THE HIGH COURT
PLANNING AND ENVIRONMENT
[2025] IEHC 157
Record No. 2022/437 JR
Between:
PAUL LEECH
FRANK MCDONALD
Applicants
-and-
AN BORD PLEANÁLA,
IRELAND AND THE ATTORNEY GENERAL
Respondents
-and-
HPREF SHQ INVESTMENTS LIMITED
Notice Party
JUDGMENT of Ms. Justice Emily Farrell delivered the 24th March 2025
1.The Notice Party applied for planning permission for a mainly residential SHD development under the Planning and Development (Housing and Residential Tenancies) Act, 2016, which application was granted by An Bord Pleanála on 31st March 2022 with 31 conditions (ABP-311591-21).
2.The development and the site were described by the Notice Party as having "unusual importance". The permission the subject of the proceedings authorised the construction of 399 apartments within the Heuston South Quarter of Dublin City. The Notice Party contends that the size of the development and that fact that the State is currently experiencing a housing crisis supports the contention that it would be in the public interest to permit an appeal to the Court of Appeal. Equally, it was acknowledged by the Notice Party that the site is particularly significant as it shares a boundary with the gardens of the Royal Hospital Kilmainham. The Royal Hospital Kilmainham was described in the application process as "indisputably Ireland's most significant public building, a fact recognised by its inclusion on both the Record of Protected Structures and the NIAH, which deems it to be of international significance....".
3.On 12th November 2024 I delivered judgment in which I decided to grant an order of certiorari quashing the grant of permission. The site of the proposed development Dublin City Development Plan 2016 - 2022 is partly within the cone of vision, a protected view. Guiding Principle 8 under SDRA7 provides that "Any new developments within this 'cone' shall not adversely affect this view". Having regard to the policies and objectives set out in the Development Plan, I was satisfied that the grant of permission for a development which would contravene this aspect of the Plan would amount to a material contravention. Many of the observations and submissions made in respect of the application raised the cone of vision and the Inspector considered it to be a key consideration. I found that the Board's decision must be interpreted as having found that the proposed development would adversely affect the cone of vision and the protected view, although that adverse impact was not found to be significant or substantial. I considered that the assessment of the extent of an adverse effect or justification for the grant of permission despite an adverse impact were matters which required the Board to invoke section 9(6), which was not done.
4.The Notice Party applied for a certificate for leave to appeal to the Court of Appeal under section 50A(7) of the Planning and Development Act, 2000. The following questions were proposed for certification:
1. Can a Court determine a challenge to a Board decision on the basis of an interpretation of the Board's decision, where the Applicants did not plead that interpretation of the Board's decision and where the ground of challenge was pleaded on a different basis?
2. When interpreting a report of an Inspector or a decision of the Board, what approach should be taken by a Court in determining whether the Inspector or the Board, as a matter of planning judgment, concluded that a proposed development would "adversely affect" a protected objective in a development plan (in this case, a protected view), where that is the relevant standard for contravention of the objective?
a. In particular, should remarks or matters such as the following, either individually or together, be interpreted as determining that a proposed development would adversely affect a protected view:
i. That identified blocks "when reduced by two storeys... will not be unduly visible" when viewed from the protected viewpoint (IR §11.7.21), in circumstances where a condition was imposed reducing those blocks by two storeys.
ii. That while another identified block "may impinge marginally on the identified [protected view], its impact would not be so great as to warrant a refusal of permission or amendment to its location/height for this reason" (IR §11.7.24).
iii. That, subject to amendments recommended by the Inspector, "any impacts on the [protected view] or on the [Royal Hospital Kilmainham] complex would not be so great as to warrant a refusal of permission or further amendments" (IR §11.7.31).
iv. That the Board expressly agreed with the Inspector's opinion in relation to the impact of the proposed development on the protected view.
v. That, having agreed with the Inspector's assessment of the potential visual impact and impact on the protected view, subject to the amendments imposed by condition, the Board "was satisfied that the proposed development could be accommodated on the site, and that design was such as not to result in an undue adverse impact on the amenity or heritage of the area, and subject to conditions attached is in accordance with the proper planning and sustainable development of the area".
b. Should the interpretative approach be influenced by the facts:
i. That the planning authority did not recommend refusal of permission or conclude that, subject to certain amendments, the proposed development would materially contravene the development plan objective concerned.
ii. That the planning authority recommended the reduction in height or set back of two identified blocks, and that this recommendation was accepted by the Board.
iii. That, with regard to a third identified block, the planning authority's recommendation to reduce its height (which was not accepted by the Board) was not based on its effect on the protected view.
