THE SUPREME COURT
Record No. 67/2016
Clarke C. J.
O’Donnell J.
MacMenamin J.
Dunne J.
O’Malley J.
Peter Sweetman
Applicant/Respondent
and
An Bord Pleanala
Respondent
And
Ireland and the Attorney General
Respondents/Appellants
And
Thomas Houston
Notice Party
And
An Taisce
Amicus Curiae
Judgment of the Chief Justice delivered the 23rd January 2018
1. Introduction
1.1 The former system of retention permission given for existing developments which had been carried out without an appropriate planning permission was found to be inconsistent with European law. As a result, a new system of substituted consent was introduced. It will be necessary to say a little more about that system in due course. But in general terms there are a number of so-called “gateways” under which a party may enter the system for the grant of a substituted consent, with a final determination being made by the first named respondent (“the Board”).
1.2 What is at issue in the underlying proceedings is the validity of a substituted consent decision made by the Board on the 4th November 2014. The consent in question related to the development of a quarry at lands in Co. Donegal. The plaintiff/respondent (“Mr. Sweetman”) sought two alternative remedies. What can, I think, properly be described as the primary focus of his challenge related to the question of whether the Board was required, as part of its consideration, to assess whether “exceptional circumstances”, as that term is used in the jurisprudence of the Court of Justice in this area, could be shown to exist. The backdrop to that argument is that the “gateway” to an assessment by the Board in a case such as this involves an initial decision by the relevant local authority (in this case Donegal Co. Council) which, if positive, permits the matter, in circumstances which it will be necessary to set out in more detail, to go to the Board. There is thus an initial determination by the relevant local authority and a further determination by the Board.
1.3 However, as a fallback, Mr. Sweetman sought to argue that, in the event that the legislation in question, properly construed, did not place an obligation on the Board to consider exceptional circumstances, it followed that the overall consent process was contrary to European law.
1.4 The proceedings, therefore, raise important questions. However, the appeal which is currently before this Court is more narrowly focused and for that reason it is not necessary to address the underlying issues in quite the same level of detail as might otherwise be the case.
1.5 In any event, the second and third named respondents/appellants (“the State”) brought an application before the High Court which sought to suggest that Mr. Sweetman’s challenge to the decision of the Board amounted to an impermissible collateral challenge to the earlier decision of Donegal Co. Council, which challenge had been brought it was said, at a time which was well outside the period during which such a challenge was required to be initiated. The High Court (Hedigan J.) (Sweetman v. An Bord Pleanála & ors [2015] IEHC 285) disagreed and dismissed the State’s application. From that decision the State appealed to the Court of Appeal. For the reasons set out in a judgment of Mahon J. (Sweetman v. An Bord Pleanála & ors [2015] IECA 123) the Court of Appeal agreed with the High Court and dismissed the appeal.
1.6 The State sought and obtained leave to appeal to this Court from that decision of Mahon J. In its Determination (Sweetman v. An Bord Pleanála Ireland & ors [2016] IESCDET 92) this Court identified the following issues or grounds as meeting the constitutional threshold for leave to appeal:-
1.7 It will be necessary to return to certain aspects of those issues or grounds in due course. However, an appropriate starting point must be a brief account of the relevant procedural history of these proceedings.
2. Procedural History
2.1 Mr. Sweetman sought to quash a decision of the Board made on the 4th November 2014 which granted substituted consent in respect of the development of a quarry at lands in Co. Donegal. Mr. Sweetman also sought in the alternative a declaration that s. 261A and/or Part XA of the Planning Development Acts 2000/2010 are contrary to European law.
