THE HIGH COURT
JUDICIAL REVIEW
Record No. 2022/157 JR
Between:
MARTIN STAPLETON
Applicants
and
AN BORD PLEANÁLA,
THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE,
IRELAND AND THE ATTORNEY GENERAL
Respondents
and
SAVONA LTD and DUBLIN CITY COUNCIL
Notice Parties
Contents
RULING OF MR JUSTICE HOLLAND ON CERTIFICATION OF APPEAL - DELIVERED 1 APRIL 2025. 1
LAW AS TO CERTIFICATION OF APPEALS. 3
A Question of Form: Points of Law or Grounds of Appeal?. 9
PARTICULAR POSITION OF THE BOARD AS TO CERTIFICATION OF APPEALS & ITS FEAR OF PRECEDENT. 12
POSITED QUESTIONS OF LAW LISTED & DECISIONS THEREON.. 13
Question 6 - Duty to Consider Requesting Further Information in Every Case of Factual Conflict. 13
Q.6 - Discussion & Decision. 13
Questions 7 & 8 - Requesting Further Information in SHD Cases. 17
Q.7 & 8 - Discussion & Decision. 18
Questions 9 & 10 - Inference of Non-Consideration Whether to Request Further Information. 18
Q.9 & 10 - Discussion & Decision. 19
Ground 1 - Material Contravention [Quantum Of Communal Open Space] - Questions 1 To 5. 20
Question 1 - Definition of Open Space. 20
Question 2 - Development Plan Definition of Open Space Ignored. 20
Q.1 & 2 - Discussion & Decision. 20
Q.1 & 2 - Stifling Innovation. 28
Question 3 - Standard of Review of Board Conclusion as to Open Space. 30
Q.3 - Discussion & Decision. 30
Question 4 – No Complaint to Board of Material Contravention. 32
Q.4 - Discussion & Decision. 33
Question 5 - Immateriality of Contravention Despite Space Not Being Open. 35
Q.5 - Discussion & Decision. 35
IF I AM WRONG AS TO EITHER GROUND BUT NOT BOTH, CERTIFICATE OF APPEAL OF A MOOT. 38
1. By judgment delivered on 13 February 2024 [1] (the "Judgment" - with which this ruling should be read), I quashed the Board's decision (the "Decision") dated 23 December 2021 to grant Savona planning permission for a strategic housing development [2] ("SHD") of 131 apartments on a site at 'Redcourt', Seafield Road East, Clontarf, Dublin 3 ("the Proposed Development" and "the Site"). The grounds on which I quashed the Decision were as follows:
· Ground 1 [3] (material contravention - communal open space)
The Proposed Development is in material contravention of the Development Plan as to the quantum of its provision of communal open space. The Board has not invoked the procedures of s.9(6) of the 2016 Act [4] and s.37(2)(b) PDA 2000, [5] so the Impugned Permission must be quashed as unlawful as in breach of the conditions of s.9(6) for the grant of permission in material contravention of the Development Plan. [6]
· Ground 3 [7] (public transport)
The Board erred in law in failing to consider whether, in the particular circumstances of the case, it should exercise its discretion to bespeak from Dublin Bus or Savona the written confirmation of Dublin Bus as to the adequacy of public transport to serve the Proposed Development at peak hours. [8]
2. The Board now [9] seeks leave to appeal the Judgment to the Court of Appeal. Such leave is required by s.50A(7) PDA 2000. [10]
3. S.50A(7) PDA 2000 provides, as to appeals in judicial reviews to which s.50 PDA 2000 applies, that
"The determination of the Court [11] 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 ...
"save with leave of the Court"
and
"... 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 ...".
It will be seen from the foregoing that the default position is that decisions of the High Court in judicial review are final and unappealable and that the court may "only" certify an appeal on satisfaction of two criteria, one of which is characterised by the word "exceptional".
4. I must assume for the purpose of this application that, as to the points of law posited by the Board, my decision may be wrong - Callaghan [12] and Dublin Cycling. [13] I should take the intended appellant's case on the point at its height - CHASE. [14] So, subject to one caveat, I am not concerned with the merits, strengths or weaknesses of the posited points of law or their prospects of success on any appeal. The caveat is that, taken at its height, a point of law must be at least 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.
5. The parties agree that the law as to certification of appeals under s.50A(7) PDA 2000 is stated in the "Glancré Principles" [15] as developed in quite a number of later cases and collected in cases such as, recently, MRRA [16] and Nagle View. [17]
6. As was said in MRRA most, if not all the Glancré principles, are particular expressions of the three main principles that:
· the High Court's decision in most cases is to be final and unappealable - such that the jurisdiction to certify an appeal should be exercised sparingly;
· the appeal, to be certified, must invoke a point of law of exceptional public importance. I add that the exceptionality requirement represents a very high hurdle;
· for the appeal to be certified, it must be desirable in the public interest that the appeal be taken.
The Glancré principles also, and appreciably, overlap.
7. As listed in MRRA, the principles are as follows:
Glancré Principles [18] |
a. The application for certification of leave to appeal should be made promptly - ideally within the normal appeal period. |
b. The jurisdiction to certify must be exercised sparingly. Most applications for a certificate fail. |
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. It is 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.
In Nagle View, Humphreys J made a similar point to the effect that the point should not be launched in the abstract. It must actually arise on the facts. |
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. In other words, 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 High Court order.
The Board in the present case cites Barrett J in a North East Pylon judgment [19] for a general view that the Court should ask itself: "What difference will it make in the event that an appeal is permitted and the matter that is the subject of appeal is determined in a particular way?" Or, to put matters in a more colloquial style: "Does the issue raised have 'real world' consequence?". However, this quotation bears recital in full:
"The court [20] is solely concerned with permitting the invocation of an appellate jurisdiction. It is not concerned with permitting a consultative case stated or an advisory opinion from the court [21] on an issue of law that may or may not appear interesting, or which may or may not appear, in the abstract, to be significant. It follows that it is appropriate for the court [22] to ask itself 'What difference will it make in the event that an appeal is permitted and the matter that is the subject of appeal is determined in a particular way?' Or, to put matters in a more colloquial style 'Does the issue raised have 'real world' consequence?' Issues that do not strike to the heart of the relief which is claimed are not properly certifiable. Issues that have no practical consequence in the litigation should not be certified."
It is clear that Barrett J's observation was directed specifically to the necessity that the ground of appeal be determinative of the proceedings. |
f. The point of law must be formulated with precision so that it indicates how it is determinative of the proceedings. It should not invite a discursive, roving response from the Court of Appeal. |
g. As implied by the principle that the point of law should be determinative, certification should be refused if points of law otherwise certifiable would leave unimpugned on appeal a ground upon which certiorari was granted, such that the result of the case will be unchanged even if the appeal succeeds. |
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. As Clarke J said in Arklow Holidays, [23] "The importance of the point must be public in nature". It must also be exceptional in that public importance. |
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. |
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 to seek judicial review is refused (i.e. for want of substantial grounds) a question may arise as to whether, logically, the same material can constitute a certifiable point of law of exceptional public importance. |
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.
In Nagle View, Humphreys J said that an appeal should resolve doubt rather than create doubt or uncertainty where none exists. [24]
While it is not a binding precedent, I nonetheless accept as a correct statement of the law the Supreme Court's statement in Phoenix Rock [25] that the mere fact that there is no appellate decision on a particular point does not per se mean that there is uncertainty in the law. [26] |
o. 'Uncertainty' cannot be 'imputed' to the law simply by raising a question as to a point of law. Merely raising an argument on the 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.
Though he said it in the context of the sparing exercise of the jurisdiction to certify, it bears recalling here that Barrett J in North East Pylon [27] said that questions based on future hypotheses which may never happen cannot be certified. But while correct in general, that is not an absolute principle. Even hypotheses likely to happen may never happen. Clearly, the court must assess the likelihood of occurrence of such hypotheses - ceteris paribus, the more likely the hypothesis the more likely a certificate. In this context, Humphreys J in Nagle View and Carrownagowan [28] made the important point that any assertion of problems in practice likely to be caused by an erroneous judgment must be backed up with evidence. Humphreys J observed that "evidence to demonstrate how the judgment creates the alleged or any problems has not been produced" and "an evidence-free submission cannot be a basis for the certification of questions of law to an appeal court." [29] I note that it was the Board itself which made that successful argument in the Phoenix Rock case. Nor, it seems to me and at least generally given the very high hurdle represented by the exceptionality requirement, can the evidence required consist merely of a sworn bare ipse dixit [30] - though that is not an absolute rule as there will be circumstances in which, for example, the court may take judicial notice of the practical implications of a point of law. |
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 it 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. I would add that it may sometimes be difficult to avoid doing so in order to show that the point arises out of the judgment. |
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 and circumstances 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. Ordinarily, the basis of any appeal must be that the very legal principles relied upon by the High Court judge were incorrect.
In Nagle View, Humphreys J said [31] that whether principles were correctly applied in a specific case is not normally a question of law of exceptional public importance and indeed is not a pure question of law at all. In Stanley, [32] Phelan J held that "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." |
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, 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. |
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.
In Nagle View, Humphreys J observed that the nature of the project, the risks of further delay and the potential impact of further delay on the notice party (typically the intending developer) are factors going to the public interest. [33] But these observations are made as telling against certification of appeal in failed judicial review applications. In my view they have little weight in favour of an appeal, and the resultant delay, which an intending developer seeks. |
w. The grant of leave should provide some added value to any matters already before the Court of Appeal. |
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 of very many possible reasons: for example, the case may settle, or the potential appellant may be risk-averse or impecunious and decide against appeal. |
8. By way of gloss on the Glancré principles, it was said in Power [34] that
· As the High Court's decision in most cases is to be final and unappealable, such that the jurisdiction to certify an appeal should be exercised sparingly and rarely, the default is refusal of certification and the onus is on the applicant for a certificate to demonstrate that the case merits certification.
· There are internal tensions in the Glancré principles as they have developed over time. While some are discretely and readily applicable, others are an aid to decision-making and they are not set in stone [35] - save for those so set out in s.50A(7) PDA 2000 itself.
· Ultimately what is required is a holistic analysis focussed on the criteria expressly set by s.50A(7) PDA 2000 - that the point of law be of exceptional public importance and that an appeal be desirable in the public interest.