3. When considering whether a proposed development complies with a particular provision of the Development Plan, is the Board and/or the Board's Inspector required to make a determination as to whether the development complies with that provision using the exact wording of the particular provision of the plan?
4. Where a Development Plan provides that new developments shall not adversely affect a view that is protected under that Development Plan, is the question of whether there is a material contravention of that provision of the Development Plan, a question of degree?
5. Where a Development Plan provides that new developments shall not adversely affect a view that is protected under that Development Plan and where that provision of the Development Plan was expressly considered, is the Board's conclusion that the impact of the development on that view did not warrant refusal to be interpreted as a finding that the Board did not consider there to be a material contravention of that provision of the Development Plan?
5.Written submissions were filed by the Notice Party and the Applicant. At the hearing, the Notice Party sought a certificate on each of the points identified above, but grouped points 2, 3 and 5 together as, it was submitted, they reflect various aspects of a central theme, how the court should interpret the Board's decision including the Inspector's Report.
6.The application for a certificate was opposed by the Applicants. The Board not did apply for a certificate. Adopting a neutral position otherwise, the Board stated:
"in general terms, the Board considers that an appealable issue arises as regards the degree of flexibility properly attributable to the language used by the Board when addressing consistency with the development plan, including whether it is necessary in all cases to state conclusions by reference to the exact language of the relevant objective or provision of the plan concerned".
The principles applicable on an application for a certificate
7.There was no dispute as to the principles to be applied in an application for a certificate under section 50A(7). Since the coming into force of section 74 of the Court of Appeal Act, 2014, the reference to the Supreme Court in section 50A must be read as referring to the Court of Appeal. It was agreed that to be certified a point of law must arise from the judgment of the High Court and that the requirements that it be a point "of exceptional public importance" and be "desirable in the public interest that an appeal should be taken" to the Court of Appeal are cumulative. As the proceedings did not involve a constitutional challenge in respect of any law, a certificate is required in respect of any point which the Notice Party seeks to appeal to the Court of Appeal. An application may be made to the Supreme Court for a leapfrog appeal, even where the High Court refuses to grant a certificate.
8.The principles were first set out by MacMenamin J. in Glancré Teoranta v An Bord Pleanála [2006] IEHC 250 and have been added to subsequently. The parties both referred to the summary of the principles in Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9. Holland J. held:
"7. I must assume for the purpose of this application that, as to that point of law, my decision may well be wrong: see Callaghan 9 and Dublin Cycling. 10 In this regard, the Court should not concern itself with the merits, strength or weakness of the parties' arguments on the point or prospects of success on any appeal. The Court should take the intended appellant's case on the point at its height: see CHASE. However, the Board agreed at hearing before me, in my view correctly, that this principle must be understood subject to the caveat that, taken at its height, the point of law must be stateable. Clearly, an unstateable point of law cannot be of exceptional public importance and it cannot be desirable in the public interest that an appeal be heard on an unstateable point of law.
8. Thereafter, the overarching principles are those identified in s.50A(7) PDA 2000 — that the point of law be of exceptional public importance and that it is desirable in the public interest that an appeal should be taken. On those bases, the principles applicable, though not set in stone 11, have been elaborated in the cases and were summarised by MacMenamin J. in Glancré. 12 That summary has been approved and glossed in many cases since. I attempt to synthesise the current state of the Glancré principles as follows. 13 I have indicated where I have drawn some inferences from the principles.
a. The application for certification of leave to appeal should be made promptly — ideally within the normal appeal period. 14
b. The jurisdiction to certify must be exercised sparingly. Most applications for a certificate to appeal fail. 15
c. The point of law must arise out of the decision of the High Court and not merely from discussion or consideration of a point of law during the hearing. A point the court did not decide cannot amount to a point of law of exceptional public importance.
d. I would add that it seems to me to be a necessary implication of the principle that "The point of law must arise out of the decision of the High Court" that the point of law must reflect a correct understanding of the decision of the High Court, read as a whole.
e. The point of law should be actually determinative of the proceedings, not one which, if answered differently, would leave the result of the case unchanged. 16 The same point can be phrased in terms that a point of law is moot if it raises no dispute the resolution of which in the posited appeal is capable of leading to the reversal or variation of the order made by the High Court. 17
f. The point of law must be formulated with precision so that indicates how it is determinative of the proceedings and should not invite a discursive, roving, response from the Court of Appeal. 18
g. It seems to me to be a necessary implication of the principle that the point of law should be determinative that certification should be refused if points of law otherwise certifiable would leave unimpugned one ground upon which certiorari was granted, such that the result of the case will remain unchanged.
