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URL: http://www.bailii.org/ie/cases/IESC/2006/S58.html
Cite as: [2007] 1 ILRM 422, [2007] 1 IR 272, [2006] IESC 58

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Judgment Title: Clinton -v- An Bord Pleanala & ors.

Neutral Citation: [2006] IESC 58

Supreme Court Record Number: 347 & 348/05

High Court Record Number: 2003 184 JR

Date of Delivery: 01 November 2006

Court: Supreme Court

Composition of Court: Denham J., Hardiman J., Geoghegan J., Fennelly J., Macken J.

Judgment by: Denham J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Denham J.	Other (see notes)	Hardiman J., Geoghegan J., Macken J.

Fennelly J	Other (see notes)	Hardiman J., Geoghegan J., Macken J.

Notes on Memo: Judgment on preliminary issue - the Court determines that the applicant is not
confined to arguing the point of law certified by the High Court.
Adjourn appeal to date to be fixed.

THE SUPREME COURT

[S.C. 348 of 2005]
[S.C. 347 of 2005]

Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
Macken J.

Between/

Paul Clinton

Applicant/Appellant

and

An Bord Pleanála
Dublin City Council
And by order the Attorney General

Respondents

and

Richard Quirke
Dublin Pool and Juke Box Company Limited
Baycross Developments Limited
Carrolls of Dublin Limited
Colm Carroll
Regan Developments Limited
Daniel Troy and Christopher Troy trading as Troy Brothers
Doyles Stores Limited
F.X. Buckley Limited
Stephen Ross trading as Industria
Simon Hart Limited
John Corcoran
James Cousins Limited
Martina Investments Limited
Peter Slattery Limited

Notice Parties

Judgment delivered the 1st day of November, 2006 by Denham J.

1. An important preliminary issue has arisen on this appeal. The query is whether Paul Clinton, the applicant/appellant, hereinafter referred to as 'the applicant', is confined in this appeal to the single ground of appeal arising from the point of law the subject of the High Court Certificate, or whether he is entitled to raise other grounds in the Notice of Appeal. It was submitted by the applicant that he was not so confined.
2. The Notice of Appeal filed on behalf of the applicant states that the appeal is from so much of the judgment of the High Court delivered on the 15th March, 2005 and order perfected on the 19th August, 2005 as refused the applicant the relief sought. The following was certified by the learned High Court judge pursuant to s. 50(4)f)(i) of the Planning and Development Act, 2000 as a point of law of exceptional public importance in respect of which it was desirable in the public interest that an appeal should be taken to the Supreme Court, namely:

1. That the learned trial judge erred in law in his interpretation of section 213 of the Planning and Development Act, 2000, in particular by holding that having regard to section 213, An Bord Pleanála may lawfully confirm a compulsory purchase order made for "development purposes" without requiring the acquiring authority to specify the development it is proposed to carry out on the affected land and/or subjecting the said proposed developments to scrutiny, at an oral hearing or otherwise, in order to ascertain whether or not it has been established that all of the land affected by the compulsory purchase order is required to carry out the proposed development. In the premises, the learned trial judge erred in law in upholding the decision of the first named respondent to confirm the compulsory purchase order of the 11th December, 2001 (hereinafter "the CPO").

The applicant also raised the following grounds of appeal:

2. The learned trial judge erred in law in holding that the function of the first named respondent, when considering whether or not to confirm the CPO, was simply to determine if the exercise of the power of compulsory acquisition by the second named respondent was for a purpose for which that power is conferred by statute. In particular, the learned trial judge erred in law in not holding that the first named respondent had the function of considering: (i) whether or not the specific purpose of the exercise of the power was within a purpose for which statute has conferred a power of compulsory acquisition: and (ii) if so, whether or not the specific purpose was of sufficient importance to outweigh the property rights of affected landowners.

3. The learned trial judge erred in law in holding, in relation to a statutory purpose that an acquiring authority seeks to advance by way of compulsory purchase order, that the means of achieving that purpose are irrelevant to the function of the first named respondent in considering whether or not to confirm the compulsory purchase order.

4. Having regard in particular to section 213 of the Planning and Development Act, 2000; paragraph 1 of the Third Schedule to the Housing Act, 1966; and the Housing Act, 1966 (Acquisition of Land) Regulations, 2000 (S.I. No. 454 of 2000), Form No. 6, the learned trial judge erred in law in holding that, when exercising its power of compulsory acquisition pursuant to section 213 of the Planning and Development Act, 2000, the second named respondent was not required to state on the face of the CPO, as the purpose of the CPO, any purpose other than a statutory purpose for which a power of compulsory acquisition is conferred by statute. The learned trial judge further erred in law in holding that the purpose of the CPO, as stated on the face of the same, constituted such a statutory purpose.

5. The learned trial judge erred in law in holding that the evidence given on behalf of the second named respondent to the oral hearing convened by the first named respondent was sufficient to allow the first named respondent to discharge its duty to weigh the alleged public interest in the compulsory acquisition of the land the subject of the CPO against the property rights of the applicant.

6. The learned trial judge erred in law in holding that the applicant was not entitled to advance the argument at trial that the CPO is invalid, having been confirmed for a purpose different from that for which it was made. Without prejudice to this, the learned trial judge erred in law in holding that the purpose stated on the face of the CPO (development purposes) and that stated on the face of the order of the first named respondent (facilitating the implementation of the Development Plan) were one and the same.