9. As appears from s.50A(7) PDA 2000, the posited appeal must involve a point, or points, of law. Humphreys J in Clifford, [36] in considering the "form of the question", cites Clarke J Arklow Holidays [37] as distinguishing broad questions of principle from the narrow questions of their application to the case in which a certificate to appeal is sought. It seems likely that Humphreys J had in mind Clarke J's approval of a passage in which Simons [38] had said that "The point of law must be "of' or in some way "contained in" the decision or determination of the first instance, and must at the same time transcend the case itself to meet the requirements of exceptional public importance and public interest".
10. It must be emphasised that the perspective taken by the drafter of points of law posited for certification must be both general in its implications and yet particular to the case. The point must be of general public importance transcending the particular facts of the case. Yet it cannot be abstract, must be precise and must arise out of the particular facts and circumstances of the case, the pleadings, and the judgment - such that its determination will be dispositive of the particular case. In drafting, the putative appellant must ride both horses - either alone will not suffice. Also, the posited points must clearly identify both what, in the view of the aspiring appellant, is wrong with the judgment which it is sought to appeal and what the right answer is.
11. For these reasons, and for reasons he states and which I gratefully adopt, Humphreys J in Clifford advocated that posited points of law not be posited in open form such as "what is the legal situation in these circumstances?" but should be in the form "is the legal situation X (as the trial judge viewed it) or is it Y (as the aspiring appellant asserts)?" [39]
12. Humphreys J adds that:
· lack of precision in a question is pertinent to the exercise of the court's jurisdiction to grant leave to appeal - inter alia as it may invite the court to stray from the actual issues raised by the case and/or to certify a point which isn't in fact determinative; and
· the court may decline to certify an impermissibly imprecise question. [40]
13. Humphreys J also noted that the court can reformulate a proposed question. I would add that this may arise out of argument at the hearing of the application for a certificate. But I think reformulations should generally be limited to textual improvements rather than substantive changes of meaning. I do not think the court should strain to reformulate. In an adversarial process in which the court must be neutral inter partes, [41] in which appeal should be an exceptional rarity and in which the aspirant appellant bears the onus of demonstrating that an appeal should be certified, it is the aspirant appellant's job, not the courts', to formulate a good ground of appeal.
14. In Crofton, [42] the following appears:
"... Crofton proposed six "questions" for which it sought a certificate to appeal my decision as to remittal. At my request and by addendum submissions, Crofton translated these questions to eight proposed grounds of appeal - though I take the point, made by Crofton ... that what requires certification under s.50A(7) is not a ground of appeal as such but is whether the decision from which it is sought to appeal "involves a point of law ...". Crofton reserves its rights as to the grounds of appeal which it may formulate as to any point of law which I may certify for appeal. However, I have found Crofton's draft grounds of appeal useful in considering the posited points of law."
15. I remain of the view that there is considerable utility (not least from the point of view of the aspirant appellant) in the preparation, for applications such as the present, of at least draft grounds of appeal correlating to the points of law of which certification is sought. In my view, it aids precision and enables a clearer elucidation of the requirements that the points of law arise out of the particular facts and circumstances of the case, the pleadings and the judgment and will be dispositive. It also aids elucidation of what, in the view of the aspiring appellant, is wrong with the judgment which it is sought to appeal and how it should be put right. That said, I acknowledge that the Board's submissions, written and oral, were properly clear as to their assertions of error.
16. I have considered the written submissions filed by Savona. Essentially, they invoke, by reference to principle v. in the table above, and as to factors relevant to the desirability of appeal in the public interest, the nature of the Proposed Development and the planning history of the site since 2004.
17. Savona's written submissions do not elaborate on the significance of the nature of the Proposed Development. But it is safe to infer that they invoke the importance of residential development in the current national housing crisis. Of itself, that crisis represents, of course, a very significant national challenge. However if, on remittal, the Board were to refuse permission for the Proposed Development, that would represent an outcome presumptively lawful and correct in planning terms even against the backdrop of the housing crisis. If, on the other hand, the Board were to grant permission, there is no reason to believe and no evidence that any delay, from now and as between that occurrence and the period to the outcome of a successful appeal (if successful), would be in any degree time-critical with respect to the completion of the Proposed Development specifically or to the housing crisis more generally. Also, as to the significance of the nature of the Proposed Development and even in the housing crisis, I consider that one may contrast the Proposed Development of 131 apartments with the projects at issue in
· Arklow Holidays [43] - a waste water treatment plant to service the Arklow area, which Clarke J considered a major public infrastructural project; and
· North East Pylon [44] - the North-South 400kV electricity interconnector to serve the all-island single electricity market, in which Barrett J considered that the public interest outweighed any possible public interest in an appeal.
18. As to the planning history, Savona got permission for apartments on the Site in December 2007 but says that the economic crash at that time prevented development and that the extension of the duration of the permission was refused in or about 2014 on the basis that the development permitted in 2007 did not accord with the Development Plan current in 2014. The planning application which led to the Decision was made in September 2021. I do not consider that this history weighs significantly, as the grant of leave to appeal is to be exceptional by way of a jurisdiction sparingly exercised. The history described, while no doubt frustrating and worse for Savona, does not seem to me exceptional in any respect relevant to the certification, or not, of an appeal. In any event, reliance on that planning history really amounts to an argument that an appeal is desirable in a private interest - Savona's. That private interest is legitimate and likely considerable. But it does not weigh as a public interest for certification purposes.
19. Otherwise, Savona's submissions essentially seek, in breach of principle q. in the table above, merely to reargue merits which the Court has already decided against them and, for that matter, issues primarily of fact as they relate to the actual availability of public transport to serve the Site. In any event, I did not decide whether transport is adequate to serve the Site - that is a matter for the Board to decide in accordance with law.
20. In fairness to Savona, their solicitor at the hearing of the application for a certificate to appeal essentially accepted the foregoing analysis of its submissions.
21. I accept in general terms the Board's observation that it has a particular and systemic interest, which an individual applicant may lack, in the clarification on appeal of points of law which may repeatedly arise in planning appeals before the Board. If I understood correctly, the implication of the observation seemed to lie in a submission that the Board may, for good reason, somehow be in a better or stronger position than an individual applicant in seeking to have an appeal certified. However, the relevance of the observation seems to me ultimately superficial. That is because an individual applicant's invoking of his private interest in seeking a certificate for appeal will not avail him. S.50A(7) PDA 2000 restricts the right of appeal in terms which do not on their face, discriminate between the Board and others as to entitlement to appeal. The Board may well be correct in a given case in identifying points of law which may repeatedly arise in planning appeals it. It may also be in a position to adduce particular evidence of the likelihood of repetition of the point. But it is no more correct because it is the Board that says it. Both an individual applicant and the Board, in seeking a certificate, must invoke the same public importance and the same public interest and are faced with the same "very high hurdle", which is not raised or lowered by reference to their respective private or institutional interests or by reference to the identity of whoever articulates that public importance and public interest.
22. The mere fact that a declaration granted in the High Court may constrain the Board in the exercise of its public powers under statute cannot be, per se, a ground for certification of appeal. Such a position would deprive the statutory requirement of exceptionality of meaning. While the right of appeal is of course a vital one, the proposition that decisions of the High Court in certain planning matters are "final" save where appeal is certified is not limited to its decision of issues particular to the case or to the parties. High Court decisions are final also as to issues of general application - which is clear from their effect as authoritative precedent. The mere fact that there is no appellate decision on a particular point does not per se mean that there is uncertainty in the law. [45] Nor does a prospect that the appellate court might decide an issue differently per se avail: that the High Court decision may be wrong is a premise of the appeal certification process. Yet the statutory rarity of appeals implies that in most cases,
· the prospect that the appellate court may decide the issue differently will not be realised, and
· the law, as declared by the High Court, will remain other than that which the appellate court might have declared.
That is part of the price of prioritising expedition and finality of litigation which the legislature has accepted in adopting s.50A(7) – perhaps taking the view that in practice, and one would hope from the point of view of the operation of the courts generally, most appeals fail.
23. These principles explain why the Board's repeated expression of "concern" - a concern expressed in this case - that High Court decisions as to which it seeks certificates to appeal will bind it failing appeal is, per se, nihil ad rem. That is how stare decisis operates and is meant to operate. It is how High Court judgments operate and are meant to operate as precedents. That they do so is a consideration which, per se, does not add to an argument that the criteria for certification - that a point be of exceptional public importance and that an appeal on it be desirable in the public interest - are satisfied. The issue of stare decisis as it bears on certificates to appeal is also addressed in principle y. in the table above.
24. The Board posits the following questions of law for appeal. In my decisions thereon I have sought to apply the principles set out above. The Board posits no less than ten questions as of exceptional public importance as arising from errors in the Judgment. No doubt in ease of any amour propre as it relates to my judgment, counsel for the Board skilfully commenced his submissions by submitting that, in essence there were two questions variously expressed.
"Is there a general obligation on the Board to consider whether to request further information or documentation in every case where there is a factual conflict as between material presented on behalf of the applicant for permission and another party which has made observations, irrespective of whether any party requests it to do so?"
25. Question 6 is based on a hyperbolic and incorrect depiction of what the Judgment decided. It is a straw man argument which falls foul of the requirement that a point of law, to be certifiable for appeal, must arise from and reflect a correct understanding of the decision of the High Court, read as a whole. Given the word "irrespective", Question 6 may be considered in the first instance without reference to the issue of a request by a party that the Board should seek further information. The Judgment did not decide that there is a "general obligation on the Board to consider whether to request further information or documentation in every case where there is a factual conflict". It decided that an obligation to consider whether to request further information may arise in particular circumstances and arose in the particular circumstances of this case. Accordingly, this question of law does not arise from the Judgment.
26. In elaborating on this view that Question 6 does not arise from the Judgment, some background assists. As the Judgment reveals, but simplifying and summarising very considerably for the purpose of this ruling, there was, in the planning process, vehement dispute between Savona and the objecting local residents as to the adequacy of Dublin Bus's #130 bus service to serve the Proposed Development. There is no doubt but that its adequacy was inevitably a significant issue in the Board's assessment of the planning application. Savona produced expert reports on the issue. The objecting local residents invoked their daily peak hour experience of standing at bus stops watching full buses pass them by. Savona asserted that Dublin Bus had confirmed in correspondence that the #130 buses to and from the city centre in the morning and evening peak times generally do not operate at maximum capacity. Thus far, the dispute, though stark, was perhaps not unusual.