2.2 On the 19th March 2015, the State filed a notice of opposition, asserting amongst other things that Mr. Sweetman’s judicial review application was inadmissible on the basis that the decision which allowed the Board to grant substituted consent was made by Donegal County Council in or about the 29th June 2012. Therefore, it was contended, Mr. Sweetman failed to institute judicial review proceedings challenging that decision within the relevant statutory timeframe or within the timeframe specified in the Rules of the Superior Courts. The State argued that by seeking to quash the granting of substituted consent by the Board, Mr. Sweetman was engaging in an impermissible collateral attack on the earlier decision of Donegal County Council. The State argued that such an attack was time-barred. In that context the State brought an application seeking to strike out the proceedings insofar as they sought to challenge the relevant legislation.
2.3 In response to the State’s application, Mr. Sweetman stated in a replying affidavit that he considered that Donegal County Council had acted in accordance with the relevant statutory requirements, which will be considered below, and that he had no grounds to challenge that decision. Mr. Sweetman further argued that he was not seeking to bring a collateral challenge to that decision of Donegal County Council, as he was contending that it was the decision by the Board to grant substituted consent which was contrary to European law. On that basis he argued that his challenge was properly brought against the decision of the Board.
2.4 In order fully to understand the way in which the High Court and the Court of Appeal addressed the issue which was before them it is necessary to set out the legal framework relevant to these proceedings in a little more detail. I therefore turn to that legal framework.
3. Legal Framework
3.1 The current regime for applying for substituted consent is set out in the Planning and Development Act 2000 (“the 2000 Act”), as amended by the Planning and Development (Amendment) Act 2010 (“the 2010 Act”). However, it is worth first briefly setting out the previous system of retention permission which was discussed by the CJEU in Commission v. Ireland (Case C-215/06) [2008] E.C.R. I-04911, where it was held that the then system of retention permission was not in compliance with the requirements of Directive 85/337 (“the Directive”). The 2000 Act, prior to its amendment in 2010, included measures on the part of the State intended to implement the requirements of the Directive which, broadly speaking, requires that environmental impact assessments be carried out in relation to certain developments prior to their commencement. The CJEU in Commission v. Ireland stated that the fundamental objective of the Directive “is that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a requirement for development consent and an assessment with regard to their effects.”
3.2 The Court noted that, as a general rule, the 2000 Act required that environmental impact assessments and planning permissions had to be respectively carried out and obtained prior to the execution of relevant works. It further noted:-
“55 However, it is also undisputed that the Irish legislation establishes retention permission and equates its effects to those of the ordinary planning permission which precedes the carrying out of works and development. The former can be granted even though the project to which it relates and for which an environmental impact assessment is required pursuant to Articles 2 and 4 of Directive 85/337 as amended has been executed.
56 In addition, the grant of such a retention permission, use of which Ireland recognises to be common in planning matters lacking any exceptional circumstances, has the result, under Irish law, that the obligations imposed by Directive 85/337 as amended are considered to have in fact been satisfied.”
3.3 The Court went on to state as follows:-
“57 While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.
58 A system of regularisation, such as that in force in Ireland, may have the effect of encouraging developers to forgo ascertaining whether intended projects satisfy the criteria of Article 2(1) of Directive 85/337 as amended, and consequently, not to undertake the action required for identification of the effects of those projects on the environment and for their prior assessment. The first recital of the preamble to Directive 85/337 however states that it is necessary for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than subsequently trying to counteract their effects.”
3.4 The Court concluded as follows:-
“61 It follows from the foregoing that, by giving to retention permission, which can be issued even where no exceptional circumstances are proved, the same effects as those attached to a planning permission preceding the carrying out of works and development, when, pursuant to Articles 2(1) and 4(1) and (2) of Directive 85/337 as amended, projects for which an environmental impact assessment is required must be identified and then – before the grant of development consent and, therefore, necessarily before they are carried out – must be subject to an application for development consent and to such an assessment, Ireland has failed to comply with the requirements of that directive.”
3.5 The 2000 Act was amended by the 2010 Act in an effort to render Irish law consistent with the requirements of the Directive, as interpreted by the CJEU in Commission v. Ireland. The 2000 Act as amended prohibited the granting of retention permission, but did allow developers to apply for substitute consent in certain circumstances.
