of the case, to challenge the
Board’s decision refusing to grant permission for the development proposed by the
Council.
57. For these reasons, I am not satisfied that the applicant has established that there is any
uncertainty in the law which might require clarification or resolution by a higher court on
appeal. As I am not satisfied that there is uncertainty or lack of clarity in the law which
should be resolved, I do not believe that it is desirable in the public interest that an
appeal be brought to remedy that perceived uncertainty.
58. Even if it could be said that the court was not entitled to take into account the non-
participation by the applicant in the planning process (or his explanation for such non-
participation) (and I do not accept that that is the case), as noted earlier, many factors
were taken into account in leading to the conclusion that the applicant did not have
standing under national law or under EU law. The applicant’s non-participation was
expressly stated in the principal judgment (at para. 70) not to be the only factor or the
decisive factor. The other factors considered were set out in the list of factors at
paragraphs 54-62 of the principal judgment which it is unnecessary to reproduce again
here. The applicant has not challenged the relevance of any of those other factors or the
court’s entitlement to take them into account.
59. For these reasons, I am not satisfied that the applicant has demonstrated that the 2nd,
3rd and 4th points put forward by him for certification involve points of law of exceptional
public importance. I do not believe that any of the requirements set out in the Glancré
principles have been satisfied in relation to these questions. There is no relevant
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uncertainty in the law which would make it desirable in the public interest to grant leave
to appeal.
Appeal not desirable in public interest
60. Before concluding this judgment, I wish to make some additional observations in relation
to the second of the two requirements contained in s.50A(7) of the 2000 Act (as
amended), namely, the requirement to establish that it is desirable in the public interest
that an appeal should be taken to the Court of Appeal.
61. Having regard to the nature of the decision which the applicant sought to challenge,
namely, the Board’s decision to refuse to grant permission for the development proposed
by the Council at College Green, and having regard to the applicant’s description of
himself as an “environmental activist” with a particular interest in the coastal areas of
Ireland as well as his significant geographical distance from College Green, it would, in
my view, be hard to think of a case in which it was less desirable in the public interest for
there to be an appeal to the Court of Appeal or to any other court in this case. Such a
course of action would amount to a monumental waste of court time and resources and
would, having regard to the costs provisions contained in s.50B of the 2000 Act (as
amended), expose the Board and the State respondents to very significant further costs
which they may not be awarded (by reason of s. 50B) or may not be able to recover from
the applicant, who has not put forward any real environmental concerns in relation to the
impugned decision to refuse permission for the development.
62. I have to ask myself what conceivable public interest could be served by permitting an
appeal in the present case in light of all of these considerations? I can see none. Having
regard to the nature of the decision challenged and the particular circumstances of the
applicant, as well as the ongoing exposure of the Board and the State respondents to
further costs in the context of the costs regime contained in s. 50B, as well as the relative
scarcity of court resources and the need to ensure that resources are allocated to cases
involving real, concrete and genuine environmental concerns, I have no doubt whatsoever
that it would not be in the public interest to grant leave to appeal from my decision
contained in the principal judgment to the Court of Appeal.
Conclusions
63. In conclusion, I am not satisfied that any of the points or questions put forward by the
applicant involve points or questions 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, having regard to the nature of the decision challenged
and the particular factual circumstances of the case. In those circumstances, the
cumulative requirements of s.50A(7) of the 2000 Act (as amended) have not been
satisfied by the applicant. Accordingly, I refuse to grant leave to appeal to the applicant.
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64. For reasons set out earlier in this judgment, I also refuse the applicant’s application to
amend the principal judgment.
Result: Both applications were refused.