27. Otherwise, however the circumstances of this case as recorded by the Judgment and as they relate to adequacy of public transport serving the Site were, one would hope, highly unusual.
· First, having cited its reliance on the Dublin Bus correspondence, Savona did not provide it to the Board - as they ought to have done as a matter of course so that their reliance on it could be verified.
· Second, having explicitly noted that Savona had not provided the Dublin Bus correspondence, the Board did not bespeak it despite the importance of the presumed knowledge of Dublin Bus as to the performance of its own bus service and the role it was likely to play in resolving the completely incompatible accounts of the adequacy of the bus service placed before the Board by, respectively, Savona and the local resident objectors.
· Third, when eventually and only in the proceedings the Dublin Bus correspondence came to light, it turned out that it addressed capacity only on buses going in the opposite direction to the rush hour traffic likely to emanate from the Proposed Development. [47] As the Judgment records, "It manifestly does not live up to its billing" by Savona and "had not been accurately" depicted by Savona in the planning process. Eventually in the proceedings, and only when it was pressed at trial, Savona revealed that the Dublin Bus correspondence had issued in response to a query relating to an entirely different development - an office building in Dollymount. In that light, Dublin Bus's response made perfect sense as relating to the direction of likely traffic to and from that office block in the morning and in the evening but not as to the direction of likely traffic to and from the Proposed Development in the morning and in the evening. In the Judgment I found Savona's position "distinctly unimpressive" and "quite unsatisfactory and disquieting in terms of the erroneous information given both to the Board and to the court."
28. Moving then to the decision in the Judgment, on the issue of public transport it includes the following:
"263. The Board and Mr Stapleton could not have known, when the Board was making the Impugned Decision, that the correspondence with Dublin Bus did not, in fact, live up to its billing by Savona. I also bear in mind that the Inspector and the Board concluded that they were "satisfied" on the issue of public transport capacity. But the Board did know that the correspondence with Dublin Bus was missing from the file - the Inspector had told it so ... not least given how little was involved in terms of delay or burden on anyone, it could very easily, and with no delay of any consequence, have bespoken that correspondence and, at very least as a matter of good practice, it should have done so. However, I do not quash the decision on that specific account. In the end, the Board is the judge of the adequacy of the information before it to enable a decision and there is no plea of irrationality on this issue.
...
265 I do quash the decision on a narrower ground. While it is entitled to decide the adequacy of the information before it to enable a decision, it must properly consider that adequacy in order to decide it. The Inspector had, in the context of a live controversy on a main issue, explicitly adverted to the absence of a relevant document which she clearly had expected to find on the file. As a matter of probability, the alleged content of that document underlay, in appreciable degree the view taken by the Board of that controversy. It seems to me that while it was entitled to anticipate that the correspondence would live up to Savona's account of it, the Board was obliged in the particular circumstances of this case, but failed, to at least consider and decide whether to bespeak the Dublin Bus correspondence if only on a basis, as a former president of the United States might have put it, of "trust but verify"." [48]
29. It is clear that Question 6, framed explicitly in terms of "every case", does not arise from a decision grounded explicitly "in the particular circumstances of this case". In its attempt to frame the question in terms meeting the criteria of exceptional public importance and that an appeal be desirable in the public interest, the Board sacrificed the requirement that the question arise from the Judgment. Accordingly, Question 6 is not certifiable for appeal.
30. In this context, counsel for the Board cited O'Brien [49] - a case I addressed in the Judgment at §§203 - 207 [50] - and in which Costello J held, as I of course agree, that "... the Board is engaged ... not primarily in deciding disputes between parties." I held that O'Brien and CHASE [51] "are authority that the Board need not resolve disputes merely for the sake of their resolution and that it need not resolve disputes the resolution of which is unnecessary to its decision". Accordingly, a question posited in terms of my having imposed a "general obligation" in "every case where there is a factual conflict" does not arise out of the Judgment.
31. True, in the Judgment at §207, I also, citing Sliabh Luachra, Balz and NECI, [52]
· held that neither O'Brien nor CHASE "is authority for a general proposition that the Board need never resolve disputes between protagonists in a planning process",
· observed that "it is 'crucial' that submissions be 'addressed' and where those submissions are contradictory, it may, depending on circumstance, be difficult or impossible to meaningfully 'address' the substance of a submission, or 'truly engage' with it, without resolving that contradiction where its resolution is necessary to a proper planning decision."
But that does not have the effect that Question 6, posited in terms of my having imposed a "general obligation" in "every case where there is a factual conflict", arises out of the Judgment. Rather, and as I said, the Board's obligations depend "on circumstance". Nor, indeed, does the Board suggest that I misunderstood or inaccurately expressed the principle in fact deriving from O'Brien. Again, Question 6 does not arise out of the Judgment.
32. As recorded above, the closer on the spectrum a 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. As the Judgment records: [53]
· it is well-settled law that particular circumstances may impose an obligation to consider whether to exercise a statutory discretion - see Sandiford, [54] Hogan et al [55] and Sherwin. [56]
· In Sherwin, the Minister's error was that he "disabled himself from considering whether or not he should exercise his discretionary powers".
Accordingly, if I erred it was in the application of those well-established legal principles to the circumstances of this case. In that light, if I erred, it is not a matter of exceptional public importance.
33. Turning to the terms of Question 6 after the word "irrespective", I do not consider that its reference to the absence of a request by a participant in the planning process that further information be requested affects the issue of certification. [57] There is no uncertainty in the law but that the Board's duty is one of "detailed scrutiny", "rigorous scrutiny", and "critical interrogation" of planning applications - which scrutiny "must be apparent" and which duty imposes autonomous obligations with a view to protection of the public good as a matter distinct from the interests of the antagonists in the planning process (for example, the transport requirements of future residents of the SHD) - Fernleigh. [58] The autonomous obligation is also demonstrated by the commonplace of the rejection of planning applications to which there is no objection. The presence or absence of a request that a request for further information be made of the type posited may be relevant to the exercise of the discretion whether to seek further information but neither is in law necessarily dispositive of the question of its exercise. The absence of a request does not absolve the Board of consideration of the possibility of a request for further information if the circumstances of the case otherwise require it. Again, the autonomous obligation of consideration of the possibility of a request for further information is also demonstrated by the commonplace of issuing such requests in the absence of an objection or of a request that a request for further information be made. Again, in this respect Question 6 merely raises the application of settled law to the "very particular" [59] circumstances of the case - in this instance the circumstance of the absence of a request. It does not raise a matter of exceptional public importance.
34. I should add that, in argument, counsel for the Board accepted that where the Board was requested to seek further information, the requestor would generally or at least prima facie be entitled to the Board's explanation why it had not done so. Such an entitlement necessarily implies a duty on the Board to consider any such request and accordingly to consider whether to seek such further information. So, it illustrates the general principle that circumstances - in this postulate, the making of the request to seek further information - may impose a duty to consider whether to do so. It is difficult to see why that particular circumstance but no others could impose such a duty on an inquisitorial Board. That is, of course, far from a general duty to seek further information "every case where there is a factual conflict".
35. For these reasons, Question 6, considered discretely, is not certifiable for appeal. However, I have borne Question 6 in mind in considering the remaining questions posited as to Ground 3.
"7 Is the answer to (6) different in the context of applications for permission for proposed strategic housing development under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016?"
"8 Related to (6) and (7), in the context of an application for permission for proposed strategic housing development under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016, if deciding whether to request a person to make a submission or observation under Article 302(6)(b) of the Planning and Development Regulations 2001, as amended, for the purpose of obtaining further information, should the Board have regard to or not have regard to the fact that any information received cannot be circulated to other parties for comment?"
36. Insofar as Questions 7 and 8 are considered as sub-questions of Question 6 and for the reasons I have given as to Question 6, they are not certifiable for appeal. However further considerations arise as to Questions 7 and 8.
37. The 2016 Act as to SHD was repealed by the 2021 Act [60] such that, in the events which occurred, no SHD planning applications have been made since 2022. Absent evidence as to the number of SHD applications outstanding for decision by the Board or as to the number of SHD applications in which questions of consequence arise as to the Board's seeking further information, I cannot see that it is either of exceptional public importance or desirable in the public interest that Questions 7 and 8, which are specific to the 2016 Act, be certified for appeal. Indeed, counsel for the Board properly accepted that he had no instructions which would allow him to submit that the number of SHD applications remaining for decision by the Board could support a finding that a question of law as to the operation of the 2016 Act, as it related to SHDs, is of exceptional public importance and that it is desirable in the public interest that an appeal should be taken. A fortiori, it follows that, of the number of SHD applications remaining for decision, the subset in which a disputable issue is likely to arise as to the exercise of the power to seek further information is not of exceptional public importance nor is it desirable in the public interest that an appeal should be taken.
38. As to Question 8, Mr Stapleton argued, and the Board did not disagree, that statutory limitations on circulation of information to other parties for comment, analogous to those imposed by the 2016 Act, are not elsewhere imposed in the planning code. If there are such, the Board, bearing the onus of doing so, did not invoke them. In any event, this question does not arise from the Judgment. The Judgment quashed the Decision for failure to consider seeking further information and exercise its statutory discretion in that regard. It did not quash for failure to seek further information.
39. For these reasons, I refuse to certify Questions 7 and 8 for appeal.
"9. In circumstances where the Board's Inspector expressly states she is satisfied on the basis of the documentation before her as to a certain matter — in this case, related to adequacy of public transport — can the Court nevertheless infer that the Inspector/Board did not consider whether it should seek further information or documentation in relation to the matter concerned, or, should the inference rather be drawn that the Inspector/Board did not consider any further information was required?"
10. Related to Question (9), is the Board required to state explicitly that it has considered whether to seek further information or documentation but decided that same is not required?"
40. Questions 9 and 10 seek, unstateably, to reduce the consideration of the evidence in the Judgment to a single aspect of that evidence rather than the entirety of the evidence. The Judgment does not hold that the Board is required in any general sense or as a matter of law to state explicitly that it has considered whether to seek further information or documentation but decided not to." The Judgment, rather, made an inference of fact from the totality of the evidence that the Board had not done so in this particular case. Accordingly, these questions do not arise from the Judgment.
