High Court certifies standing question under Planning and Development Act 2000 to Supreme Court.

Neutral Citation Number: [2006] IEHC 450

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

[2005 No. 1323 J.R.]

BETWEEN

THOMAS HARDING

APPLICANT

AND

CORK COUNTY COUNCIL AND AN BORD PLEANÁLA

RESPONDENTS

AND

XCES PROJECTS LIMITED NOW KNOWN AS KINSALE HARBOUR DEVELOPMENTS LIMITED

NOTICE PARTY

Judgment of Mr. Justice Clarke delivered the 30th November, 2006

1. Introduction

1.1 In this case I delivered a judgment (“the leave judgment”) on the 12th October, 2006 in relation to an application by the applicant

(“Mr. Harding”) in which he sought leave to bring judicial review proceedings concerning a notice by the First Named Respondent

(“Cork Council”) of intention to grant a planning permission to the notice party (“Kinsale Limited”). The application was in respect of a

substantial project described an “integrated tourism resort”. Further details of the nature of the project appear from the leave

judgment.

1.2 As appears from the leave judgment I decided that it was appropriate to determine as, in effect, preliminary issues, two questions

raised by both Cork Council and Kinsale Limited as to whether Mr. Harding had established the necessary standing to bring these

proceedings and as to whether it was appropriate for this court to entertain a challenge to a notice of intention to grant permission

given by a Planning Authority in circumstances where it was contended that an appeal to An Bord Pleanála would be a more

appropriate remedy.

1.3 For the reasons set out in the leave judgment, I concluded that Mr. Harding had failed to meet the "substantial interest" threshold

for standing as imposed by s. 50 of the Planning and Development 2000 (“the 2000 Act”). As appears from that judgment, and indeed

other determinations of this court, it is clear that the 2000 Act introduced a higher threshold which must be met by persons wishing

to challenge by way of judicial review decisions such as that made by Cork Council in this case. Having reviewed the law and the

factual basis put forward on behalf of Mr. Harding in support of his contention that he had a substantial interest within the meaning of

the 2000 Act, I set out (at paragraph 3.17 of the leave judgment) my principal conclusions in relation to this aspect of the case. I

indicated that I was satisfied that, under the traditional test for stranding, it is probable that, in all the circumstances, Mr. Harding

would have had sufficient connection to establish a sufficient interest in the matter so as to justify standing. However, I went on to

conclude that the degree of connection which Mr. Harding had set out in his affidavits failed to meet the more stringent test

introduced in the 2000 Act of a “substantial interest”.

1.4 1 did, however, conclude that I was not satisfied that, if Mr. Harding had standing, it would be appropriate, at the stage at which

the proceedings had reached, to regard an appeal as an adequate remedy.

1.5 Against that judgment, insofar as it is unfavourable to him, Mr. Harding wishes to appeal. Under the provisions of s. 50(2)(f) of

the 2000 Act such an appeal can only be brought with leave of this court and that 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”.

1.6 On that basis it is necessary for Mr. Harding to satisfy me that the test set out in s. 50 is met in order that I should give the

certificate required to enable an appeal to be brought. For that reason a further hearing occurred at which argument was put forward

on behalf of Mr. Harding to the effect that such a certificate should be given while Cork Council and Kinsale Limited put forward

arguments in favour of refusal. This judgment is directed to the issue as to whether it is appropriate, in all the circumstances, to give

the certificate sought.

2. The Legal Test

2.1 The principles and authorities applicable to the grant of a certificate were recently reviewed in Glancré Teoranta v. Mayo County

Council [2006] IEHC 250. Having reviewed authorities both in the field of planning and environmental law and also in the procedurally

analogous area of asylum law (where similar restrictions on the right of appeal apply), MacMenamin J. summarised the current state of

the law in the following way:

“I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the

consideration of the issues herein.

1. The requirement goes substantially further than that the point of law emerges in and from the case. It must be

one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be verified that so

as to enable the courts to administer that law not only in the instant, but in future cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have

not been established a question may arise as to whether, logically, the same material can constitute a point of law

of exceptional public importance such as to justify certification of an appeal to the Supreme Court Kenny).

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a

point of law during the hearing.