3.6 As noted above, there are a limited number of circumstances under which an application for substitute consent may be made. It is not possible to apply for substitute consent except through these “gateways”. In the context of this appeal, only one of the gateways is strictly speaking applicable. However, brief reference will also be made to the other gateways.
3.7 Section 177E of the 2000 Act (as amended) provides for each of these gateways in the following way:-
“(2) An application to the Board for substitute consent shall—
(a) be made pursuant to a notice given under section 177B or 261A or a decision to grant leave to apply for substitute consent under section 177D,
…
(3) An application for substitute consent which does not comply with the requirements of subsection (2) shall be invalid.”
3.8 Section 177B provides for a situation where certain types of planning permission are judged by a court to be in breach of law, invalid, or otherwise defective for certain reasons specified in that section. The section directs the planning authority in those circumstances to give notice to the person carrying out the development in question, directing that person to apply to the Board for substitute consent.
3.9 Two further gateways arise by virtue of s. 177C of the 2000 Act. Section 177C provides for certain circumstances in which developers may apply to the Board for leave to apply for substitute consent. The first circumstance is where the developer applying for leave believes that a permission granted for development by a planning authority may be in breach of law, invalid or otherwise defective for certain specified reasons, or the applicant is of the opinion that exceptional circumstances exist such that it may be appropriate to permit the regularisation of the development by permitting an application for substitute consent. Sections 177D(1)(a) and 177D(1)(b) set out the circumstances under which the Board has jurisdiction to grant leave to apply for substitute consent where such application was made pursuant to one of the two circumstances set out in section 177C. Section 177D(2) sets out the matters which the Board must have regard to in considering whether exceptional circumstances exist.
3.10 The final gateway under which substitute consent may be granted, and the gateway which is of greatest relevance to the present appeal, arises under s. 261A, which deals specifically with quarry developments.
3.11 Section 261A(2)(a) provides for a system whereby a local planning authority can identify relevant quarries within its administrative area:-
“Each planning authority shall, not later than 9 months after the coming into operation of this section examine every quarry within its administrative area and make a determination as to whether—
(i) development was carried out after 1 February 1990 which was not authorised by a permission granted under Part IV of the Act of 1963, prior to 1 February 1990, which development would have required, having regard to the Environmental Impact Assessment Directive, an environmental impact assessment or a determination as to whether an environmental impact assessment was required, but that such an assessment or determination was not carried out or made, or
(ii) development was carried out after 26 February 1997, which was not authorised by a permission granted under Part IV of the Act of 1963 prior to 26 February 1997, which development would have required, having regard to the Habitats Directive, an appropriate assessment, but that such an assessment was not carried out.”
3.12 Section 261A(3)(a) provides:-
3.13 Section 261A(3)(a) is the provision pursuant to which the notice was issued in the present case. Section 261A(3)(c) details the requirements which the notice issued pursuant to s. 261A(3)(a) must fulfil:-
“A notice referred to in paragraph (a) shall be in writing and shall inform the person to whom it is issued of the following matters:
(i) the determination under subsection (2)(a) and the reasons therefor;
(ii) the decision of the planning authority under paragraph (a) and the reasons therefor;
(iii) that the person is directed to apply to the Board for substitute consent in respect of the quarry, under section 177E, not later than 12 weeks after the date of the notice, or such further period as the Board may allow;
(iv) that the person may apply to the Board, not later than 21 days after the date of the notice, for a review of the determination of the planning authority under subsection (2)(a) or the decision of the planning authority under paragraph (a), and that no fee in relation to either application for a review shall be payable.” (Emphasis added)
3.14 Section 177K of 2000 Act is concerned with the decision of the Board in relation to an application for substitute consent. Section 177K(1) provides:-
“Where an application is made to the Board for substitute consent in accordance with relevant provisions of the Act and any regulations made thereunder the Board may decide to grant the substitute consent, subject to or without conditions, or to refuse it.”