41. As has been noted above, the Judgment states "I also bear in mind that the Inspector and the Board concluded that they were 'satisfied' on the issue of public transport capacity." [61] It is worth referring here to the Judgment from §250. It considers the evidence as to this "very particular case in which there was a vehement factual dispute on an issue of current adequacy of public transport - to the demand for which the Proposed Development would add and all with the prospect, as apparent from BusConnects, of no significant improvement in capacity in the foreseen future." [62] The Judgment reviews the relevant evidence as to the circumstances in which the Inspector found herself, noted the paucity of that evidence and acknowledges that, as to whether the Board in fact considered seeking the relevant letter written by Dublin Bus,
"It is unattractive to decide the matter against Mr Stapleton on a presumption of validity as to an issue of fact exclusively within the Board's knowledge, which knowledge it has not shared.
On one view, the Board's adoption of the Inspector's satisfaction with the position as to adequacy of public transport capacity could be extrapolated to an inference that the Board considered and rejected the prospect of pursuit of the correspondence with Dublin Bus.
On another view, the proper inference is that the Inspector just never followed to any conclusion her observation that the correspondence had not been enclosed with the planning application and so the prospect of pursuit of the correspondence with Dublin Bus was never considered." [63]
The Judgment then records the reasons for inferring that the latter was the proper inference on the evidence: that "on balance that the prospect of exercising the Board's statutory discretion under Article 302(6)(b) [64] was never considered by the Inspector or the Board." [65]
42. So, the Judgment specifically considered whether, where the Inspector expressly stated she was satisfied on the documents before her as to adequacy of public transport, I should infer that she did consider whether the Board should seek further information. Whether I drew the wrong inference on the evidence in the particular circumstances of the case:
· is a question of interpretation of evidence, and
· is a question relating to a finding of fact - whether the Board in fact considered whether to seek further information.
In truth, the Board's skilful legal legerdemain here is an attempt to portray a common-or-garden finding of fact on the evidence as laying down a novel general legal principle. As is well-known, "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". [66] Accordingly, in my view, Question 9 and 10 do not arise from the Judgment and do not transcend "well beyond" the facts of the case, raise questions of law or questions of exceptional public importance or questions the decision of which, on appeal, is desirable in the public interest.
43. For these reasons, I refuse to certify Questions 9 and 10 for appeal.
"Was the High Court correct in its definition of what constitutes 'open space'?"
"Related to (1), in deciding whether a proposed development comes within the meaning of 'communal open space' within a development plan, is the narrative text of the development plan outlining the definition and/or characteristics of communal open space relevant, or is the Board confined to considering whether the space is 'open' in the Court's interpretation of the ordinary and natural meaning of that word?"
44. The Board's written submissions assert that it is logical that Questions 1 and 2 be certified together.
45. Question 1 is framed as an open question - rather than in the form recommended in Clifford. It does not assert error of law. It does not identify the substance of the Court's "definition" of open space. More importantly, it does not argue that such definition was wrong in law or explain, even in brief, why it was wrong or what the correct definition is. It is best regarded as throat clearing for the questions which follow. Of itself, this question is not certifiable for appeal.
46. In fact, I held that that there is no definition of open space either in ordinary meaning or in the Development Plan - which presumably is why Question 1 does not attribute a definition to me despite asking whether my definition is "correct". The Judgment held (§345) "the search for a watertight definition of "open space" is futile". I considered that the "elephant test" applies and held that:
"342. Broadly and without attempting a definition, it seems to me that in general,
· four walls and no roof is open space;
· a roof with no walls is open space;
· a roof with less than four walls may be open space;
· four walls and a roof is not open space."
In this respect, Question 1 does not arise out of the Judgment.
47. The Board submits that Question 1 is novel - that the question whether a partially enclosed or covered space can constitute 'open space', as that term is used in development plans, has not been previously considered by the courts. Novelty is relevant to, but not determinative, whether a point is uncertain and is certifiable for appeal - Carrownagowan. [68] The difficulty for the Board here is that the novel question does not arise in this case in the general sense in which it is posed - it arises in the context of a specific Development Plan which expressly stipulates that an open space may be enclosed. It also arises in the context that I have already answered this question broadly in the Board's favour:
"341. ... As the Development Plan definition acknowledges, an open space can be enclosed. Indeed, balconies to apartments are often partly enclosed but are generally considered outdoor spaces - in this Development Plan they are considered to be private open space. But, whatever the definition, clearly a space completely enclosed by walls and a roof is not open space on any sensible view, so the definition must allow only of partial enclosure. And the more enclosed, the less likely to be open space ...".
I also posited open spaces such as sheltered roof gardens. The Judgment did not hold that, either generally or on an application of the Development Plan, an open space may not be partially enclosed or sheltered. I see no certifiable uncertainty in the law here as to the issue posited by the Board.
48. While the Board is no doubt correct that open space as a general concept arises in many planning applications and (if perhaps many fewer) judicial reviews of planning decisions, there is no evidence or even suggestion that the issues thrown up by this development - described by all as "unique" as to the form of its proffered open space - is likely to arise in the daily operation of the law.
49. The premise of Question 2 (and of the Board's written submissions on the other questions posited as to Ground 1) is that the Judgment adopted the ordinary and natural meaning of open space to the exclusion of consideration of the narrative text of the Development Plan as to that meaning - including the Development Plan's allowance that a space may be open "whether enclosed or not".
50. That premise is false and in breach of principles c. and d. in the table above (that the point must arise out of a correct understanding of the Judgment). As the excerpts from the Judgment on which the Board relies themselves demonstrate, [69] the Judgment did consider the narrative text of the Development Plan as to the meaning of open space and as a matter of interpretation of the Development Plan. The Judgment recorded the Development Plan "definition" of open space (though it later, at §§326 & 345, expressly qualified the use of the concept of "definition") and Mr Stapleton's and the Board's submissions thereon at §§291 to 294.
51. The Judgment includes the following:
"291. Mr Stapleton submits that:
· The roof is a structure. The area beneath the roof is a part of the structure. It is not open space. Open space is space outside, around or on top of a structure. The Courtyard is not open space but is part of the structure.
· The Development Plan defines open space as follows:
"3 Open space is any land (active or passive use), including water, whether enclosed or not, on which there are no buildings (or not more than 5% is covered with buildings), and the remainder of which is laid out as a garden/ community garden or for the purposes of recreation, or lies vacant, waste or unoccupied. It also includes school playing fields, playgrounds, urban farms, forests, allotments, and outdoor civic spaces." [70]
· §16.10.1 of the Development Plan [71] describes communal open space in apartment developments as a "critical environmental resource", a "breathing space". "It may be in the form of accessible sheltered roof gardens, communal landscaped areas at ground level or at podium level where commercial or retail uses occupy the ground floor." It should "include green spaces that support communal free play, sports and biodiversity." Reference is made to soft and hard landscaping, plant species, garden maintenance and water and drainage connections.
· While it may include a "sheltered" roof garden, the Development Plan does not suggest that the entire communal open space may be enclosed by an overall roof and surrounded by walls on four sides, with only relatively narrow openings.
· Interpretation of the Development Plan and of s.2 PDA 2000 is a matter of law for determination by the Court: the former on XJS principles; the latter on the rules and principles of statutory interpretation.
· On such interpretation open space is a space which is not enclosed by the structure but which is open to the air, the elements, biodiversity and its surroundings. A roofed and walled structure is not open space.
· The Courtyard is not land "on which there are no buildings".
· By the Board's misinterpretation of the Development Plan as to the meaning of open space, it failed to direct itself correctly in law and it authorised a development which failed to provide appropriate communal open space, in material contravention of §16.10.1 of the Development Plan. In respect of that material contravention the Board did not invoke its powers under s.9(6) of the 2016 Act and s.37(2)(b) PDA 2000. The Impugned Permission is therefore ultra vires and void in accordance with general principles of judicial review.
292. The Board pleads that
· It is denied that the space beneath the roof is not open space or communal open space.
...
· The space under the proposed ETFE roof comes within the Development Plan's definition of open space. [72] It creates a covered (though not fully enclosed [73] - as the roof allows free movement of air) and landscaped area for year-round amenity and recreation of the residents, which aligns fully with the purpose of open space under the Development Plan.
· Correctly interpreted, the Development Plan allows that space covered by an ETFE roof can constitute communal open space.
...
293. The Board's submissions elaborate on its plea that that space covered by the ETFE roof can constitute communal open space within the meaning of the Development Plan correctly interpreted on XJS principles. That is so as its definition of open space,
· allows that it can be 'enclosed'.
· allows that it can include a sheltered roof garden. Such gardens, the Board says, are covered by a roof. It says that it is "hard to identify any coherent basis on which it could be contended that the Development Plan intended to characterise a sheltered roof garden as open space but a sheltered courtyard as not constituting open space."
· crucially distinguishes open space from land on which there are "buildings". There is no applicable definition of a "building" but the lay person would understand it as connoting a degree of permanence and ordinarily meaning a structure with walls and a roof.
297. The interpretation of the Development Plan, on XJS principles as if by the intelligent informed layperson, is agreed by all to be a matter for the Court. Chapter 14 identifies zoning objectives, one of which, Z9, is for "To preserve, provide and improve recreational amenity and open space and green networks". It does not apply to the Site but is of interest in that the text provides the definition of open space which I have set out above. [74] For present purposes what is notable is that,
· an open space may or may not be "enclosed".
· no more that 5% of it may be "covered with buildings".
299. The Development Plan, under the heading "Residential Quality Standards - Apartments", [75] includes the following as to communal open space in apartment schemes:
· "... apartment schemes must ... provide for communal open space. Communal open space is a critical environmental resource as a 'breathing space' and for meeting the amenity needs of residents". [76]
· "It may be in the form of accessible sheltered roof gardens (or) communal landscaped areas at ground level ..."
· "Where appropriate, communal open space should include green spaces that support communal free play, sports and biodiversity."
· It "will be soft and/or hard landscaped with appropriate plant species and landscaping materials".