h. The requirement goes substantially further than that a point of law emerges in or from the case. That it be of exceptional public importance is a clear and significant additional requirement.
i. Normal statutory rules of construction apply. So, inter alia, 'exceptional' must be given its normal meaning. That imposes a very high hurdle — the point of law must not just be important, but of unusual or untypical importance. 19
j. The test is not simply whether the point of law transcends the individual facts of the case. Such an interpretation would fail to apply the word 'exceptional'. Since most points of law are of some importance, the point of law must transcend well beyond the individual facts and the parties in the case.
k. Where leave is refused in an application for judicial review, (i.e. 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 appeal.
l. The requirements of exceptional public importance and that appeal be desirable in the public interest are cumulative. They may overlap but to some extent may require separate consideration.
m. Some affirmative public benefit from an appeal must be identified. This suggests that, to be certified, a point must be such that it is likely to resolve other cases.
n. The law in question must be in a state of uncertainty, evolution or lack of clarity. It is for the common good that such law be clarified so as to enable the courts to administer that law, not only in the instant, but in future such cases.
o. 'Uncertainty' cannot be 'imputed' to the law by an applicant simply by raising a question as to the point of law. Merely raising an argument on the proposed point of law which the Court has rejected does not mean that the law is uncertain. The uncertainty must arise over and above this, for example, in the daily operation of the law in question.
p. The fact that the point of law raises a novel issue does not necessarily mean that the law is uncertain or evolving. It is not, however, necessary to point to other decisions which conflict with the decision of the High Court on the point of law. However, where the point is novel and the law is evolving, it is likely that the Court will find it of exceptional public importance.
q. The intending appellant must not use the application for leave to appeal as an opportunity merely to reargue the merits which the Court has already decided against that party in its substantive decision. However, it may sometimes be difficult to avoid doing so (or at least giving the impression of doing so) in order to persuade the Court that the law in the area is uncertain or evolving and that the posited point of law is of exceptional public importance.
r. Generally, where, on the posited point of law, the intending appellant has lost in the High Court on the basis of the application of clear and well-established principles to the facts of the case, it will be very difficult to satisfy the cumulative requirements of s.50A(7) of exceptional public importance and that an appeal be desirable in the public interest. Certification is not in principle ruled out in such circumstances but is likely only in exceptional circumstances and is not in any sense the normal or usual position. The closer on the spectrum the posited point of law is to the application of well-established legal principles to the facts of an individual case, the further it is from exceptional public importance 20. Ordinarily, the basis of any appeal must be that the very legal principles relied upon by the High Court judge were incorrect. 21
s. Conversely, the failure by the Court to apply well-established legal principles to the particular facts of the case may well give rise to a point of law of exceptional public importance, subject to complying with the other principles referred to here.
t. Where the decision which it is sought to appeal was made in the exercise of a wide discretion 22, the exercise of which is governed by criteria of fairness and justice, the applicant for a certificate of leave to appeal faces a particularly uphill task
u. Generally, it will not be appropriate to grant leave to appeal in respect of a point of law which has not been properly pleaded 23.
v. A broad range of factors and considerations may bear on whether an appeal is desirable in the public interest. Those factors include, but are not limited to, the nature of the particular development and the potential consequences of significant further delay in final determination of the case by the courts. Factors relevant to whether an appeal is desirable in the public interest may overlap with other criteria, such as whether it is in the public interest to clarify uncertainty or evolution in the law.
w. In this context, the grant of leave should provide some added value to any matters already before the Court of Appeal. 24
x. The Court must have regard to the effect of the 33rd Amendment to the Constitution and the Court of Appeal Act 2014 and, in particular, the "constitutional architecture" they created. While a "leapfrog" appeal from the High Court directly to the Supreme Court is possible, appeal to the Court of Appeal remains the more normal route.
y. It seems to me to follow from the principles set out above, which assume that the judgment which it is sought to appeal may well be wrong in point of law, that the mere assertion that such judgment may set an erroneous precedent which may be followed in later decisions of the High Court will not suffice to justify certification. That observation can be made of more or less any judgment wrong in point of law. Certification merely on that basis would be inconsistent with many of the Glancré principles, including that certification of what is ex hypothesi a good appeal on a point of law should nonetheless be "exceptional" and issue "sparingly". Any implications of these principles for the operation of stare decisis as between decisions of the High Court derive from the clear principle of S.50A(7) PDA 2000 that in most cases of error, even as to a point of law, there should be no appeal. While it is in strictness undesirable as a matter of stare decisis that any judgment in error in point of law should survive, in truth this situation is not at all unusual. Many must be the cases in which arguable - even very arguable — appeals do not proceed for one reason or another or very many possible reasons: for example, the case may settle, or the potential appellant may be risk-averse and decide against appeal.