7. The learned trial judge erred in failing to determine the question of whether or not, having regard to section 10(2)(h) of the Planning and Development Act, 2000, the second named respondent was competent to make, and the first named respondent was competent to confirm, the CPO for the purposes of redevelopment of the land the subject thereof in circumstances where such land had not been identified as in need of regeneration in the 1999 Dublin City Development Plan.

8. In the alternative, if, on its true interpretation, section 213 of the Planning and Development Act, 2000 permits a compulsory purchase order to be made for "development purposes" without further specification of the purpose in the order, and without identification, specification or investigation of the said purpose, the learned trial judge erred in law in holding that the said section 213 is valid having regard to the provisions of the Constitution, and in particular Articles 40.3 and 43 thereof.

9. In the further alternative, if the learned trial judge was correct in holding (if he did) that the CPO contained a sufficient statement of its purpose, having regard to the provisions of Part XIV of the Planning and Development Act, 2000, he erred in law in holding that the said Part XIV, and in particular sections 212 and 213 thereof, were not invalid having regard to Article 15.2 of the Constitution.

10. Such other grounds as this Honourable Court shall deem appropriate on the hearing of this appeal.

3. An Bord Pleanála, the first named respondent, filed a Notice to Vary the judgment on two specified grounds. In addition, the Notice to Vary stated that it was served without prejudice to the Board's contention that, in appealing the judgment and order of Finnegan P., the applicant is confined to the point of law which he certified pursuant to s. 50(4)(f)(i) of the said Act of 2000 (as a point of law of exceptional public importance in relation to which it was desirable in the public interest that an appeal should be taken to the Supreme Court); and the Board contended that the applicant is therefore precluded from raising the further grounds, numbered 2 to 10, in its Notice of Appeal; and the Board acknowledged that, in the event that the Court should agree with the Board's submission in this respect, the first ground set out above would not be admissible before this Honourable Court, relating as it does to a point on which leave to appeal to this Court was refused. In addition the Board sought the costs of the Notice to Vary and of the appeal, and the full costs of the High Court proceedings.
4. Submissions
Written submissions were filed on behalf of the applicant, An Bord Pleanála, Dublin City Council, and the Attorney General in relation to the substantive issues of the appeal. The applicant, An Bord Pleanála and Dublin City Council also addressed this preliminary issue in the original written submissions.
4.1 The applicant
In written submissions on behalf of the applicant it was submitted that this appeal is not confined to the single ground of appeal arising from the point of law the subject of the High Court certificate, for three reasons. First, that the constitutional position is that an appeal to this Court from every decision of the High Court is a matter of right, unless limited by statute. A statutory provision limiting such right of appeal ought to be strictly construed. It was submitted that the statutory language in this case is not sufficiently clear and unambiguous to warrant an interpretation which would limit the appeal to the 'certified point of law'. Secondly, once an appeal is properly before this Court the Court cannot be expected to allow a decision that it knows to be erroneous to stand, merely because the source of the error is not to be found in the important point of law that brings the matter before the Court. Thirdly, this Court cannot be precluded from consideration of grounds of appeal that may admit of a constitutionally sound interpretation of a post- 1937 statute, where to foreclose such consideration means that the same statute must (on an ex hypothesi erroneous interpretation that the Court is not permitted to revisit) be struck down.
However, in oral submissions counsel stressed the Constitutional right of appeal and the relevant case law.
4.2 An Bord Pleanála
On behalf of An Bord Pleanála it was submitted that subsequent to the delivery of the judgment in the High Court the applicant sought leave to appeal under s. 50(4)(f)(i) of the Planning and Development Act, 2000 and for the purposes of that application identified five points which he contended were points of law of exceptional public importance. It was accepted by all parties that the applicant did not require leave to appeal in respect of those grounds of his application concerning the constitutional validity of part XIV of the Planning and Development Act, 2000. After consideration the High Court granted the applicant leave to appeal on one of the five points raised.
At the same time An Bord Pleanála sought leave to appeal the decision of the High Court on the s. 219 ground, subject to the proviso that it only wished to make such application and to pursue such appeal if leave were granted to the applicant on any of the points which he had raised. An Bord Pleanála's application for a certificate was refused by the trial judge.
It was submitted that the applicant filed a Notice of Appeal raising some 9 grounds, 6 of which relate to the 4 points in respect of which the trial judge refused a certificate of leave to appeal. It was submitted that of the other three grounds one reflects the certified point of law and two concern the constitutional validity of Part XIV and in particular s. 212 and s. 213 of the Planning and Development Act, 2000, and that the applicant's Notice of Appeal clearly goes outside the parameters of the point of law certified by the trial judge and upon which leave to appeal was granted.
An Bord Pleanála served a Notice to Vary in relation to the s. 219 ground (i.e. the point on which leave to appeal was refused to the Board). This Notice to Vary is expressly stated to be without prejudice to An Bord Pleanála's contention that the applicant should be confined in his appeal to the point of law certified by the trial judge and, if that contention is accepted by this Court, An Bord Pleanála does not intend to pursue its appeal on the s. 219 ground.
An Bord Pleanála filed written legal submissions, referring to case law on the appropriate construction of s. 50(4)(f) of the Planning and Development Act, 2000, in essence submitting that the appeal was limited to the certified question.
4.3 Dublin City Council
As to the jurisdiction of the Court on the scope of the appeal, Dublin City Council filed written submissions noting the applicant's submissions in relation to the scope of the appeal. Dublin City Council stated that it is a matter for this Court, in the light of the applicant's submissions, to decide whether the scope of the appeal is confined only to the ground certified by the President, or as to whether, on the contrary, the applicant is to be entitled to canvas all issues.
4.4 Oral submissions were made in this preliminary issue by counsel for the parties. Oral submissions were made on behalf of the applicant by Mr. Donal O'Donnell, S.C. submitting that the applicant was not limited in his appeal to the certified point of law. Mr. John Trainor S.C. on behalf of Dublin City Council also advanced the argument that the applicant's appeal was not limited to the certified point of law. Mr. Ian Finlay S.C., on behalf of An Bord Pleanála submitted that on the ordinary meaning of the words of the statute, and on a purposive construction of the statute, and in light of case law, the applicant was limited to the certified point of law. Mr. James Connelly S.C. on behalf of the Attorney General made oral submissions to the Court to assist it in the analysis of this jurisdictional matter.
5. On the 16th October, 2006 the Court determined that it would take this preliminary matter first. It was indicated by counsel on behalf of An Bord Pleanála that they would not oppose the applicant's submissions on the jurisdiction of the Court if the Court were to proceed with the main issues. However, this is not a matter which may be dealt with on the basis of consent, or otherwise, of the parties. At issue is a matter of law, of constitutional importance. At issue is the scope of the appeal: whether the Court has jurisdiction to hear the certified point of law only or whether it may hear other the grounds of appeal raised on behalf of the applicant and of An Bord Pleanála.
6. Law
The relevant law is to be found in the Constitution of Ireland and statutes.
Article 34.4.3 of the Constitution states:

"The Supreme Court shall with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law."

Section 50 (4)(f) of the Planning and Development Act, 2000 provides:

(f) (i) The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(ii) This paragraph shall not apply to a determination of the High Court, in so far as it involves a question as to the validity of any law, having regard to the provisions of the Constitution.

7. In construing s. 50 (4)(f) of the Planning and Development Act, 2000 there are two matters in particular which require careful consideration. First, the constitutional right of appeal from the High Court to the Supreme Court. Secondly, the legislative history and common law on this formula of words. I shall consider the latter first.
8. There is a considerable volume of legislation and case law which may not be ignored. The form of words in s. 50(4)(f)(i) of the Planning and Development Act, 2000, that no appeal shall lie from the decision of the High Court to the Supreme Court except with leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, mirrors those in the Local Government, Planning and Development Act, 1992 s. 19(3)(b). Further, this form of words has been used many times in the State since the Courts of Justice Act, 1924, s. 29. Counsel for the applicant pointed out that the formula in s. 29 of the Courts of Justice Act, 1924 (which is the formula in issue here) has been used in many Acts, for example: Local Government (Planning and Development) Act, 1992, Section 19(3)(b); Criminal Justice Act, 1993, Section 3(1); Transport (Dublin Light Rail) Act, 1996, Section 12 (4); Waste Management Act, 1996, Section 43 (5)(c); Fisheries (Amendment) Act, 1997, Section 73 (3); Irish Takeover Panel Act, 1997, Section 13 (6); Electricity Regulation Act, 1999, Section 32 (3)(a); Planning and Development Act 2000, Section 50(4)(f); Illegal Immigrants (Trafficking) Act, 2000, Section 5 (3)(a);Transport (Railway Infrastructure) Act, 2001, Section 47 (5)(a); Aviation Regulation Act, 2001, Section 38 (5)(a). Thus it is a form of words which has been used by the legislature on many occasions.
9. There is a considerable volume of case law relevant to this formula of words which should not be ignored. Much of the precedent relates to the similarly worded s. 29 of the Courts of Justice Act, 1924. In People (Attorney General) v. Giles [1974] I.R. 422 at p. 430 Walsh J. held that although the granting of the certificate gives the right of appeal the certificate does not limit the scope of the appeal. While the words of Walsh J. were obiter dicta they have been accepted and acted upon for decades. This analysis of the meaning of the words and the consequence of Walsh J's obiter dictum was recently re-argued in this Court in The People at the suit of the Director of Public Prosecutions v. John Gilligan (No. 2) (Unreported, Supreme Court, 10th July, 2006). In a judgment, with which McGuinness J. and Geoghegan J. agreed, I stated that I was satisfied that this approach should be continued and I adopted and applied the judgment of Walsh J. in Giles, for the reasons stated. Fennelly J., with whom Macken J. agreed, dissented, but this was confined to the question of whether an appeal against sentence could be pursued where the certificate from the Court of Criminal Appeal related to conviction only.
This analysis, of the judgment of Walsh J. in Giles, was applied to the Planning Acts by Egan J. in Scott v. An Bord Pleanála [1995] 1 I.L.R.M. 424, with whom Hamilton C.J. and Blayney J. agreed. Egan J. stated, at p. 428:

"It will be noted that the order of the High Court did not specify the precise point of law which it deemed to be of exceptional public importance but it seems to be agreed that the point of law intended to be certified was whether an intending developer of minerals who obtains the consent of the Minister for Transport, Energy and Communications to his applying for planning permission, has by virtue of that consent a sufficient interest to make a valid application.