· It "is secure for residents and benefits from passive surveillance considers the needs of children in particular in terms of safety and supervision." Play spaces/areas are required.
· "is wheelchair accessible".
· "achieves good sunlight penetration".
· "has appropriate arrangements for maintenance and management".
317. As I have said, I reject the Board's invocation of the "spirit" of open space. It seems to me an attempt to fudge an essentially simple and ordinary requirement - that the space be open. Indeed, it is a concept which the intelligent layman interpreting the phrase "open space" would expect to be essentially simple. The Board invoke that "spirit" by reference to the other features of the Courtyard - such as the garden and its amenity value. But these seem to me to be features just as capable of being found in a space which is not open - for example a closed atrium.
318. ... Lavery J observed [77] that "Unfortunately, drunkenness is a condition which comes under the notice of most people with any experience of life." Fortunately, the same can be said for open space.
320. All parties' pleadings and written submissions proceeded on the basis that it is for me to decide whether the Board was substantively correct in deeming the Courtyard to be open space. ... As far as the written case goes, it proceeded on the basis that I am to decide the issue whether the Courtyard is open space within the meaning of the Development Plan.
324. Not least in a planning system designed for the participation of a wide variety of lay and expert stakeholders and participants and characterised by public participation, important [that] widely applicable concepts such as "open space" should be, insofar as possible and even if not susceptible to precise definition, clear, objective, generally understood, and grounded in common-sense and ordinary meaning - as opposed to technical/legalistic meaning. The application of such concepts to particular facts should generally produce predictable results. That the necessary complexity of planning law and practice is such that the intention cannot always be fully realised and outcomes are not always as predictable as one would wish is an argument for intensifying the effort towards clarity rather than abandoning it.
326 It is a commonplace of statutory interpretation that the ordinary meaning of a word or phrase may be altered for the purposes of a particular statute by a definition stated in the statute. But interpretation of a Development Plan is not the same exercise as statutory interpretation. I have referred above to text from the Development Plan as a definition of open space. However, and while I will continue to refer to it as a definition, and I have found it of assistance in this case, it might perhaps be better viewed as an explanation or description, or perhaps even an elaboration, of the phrase. I do not see it as attempting to give to the phrase "open space" a meaning substantially other than its ordinary meaning. Of course, that is not to say that the adoption by development plans of particular definitions of words and phrases for particular purposes is to be ignored. But in this case the approach I describe seems to me to accord with the application of XJS principles.
339. Whether a space is "open" is not a technical or scientific issue. It is an issue of ordinary meaning. It seems to me important to ask the question what, as to the openness of the space, would the intelligent layperson make of this? Does the space conform to the proper expectations of such a person and the community with whom the Council Development Plan has made an environmental contract - a promise, a representation in solemn form, binding on all affected or touched by it - that it will regulate private development in a manner consistent with the objectives stated in the plan - McGarry and Byrne. [78] It is for the Court to "discern whether the promise has been kept and the solemn representation honoured openly, transparently and strictly in accordance with the plan .... the Court must attribute clear meaning to the plan as best it can while respecting the tension between its proper flexibility (of which the decision-maker must have the benefit) and its being a plan by which the planning authority can be held strictly to account" - Jennings. [79] Ordinary concepts through which the solemn promise is expressed are not infinitely elastic and the Court is entitled to discern when the elastic has snapped. I must ask if the ordinary intelligent informed layperson would consider that, in the Proposed Development, the solemn promise of the Development Plan that apartment developments would include a particular minimum quantity of space which is "open" has been fulfilled.
341. Openness can be a matter of degree. Shelter is possible indoors and outdoors and in varying degrees. But "a shelter" tends to convey an outdoor location in which an incomplete protection from the elements is found: for example a bus shelter or a gazebo or a roofed platform at a smaller railway station. Even a windbreak provides shelter on a beach. Such locations are considered to be outdoors - as is a person sheltering under an umbrella, unless prepared to risk bad luck by opening it indoors. A sheltered roof garden is likely to be a similar space. As the Development Plan definition acknowledges, an open space can be enclosed. Indeed, balconies to apartments are often partly enclosed but are generally considered outdoor spaces - in this Development Plan they are considered to be private open space. But, whatever the definition, clearly a space completely enclosed by walls and a roof is not open space on any sensible view, so the definition must allow only of partial enclosure. And the more enclosed, the less likely to be open space. For example, a walled kitchen garden in a "big house" is clearly an enclosed outdoor space - as is the often walled back yard of an artisan cottage. On the other hand, a room in which the windows are wide open - even in which large skylights or patio doors spanning an entire wall are open - will still be considered to be indoors. Despite the very large oculus in the centre of its dome, no-one would suggest that the Pantheon is an open or an outdoor space."
52. It will be seen from the foregoing that the Judgment proceeds on the basis:
· of the necessity to "to decide the issue whether the Courtyard is open space within the meaning of the Development Plan."
· of a consideration of the narrative text of the Development Plan - including the possibility of an "enclosed" open space.
· that the Development Plan concept of open space was not "substantially other than its ordinary meaning." [80]
As Mr Stapleton submits, the Judgment acknowledged that a Development Plan could define a word artificially but concluded that in this instance it had not done so.
53. The Judgment thus properly understood, and whether or not its conclusion was correct that the Development Plan concept of open space was not "substantially other than its ordinary meaning", it is clear that:
· The premise of Question 2 is wrong in asserting that the Judgment "confined" itself "to considering whether the space is 'open' in the Court's interpretation of the ordinary and natural meaning of that word" to the exclusion of consideration of "the narrative text of the development plan outlining the definition and/or characteristics of communal open space relevant". No such confinement or exclusion occurred in the Judgment and the Judgment applied its interpretation of the Development Plan concept of open space, concluding on XJS principles, [81] that it coincided substantially with the ordinary meaning of the concept.
· Accordingly, Question 2 does not arise out of the Judgment.
· Question 2 is in substance based on an assertion of error of law by way of misinterpretation of the Development Plan.
· The law as to interpretation of development plans (on XJS Principles) is well-settled and not uncertain. One could cite many cases but the recent cases of Grafton [82] and GOCE [83] suffice. In the latter, in her ruling on the certificate application, Farrell J observed that in her substantive judgment she had "identified the well traversed principles applicable to the interpretation of development plans generally".
· Accordingly, any error consisted in the application of those well-settled principles to the facts and circumstances of the case - the circumstances in this case including the Development Plan.
54. The Board submits, as to Questions 1 and 2, that an important point arises as to the extent to which the definition of open space can vary depending on any particular definition of it in a development plan, or any description of the characteristics of 'open space' in such a document. In attributing importance to these supposed issues, the Board flatters to deceive itself as to importance. That any legal document, including a development plan, can adopt a particular, and even artificial, definition of any concept is a commonplace of the law. The Judgment, properly understood, recognises that commonplace - albeit in the context of the application of XJS principles of interpretation of Development Plans. It says: "Of course, that is not to say that the adoption by development plans of particular definitions of words and phrases for particular purposes is to be ignored." [84] I reject, as a strained interpretation of the Judgment, the Board's argument that the phrase "not ignored" does not go far enough - in context, the meaning is plain enough as acknowledging that particular definitions are to be applied by means of the application of proper interpretive principles. So, this submission collapses into a mere complaint of misinterpretation of the Development Plan as not "attempting to give to the phrase 'open space' a meaning substantially other than its ordinary meaning". [85]
55. In terms of Question 2, the premise that the Judgment required that the narrative text of the Development Plan outlining the definition and/or characteristics of communal open space be considered not "relevant" cannot, on a proper understanding of the Judgment, survive the actual consideration of that text in the Judgment and the recognition in the Judgment that such text is not to be "ignored". So Question 2 is a straw man which does not arise from the Judgment.
56. As to Questions 1 and 2, the Board submits that uncertainty arises as to how XJS principles are to be applied in interpreting development plans - as to the extent to which a 'text in context' approach, similar to that employed in statutory interpretation, has a role to play. It submits "To the extent that the High Court has concluded that the XJS principles preclude consideration of text in context, the Board considers that this is incorrect ...". The simple answer is that there is no "extent" to which the Court concluded that the XJS principles preclude consideration of text in context or, for that matter, failed to consider the context. This is an attempt by the Board to manufacture uncertainty where none exists. No context external to the Plan is suggested by the Board and, as to matters internal, since at least 2007 it has been well-settled law that a development plan must be interpreted as a whole and in the round and that no part of a development plan is to be considered in isolation - Byrnes and Forest Fencing. [86] As Grafton [87] recently points out, that planning documents are to be read "as a whole" goes back as far as XJS. [88] Indeed in Lanigan, [89] Clarke J refers to the XJS approach as "an early example of the move towards ... the "text in context" method of construction appropriate to the determination of the meaning of all documents potentially affecting legal rights and obligations. This approach has now become well established. The "text in context" approach requires the Court to consider the text used in the context of the circumstances in which the document concerned was produced including the nature of the document itself."
57. The law is not at all uncertain in this regard and the Judgment applied it to the facts and circumstances of the case. If, in applying it, I drew the wrong conclusion, that does not raise a point of law of exceptional public importance.
58. It follows from the foregoing that Questions 1 and 2 should not be certified for appeal.
59. I should add that the Board argued that my interpretation of the Development Plan concept of open space was, in requiring that the space be open in the ordinary sense of that word, stifling of the kind of desirable innovation which, in its view, the Proposed Development represents in the form of its provision of communal space.
60. In this regard, I should first record that I was careful in the Judgment to explicitly take no view on the general question whether the Proposed Development is, in its proposal of the communal space in question, generally in accordance with proper planning and sustainable development.
61. It is self-evident that there is often, as to many aspects of development generally, a tension between on the one hand allowing flexibility permissive of welcome innovation and, on the other hand, the function of a development plan as an environmental contract on which the community can rely as a promise foreseeably and reliably indicating the forms of development permissible and the standards applicable in permitting such developments. It is for the elected members, by the terms of their development plan, to resolve that tension between encouraging innovation and providing predictability. It is not for the court to independently foster innovation - it is for the elected members to provide for it. Thereafter, it is for the court, on XJS Principles, to interpret the terms of the plan as adopted.