9. Not all the foregoing principles arise for application in the present case. Most, if not all, are particular expressions of the three main principles that:
• the High Court's decision in most cases is to be final and not appealable — such that the jurisdiction to certify for an appeal should be exercised sparingly.
• the appeal, to be certified, must invoke a point of law of exceptional public importance.
• for the appeal to be certified, it must be desirable in the public interest that the appeal be taken." (footnotes omitted)
9.It is necessary to decide whether each of the points of law proposed by the Notice Party meet the criteria for certification having regard to section 50A(11).
10.The Notice Party submits that the large scale of the proposed development is one of six factors to be taken into account in assessing whether it is desirable in the public interest that an appeal be taken to the Court of Appeal, as it would deliver housing in the midst of a housing crisis. In granting leave to appeal to the Supreme Court in respect of a proposed development of 1592 rental apartments on a site which contained five protected structures in Sherwin v. An Bord Pleanála & Ors [2023] IESCDET 108, the Supreme Court stated:
"Given that this project relates to a very large major housing development in the inner suburbs of Dublin, it is the interests of justice that there now be a single appeal against the decision of the High Court and that that appeal should lie to this Court."
11.The Development Plan which was considered by the Board in granting the permission has been replaced by the Dublin City Development Plan 2022 - 2029. The cone of vision as identified in the 2003 Heuston Framework Plan is protected in both development plans, but the new Plan expressly refers to the existence of opportunities for locally higher buildings within the cone. This was not provided for in the Plan considered by the Board, which stated "Any new developments within this cone shall not adversely affect this view. A visual impact analysis shall be submitted with planning applications to demonstrate this view is not undermined." However, the 2022 - 2029 Plan provides that these opportunities "must not individually or cumulatively adversely affect this view" and requires the submission of a visual impact analysis to "demonstrate this view is not undermined."
12.I am satisfied that, if I find that a point of law of exceptional public importance arises from the judgment, there are factors which would tend to support the contention that it would be desirable in the public interest that such an appeal would be brought to the Court of Appeal. However as the requirements of section 50A(7) are cumulative, a certificate can only be granted if I find that a point of law of exceptional public importance does arise from the principal judgment. Therefore, I shall determine that issue if I find that such a point of law exists.
Point 1 - pleading requirements
13.The Notice Party submits that whilst the principal judgment correctly sets out the law in relation to pleadings in judicial review proceedings, I misapplied the law in a manner which gives rise to a point of law of exceptional public importance.
14.At para. 26, I stated:
"A Statement of Grounds should identify the grounds on which it is contended that an applicant is entitled to relief - it is not necessary, or appropriate to set out the full argument for or reasoning behind each ground, but the defect or error which is asserted to exist must be identified, together with the facts necessary to make out that ground."
15.As identified at para. 33 of the principal judgment, the purpose of adequate pleading in the Statement of Grounds is to ensure that the respondents and/or notice parties are clearly aware prior to the hearing of the application what the case is, and to "set the parameters and fix the issues in dispute between the parties and those to be determined by the court." As Humphreys J. held in Eco Advocacy v. An Bord Pleanála (No. 4) [2023] IEHC 713 (para. 39) what is required is "merely that applicants plead their case (including EU law points) in terms which make it acceptably clear to the other side and the court as to what the point is." The jurisprudence is clear as to the requirements of pleadings in judicial review proceedings.
16.The raising of a pleading point in judicial review proceedings is a jurisdictional point. The requirements of Order 84 rule 20(3) RSC are that "the applicant should state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground." The argument by which that issue is resolved is not a matter is required to be set out in the Statement of Grounds.
17.I found that the Statement of Grounds was acceptably clear in that it put the Respondents and Notice Party on notice of the Applicants' complaint that the Board granted permission in material contravention of the provision in the Development Plan relating to the cone of vision and that, in so doing, the Board had failed to make its decision in accordance with the 2016 Act. (para. 40) In seeking a certificate, the Notice Party makes no specific complaint in relation to that finding.
18.As the Notice Party submits, the Applicants relied on the contention that the Inspector, who had proposed changes to the plans submitted by it, was not a qualified architect or conservation architect. There was also a dispute in the evidence between the Applicants and the Notice Party as to whether or not the development authorised by the Board would have an adverse impact on the cone of vision. Cross-examination was permitted in relation to that dispute.