6. The requirements regarding “exception public importance” and "desirable in the public interest" are cumulative

requirement which although they may overlap, to some extent require separate consideration by the court (Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such

an interpretation would not take into account the use of the words “exceptional”.

8. Normal statutory rules of construction apply which mean inter alia that “exceptional” must be given its normal

meaning.

9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law.

Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the

daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point

to be certified be such that it is likely to resolve other cases.”

2.2 I respectfully adopt the above summary of the principles applicable to the question of whether a certificate should be granted. I

would add only one limited caveat. While there is, as was pointed out by MacMenamin J., authority for the proposition that the point

of law sought to be certified must arise out of the decision of this court and not from an issue arising in the course of argument in the

case, I would not consider that it necessarily follows that an absolute rule exists to that effect. The requirement stems from the

wording of the section itself. The section requires that the point of law, in order that it be certified, must, amongst other things,

derive from “its decision”, being the decision of this court against which the appeal is sought to be brought. There are, however,

many circumstances in which an issue which may arise in the course of argument may not be dealt with in the course of the court’s

judgment. In the light of the view which the court takes on other issues, some points may just not arise. Similarly the court may not

be satisfied that there is evidence of a necessary factual basis for a point to be relevant to its decision. In those, and other,

circumstances, the court may come to the view that it is unnecessary to deal with some issues that arose in the course of argument

because a resolution of the issue concerned is unnecessary to decide the case at hearing. In those circumstances it does not seem

to me that there could be any basis for suggesting that the court should certify such a point where the point did not, in fact, affect

the court’s judgment.

2.3 However it should always be remembered that it may be possible that the court, due to inadvertence, fails to deal with a point

which arose in the course of argument and which, if it be a good point, could have affected the result of the case notwithstanding

the other findings made by the court and set out in the court's judgment. It could hardly be the case that a party who might

otherwise be entitled to a certificate enabling it to appeal to the Supreme Court would be deprived of that entitlement due to the

fact that that the court had, by inadvertence, failed to deal with an issue which was properly argued.

2.4 That being said the circumstances in which a court might fail, by inadvertence, to deal with a point of law which could, arguably,

be said to be one of exceptional public importance would, hopefully, be extremely rare.

2.5 In the context of the legal principles identified by MacMenamin J. in Glancré I propose addressing the issues put forward in this

case.

3. The Suggested Issues - Do they arise out of the decision?

3.1 Counsel on behalf of Mr. Harding have submitted six questions for which they seek a certificate.

They are as follows:

Question 1.

What other criteria by reference to which a person may be said to have a “substantial interest” even though they do not

have financial or property interest within the meaning of s. 50?.

Question 2.

Where an applicant seeks leave to judicially review a decision of a Planning Authority on the basis that he has been

denied due or proper procedures, is it necessary to establish any further personal or peculiar interest “in the matter which

is the subject of the application” to have a substantial interest' for the purposes of s. 50?.

Question 3.

A. Where the court forms the view that an appeal to An Bord Pleanála would not be an adequate remedy to redress the

grounds raised by the applicant were the applicant to succeed on one or more grounds, can it be said that the applicant

does not have a substantial interest within the meaning of s. 50?.

B. Is the fact that an appeal to An Bord Pleanála is an inadequate remedy to address issues of procedural fairness raised

in the proceedings irrelevant factor in determining whether the applicant has a substantial interest in the matter of the

subject of the application?

Question 4.

A. Is it necessary to consider the basis of the proposed challenge with a view to assessing whether the applicant has

substantial interest to raise the grounds sought to be relied on?

B. Can the court assess whether an applicant has a personal or peculiar interest "in the matter which is the subject of the

application" without considering the nature of the interest in which the applicant has in the grounds of the subject matter

of the proceedings?

Question 5.

Is it possible for the court to be satisfied in relation to the question of “substantial interest” without considering the

nature of the nexus between the applicant and the matters raised in the proceedings?

Question 6.

Where a person has participated in the planning process, is it necessary to have a personal or peculiar interest in the

planning application which led to the impugned decision to have a "substantial interest" for the purposes of s. 50?