62. Even then, it is for the legislature to provide, and it has provided, for circumstances in which decision-makers may depart from a development plan. It is not for the planning decision-maker, including the Board, to circumvent the applicable development plan or the limits of the legislature's decisions as to departure from it in the cause of a general impulse in favour of innovation which the planning decision-maker considers welcome.
63. There is no uncertainty as to the law in these regards. Any error in the Judgment of interpretation of the Development Plan was an error in the application of well-settled principles to the fact constituted in the Development Plan. If I applied the wrong understanding of the concept of open space, my error was in interpretation of the Development Plan. Such an error is not in my view certifiable for appeal.
64. I further add that the Board significantly overstates the legislative restrictions on its capacity to permit innovation by way of material contravention (even if one assumes the untenable premise that it should have scope to circumvent those restrictions) and the general significance of the Judgment in that regard.
· It must be remembered that, in this case, the limits of the legislature's decisions as to permissible material contravention of development plans were particular to SHDs and the 2016 Act. [90] This was a safeguard in the very particular scheme of the 2016 Act which sought to prioritise expedition of decision-making by allowing planning applications directly to the Board and a particular decision-making process within the Board. No doubt the legislature took the view that such restrictions were necessary given the exceptional procedures for granting permission which the 2016 Act provided. For reasons I have already stated, issues particular to SHDs and the 2016 Act are not certifiable for appeal - at least on the evidence and submissions before me in this case.
· More generally however, those restrictions of material contravention of development plans apply to decisions of the Board in planning appeals only where the planning authority has refused permission for material contravention (and, may it be said, has not exercised its own power to permit permission in material contravention of the development plan [91]). Otherwise, the Board has a general power to "grant a permission even if the proposed development contravenes materially the development plan." [92]
65. Accordingly and as to any possibility that the Judgment stifles innovation by requiring that open space be open, I see no question of exceptional public importance.
"Related to (2), if the narrative text of the development plan outlining the characteristics of communal open space is relevant and involves the application of evaluative judgment, what is the standard of review in respect of a conclusion of the Board that an aspect of a proposed development constitutes communal open space within the meaning of a development plan?"
66. Again, this question is framed as an open question - it is not framed as Clifford recommends. It does not assert error. It does not identify what standard of review the Court applied, assert that it was in error, identify the posited correct standard of review or explain how its application would be determinative of the proceedings.
67. More importantly, in context, this question relates to the standard of review by which the Court is to interrogate the Board's determination that there was no contravention of the Development Plan in that it determined that the space in question was communal open space within the meaning of the Development Plan. Taking the Board's premise of evaluative judgment at its height and assuming error in the Judgment, this question does not raise an issue as to which there is uncertainty in the law. While Supreme Court determinations are not precedentially binding, I am happy to take as a correct statement of the law its observation in Graymount [93] that the "Jennings/Sherwin tests" (also adopted in St Margarets Recycling [94]) apply. Indeed, the Board itself submits, not that the law in this respect is uncertain but that the Jennings/Sherwin tests "now represent settled law". The Jennings/Sherwin tests:
· apply an irrationality test where the issue is contravention of development plan provisions intended to be flexible and to rest on the application of evaluative planning judgement, and
· otherwise apply "full blooded" review for legal error on the well-established basis that material contravention is an issue of law for the court to decide.
Though I am not bound by its decision, I note also that the Supreme Court in Graymount considered that error in the application of that test to the facts and circumstances of that case did not raise a point of law of general public importance.
68. The Judgment contains the following:
"320. All parties' pleadings and written submissions proceeded on the basis that it is for me to decide whether the Board was substantively correct in deeming the Courtyard to be open space. ... As far as the written case goes, it proceeded on the basis that I am to decide the issue whether the Courtyard is open space within the meaning of the Development Plan.
321. Orally, the Board introduced, for the first time in reply to Mr Stapleton's oral submissions, an argument that whether the space was open was a matter of planning judgement reviewable only for irrationality ...
322. While a decision as to the quality or planning merit of the open space would be reviewable only for irrationality, I do not think the question whether it is open space is. [95] While the discernment involved may be difficult and questions of degree may be involved, it does not seem to me that whether a space is 'open', in the sense in which the intelligent layperson would understand that word, is a matter of discretion (which would imply a right to deem a space open as opposed to making a finding of fact) or planning judgment (in the sense that the issue is not the planning virtue of the space but is one of its physical nature). It is a binary question. Either the space is open or it is not. In my view, I must decide whether the Courtyard space is 'open' or not." [96]
69. The Board's submissions also misconstrue the Judgment in this context: in saying that the question whether a space is open is, in context, "binary", it was simply stating a fact - in my view an undeniable fact. The Board had to decide the space was either open or not. The Judgment was not, by describing the issue as binary, propounding a test of openness. It was merely pointing out that, whatever the test, there were only two possible results of its application.
70. Assuming, as I should, that my conclusion that the proposed space was open represents error on my part, the nature of the error is the application, to the question of contravention of the Development Plan, of the wrong test of the two possible, and now well-settled, Jennings/Sherwin tests. So, we are concerned here with the alleged misapplication of well-settled law to the particular facts and circumstances of a case.
71. Further, the Board's Question 3 is not grounded in an allegation of error as to the ordinary meaning of the phrase "open space"- an error of potentially wide application. Indeed, the Judgment so acknowledged:
"323. ... the decision of the Board, and perhaps mine, as to whether this Courtyard is open space is likely to be consequential. The particular definition in the Development Plan apart, [97] open space is a concept found in every development plan and in important planning policy documents such as planning guidelines. Its provision is required as a matter of course in certain forms of development."
72. But, as I say, Question 3 is not grounded in an allegation of the misinterpretation of the concept of open space as a matter of general meaning and the particular definition in the Development Plan apart. Rather, it is grounded in an allegation that the ordinary meaning of the phrase was altered by the terms of the particular Development Plan. Not merely that, it is grounded in an allegation that the particular Development Plan was in this respect misapplied to the facts as they related to a Proposed Development which, it was not disputed, would as to its being proposed as open space, be "unique". The following passage of the Judgment recorded:
"310. The Architectural Design Statement states that "The proposed courtyard development with the ETFE canopy will be unique in Ireland. ... The ETFE canopy over the court yard creates unique Communal Open space for residents and visitors." [98] Again, that description is not, in any real way, disputed - other than the use of the word "open"."
313. The Inspector opines that:
...
"The applicants state that the covered courtyard will be a unique type of communal open space in Ireland, will be an attractive space to be in and possibly an attraction in itself. I would not disagree with this assertion."
314. ... what is at issue here is not whether the Courtyard, including its roof, is a good thing from a planning point of view. Leaving aside the question of openness, one can understand the Inspector's point of view that the Courtyard would be a quality offering – unique and innovative and that any impacts on daylight would be far outweighed by its benefits. ... [99] many might consider, and the Board was fully entitled to consider, the Courtyard a very attractive, innovative, desirable and useful space and, if not open space, a very acceptable substitute for - even an improvement on - open space given the Irish climate."
73. On the Board's case, as posited in Question 3, as to the alleged misinterpretation of a particular Development Plan definition of open space and its consequent misapplication to a particular Proposed Development which it considered "unique" in this respect, and absent any evidence of a likelihood that similar development proposals for incorporating roofed open spaces are now or will be common or even repeated in the Dublin area, I do not see that the particular error alleged is one of exceptional public importance.
74. For these reasons, I decline to certify Question 3 for appeal.
Related to (3), is the fact that no party maintained before the Board that the aspect of the proposed development at issue materially contravened the communal open space requirements of the development plan relevant?
75. Yet again, Question 4 is posited as an open question in the abstract - is not framed as Clifford recommends and is not framed on foot of a proper understanding of the Judgment.
76. First, Question 4 raises no issue of law as to which there is any uncertainty. Put simply, the answer to this question is "Yes". Not merely is the law certain: it doesn't get the Board anywhere in its present application.
77. Since at least Roughan [100] it has been clear that the question whether, by reason of a contravention of a development plan, "the proposed development is, or might reasonably be expected to be, opposed by local interests" is relevant to the question whether such a contravention is material. While the law may no longer be (if it ever was) that the question whether a contravention is material depends solely on the answer to that question, there is no doubt in the law but that the answer to the question is relevant to the determination of materiality. There is also no doubt but that the evidence of, or the absence of evidence of, opposition to a proposed development by reference to a contravention of a development plan, while not necessarily dispositive of the question, is relevant to answering the question of materiality. The Board is correct in citing Ballyboden [101] to the effect that "It is also significant that no-one complained in the planning process of material contravention ...".
78. The Judgment does not contradict the relevance of absence of such complaints. But the Board's premise that "no party maintained before the Board that the aspect of the proposed development at issue materially contravened the communal open space requirements of the development plan" does not arise from the Judgment. The Judgment considered that factual question. If it got the answer wrong that is an error particular to the case and is far from an error of exceptional public importance. The Judgment contains the following:
"327. The Board pleads that Mr Stapleton may not raise the material contravention issue as it was not raised before the Board. The law in this regard was surveyed in Kelly. [102]
328. In fact, objectors did in substance raise the issue:
· "AK" baldly asserted that there was "No open space in the development". Whether correct or not, that assertion is consistent only with her expression of a view that the Courtyard is not open space. While she does not frame the issue as one of material contravention, that her assertion raises such an issue can only have been obvious to the Board.
· "HMcI" ... refers to the space below the ETFE roof as "communal open space" ... under the heading "No Open Space In The Development - No Rationale Provided", he also asserts that in the SHD consultation Savona was asked to provide "a rationale for the covering and clarify if the communal area is to be completely enclosed" but in the planning application did not answer this question. Again, while he does not frame the issue as one of material contravention, his assertion of "No Open Space In The Development" and his relating it to the Courtyard can only have made the implication of material contravention apparent to the Board given open space provision is an invariable and important aspect of any apartment development.
329. ... the Council did raise the issue, if tentatively, in its post-consultation/pre-application opinion, in which it said that it "would query whether the enclosure and confinement of the communal space allows such space to be regarded as truly 'open'". Its report to the Board on the planning application accepted the Courtyard as open space – albeit also opining that "The roofing of the four blocks would result in what was a four building perimeter block to becoming one structure"
330. There is therefore no sense in which the Board is being "gaslit" in the proceedings by a point not made to it in the planning process. The point was made to it and, to the extent it was not made in explicit terms of material contravention, it was made in terms which made the question of material contravention obvious.