19.The point for which the Notice Party seeks a certificate is whether the fact that the Applicants did not plead a particular interpretation of the Board's decision i.e. that the findings of the Board amounted to a finding that there was an adverse impact on the cone of vision, meant that that issue was not before the court. The point of law proposed for certification is phrased as follows:
"Can a Court determine a challenge to a Board decision on the basis of an interpretation of the Board's decision, where the Applicants did not plead that interpretation of the Board's decision and where the ground of challenge was pleaded on a different basis?"
20.This is opposed by the Applicants who contend that the relevant law is well settled and that there is no uncertainty in the law in this regard. It was also submitted by the Applicant that the law was correctly applied, but I need not decide whether that submission is correct to determine the application for a certificate. The Board has made no observation in relation to the application for a certificate on this ground.
21.It is correct to state that the Statement of Grounds did not specifically assert that the Board found that the proposed development would adversely impact the cone of vision. I quoted para. 29 of the Statement of Grounds in the principal judgment, which states:
"The Respondent Planning Appeals Board acted ultra vires and other than in accordance with the Planning and Development (Housing) and Residential Tenancies Act, 2016 in permitting the proposed development which amounts to a material contravention of the Dublin City Development Plan 2016 to 2022 and in particular by virtue of the impact of the development on the Royal Hospital which in itself, its curtilage and the cone of vision is specifically provided for in the said Development Plan. ..."
22.Paragraphs 30 - 33 referred to the concerns raised by the Applicants and others, including the planning authority, regarding the impact of the proposed development on the cone of vision and the location of the proposed development beside the Royal Hospital Kilmainham and its gardens. Para. 34 of the Statement of Grounds states:
"In those circumstances there was an obligation to provide for and include in the material contravention statement a consideration of the Development Plan provisions and provision for the impact of the proposed development on the lands and buildings at the Royal Hospital Kilmainham to be addressed. The said impacts are acknowledged by the Inspector and by the Respondent Planning Appeals Board where they considered that the heights and layout of the buildings are inappropriate at this location relative to their impact on the Royal Hospital, and if permitted would detract from the character and setting of the adjoining gardens of the Royal Hospital Kilmainham which is specifically protected in the plan." (emphasis added)
23.Under the heading Development Plan, para. 51 of the Fourth Amended Statement of Grounds pleads:
"The Respondent Planning Appeals Board acted ultra vires and other than in accordance with its obligations under the EIA Directive in permitting the proposed development which amounts to a material contravention of the Dublin City Development Plan 2016 to 2022 and in particular by virtue of the impact of the development on the Royal Hospital which in itself, its curtilage and the cone of vision is specifically provided for in the said Development Plan. ..." (original underlining)
24.In its Statement of Opposition, the Board disputed the interpretation placed by the Applicants on documents including the Inspector's Report, Board Decision and Board Order and stated that it would refer to those documents as regards the full meaning and effect of same. In its Statement of Opposition, the Board stated:
"32. It is denied that, as the Applicant's allege (paragraph 29 of Part E (Legal Grounds)), the Board acted ultra vires and other than in accordance with the 2016 Act in permitting the proposed development which amounts to a material contravention of the City Development Plan "in particular by virtue of the impact of the development on the Royal Hospital which, in itself, its curtilage and cone of vision is specifically provided for in the said Development Plan." The plea that there was a material contravention of an unidentified provision of the City Development Plan is not particularised.
33. In any event, the Board did not consider that the proposed development constituted or involved a material contravention of the City Development Plan by reason of impacts on the Royal Hospital Kilmainham. There is nothing irrational or otherwise unlawful about the Board's Decision in this regard. In the premises, the Applicants' related pleas at paragraph 34 and 35 of Part E (Legal Grounds) are also denied. The characterisation of the Board's Decision and Report of its Inspector proffered at paragraph 34 of Part E(Legal Grounds) is inaccurate and is also denied."
25.It was argued by the Notice Party that the Inspector had taken a compendious approach to the cone of vision and visual amenity and that the two issues were somewhat bound up together.
26.I was, and remain, satisfied that there was a live controversy as to whether the Board had granted permission in material contravention of the Development Plan in relation to the cone of vision and thereby failed to comply with the 2016 Act.