3.2 There is, as was pointed out by Counsel for Cork Council, a common thread to be found in questions 2 to 6. Each are predicated,

in one way or another, upon the contention that Mr. Harding was denied due process in the planning application. Question 2 raises

that issue in direct terms. The reference in question 3 to the adequacy of an appeal to An Bord Pleanála is an indirect reference to

the same issue. The reason why I was not persuaded that it had been shown, at the stage reached at the time of the leave

judgment, that an appeal would an adequate remedy, was because of the view which I formed that if all, or most, of the issues raised

by Mr. Harding were to be well founded, it would be arguable that there had been a sufficient denial of due process in his case so

that it could reasonably be said that he had not had a proper hearing at first instances at all. Question 4 raises, in substance, the

same matter. Similarly, question 5 seeks to raise the connection between the issues raised and the establishment of a substantial

interest. Finally, question 6 also raises the involvement of Mr. Harding in the process and, by implication, the contentions made to the

effect that there was a failure to inform him of his entitlements as to his involvement in that process.

3.3 It is clear that issues concerning the extent to which it might be said that Mr. Harding had been substantially denied due process

were raised as part of the grounds in respect of which leave was sought. A full statement of those grounds can be found at

paragraph 5.2 of the leave judgment. As I indicated, I was persuaded that if all of those grounds (or most of them) were made out, it

was arguable that it would be appropriate to take the view “that he had been improperly excluded from a reasonable opportunity to

involve himself in that aspect of the process which resulted in a consideration of what, on any view, must be a development which is,

at least in some material respects, different from that applied for.” The latter reference is to the fact that there was an alteration in

the project in the course of a consideration of the planning application. Indeed much of Mr. Harding’s complaint concerns the manner

in which that alternation arose and was dealt with.

3.4 Therefore it is clear that issues concerning a contention that Mr. Harding was deprived, to a significant extent, from an

entitlement to an appropriate involvement in the planning process were raised and dealt with in the course of the hearing before me.

It is equally clear from the judgment that those issues were dealt with in the context of the question as to whether an appeal would

be an adequate remedy rather than the question of whether Mr. Harding could be said to have had standing.

3.5 The question of any contended for failure in the process providing, or being a factor in the provision of, standing was not an issue

which was raised on behalf of Mr. Harding at the hearing.

3.6 It is true to state that, at paragraph 3.11 of the leave judgment, in the course of identifying what, in my view, were the

appropriate criteria to apply in considering whether an applicant had standing, I indicated that amongst those matters were (at item

(b)) “the extent of the connection of the applicant concerned to the effects of the project by particular reference to the basis of the

challenge which he puts forward to the planning permission and the planning process”.

3.7 However, in its proper context, that passage should be seen as a reference to the obligation on the court to assess the effects

of the project on the applicant concerned by reference to the particular concerns which had been expressed by the applicant in the

course of the planning process or which he would have expressed had he not been improperly excluded from some aspect of the

process. For example, it does not seem to be to be appropriate to confer standing upon an applicant in respect of an alleged

significant effect of a planning application upon him, where the consequences of the effect which it is contended confers standing

where not raised by the applicant concerned in the planning process save in circumstances where it can be reasonably argued that

the applicant would have raised those matters where it not for the breach of proper process which was alleged to have occurred in

the case.

3.8 For the purposes of this application it is sufficient to note that the reference from the leave judgment, to which I have referred,

should not be taken as an indication that I dealt with a contention such as that which implicitly arises in questions 2 to 6 to the

effect that an exclusion from the proper process can, either by itself or as a significant factor, confer standing upon an applicant who

would not otherwise have standing.

3.9 In those circumstances, I am not satisfied that the issues sought to be raised in questions 2 to 6 arise out of the leave judgment.

Nor could it be said that the fact that those issues are not adverted to, in that aspect of the judgment which relates to standing,

arose out of some oversight in failing to deal with the issue in the judgment. In those circumstances I am not satisfied that it is

appropriate that I certify those questions. It is now necessary to turn to the first question.