3.15 Section 177K(2) provides:-
“When making its decision in relation to an application for substitute consent, the Board shall consider the proper planning and sustainable development of the area, regard being had to the following matters:
(a) the provisions of the development plan or any local area plan for the area;
(b) the provisions of any special amenity area order relating to the area;
(c) the remedial environmental impact statement, or remedial Natural impact statement, or both of those statements, as the case may be, submitted with the application;
(d) the significant effects on the environment, or on a European site, which have occurred or which are occurring or could reasonably be expected to occur because the development concerned was carried out;
(e) the report and the opinion of the planning authority under section 177I;
(f) any submissions or observations made in accordance with regulations made under section 177N;
(g) any report or recommendation prepared in relation to the application by or on behalf of the Board, including the report of the person conducting any oral hearing on behalf of the Board;
(h) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact;
(i) conditions that may be imposed in relation to a grant of permission under section 34(4);
(j) the matters referred to in section 143;
(k) the views of a Member State where the Member State is notified in accordance with regulations under this Act;
(l) any relevant provisions of this Act and regulations made thereunder.”
3.16 While the underlying issue in these proceedings clearly concerns the proper interpretation of that legislation insofar as it relates to the obligations of the Board in determining whether to grant substitute consent in a case such as this, the issue with which this appeal is concerned is as to whether Mr. Sweetman’s challenge amounts to a collateral attack on the decision of Donegal Co. Council. I propose firstly to identify the reasons why the High Court and the Court of Appeal rejected that contention.
4. The High Court
4.1 The High Court (Hedigan J.) concluded that Mr. Sweetman’s application for judicial review was not a collateral attack on the decision of Donegal County Council, but rather a direct challenge to the decision of the Board as the body which grants or withholds substitute consent. In reaching this conclusion, Hedigan J. emphasised (at para. 4) the apparently limited role which the local authority plays in the process:-
“The local authority’s role seems to be a somewhat mechanical one, a process almost like box ticking. Having found the quarry meets the criteria it must direct the application for substitute consent. Thus the only body that can consider the issues of exceptionality and circumvention seem to be An Bord Pleanála.”
4.2 Hedigan J. went to on to state that if the legislation does not require the Board to consider these issues, then Mr. Sweetman will argue in the alternative against the State that Irish law is in contravention of the requirements of EU law. Therefore, Hedigan J. concluded, the case was properly taken first against the Board and in the alternative against the State.
5. The Court of Appeal
5.1 In the Court of Appeal, Mahon J. reached the same conclusion as that of Hedigan J in the High Court. Mahon J. states in his judgment at paragraph 20:-
“In this case, and at the risk of being repetitive, the Donegal County Council decision of June 2012 is not being challenged. Mr. Sweetman’s case is much more straightforward. Primarily, it seeks to challenge the November 2014 decision of An Bord Pleanála, and the basis on which An Bord Pleanála made that decision.”
5.2 Mahon J. went on to note the structure of Mr. Sweetman’s complaint in that it relates first to the decision of the Board to grant the substitute consent, and in the alternative against the State on the basis that Irish law is deficient if the effect of the relevant legislative provisions is to provide for the granting of substituted consent “without mandating an enquiry into the existence of special circumstances, or the circumvention of Community Law.” Mahon J. noted the conclusions of Hedigan J. in this regard as set out above, and stated, “No issue therefore arises in relation to the eight week (or any other) time limit.”
5.3 Mahon J. ultimately stated that he agreed with the decision of Hedigan J. and the rationale for that decision.
5.4 Arising from those decisions the key issue which arises on this appeal concerns that area of jurisprudence which has developed under the heading “collateral attack”. In that context it is appropriate to start by referring briefly to the case law.
6. Collateral Attack
6.1 In K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R. 128, Finlay C.J. noted (at p. 135) the rationale behind prohibiting challenges against decisions where the relevant time limit for challenging the decision has elapsed:-
“From these provisions, it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision.”