331. Material contravention of a development plan is a question which the Board has an autonomous duty to consider, whether or not it is raised by objectors, as long as there is material before it which may reasonably be said to raise the issue - Four Districts. [103] What material may reasonably be said to raise the issue must be considered in the light that the Board is a planning expert. I do not think it is impermissible hindsight to observe that, whatever the substantive planning merits or demerits of the proposal to roof the Courtyard, it should be obvious to a planner that the question must at least be asked, whatever the answer, whether this resultant space is "open" such as to contribute to the quantified provision of open space required by the Development Plan. A planner could not ask that question without immediately realising that it raises a question of material contravention. ... there was ample material before the Board, an expert, to alert it to the need to consider the issue. Further, Four Districts is authority that once the Board's duty to consider the specific material contravention issue was activated, whether autonomously or by other objectors, that fact that Mr Stapleton did not himself raise it does not estop him from doing so in judicial review.
332. ... the Board has an autonomous duty to identify material contraventions which duty, "... subsists where the alleged material contravention is not drawn to its attention by others, unless the Board was not on notice - actual or constructive - of the relevant facts. ...That inquisitorial obligation is born of the primarily public nature of the interests protected by planning and environmental law (though it protects private interests also) and is evident, for example, in that planning applications may be (and often are) refused in the absence of any objection - including on material contravention grounds." ... the foregoing must be considered in the context that the Board is an expert and its duties bear on it accordingly.
333. I therefore hold that the issue whether the Courtyard is open space, and whether there was a material contravention as to the provision of communal open space was before the Board and Mr Stapleton is not estopped from raising it in these proceedings."
79. The Board, in its posited questions for appeal, does not question the correctness of the foregoing passages of the Judgment. Accordingly Question 4 does not arise out of the Judgment. If I am wrong in that regard, Question 4 in any event raises no uncertain point of law. So, I decline to certify Question 4 for appeal.
"Was the High Court correct to conclude that a contravention of a requirement for a quantum of communal open space could not be considered to be a non-material contravention on the basis that the space provided, even if not open, met the objectives to be served by the provision of communal open space?"
80. The Judgment contains the following:
"285. The Board's suggestion in oral argument that the other planning merits of the Courtyard could be such as to render the contravention immaterial as in accordance with the "spirit" of the concept of open space is entirely unconvincing: if adopted, it would eviscerate the primary feature of the criterion - that the space be open.
286. In truth, the issue nets to a question whether the space is open. It seems to be accepted that in all other respects the space is communal and is possessed of attributes characteristic of a communal open space. That net question of openness derives from the fact that the Courtyard will be covered by a roof. Put that baldly, one may wonder how the controversy arises at all. The issue is best understood by reference to figures which I have appended to this judgment and to which, at this point, the reader should refer. [104]
288. ... But for this roof no issue would arise as to the openness of the Space - the Courtyard would qualify as communal open space within the meaning of the Development Plan."
81. Question 5 appears to me to be premised on a view that, whatever the other virtues of a space and whatever the applicable definition or meaning of the phrase "open space", the openness of an open space is capable of being an inessential virtue such that its absence may be immaterial to the requirement of a communal open space. That appears to me to be an unstateable proposition. Clearly, as to a development plan requirement of open space, "openness" to the elements is not merely an optional quality or a quality merely enabling of other virtues. Indeed, as the Judgment observes, many of the virtues identified by the Board can just as easily be found in non-open spaces - in that sense they are not the distinguishing features of open space. [105] Openness is the essence of open space and is an end in itself. I cannot conceive that the intelligent layperson could take any other view on interpreting the "promise" of open space, "answerable to public confidence", "binding on all affected or touched by it", "justified by the common good" found in the "solemn" "environmental contract" with the public constituted by a development plan. [106] One can imagine circumstances in which a finding of immateriality of an absence of open space in a development could be made - perhaps, for example, in the case of a proposed development adjoining a public park. However, I cannot imagine a finding of immateriality of an absence of the quality of openness in an open space. It was because the Board's oral argument that the other planning merits of the courtyard could render the contravention immaterial was entirely unconvincing, as it would eviscerate the primary objective of the criterion that the space be open, that I concluded that the issue of material contravention "nets to a question whether the space is open." The Board's analysis appears to regard the openness of the space as merely a means to other objectives of the provision of open space. Of course, as a general matter of planning and as a matter of the terms of the Development Plan, there are many objectives of and virtues to the provision of open space. But openness is not merely a means - it is the primary objective and, as I have said, an end in itself. And as the Judgment states of Development Plans:
"339. ... Ordinary concepts through which the solemn promise is expressed are not infinitely elastic and the Court is entitled to discern when the elastic has snapped."
82. If I am incorrect in this conclusion that the premise of Question 5 is unstateable and remembering that
· the question assumes the space is not open,
· the space was considered "unique", and
· the Board bears the onus of proof of satisfaction of the criteria for certification of an appeal,
it is important to note, having regard to the decisions in Nagle View and Carrownagowan, that the Board tendered no evidence that it has ever received, or expects in future to receive, development proposals which raise or are likely to raise any issues similar to those raised by this "unique" non-open [107] open space. In that light, there is no reason to infer that Question 5 raises issues of law likely to arise in the daily operation of the law - or, for that matter, the law considered over any lengthier period. In that light, I cannot see the point as one of exceptional public importance.
83. Further, Question 5 is premised on the view that the space was not open. It then argues that despite not being open the resulting contravention was not material by reason of its other virtues which met the objectives to be served by the provision of communal open space. The Board did not plead such a case. As the judgment records, it was a point made only in argument.
84. For these reasons, I decline to certify Question 5 for appeal.
85. As recorded above and as the Glancré principles are not set in stone, [108] save for those so set in s.50A(7) PDA 2000 itself, Power [109] is authority for a holistic analysis focussed on the criteria expressly set by s.50A(7) PDA 2000 - that the point of law be of exceptional public importance and that an appeal be desirable in the public interest.
86. In this case, the very number of the questions posed and their interrelationships in two groups - as to Grounds 1 and 3 respectively - have the effect that the foregoing decisions as to certification, taken together, constitute a holistic view of the criterion of exceptional public importance. However, standing back, as it were, from the details, it appears to me that a number of aspects of this case render it one in which that criterion and the distinct but overlapping criterion of desirability of an appeal in the public interest are unsatisfied.
· First, the form of development at issue is unique and there is no evidence that it is likely to be a regular feature of planning applications.
· Second, any error in interpretation of the meaning of the phrase "open space" derived from the misinterpretation of the Development Plan, but the law is not uncertain as to the principles of interpretation of development plans. Nor do I see uncertainty in the law as to the colloquial meaning of the phrase.
· Third, the "Jennings/Sherwin tests" have recently clarified the law on the standards of review of determinations as to material contravention of a development plan. Any erroneous application of those tests to the particular circumstances of this case is not a matter of general public importance.
· Fourth, I assume that Savona's misdepiction of the tenor and significance of the Dublin Bus correspondence and its failure to enclose it with the planning application is unusual - one hopes, highly unusual.
· Fifth, I see no uncertainty in the law but that particular circumstances may impose a duty on the Board to seek further information. Whether the unusual circumstances of this case imposed such a duty is not a matter of general public importance.
· Sixth, there is no reason to conclude that considerations specific to decisions of planning applications as to SHDs are any longer of general public importance or that appeals in respect thereof are desirable in the public interest.
This holistic analysis does not alter my conclusions as set out above.
87. I quashed the Decision in respect of each independently of Grounds 1 and 3. If I am wrong, as to either ground but not both, in my view that the posited points of law are uncertifiable, it would follow that the otherwise certifiable points would not be determinative of the proceedings and so would be moot and I would refuse certification in any event on that account. The Board accepted that, at least ordinarily, principles e. and g in the table above and Dublin Cycling are authority to that effect. But, the Board said, this is not an absolute or inflexible rule - nor is the law of mootness, relying by analogy on O'Brien. [110] As I have held that the questions as to neither ground are certifiable, the question of certifying such a moot for appeal does not arise. I prefer to leave consideration of the point to a case in which it does.
88. For the foregoing reasons, I refuse to certify an appeal in this case. I will hear the parties as to the costs of the issue whether to certify for appeal. My provisional view is that Mr Stapleton should have those
costs against the Board and that Savona should bear its own. The case will be for mention on 7 April 2025.
David Holland
1/4/25
[1] [2024] IEHC 3. Terms defined in that judgment are adopted in this ruling.
[2] Within the meaning of the Planning and Development (Housing) and Residential Tenancies Act 2016.
[3] i.e. Ground 1 on which judicial review was sought by the Applicant.
[4] Planning and Development (Housing) and Residential Tenancies Act 2016.
[5] Planning and Development Act 2000 as amended.
[6] The Judgment §382.
[7] i.e. Ground 3 on which judicial review was sought by the Applicant.
[8] The Judgment §382.
[9] The application came on for hearing on 20/3/25.
[10] Planning and Development Act 2000 - as amended by s.75 Court of Appeal Act 2014.
[11] i.e. the High Court.
[12] Callaghan v An Bord Pleanála & Element Power [2015] IEHC 493 §13.
[13] Dublin Cycling Campaign CLG v An Bord Pleanála #2 [2021] IEHC 146 §29.
[14] Cork Harbour Alliance for a Safe Environment v An Bord Pleanála [2022] IEHC 231 §32. Also Arklow Holidays Ltd v An Bord Pleanála [2008] IEHC 2.
[15] Glancré Teoranta v An Bord Pleanála [2006] IEHC 250.
[16] Monkstown Road Residents' Association v ABP [2023] IEHC 9 §8. I have edited some entries slightly without changing meaning. I have also added some content where indicated.
[17] Nagle View Turbine Aware (No. 2) v An Bord Pleanála [2025] IEHC 3 §9.
[18] As listed in Monkstown Road Residents' Association v An Bord Pleanála [2023] IEHC 9 §8. I have added some content where useful.
[19] North East Pylon Pressure Campaign Ltd v An Bord Pleanála [2018] IEHC 3.
[20] i.e. the High Court.
[21] I.e. the Court of Appeal
[22] i.e. the High Court.