27.It was necessary to consider and interpret both the terms of the Development Plan and the effect of the Board's decision in accordance with the XJS principles to determine that issue. (In re XJS Investments Ltd [1986] IR 750). Therefore, it was necessary to construe the determination of the Board in its "ordinary meaning as it would be understood by members of the public, without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning.". The case made by the Applicants was not limited to the contention that the Notice Party had not included the cone of vision in the material contravention statement. The Applicants contended that the Board's decision amounted to a decision to grant permission in material contravention of the Development Plan in relation to the cone of vision. It is not in dispute that the Board did not apply the statutory provisions relating to material contravention.
28.Once the correct principles are identified, the question whether a Statement of Grounds has adequately pleaded a specific issue is a matter of fact and is dependent on the wording of the particular statement of grounds. In Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231, Barniville J. (as he then was) stated that he could not see how the importance of pleading in judicial review could be elevated to a point of law of exceptional public importance in circumstances where the principles themselves were not in dispute but only their application in a case involving remittal to the Board where the decision had been quashed on grounds of objective bias, (para. 53)
29.More generally, it has also been held that "the application of well-established principles will rarely give rise to a point of law of "general importance" (nor, by analogy, to a point of law of exceptional public importance": per Simons J. in Halpin v. An Bord Pleanála [2020] IEHC 218 (para. 60). In that case, the Board had argued that a pleading point would usually be confined to the pleadings and facts of that case. The argument advanced in this case is not inconsistent with that position, but it was submitted that the question sought to be certified in this case transcends the boundaries of the case.
30.As in Halpin, the applicant for a certificate seeks to correct what it believes to be an incorrect application of the principles to the facts of this case. As Simons J. stated in Halpin "...The case law of the Supreme Court indicates that it will not normally be enough for a putative appellant to complain that the High Court did not properly apply established legal principles to the particular facts of the case; rather it seems that the basis of any appeal must be that the very legal principles relied upon by the High Court judge were incorrect." (para.15)
31.In Halpin, Simons J. cited the determination of the Supreme Court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134, in which it was stated:
"However, having said that, the more the questions which might arise on appeal approach the end of the spectrum where they include the application of any principles which might be described as having any general application to the facts of an individual case, the less it will be possible to say that any issue of general public importance arises. There will, necessarily, be a question of degree or judgment required in forming an assessment in that regard in respect of any particular application for leave to appeal. However, the overall approach to leave is clear. Unless it can be said that the case has the potential to influence true matters of principle rather than the application of those matters of principle to the specific facts of the case in question then the constitutional threshold will not be met."
32.Similarly, Barniville J. stated in Rushe v. An Bord Pleanála [2020] IEHC 429:
"It seems to me that while one cannot rule out the possibility of a point of law which satisfies the cumulative statutory requirements in s. 50A(7) of the 2000 Act (as amended) arising in respect of the application of well-established legal principles to the particular facts of the case, such is only likely to arise in exceptional circumstances and could not in any sense be said to represent the norm. Generally, where a court applies well-established legal principles to the particular facts of the case before it, it will be very difficult for an intended appellant to satisfy the cumulative statutory requirements in section 50A(7)."
33. Phelan J. held, in Stanley v. An Bord Pleanála [2022] IEHC 671 (para. 32 -33):
"Where the real thrust of the questions raised arise from the erroneous application of legal principles by the judge, this does not give rise to a point of law for a which a certificate should be granted."
34.In the principal judgment I sought to apply the well-established principles in relation to pleading to the Fourth Amended Statement of Grounds and to decide the matter which I found to be in dispute between the parties, namely whether the effect of the Board's decision was to grant permission in material contravention of the Development Plan insofar as it related to the cone of vision. The principal judgment did not purport to alter or refine the principles applicable to the contents of a Statement of Grounds, which principles have been considered frequently by the Superior Courts, including by the Supreme Court in Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2024] IESC 28, Casey v. An Bord Pleanála [2021] IESC 42, Khashaba v. Medical Council [2016] IESC 10. As the correctness of the principles identified in the principal judgment is not in issue, the application of those principles (even assuming that they were applied erroneously) is not likely to be of precedential value. The Notice Party relies in particular on the judgment of Baker J. in Casey and submits that the principal judgment gives rise to certainty in the law as to pleading requirements. If I did misapply Casey as the Notice Party contends, the High Court would have no option but to follow and apply Casey and Treascon in future cases rather than follow the way I applied the principles in the principal judgment. The principal judgment does not have the potential to influence true matters of principle.
35.I do not consider that the question whether an applicant must set out the interpretation(s) of the Board's decision which are open to the High Court amounts to a point of law of exceptional public importance. That challenges to decisions of the Board are frequently brought on grounds which assert that the Board's decision amounted to a grant of permission in material contravention of the applicable development plan without complying with the relevant statutory provisions does not elevate the point to a point of law of exceptional public importance. It does not follow from the fact that there is not a judgment on the specific issue raised by the Notice Party that it is a point of law of exceptional public importance. I do not consider that the first question proposed by the Notice Party involves a point of law of exceptional public importance.