The absence of a precise specification of the point of law certified is not, in my view, of any great importance having regard to the decision of this Court in

People (Attorney General) v. Giles

[1974] IR 422. This case concerned a certificate pursuant to s. 29 of the Courts of Justice Act 1924 which provision is strongly analogous to the relevant provision in s. 19 even though it refers to a different matter i.e. 'the determination of the Court of Criminal Appeal' and 'the decision'. As stated in the judgment of Walsh J. (at p. 427):

The appeal lies against the decision of the Court of Criminal Appeal and there is nothing in the statute which confines it to the point of law certified, if any. The decision 'involves' the point of law but, according to the Act, it is against 'the decision' that the appeal lies. The 'point of law' is not the decision.

Having regard to the words used in the relevant portion of s. 19 which compare so closely with the words in s. 29 of the Courts of Justice Act 1924, I am satisfied that a conclusion similar to that arrived at in the

Giles

case should apply in the present case and that this appeal need not be restricted to the consideration of any point of law certified. The appeal is against the decision."

This has been the judicial analysis over the years. See also Kenny v. An Bord Pleanála [2001] 1 IR 704.
The Court was referred to K.S.K. Enterprises Limited v. An Bord Pleanála [1994] 2 I.R. 128. However, I would distinguish that case as an authority relating to time limits.
In practice the obiter dictum of Walsh J. in Giles was regarded as the appropriate approach to this formula of words. Once a certificate was granted the gate to an appeal was opened and issues other than the certified ground of appeal could be argued on the appeal. See Ashbourne Holdings Limited v. An Bord Pleanála [2003] 2 IR 114, Hardiman J. at p. 118.
The decision in Giles as to the meaning of this formula of words has been followed in other areas of the law also. Thus in S.(C) & Ors. V. Minister for Justice, Equality and Law Reform & Anor. [2004] IESC 44 (27th July, 2004) it was stated:
"There has been no argument before this court, nor was there any argument in the High Court as to whether appeals pursuant to section 5(3) of the Illegal Immigrants (Trafficking) Act, 2000 are governed by the same principles as those applied to planning appeals under Scott v An Bord Pleanála, or indeed by the principles applied by this court to a certificate under section 29 of the Courts of Justice Act, 1924 in the case of the People (Attorney General) v Giles [1974] I.R. 422. This court therefore cannot and does not make any decision in principle on this question. However, for the purpose of the present case, since all parties accepted that the position was as set out in Scott v An Bord Pleanála and the leave to appeal was granted by the learned High Court judge specifically on that basis this court will treat the position as being that as set out as common case by counsel."

Having revisited the jurisprudence in Gilligan (No. 2) recently, I see no reason to depart from that view in relation to the interpretation of s. 29. Therefore the analogy of that section continues to apply to the interpretation of this formula of words.
10. The Court was informed of a new law coming into force on the 17th October, 2006. Section 13 of the Planning and Development (Strategic Infrastructure) Act, 2006 substitutes a new s.50. Under the new law by s. 50 A(10) the High Court shall, in determining an application for s. 50 leave or an application for judicial review on foot of such leave, act as expeditiously as possible consistent with the administration of justice. The Act of 2006 then provides:

"(11) On an appeal from a determination of the Court in respect of an application referred to in subsection (10), the Supreme Court shall -

(a) have jurisdiction to determine only the point of law certified by the Court under subsection (7) (and to make only such order in the proceedings as follows from such determination), and

(b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice."

However, the section does not apply to this case. Nor would I construe s. 50 of the Planning and Development Act, 2000 by reference to this new section.
11. In construing s. 50 (4)(f) of the Planning and Development Act, 2000 I am satisfied that we are bound to assume that the intent of the Oireachtas, in using wording identical to s. 29 of the Courts of Justice Act, 1924 and identical to the Act of 1992, did not intend that it be construed differently. Any construction of s. 50(4)(f) must be made in light of the decided case law. It is not a situation where the Court is construing the words de novo.
12. Of considerable significance in construing s. 50 of the Planning and Development Act, 2000 is the constitutional right of appeal from the High Court to the Supreme Court described in Article 34.4.3 of the Constitution. If there was an ambiguity in a statute seeking to limit the appeal of an applicant from the High Court to the Supreme Court that should be construed in favour of an appellant. As Walsh J. stated in The People (AG) v. Conmey [1975] I.R. 341, at p. 360:

"Before turning to deal specifically with these provisions I wish to express my view that any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous. The appellate jurisdiction of this Court from decisions of the High Court flows directly from the Constitution and any diminution of the jurisdiction would be a matter of such great importance that it would have to be shown to fall clearly within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action."

These principles have been reaffirmed and applied by this Court recently in A.B. v. Minister for Justice, Equality and Law Reform [2002] I.R. 296. I adopt and apply the principles to this case.
The words in issue in the statute have been used previously in many statutes. There is extensive relevant case law. It is not a situation where a court is being asked to consider the words in a vacuum. In view of the right of appeal from the High Court to the Supreme Court which flows from the Constitution, any limitation of the scope of an appeal has to be clear and unambiguous. In all the circumstances of this case, which includes extant common law, it is not a case where no ambiguity arises. There is a degree of ambiguity. Consequently, the applicant is entitled to succeed.
13. Conclusion
In view of constitutional principles, as enunciated by Walsh J. in Conmey, and the well established common law on the words in issue, I am satisfied that the law pursuant to s. 50 of the Planning and Development Act, 2000 brings with it the interpretation initially advanced by Walsh J. in Giles. Consequently, the applicant is not confined in this appeal to the single ground of appeal arising from the point of law the subject of the High Court Certificate. Therefore this case should now be listed as soon as possible so that the full appeal may be heard.
JUDGMENT of MR JUSTICE FENNELLY delivered on the 1st day of November, 2006.