6.2 In Goonery v. Meath County Council [1999] IEHC 15, Kelly J. followed the judgment of Finlay C.J. in K.S.K Enterprises. In Goonery, the applicant sought declarations relating to the determination of a planning application by the local planning authority. However, the applicant did not directly challenge the validity of the determination. In that regard, Kelly J. focused on the intention behind the declarations sought, and stated as follows:-
“Whatever about the way in which these are worded, they plainly seek to impugn the validity of the decision to grant permission. If these reliefs were granted, they would undoubtedly mean in practical terms that the decision of the Meath County Council was invalid. This is particularly so in the case of relief No. (11). The mere fact that an Order was not sought quashing the permission in question does not mean that the validity of the permission was not being questioned. It was, and so the provisions of the section applied and were not complied with since the application was moved before Budd J. ex parte and not on notice as the section requires.”
6.3 The substance-over-form approach set out by Kelly J. in Goonery was applied by Smyth J. in Lennon v. Cork City Council [2006] IEHC 438, which concerned an attempt indirectly to invalidate an earlier decision of a planning authority, by challenging a second, later direction made by the authority. With regard to the question of identifying such an indirect attack, Smyth J. stated:-
“It is well established that in considering whether proceedings ‘question the validity of a decision of a planning authority on an application for grant of permission’, one must look at the substance of the relief sought in the proceedings. The fact that a formal order of certiorari is not sought does not necessarily indicate that the validity of the decision is not being questioned.”
6.4 This Court considered the issue of an indirect or collateral attack in Nawaz v. Minister for Justice, Equality and Law Reform [2013] 1 IR 142, which was relied on by the State in this appeal, where the issue arose in the context of immigration law. That case concerned a constitutional challenge to the Immigration Act 1999. The respondent State parties argued that the substance of the applicant’s constitutional challenge amounted to a collateral attack on the deportation process in his case. The issue which arose, therefore, was as to whether the applicant’s challenge fell within the statutory judicial review procedure under s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and thus whether the challenge was properly taken by way of judicial review under the requirements of that section. In my judgment in that case, I undertook a review of the authorities in this area, and stated as follows (at paragraphs 6.1 – 6.2):-
“It seems to me to follow from that case law that the question of whether a provision such as that contained in s. 5 of the Act of 2000 is engaged is one to be looked at as a matter of substance rather than as a matter of form. As Kelly J. pointed out in Goonery v. Meath County Council (Unreported, High Court, Kelly J., 15th July, 1999) the reliefs sought in that case (which were declaratory in nature) “would undoubtedly mean in practical terms that the decision of Meath County Council was invalid”. It seems to me that the approach of Kelly J. in that case was correct. The question to be asked is whether, if the relief is granted, it will amount to a determination to the effect that a particular type of measure specified in the section is invalid or, to use the words of s. 5 itself, has had its validity successfully questioned.
The statutory purpose of provisions such as s. 5 and its equivalent provisions in planning legislation which were under consideration in Goonery v. Meath County Council (Unreported, High Court, Kelly J., 15th July, 1999), is to ensure that there will be a timely and complete determination of any issues of any sort which might have as their effect the invalidity or one of the types of measures specified in the legislation in question. It seems to me that an action, brought in the context of the relevant process which is being applied to Mr. Nawaz, which seeks a declaration of invalidity of the underlying legislation under which the particular measure can be adopted, can be described as a challenge which has the potential to question the validity of the relevant measure.”
7. Discussion
7.1 The rationale behind the collateral attack jurisprudence is clear. A party who has the benefit of an administrative decision which is not challenged within any legally mandated timeframe should not be exposed to the risk of having the validity of that decision subsequently challenged in later proceedings which seek to quash the validity of a subsequent decision on the basis that the earlier decision was invalid. Like consideration would apply to a State decision maker who has rejected an application or other similar decisions.
7.2 The requirements of legal certainty make clear that a person who has the benefit of a decision which is not challenged within whatever time limit may be appropriate is entitled to act on the assurance that the decision concerned is now immune from challenge subject to very limited exceptions such as fraud and the like.