4. The Height of the Bar

4.1 In substance the issue which Mr. Harding seeks to have certified under this heading concerns the question of the extent of the

increased threshold imposed by the 2000 Act. There can be no doubt but that by imposing a “significant interest” test the Oireachtas

intended that a higher bar be placed in the way of those who might wish to seek to challenge planning decisions by judicial review. It

is equally clear, for the reasons set out in the leave judgment, that, at the other end of the scale the threshold does not confine an

entitlement to challenge a planning decision to those who may have a financial or property interest in the planning application. As I

pointed out at paragraph 3.7 “the real question of principle which arises in this case is as to the criteria by reference to which a

person may be said to have a substantial interest even though they do not have a financial or property interest at stake”. I set out

at paragraph 3.11 some of the factors which seemed to me to be appropriate to take into account in addressing such issues. I also

noted at paragraph 3.12 that this court would appear to have taken a strict approach to the degree of connection necessary to

establish a “substantial interest”.

4.2 The issue which, in substance, therefore, Mr. Harding wishes to raise is as to whether that strict approach is, in fact, too strict.

While accepting that the 2000 Act necessarily implies a stricter approach it is, in substance, contended that this court may have

been too strict in its approach or, perhaps, that my interpretation of previous authorities and my application of them to the facts of

this case, implied an acceptance of a test which was too strict.

4.3 Before considering the question of whether that issue should properly be certified under s. 50 of the 2000 Act it is necessary to

address a preliminary question. Amongst other things, counsel for Cork Council and counsel for Kinsale Limited argued that the

question sought to be certified is too wide or theoretical. They suggest that the question, in substance, invites the Supreme Court to

consider an almost hypothetical case or, as counsel for Cork Council put it, “write an essay on the topic”. I am satisfied that there is

some substance in that contention. However, the formulation of a question, which can appropriately be certified, needs to be

considered in the context of the practical circumstances in which such a question may arise. It is clear from all of the authorities that

in order for a question of law arising to be properly regarded as one of exceptional public importance it should have the capability of

affecting a significant number of cases so that it would, also, in those circumstances, be likely to be in the public interest to have

definitive clarification of the legal principles involved from the Supreme Court. Of course, any such point raised will, necessary, arise

out of the facts of an individual case and will principally be of interest to the parties solely for the purposes of resolving that case. It

seems likely, therefore, that in many cases, there will be a broad and a narrow question. The broad question will concern general

principles. The narrow, the application of those principles to the facts of the case. Where the principles by reference to which a court

should approach an important aspect of planning law have not been the subject of an authoritive ruling of the Supreme Court and

where exceptionally important questions are raised by the issue concerned, it may well be appropriate to express the issue arising in

general terms even though the court, will, necessarily, concentrate on the application of those principles to the facts of an individual

case.

4.4 Where the general principles have been a subject of an authoritive ruling, then it would only be in a wholly exceptional case that

it would be possible to take the view that the application of those general principles to the facts of an individual case could involve a

point of law of exceptional public importance. Where, however, the general principles may be open to doubt, then the fact that the

individual case may turn on the application of such principles as may be determined, to the facts of that case does not, in my view,

render it impossible that a determination of those general principles (which will form a necessary part of a consideration of any

possible appeal), might not nonetheless, amount to an issue appropriate for certification.

4.5 I am strengthened in that view by the question certified by Keane J. in Boland v. An Bord Pleanála (1996) 3 I.R. 435. As appears

from p. 436 of the judgment in that case, Keane J. (in this court) certified the following point as being a point of law of exceptional

public importance viz:-

“What are the criteria which distinguish those matters which may properly be left to the developer and the planning

authority to agree upon, and those matters which cannot be left to such parties in such fashion and must instead be

decided by An Bord Pleanála itself under the provisions of the Local Government (Planning and Development) Acts, 1963

to 1992, and has An Bord Pleanála applied such criteria to the instant case?.”

4.6 In other words the form of question certified in that case commenced by specifying a general issue which is undoubtedly of

exceptional public importance and on which a definitive ruling from the Supreme Court is sought as to the criteria which are properly

to be applied in approaching such an issue. However, the issue certified goes on, as it must do, to raise the question of whether such

criteria as might be determined were properly applied in the relevant case. The extent to which the answer as to the proper

application of criteria to the specific facts of that case might or might not be of great value in determining subsequent cases may be

open to some doubt. Indeed, if the circumstances in which an issue arose in a case under consideration were unusual (so that it

would not be necessary or desirable to address general principles in the context of the case in question) then that might, in an

appropriate case, be a good reason for taking the view that a point of law of exceptional public importance could not arise. However

where it does appear that issues of general principle are likely to require to be addressed, at least in general terms, in an appeal, the

fact that the appeal will also focus, for its ultimate determination, on the facts of an individual case, should not prevent a point so

raised from being properly regarded, if all the other criteria are met, as being a point of law of exceptional public importance. Issues

of general principle, in our system, will almost invariably arise and be dealt with, at least initially, on the facts of an individual case.