This judgment concerns a preliminary point regarding the scope of the jurisdiction of the Court in this appeal. The question is whether the Court is limited, in its consideration of the appeal, to the point of law certified by the High Court pursuant to section 50(4)(f) of the Planning and Development Act, 2000 (“the 2000 Act”).
The appeal is taken from the judgment of Finnegan P delivered on 15th March 2005. By that judgment, the learned President dismissed the appellant’s application for an order quashing a Compulsory Purchase Order (“the CPO”) made by the second named Respondent, Dublin City Council, on the 11th December 2001 in relation to an extensive site at the northern end of O'Connell Street, Dublin, on its western side extending to the west to Moore Street, to the north to O'Rahilly Parade and to the south to Henry Place.
The appellant had challenged the CPO on a number of grounds, principally concerning the adequacy of the reasons stated or proved for its making and confirmation by the first-named respondent.
Following delivery of judgment, the learned President certified the following point as a point of law of exceptional public importance for the purposes of section 50(4)(f):

“Whether, having regard to section 213 of the Planning and Development Act, 2000 An Bórd Pleanála may lawfully confirm a c

ompulsory purchase order made for ‘

development purposes’ without requiring the acquiring authority to specify the development it is proposed to carry out on the affected land and/or subjecting the said proposed development to scrutiny, at an oral hearing or otherwise, in order to ascertain whether or not it has been established that all of the land affected by the compulsory purchase order is required to carry out the proposed development.”

The appellant has filed a notice of appeal containing a number of grounds of appeal in addition to the certified point. These are set out fully in the judgment of Denham J, who has also explained the procedural history behind the present question. The Court has invited the parties to address it on the question of its jurisdiction to consider the additional grounds of appeal.
Section 50 of the 2000 Act lays down general provisions concerning the circumstances in which the validity of decisions of planning authorities or of An Bórd Pleanála may be challenged. No question of validity of such decisions may be advanced other than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts. Thus, judicial review is the exclusive means of challenge. In addition, the application for leave must be made on notice within eight weeks (subject to extension for good and sufficient reason) and substantial grounds must be shown for the claimed invalidity.
Apart from these restrictions on the general right of access to the remedy of judicial review, the Oireachtas has imposed restrictions on the right of appeal from any High Court decision determining such an application. The Oireachtas, in enacting section 50(4)(f) of the 2000 Act chose a regime which has a significant legislative and judicial provenance, to which I will shortly refer. The relevant provision reads:

“(f) (i) The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(ii) This paragraph shall not apply to a determination of the High Court, in so far as it involves a question as to the validity of any law, having regard to the provisions of the Constitution.”

That provision replaces the virtually identical provisions of section 19(3) of the Local Government (Planning and Development) Act, 1992. This form of restriction on the right of appeal had, prior to 1992, appeared only in section 29 of the Courts of Justice Act, 1924. However, since 1992, according to a list furnished by counsel at the hearing, the Oireachtas has resorted to it in at least eight other statutory contexts, all of them concerning essentially civil matters. These are listed in the judgment of Denham J. All these cases concern appeals from High Court decisions in cases of judicial review of various categories of administrative decisions.
It is appropriate, at this point, to mention section 29 of the Courts of Justice Act, 1924, from which the wording of the provision under consideration is clearly borrowed. That section concerns the circumstances in which an appeal may be taken to this Court from the Court of Criminal Appeal. It reads:

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive.”

The Court of Criminal Appeal was newly established under the Constitution by section 3 of the Courts (Establishment and Constitution) Act, 1961. The Courts (Supplemental Provisions) Act, 1961 transferred the jurisdiction of the former Court of Criminal Appeal to the newly established court and applied the corpus of earlier enactments, including section 29 of the Act of 1924, which had applied to the former court. Thus, in practical terms, the Court of Criminal Appeal is very much the same court as was created in 1924. This Court has considered the interpretation of section 29 in two cases.
The dictum of Walsh J in People (Attorney General) v Giles [1974] I.R. 422 may, strictly speaking, have been obiter. The other two members of the Court refrained from expressing a view on the limits of section 29. However, as I will show below, that judgment has now received definitive approval. Walsh J analysed the language of section 29 as follows, at page 427:

“It is important to note that the wording of s. 29 of the Act of 1924 refers to "the determination by the Court of Criminal Appeal" and "the decision." It speaks of "the determination" by the Court of Criminal Appeal being final and conclusive unless a certificate is given which states that an appeal should lie. The appeal lies against the decision of the Court of Criminal Appeal and there is nothing in the statute which confines it to the point of law certified, if any. The decision "involves" the point of law but, according to the Act, it is against "the decision" that the appeal lies. The "point of law" is not the decision. The decision is the order made in respect of the conviction and/or sentence, as the case may be.”

Walsh J examined in detail the cases in which appeals had been taken to the Supreme Court from the Court of Criminal Appeal. He summarised the history of practice regarding appeals under the section at page 428:

“In my experience it has always been the practice when an appeal was brought to this Court, or to its predecessor, pursuant to a certificate granted under s. 29 of the Act of 1924, to serve a notice of appeal and to set out the grounds of appeal and these were not confined to the point mentioned in the certificate. Furthermore, there have been many cases in which points other than the one appearing in the certificate were argued before and considered by the Court. Until the present case, I have never heard it suggested that the appeal had to be restricted to the point of law specified.”