7.3 However, the application of that general principle can become complex in circumstances where there is a two or more stage process leading to the substantive administrative decision concerned. In such a case is it permissible to leave a decision made at an earlier stage in the process go unchallenged and then raise a point which could have been made in respect of that initial decision at a later stage in the process? In such a case it seems to me that it is necessary to analyse the process concerned for the purposes of determining whether it is the overall intent of the scheme in question that the relevant issue or question be definitively and finally decided at the first stage with no capacity to revisit the issue at any subsequent stage in the process.
7.4 In some circumstances, for example, an initial decision may simply be to the effect that there is an arguable case or a case to answer or the like so that all of the issues remain open for full debate as the process continues. In other cases it may be clear that the initial decision is designed to definitively determine some relevant matter such as whether jurisdiction exists or qualifying factors are present. In such a case the scheme does not envisage those issues as being capable of being revisited once established at the initial stage.
7.5 While the distinction which I have just identified may be relatively easy to express in general terms, the analysis which may be required to decide on the proper characterisation of any particular scheme may not always be quite so easy. This may particularly be so where the scheme is not express in its terms as to whether particular issues are capable of being raised at various stages in the process or alternatively are to be taken to be definitively determined at a particular point. But in an overall sense I am satisfied that the proper approach for the court to take is to consider whether, taking the scheme as a whole and having regard to its express terms and any additional matters which can properly be implied, it can be said that it is clear that a particular question or issue is to be definitively determined at an earlier stage so that there is no possibility to have that issue or question re-opened at a later stage. In such a case it is appropriate to require anyone who wishes to challenge that initial decision to do so within any relevant statutory time limit or time provided for in Rules of Court. Any failure to do so within such time limit, including any extended time limit which the court may, in accordance with its jurisdiction, permit, will render the initial decision incapable of challenge and will further preclude any challenge to any subsequent decision made in the process which is based on a contention that the initial decision was not lawfully made.
7.6 Against that backdrop it is necessary to consider the specific scheme which exists for the grant of substitute consent using the quarries gateway which is at issue in these proceedings. However, before so doing it is necessary to recall the jurisprudence of the CJEU which makes clear that what is described as a system of regularisation in the environmental context is permissible but only where the system “does not offer the persons concerned the opportunity to circumvent the community rules ... and that it should remain the exception”. Furthermore, the CJEU has held that the previous Irish system of retention permission which, as the Court noted, could “be issued even where no exceptional circumstances are proved” was inconsistent with European law.
7.7 Thus, the validity of any scheme for retrospective consent, such as the substitute consent process at issue on this appeal, must, if it is to be compatible with European law, be such as it does not operate as a facilitation or encouragement to circumvention of Union rules and can only operate in exceptional circumstances.
7.8 While this Court, on this appeal, is not called on to give a definitive determination on the application of those principles to the scheme here at issue, it is, in my view, of some significance to note the positions of the parties. First there is a dispute about the extent of the requirement for “exceptional circumstances” which undoubtedly exists as a matter of European law. On Mr. Sweetman’s case it is necessary that there be an analysis in each case as to whether sufficient exceptionality exists to justify retrospective consent. An alternative argument might be that it is open to the Oireachtas to specify certain categories of case which meet the exceptionality requirement specified in European law although, of course, it would be necessary for the court to assess whether the category of case identified in any relevant legislation truly met the exceptionality test. I express no view on the true answer to that question where it is one of the issues which lies at the heart of the substantive proceedings.
7.9 A second, and follow on, question arises, in the event that Mr. Sweetman is correct in his contention, which concerns the point in time when individual exceptionality must be assessed in substitute consent applications using the quarries gateway. There is nothing in the legislation already cited to suggest that the relevant local authority, Donegal Co. Council in this case, was required as a matter of Irish law to consider exceptionality. Likewise, the Board maintains that there is no obligation on it to consider individual exceptionality. But if individual exceptionality must be considered as a matter of European law then at what stage of the process is that to occur? It certainly does not necessarily follow that it would have to be assessed at the local authority stage rather than that before the Board.