[23] Arklow Holidays Ltd v An Bord Pleanála [2008] IEHC 2.
[24] Citing Baker J in Ógalas v An Bord Pleanála [2015] IEHC 205, [2015] 3 JIC 2008.
[25] Phoenix Rock Enterprises v An Bord Pleanála & Ors [2023] IESCDET 97 §26.
[26] The Supreme Court stated the principle more widely in terms of "any of the three constitutional thresholds" on which appeal to the Supreme Court may be certified but that concept encompasses that of uncertainty in the law. The three thresholds were identified in the associated determination in Fursey Maguire v Meath County Council [2023] IESCDET 96 as "the interests of justice", "general public importance" and "exceptional circumstances".
[27] North East Pylon Pressure Campaign Ltd v An Bord Pleanála [2018] IEHC 3.
[29] Citing analogously and non-precedentially, Phoenix Rock Enterprises v An Bord Pleanála & Ors [2023] IESCDET 97 §22 and §30 in which, in refusing leave to appeal, the Supreme Court rejected for want of evidence an allegation that alleged uncertainty in the law was creating difficulties in practice in the quarry industry. Citing also McCaffrey and Sons Ltd v An Bord Pleanála [2024] IEHC 476 §3.7.
[30] As to the evidential value of a bare ipse dixit, see Collins J in Duffy v McGee [2022] IECA 254 §19.
[31] Citing Reid v An Bord Pleanála (No. 3) [2021] IEHC 593 §7.
[32] Stanley v An Bord Pleanála [2022] IEHC 671 §§32 -33.
[33] Citing Dunnes Stores v An Bord Pleanála [2015] IEHC 387, [2015] 6 JIC 1805 §15 and §16 and analogously and non-precedentially Eco Advocacy CLG v An Bord Pleanála and Keegan Land Holdings [2024] IESCDET 62. See also Arklow Holidays Ltd v An Bord Pleanála [2008] IEHC 2 §5.1. In that case the project was a waste water treatment plant to service the Arklow area which Clarke J considered a major public infrastructural project. In North East Pylon Pressure Campaign Ltd v An Bord Pleanála [2018] IEHC 3 the project at issue was the North-South 400kV electricity interconnector to serve the all-island single electricity market in which Barrett J considered that the public interest outweighed any possible public interest in an appeal.
[34] Power & Wild Ireland Defence v An Bord Pleanála, the State & Knocknamona Windfarm [2024] IEHC 247 §§11 & 12.
[35] Cork Harbour Alliance for a Safe Environment v An Bord Pleanála [2022] IEHC 231 §31.
[36] Clifford v An Bord Pleanala [2021] IEHC 642.
[37] Arklow Holidays Ltd v An Bord Pleanála [2008] IEHC 2.
[38] Simons, Planning and Development Law, 2nd Ed'n, p641.
[39] Without, I think, altering his meaning, I have elaborated on Humphreys J's suggested formula which was "is the legal situation X or is it Y?"
[40] As to the need for precision see also Barrett J in North East Pylon Pressure Campaign Ltd v An Bord Pleanála [2018] IEHC 3.
[41] Leaving aside that it has decided against the aspirant appellant as the premise of the certification application is that the court may have been wrong as to the posited point of law.
[42] Crofton Buildings Management CLG v An Bord Pleanala [2023] IEHC 240.
[43] Arklow Holidays Ltd v An Bord Pleanála [2008] IEHC 2.
[44] North East Pylon Pressure Campaign Ltd v An Bord Pleanála [2018] IEHC 3.
[45] See fn 26 above as to Phoenix Rock Enterprises v An Bord Pleanála & Ors [2023] IESCDET 97 §26 and Fursey Maguire v Meath County Council [2023] IESCDET 96.
[46] i.e. Ground 1 on which judicial review was sought by the Applicant and on which certiorari was granted.
[47] i.e. from the city in the morning and to it in the evening.
[48] Emphases added. President Ronald Regan was given to using this Russian proverb in the context of nuclear disarmament negotiations with the Soviet Union in the 1980s.
[49] O'Brien v An Bord Pleanála & Draper [2017] IEHC 773.
[52] Sliabh Luachra v An Bord Pleanála [2019] IEHC 888, §38, Balz v An Bord Pleanála [2020] 1 ILRM 367; Náisiúnta Leictreach Contraitheoir Éireann (NECI) v Labour Court [2021] IESC 36, [2021] 2 ILRM 1.
[53] See the Judgment §257.
[54] R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 2697. Cited in R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] 1 WLR 3923 and R (Stephenson) v Secretary of State for Housing and Communities and Local Government [2019] EWHC 519 (Admin).
[55] Hogan, Morgan & Daly, Administrative Law in Ireland (5th Ed'n, 2019) §17-249 - failing to acknowledge that there is any discretion to exercise. Citing Sherwin v Minister for the Environment [2004] 4 IR 279 & Whelan v Kirby [2005] 2 IR 30.
[56] Sherwin v Minister for the Environment [2004] 4 IR 279.
[57] The concept of a "request" for a "request" for further information is apt to confuse unless the "request" in consideration at any given point is carefully borne in mind.
[58] Fernleigh v ABP & Ironborn [2023] IEHC 525 §§63, 69 & 70 and cases cited therein - Balz & Heubach v An Bord Pleanála & Cleanrath Windfarms [2019] IESC 90, [2020] 1 ILRM 367; Atlantic Diamond v An Bord Pleanála [2021] IEHC 322; Weston v An Bord Pleanála [2010] IEHC 255, [2010] 7 JIC 0102; and Jennings v ABP [2023] IEHC 14.
[59] Judgment §258.
[60] Planning and Development (Amendment) (Large-scale Residential Development) Act 2021.
[61] Judgment §263.
[62] Judgment §259.
[63] Judgment §260.
[64] Planning and Development (Strategic Housing Development) Regulations 2017 (SI 271 of 2017).
[65] Judgment §260.
[66] Lady Hale in R (Cart) v Upper Tribunal [2011] UKSC 28, cited with approval in Leech v An Bord Pleanála & Ors [2025] IEHC 157 and EcoAdvocacy v An Bord Pleanála [2025] IEHC 15.
[67] i.e. Ground 1 on which judicial review was sought by the Applicant and on which certiorari was granted.
[68] Carrownagowan Concern Group v An Bord Pleanála (No.3) [2024] IEHC 549, [2024] 9 JIC 2301 §25 - citing Callaghan v An Bord Pleanála [2015] IEHC 493, [2015] 7 JIC 2405.
[69] Judgment §§317 & 326.
[70] Development Plan p246, fn3.
[71] Residential Quality Standards - Apartments - at p327.
[72] Development Plan p246, §14.8.9.
[73] As noted at §11.4.28 of the Inspector's Report.
[74] Development Plan p246, §14.8.9.
[75] §16.10.1.
[76] p327.
[77] AG (Ruddy) v Kenny [1960] 94 ILTR 185.
[78] AG (McGarry) v Sligo County Council [1991] 1 IR 99 at p113, Byrne v Fingal County Council [2001] 4 IR 565. See, recently, St Margaret's Recycling and Transfer Centre Ltd v An Bord Pleanála [2024] IEHC 94 §56.
[79] §105.
[80] Judgment §326.
[81] Re XJS Investments Limited [1986] IR 750 - also Tennyson v Dun Laoghaire [1991] 2 IR 527.
[82] Grafton Group v An Bord Pleanála [2024] IEHC 554 & [2023] IEHC 725.
[83] GOCE v An Bord Pleanála [2025] IEHC 43.
[84] The Judgment §326.
[85] The Judgment §326.
[86] Byrnes v Dublin City Council [2017] IEHC 19; Wicklow County Council v Forest Fencing Limited & Anor [2007] IEHC 242, [2008] 1 ILRM 357.
[87] Grafton Group PLC v An Bord Pleanála [2023] IEHC 725.
[88] Re XJS Investments Limited [1986] IR 750.
[89] Lanigan v Barry [2016] 1 IR 656 §3.11.
[90] See s.9(6) of the 2016 Act and s.37(2)(b) PDA 2000.
[91] S.34(6) PDA 2000.
[92] S.37(2)(b) PDA 2000.
[93] Graymount House Action Group v An Bord Pleanála & Trafalgar Capital [2025] IESCDET 22.
[94] St Margaret's Recycling and Transfer Centre Ltd v An Bord Pleanála [2024] IEHC 94 §58.
[95] i.e. is judicially reviewable only for irrationality.
[96] See also Judgment §344.
[97] Emphasis added.
[98] §3.0 Proposed Design, §6. Distinctiveness.
[99] The Judgment posited also the opposite point of view that the such an "industrial-style" roof would be inappropriate for the Site in terms of its visual effect when seen from off-Site.
[100] Roughan & Ors v Clare County Council, Unreported, Barron J, 18 December 1996.
[101] Ballyboden Tidy Town Group v An Bord Pleanála [2023] IEHC 722 §154.
[102] Kelly v An Bord Pleanála & Atlas GP [2022] IEHC 238.
[103] Four Districts Woodland Habitat Group v An Bord Pleanála [2023] IEHC 335 §147. See also Clane Community Council v An Bord Pleanála [2023] IEHC 467 §107(x): "The fact that the applicant didn't raise the issue is irrelevant - compliance with the plan or in the alternative valid consideration of the material contravention power is an autonomous duty on the board."
[104] See also the descriptive content at §287 - 298 of the Judgment.
[105] Judgment §338 set seq.
[106] AG (McGarry) v Sligo County Council [1991] 1 IR 99 at p113; Byrne v Fingal County Council [2001] 4 IR 565 and many cases since including Friends of the Irish Environment v Ireland [2022] IESC 42, [2022] 11 JIC 0903; Jennings & O'Connor v An Bord Pleanála & Colbeam 2023 IEHC 14 and Sherwin v An Bord Pleanála [2024] IESC 13.
[107] Its not being open being a premise of the question's positing that any contravention was immaterial.
[108] Cork Harbour Alliance for a Safe Environment v An Bord Pleanála [2022] IEHC 231 §31.
[109] Power v An Bord Pleanála & Knocknamona Windfarm [2024] IEHC 247 §§11 & 12.
[110] O'Brien v Personal Injuries Assessment Board [2006] IESC 62, [2007] 1 IR 328.