He also cited the decision of the House of Lords in Milne v. Commissioner of Police for the City of London [1940] A.C. 1. to the effect that the House was not bound on an appeal brought pursuant to a certificate granted under s. 1, sub-s. 6, of the Criminal Appeal Act, 1907 to limit the appeal to the certified point. Other parts of the judgment concerned the distinction between appeals against conviction and against sentence, which do not arise in this case. He concluded at page 436:

“Once the appellant has a right of appeal, he is

dominus litis

in the sense that he controls the scope of the appeal in respect of the decision from which the appeal is taken.”

Ths Court considered section 29 in the case of People (Director of Public Prosecutions) v Gilligan (no.2), where judgment was delivered on 10th July 2006. In that case, the appellant had appealed to the Court of Criminal Appeal against his conviction by the Special Criminal Court on a number of counts for drug-related offences. That court certified certain points relating to his conviction pursuant to section 29. On the hearing of his appeal in this Court, he was permitted to advance all other points which had been before the Court of Criminal Appeal. Following dismissal of his appeal against conviction, he wished to challenge the severity of his sentence. The majority of the Court reaffirmed the interpretation of section 29 by Walsh J in Giles. Denham J, delivering the judgment of the majority stated:

“I would follow this analysis. Section 29 provides that 'the determination' of the Court of Criminal Appeal shall be final. This concept that the appeal is 'determined' by the Court of Criminal Appeal is reflected also in s. 33 which states that "The appeal . . . shall be heard and determined by the Court of Criminal Appeal." The section does not permit an appeal unless it is certified that 'the

decision' involves

a point of law of exceptional public importance, but it is not so limited.”

She pointed out that, although the dicta in Giles were obiter, “they have been applied consistently ever since as being the law.” I should point out that my dissenting judgment related specifically to the distinction between an appeal against conviction and against sentence. Apart from the fact that my judgment represented a minority view, the point upon which it differed has no bearing on the interpretation of the section under consideration on the present appeal.
This Court has, in two judgments, referred to the predecessor of section 50(4)(f), namely section 19 of the Local Government (Planning and Development) Act, 1992.
K.S.K. Enterprises Ltd. v An Bórd Pleanála and others [1994] 2 I.R. 128 concerned the two-month time limit for application for judicial review (replaced by eight weeks in the current section). The question was whether the application for leave should be considered as having been made when the papers were served or filed or whether the application had to be made in court in order to comply with the time limit. In the course of his judgment on this issue, Finlay C.J., with whom the four other members of the Court agreed, said:

“The issue before this Court is strictly confined by virtue of the provisions of the sub-sections as inserted by the Act of 1992 and by virtue of the form of certificate granted by the learned judge of the High Court to the question of the interpretation of the section and this Court was not involved in any issue though an issue may or may not exist as to whether parties other than the first respondent were served within the two month time limit.”

However, it does not appear that there was any argument on the point mentioned. The Court was not, in fact, invited to consider any additional grounds of appeal from the High Court and was not referred to the Giles decision. This statement must, therefore, be regarded as an obiter dictum.
A mere eight months later, this Court made further reference to the issue, apparently reaching the opposing conclusion and expressly referring to Giles. In Scott and others v An Bórd Pleanála and others [1995] 1 I.L.R.M. 424, an application for leave to apply for judicial review had been refused by Costello J in the High Court. He, nonetheless, certified that the decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal be taken top this Court. However, the order of the High Court did not specify any point of law. It was on this point that the Court expressed a view on the scope of the appeal. Egan J, with whom Hamilton C.J. and Blayney J agreed, said:

“The absence of a precise specification of the point of law certified is not, in my view, of any great importance having regard to the decision o this Court in People

(Attorney General) v Giles

[1974] I.R. 422.”

Egan J noted that the provisions of section 19 were “strongly analogous” with those of section 29 of the 1924 Act. He cited part of the passage from the judgment of Walsh J quoted above and continued:

“Having regard to the words use in the relevant portion of s. 19 which compare so closely with the words in s. 29 of the Courts of Justice Act 1924, I am satisfied that a conclusion similar to that arrived at in the Giles case should apply in the present case and that this appeal need not be restricted to the consideration of any point of law certified. The appeal is against the decision.”

At the hearing of the preliminary issue, Mr Donal O’Donnell, Senior Counsel, argued, on behalf of the appellant, that he was not limited, in presenting the appeal, to the certified point. He was supported by Mr John Traynor, Senior Counsel, for the second-named respondent. Mr Ian Finlay, Senior Counsel, on behalf of the first-named respondent indicated that his clients did not wish to oppose the right of the appellants in the present case to argue the additional grounds. The section has been amended, with future effect, by sections 49 and 50 of the Planning and Development (Strategic Infrastructure) Act, 2006. (I agree with the observations of Denham J regarding that section.) However, Mr Finlay agreed to present arguments to assist the court.
Mr O’Donnell presented arguments under the following general headings:

1. The words of the statute do not limit the appeal to the points certified;

2. The section makes a clear distinction between the right to appeal and the scope of the appeal, once an appeal is allowed;

3. This is not, unlike the case of an appeal from the Court of Criminal Appeal, a case of a right of appeal conferred by statute; it is conferred by the Constitution;

4. No discernible statutory purpose is served by limiting the scope of the appeal;

5. The wording of the section at issue has been the subject of repeated judicial interpretation; this legal history is relevant in the interpretation of the words; the legislature may be presumed to have intended to use the words in the sense in which they have been judicially interpreted.