Points 2, 3 and 5
36.The issue which the Board submits is appealable is effectively a reformulation of points 2, 3 and 5 as proposed by the Notice Party.
37.The Notice Party suggests that the principal judgment found that the Board is required to use the exact wording of the Development Plan i.e. to find that there is no adverse impact on the cone of vision. Certification is sought for the question "When considering whether a proposed development complies with a particular provision of the Development Plan, is the Board and/or the Board's Inspector required to make a determination as to whether the development complies with that provision using the existing wording of the particular provision of the plan?". I do not consider that such a question arises from the judgment. I made no finding requiring the specific wording of the Development Plan to be used, nor was that in issue between the parties. I held that, having regard to the wording of the Inspector's Report and Board Direction, an adverse impact had been found to exist.
38.The Notice Party argued that, assuming the finding that the Board considered an adverse impact existed is incorrect, the implication of the principal judgment is that the exact wording of the Development Plan should have been used. Whilst that argument has a certain superficial attractiveness, that submission is that the Notice Party effectively seeks to derive a question of law from an underlying factual error. The dictum of Lady Hale in R(Cart) v. Upper Tribunal [2011] UKSC 28 is apposite: "it is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon ... factual conclusions". I am satisfied that if I erred in the assumed manner, it does not amount to an error of law which could give rise to a point of law of exceptional public importance. Therefore, it is not appropriate to certify Question 3.
39.Questions 2 and 5 relate to the way the court should interpret a decision of the Board, in particular whether the Inspector or the Board had found that a proposed development would "adversely affect" a protected objective in a development plan. The Notice Party identifies certain phrases from the Inspector's Report and Board Direction to ask whether they should, or should not, be interpreted as determining that a proposed development would adversely affect a protected view.
40.The Notice Party concedes that the particulars in Question 2 are fact specific but submits that a general issue of exceptional public importance arises as, it is submitted, the court applied an overly strict approach to the interpretation of the decision of the Board. Question 5 is also fact specific, although it is expressed in more general terms.
41.The decision of the Board should be interpreted in a manner which is consistent with validity where that is possible: O'Donnell v. An Bord Pleanála [2023] IEHC 381; Shannon LNG Ltd v. An Bord Pleanála [2024] IEHC 555; Eco-Advocacy v. An Bord Pleanála [2025] IEHC 15.
42.The Notice Party does not dispute the finding that the Development Plan prohibits any development which adversely impacts the cone of vision. It makes a submission to that effect at para. 46 of the written submissions. Whether or not there is an impact on the cone of vision is a matter of fact and involves the exercise of planning judgement - in this case, part of the proposed development, including part of Block A, is within the cone of vision. At paras. 89 - 97 I found that the Board had found that there were adverse or detrimental effects on the cone of vision. In particular, I held, at para. 89 that "The language used in the Inspector's Report, which was adopted by the Board decision, demonstrates that it found there was an adverse effect on the cone of vision. This was clearly not considered to be a very significant adverse impact, having regard to the Board's ultimate conclusion that the impact of the proposed development was not such as to warrant refusal of the application." I also stated at para. 94, "In the circumstances, I am satisfied that the Board did not find that there was no adverse effect on the cone of vision. The Board found that the proposed development would impinge marginally on and have a detrimental impact on the cone of vision, even as amended. Both of these terms are indicative of an adverse effect on the cone of vision."
43.These are findings of fact reached by reference to the wording of the Inspector's Report and Board Direction. If I have erred in the interpretation of the words used by the Board, that is an error of fact, specific to the case.
44.It is trite law that planning documents are to be construed in their ordinary meaning, as understood by members of the public without a particular expertise in planning or law: XJS Investments Limited v. An Bord Pleanála [1986] IR 750; Krikke Barranafaddock Sustainable Electricity Limited v. An Bord Pleanála [2023] 1 ILRM 81; [2022] IESC 41; Dublin Cycling Campaign CLG v. An Bord Pleanála [2020] IEHC 587; Grafton Group Plc v. An Bord Pleanála [2023] IEHC 725. In Krikke, Woulfe J. stated "It seems to me that the ordinary meaning of the document as it would be understood by members of the public without legal training is more likely to be the literal meaning as set out in para. 99 above. In other words, the ordinary meaning would be understood on the basis of the actual words used in the text". As Humphreys J. held in O'Donnell & Ors v. An Bord Pleanála [2023] IEHC 381 "one has to read the decision not solely from an applicant's point of view (an impossible standard), but from the starting point of it being valid rather than invalid where possible. One has to stand back and ask what the decision is fundamentally saying."