7.10 It seems to me to follow, therefore, that this is one of those cases where it is impossible to determine whether Mr. Sweetman’s challenge amounts to a collateral attack without deciding the substantive issues in the case. On Mr. Sweetman’s case it is necessary that there be an assessment of individual exceptionality in every application for substitute consent. This Court cannot, at this stage, assume that Mr. Sweetman is wrong in that contention. If he is correct then it follows that there must be some stage in the process where that individual exceptionality must be determined. There is nothing in the legislation which makes it clear, should it be found necessary as a matter of European law to imply an obligation to assess exceptionality in each individual case, as to which stage in the process that exercise is to be carried out. It follows that it is not clear that Mr. Sweetman’s challenge, if it be valid, is properly directed solely to the first, or local authority, stage of the process rather than the stage which occurs before the Board. In that regard I would agree with the submission made by counsel on behalf of the Board to the effect that there is a very real sense in which one would have to decide the merits of the substantive case in order to determine whether Mr. Sweetman’s challenge to the decision of the Board amounts to a collateral attack on the decision of Donegal Co. Council.
7.11 It is understandable that parties may wish to have an issue, such as a contention that a particular challenge amounts to an out of time collateral attack, determined at the beginning of proceedings so as, if their contention be found to be correct, to ensure that they do not have to face unnecessarily into the substantive issues. Indeed in some, perhaps many, cases this would be the appropriate course of action to seek to take. However, as courts have frequently pointed out in the context of the various methods by which a pre-emptive strike may be mounted against proceedings, the longest way around is often the shortest way home.
7.12 In a clear case where the scheme under consideration requires a final decision on some aspect of the process to be made at an earlier stage such that the determination then made cannot be revisited later in the process, it may well be appropriate for a court to decline to hear a substantive challenge to a later decision in the same process on the grounds that it amounts to a collateral attack, outside time, on the earlier decision. But where, as here, an analysis of the scheme itself is one of the key issues to be decided in the substantive proceedings such that it is by no means clear as to whether there is an obligation to consider individual exceptionality and, importantly, if so at what stage that consideration can or must be made, it would not, in my view, be appropriate for a court to prevent the substantive issue going ahead. On at least one view the scheme, interpreted in accordance with European law, requires an assessment of individual exceptionality at the Board stage. If that view prevails then Mr. Sweetman’s challenge could not be described as an impermissible collateral attack. But to decide that question requires hearing the substantive case. It cannot be described on a preliminary application such as this.
8. Conclusions
8.1 For the reasons set out in this judgment I would conclude that the collateral attack jurisprudence should only be deployed to prevent a substantive case being heard in circumstances where it is clear, on a proper analysis of the relevant scheme, that an earlier decision taken at some point in the process in question is intended to be final and definitive concerning the issue in question. In such a case it will follow that an attempt to challenge the validity of the earlier decision, as grounds against the validity of a subsequent decision in the same process, outside of the time limit for challenging the original decision, amounts to an impermissible out of time collateral challenge to the decision earlier made and is in breach of the principle of legal certainty.
8.2 However, for the reasons already noted, such a course of action is only appropriate in a clear case. For the reasons set out earlier in this judgment I am not satisfied that this is such a clear case. Rather it is a case where it is necessary to determine at least some of the substantive issues which would arise in these proceedings in order properly to analyse the scheme as a whole and determine at what point, if any, the question of individual exceptionality must be assessed. It follows that this is the kind of case where the answer to the question of whether a challenge such as that brought by Mr. Sweetman amounts to an impermissible collateral challenge requires a consideration of the substantive issues which arise in the proceedings in any event. For those reasons I would uphold the decision of both the High Court and the Court of Appeal to the effect that the substantive proceedings should go ahead.
8.3 I would, therefore, dismiss the appeal.