Mr Traynor argued that the right to appeal from all decisions of the High Court is conferred by Article 34.4.3 of the Constitution. He relied on the dictum of Walsh J in People (Attorney General) v Conmey [1975] I.R. 341 to the effect that any limitation on the right or scope of appeal would have to be “clear and unambiguous.” To the same effect, he referred to the judgments in the case of A.B. v Minister for Justice Equality and Law Reform [2002] 1 IR 296.
Mr Finlay submitted that the legislative intention behind the provisions was to reduce the possibility of insubstantial appeals and generally to restrict access to the appeal process. Section 50(4)(f) enacts a double or cumulative test. The point of law to be certified must be of exceptional public importance. In addition, it must be in the public interest that the decision of the High Court be appealed. He pointed out that the consequence of Mr O’Donnell’s argument was that, once a point of law is certified, there is an unfettered right of appeal. Uncertified points of appeal may be added without limit. The appellant may even abandon the certified point and argue other uncertified ones. He accepted, however, that the words of the section do not preclude argument of uncertified points. He accepted that the words were ambiguous and conceded that it was difficult, in those circumstances, to describe them as “clear and unambiguous.”

Conclusion
Article 34, section 4 of the Constitution provides:

"1 The Court of Final Appeal shall be called the Supreme Court.

2 The president of the Supreme Court shall be called the Chief Justice.

3 The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

4 No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution . . .

6 The decision of the Supreme Court shall in all cases be final and conclusive."

The primary rule is clear. The Supreme Court is to have “appellate jurisdiction from all decisions of the High Court.” (emphasis added). The Oireachtas has power, however, to make exceptions to this rule or to subject it to regulation. It is notable that no exception can be created in respect of any High Court decision “which involve questions as to the validity of any law…” This exclusion applies whether the decision is in favour of or against the validity of a law.
In People (Attorney General) v Conmey, appellant had been convicted by a jury in the Central Criminal Court of manslaughter. Following an unsuccessful appeal to the Court of Criminal Appeal and failure to apply for or obtain a certificate of leave to appeal from that court, the appellant applied for an extension of time for appeal to the Supreme Court. Walsh J, with whom O’Higgins C.J. and Doyle J agreed, considered firstly whether an appeal lay to this Court in respect of the conviction and sentence imposed by the Central Criminal Court, prior to any consideration of the extension of time. Walsh J pointed out that the conviction and sentence had been imposed in the Central Criminal Court, i.e., the High Court exercising criminal jurisdiction. He continued, at page 360:

“Therefore, it appears to me that an acquittal, or a conviction and/or sentence by the High Court, is a decision of the High Court which is within the appellate jurisdiction of this Court unless it has been excepted from that appellate jurisdiction by an Act of the Oireachtas. No express exception has been made by any Act of the Oireachtas in respect of decisions of the High Court in the exercise of its criminal jurisdiction.”

He then referred to the submision of the Attorney General that, while there was no express ststutory exception to the appellate jurisdiction of the Supreme Court, one must be implied from “from the statutory provisions in relation to the jurisdiction of the Court of Criminal Appeal.” He then commented:

“Before turning to deal specifically with these provisions I wish to express my view that any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous. The appellate jurisdiction of this Court from decisions of the High Court flows directly from the Constitution and any diminution of that jurisdiction would be a matter of such great importance that it would have to be shown to fall clearly within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action.”

The case of A.B. v Minister for Justice Equality and Law Reform concerned the interpretation of section 5(2) of the Illegal Immigrants Trafficking Act, 2000. For practical purposes, that section is on all fours with that under consideration in the present case. The right of appeal is subject to the same certification requirements as are imposed by section 50(4)(f) of the 2000 Act. The appellant wished to appeal against an order refusing an extension of the time-limit (fourteen days in that case).
Keane C.J. commented strongly on the apparent incongruity of enacting provisions restricting the right of appeal in respect of the substantive judicial review decision, while imposing no limits in respect of the decision in respect of an extension of time:

“It would be remarkable if the Oireachtas, in seeking to attain those objectives, had severely circumscribed the right to appeal to this court from decisions by the High Court on the merits of applications for judicial review, but had allowed an unrestricted right of appeal where an applicant was, by definition, already out of time. It is all the more surprising when one has regard to the obvious fact that, given the momentous consequences for the persons concerned, decisions to refuse asylum or refugee status are decisions quintessentially of a nature calculated to give rise to judicial review proceedings and to an appeal to this court, almost as a matter of routine, where they are refused by the High Court on the ground that they are out of time. It is difficult to discern any rational basis for such a legislative choice by the Oireachtas and none was suggested in the course of argument in this court, other than the unquestionable importance of the conferring of a jurisdiction to extend time, in the context of the severe limitation on the right of appeal generally.”