45.Whilst the principal judgment does not expressly refer to the XJS principles, the method of interpretation utilised was the consideration of the ordinary meaning of the words used and findings made in the Inspector's Report and Board Direction. It has not been submitted that the principal judgment developed or departed from the principles on interpretation of planning decisions in the seminal cases. However, it is clear from the proposed questions that the Notice Party considers that there is at least a question as to whether the conclusion reached by me having regard to the wording of the Inspector's Report and Board Direction was incorrect as I placed too much reliance on certain statements and insufficient reliance on others.
46.The Notice Party submits that what the Inspector and the Board were actually saying was that there was no impact on the cone of vision. I disagree for the reasons set out in the principal judgment. If the principal judgment reached an incorrect conclusion on what the Board had decided, that is a matter which the Oireachtas has determined should not be the subject of an appeal to the Court of Appeal, as any such error is an error of fact rather than law. The interpretation of a particular planning decision is unique to that case. No point of law of exceptional public importance arises from the manner in which I interpreted the Board's decision in this case.
Point 4
47.The Notice Party seeks a certificate for the question "Where a Development Plan provides that new developments shall not adversely affect a view that is protected under that Development Plan, is the question of whether there is a material contravention of that provision of the Development Plan, a question of degree?"
48.It was submitted that the proposed question has the power to transcend the facts of the case and applied to all cases where a development plan prohibits an adverse effect on a protected objective. However, as appears from para. 81, the findings made in the principal judgment were made in context of the very particular importance placed by the Development Plan on the cone of vision, and the stated Policy of "the protection and enhancement of important views and view corridors into, out of and within the city, and to protect existing landmarks and their prominence". The Board's Inspector found the cone of vision to be one of the most important issues to be considered in the application. It was raised as an issue in many of the submissions and observations to the Board.
49.Despite submitting that "Interpreting the provision from the standpoint of the informed intelligent layperson (In re XJS Investments Ltd [1986] IR 750), the development plan prohibits adverse effects on the cone of vision. That interpretation is a matter for the Court", the Notice Party submits that the application of the prohibition allows for the exercise of planning judgement. The prohibition of adverse impacts on the cone of vision in the Development Plan is expressed in absolute terms - "Any new developments within this 'cone' shall not adversely affect this view". The Notice Party has not pointed to any language in the Development Plan to support the contention that the application of the Development Plan allows appreciable flexibility, discretion and/or planning judgement to the decision-maker.
50.I do not consider that a point of law of exceptional public importance arises as to whether the Development Plan provides a degree of flexibility in respect of the prohibition which the Notice Party accepts exists. Planning judgement is to be exercised in deciding whether an impact is adverse - that is a qualitative decision not a question of degree. At para. 86 of the principal judgment I found that the question whether a particular development adversely affects the view is quintessentially a question of planning judgement. The Development Plan does not leave open a question to be determined as to which adverse impacts prohibit or preclude development. The question which the Notice Party seeks to have certified confuses or conflates the nature and degree of an impact on the cone of vision. Regardless of the degree of an impact on the cone of vision, it is not prohibited if it is not adverse. A de minimis effect on the cone of vision would not be adverse. It is only where there is an adverse impact on the cone of vision, that the prohibition applies. As I have found, because of the importance which the Development Plan gives the cone of vision, the Board must comply with the requirements of section 9(6) of the 2016 Act in cases where there is an adverse impact. The question of the extent or degree of an adverse impact on the cone of vision is a factor in deciding whether granting the permission sought in material contravention of the Plan is justified.
51.The Notice Party submits that the finding at para. 85 of the principal judgment gives rise to a question as to how the question whether there is a material contravention of a provision of the Development Plan is to be determined, where the Plan calls for the exercise of planning judgment in respect of whether there is an adverse impact on a protected objective. This does not arise - in this case, I found that the Board had found that there was an adverse impact on the cone of vision, applying the XJS method of interpreting that decision, although the Board found that it was not a very significant adverse impact. For the reasons set out in the principal judgment, I do not consider that the Plan left open flexibility to decide whether or not an adverse impact should be permitted.
Conclusion
52. As I have found that the points of law proposed by the Notice Party do not amount to points of law of exceptional public importance arising from the principal judgment, I cannot grant a certificate under section 50A(7). Therefore, I refuse the application.
Emily Farrell