Nonetheless, he proceeded (see page 303):

“However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the courts to remedy such a

casus omissus

, if that is what it is. That would be a weighty consideration in every case: in this case, there is the additional factor that the right of appeal to this court provided for in Article 34.4.3 may only be removed or abridged by a statutory provision which is clear and unambiguous…”

Geoghegan J, with whom Denham, McGuinness, and Fennelly JJ agreed, reviewed the authorities, including Conmey. At page 316, he said:

“It would seem to be clear from the authorities, however, that an exclusion or regulation of the right to appeal to the Supreme Court need not be expressed. It is a matter of construction of the relevant statutory provision in each case, but there must not be any lack of clarity or ambiguity.”

At page 318, he said:

“For the right of appeal against a refusal to extend the fourteen day time limit to be ousted there must, in my view, be clear words to that effect.”

It emerges from the foregoing that any legislative attempt to limit either the right or the scope of the constitutionally conferred right of litigants to appeal decisions of the High Court must be expressed in clear and unambigouus terms.
I turn then from these constitutional considerations to the actual wording of the provision. Section 50(4)(f) of the the 2000 Act creates an exception to the appellate jurisdiction of the Supreme Court. Such an exception is expressly permitted by Article 34, section 4 of the Constitution. There can be no appeal without of a certificate. The section also regulates the right of appeal, which is also permissible. Mr O’Donnell argued powerfully that the Oireachtas had made a distinction between the right to appeal and the scope of the appeal. It is undoubtedly possible to discern such a distinction in the wording of the provision. It is less easy to divine any logic in that distinction. An appellant, armed with a certificate may argue any additional ground of appeal which satisfies the normal requirements. Such an appellant may fail on the certified point (as pointed out in argument, he may even abandon it), but succeed on one or more uncertified points. A litigant who is denied a certificate is debarred completely, though he may have other meritorious grounds. Moreover, there is no necessary correspondence between the public and private interests involved. The High Court must be satisfied not only that the decision “involves a point of law of exceptional public importance” but, in addition, “that it is desirable in the public interest that an appeal should be taken to the Supreme Court.” Thus the certified appellant is permitted to avail of the public interest to advance his private interests. That is unobjectionable, insofar as reliance on the certified point is concerned. The two interests coincide. Where they do not, and there is no public interest in the appeal, the appellant with a certificate may advance his private interests, whereas a disappointed litigant who fails to secure one may not.
These points might carry considerable weight, if the entire matter were res integra, and there was no legislative and judicial history.
At the same time, I am satisfied that the wording actually used does not bar reliance on uncertified points. As Keane C.J. said in the passage I have quoted from the A.B. case, “it is to the words used by the legislature that we must have regard…” The High Court certifies that the “decision involves a point of law of exceptional public importance…” No words in the section limit the appeal to the certified point. The High Court certifies “that it is desirable in the public interest that an appeal should be taken.” It would have been very easy for the Oireachtas to specify that the appeal was limited to that point. The legislature has chosen not to do so.
In addition, there is considerable force in Mr O’Donnell’s submission regarding the effect of the legal and judicial history of the provision. The legislature chose a wording which had been used, mutatis mutandis, but effectively in identical terms in section 29 of the Act of 1924. The decision in Giles was in existence since 1974. Even if it could have been considered in itself to have been obiter, the internal evidence suggests that the interpretation of Walsh J had been accepted for many years. This is apart altogether from the fact that the House of Lords had authoritatively interpreted the corresponding provision in English law to the same effect.
So far as the 1924 Act is concerned, the authority of the Giles interpretation has been put beyond doubt by the decision of this Court in Gilligan’s case.
Even more potently, the Oireachtas chose the 1924 formula when, for the first time, it legislated to place limits on judicial review and appeals from judicial review decisions in planning matters. Section 19 of the 1992 Act was then interpreted authoritatively in Scott v An Bórd Pleanála and others. I do not consider that dictum to be obiter. The use of the Giles interpretation was carefully considered and was relevant to the actual decision. Egan J considered that the absence of the certified point from the High Court order was not fatal, because, on the authority of Giles, the appellant would have been entitled to argue any point whether or not certified. I do not believe the K.S.K. decision represents contrary authority. Firstly, it is not absolutely clear that the Court was addressing the point at all. Secondly, there is no indication that the point actually arose in the case. Thirdly, Giles is nowhere mentioned.
In this legal context, the re-enactment of the relevant provisions of section 19(3) of the 1992 Act in 2000 must be regarded as indicative of a legislative intention to continue the interpretation which had been generally and consistently followed to date.
It was in this context that Mr O’Donnell submitted that the Oireachtas must be presumed to have enacted the legislation in the knowledge of the legal and judicial history of the wording and with the intention, or al least on the assumption that it would be accorded the same meaning. The proposition is thus expressed in Bennion, Statutory Interpretation, (Fourth Ed. Butterworths, London, Dublin and Edinburgh 2002):

“Under the Barras principle,

[referring to

Barras v Aberdeen Steam Trawling and Fishing Ltd

[1933] A.C.]

where an Act uses a form of words with a previous legal history, this may be relevant in interpretation. The question is always whether or not Parliament intended to use the term in the sense given by this earlier history.”

It is true that Henchy J, in his judgment in Inspector of Taxes v Kiernan [1981] I.R. 117 at 123 said that the principle must be subject to considerable qualification. It does not give automatic blessing to erroneous interpretations. However, in the present circumstances, there is powerful evidence that the Oireachtas adopted a provision for which there was well-established authoritative and consistent interpretation.
Consequently, I am satisfied that the appellant is not confined to arguing the certified point. He may advance any other ground of appeal which properly arises from the decision of the High Court.