The facts may, in some cases, prevent the issue of general principle from requiring to be dealt with or allow the case to be considered

on a much narrower basis. However, where it appears likely that it would be necessary to address a question of general principle in

order to determine the issues which arise on the facts of an individual case, then it does not seem to me that that matter, of itself,

should be a barrier to certification.

4.7 Therefore, as to the form of the question which I should consider in this case, I would propose adapting the formulation used by

Keane J. in Boland and consider whether it is appropriate to certify the following issue:

“What are the criteria by reference to which a person may be said to have a “substantial interest” even though they do

not have a financial or property interest within the meaning of s. 50 of the Planning and Development Act, 2000 and has

this court properly applied such criteria to the instant case?”

4.8 I am satisfied that there is nothing in the form of such a question which, if it met the other criteria, would render it inappropriate

to issue a certificate in respect of the point of law raised. The fact that the ultimate decision of the court would, of course, only

relate to the specific circumstances of this case would not mean that important questions concerning the approach of the court to

questions of standing under the 2000 Act would not, nonetheless, be determined. The fact that general issues (such as arise under

the standing heading in this case) and, indeed, arose in Boland may nonetheless require to be applied to the facts of individual cases,

does not alter the importance of the resolution of the general questions. For example notwithstanding the clear statement of principle

by the Supreme Court in Boland as to the criteria to be applied in relation to conditions which leave over matters for agreement, this

court is, nonetheless, frequently asked to determine whether specific conditions imposed by planning authorities meet what has come

to be called the Boland criteria. It is clear, therefore, that Boland did not completely determine all future cases in which the same

type of issues might arise notwithstanding the clear exposition by the Supreme Court of the principles which should be applied in

considering conditions which delegate back to the planning authority questions of detail. This did not mean that the decision on the

issue of general principle in Boland was not a resolution of a point of law of exceptional public importance and where it was in the

public interest to have that issue determined.

5. An Issue of Exceptional Public Importance?

5.1 I propose applying the principles set out by MacMenamin J. in Glancré to question 1 as reformulated in the manner set out at para

4.7. Firstly, it seems to me that that issue arises from my judgment on the leave application. Having considered the authorities and

the legislation I came to the view that the 2000 Act imposed a higher threshold for standing (which finding is not in itself the subject

of any controversy) but in addition took the view (primarily based on the authorities to which I had been referred) that a strict

approach should be taken and that the threshold has, therefore, been raised to a significant extent.

5.2 1 am also satisfied that it can reasonably be said that the law in relation to this issue stands in a state of uncertainty. While

there have been a number of determinations of this court the question of the extent to which the threshold has been raised by the

provisions of the 2000 Act has never been the subject of a determination by the Supreme Court. In addition, as was pointed out by Ó

Caoimh J. in O’Shea v. Kerry County Council [2003] 4 I.R. 143, the issue has only been the subject of authority in this court since

September 2003. It has, since that time, also been the subject of consideration in Ryanair v. An Bord Pleanála & Ors [2004] 2 I.R.

334, Harrington v. An Bord Pleanála & Ors (Unreported, The High Court, 26th July, 2005, MacMenamin J.) and O’Brien v. Dun Laoghaire

Rathdown County Council (Unreported, High Court, 1st June, 2006, O’Neill J.). The fact that there may be a number of judgments of

this court on a point does not, of itself, necessarily mean that it may not be open to sufficient doubt to render it appropriate that a

definitive ruling from the Supreme Court be obtained on it. While it might be said that all of the judgments referred to adopt a “strict”

approach it cannot be said that clear principles or criteria have emerged. The precise extent by which the bar may be said to have

been raised is, in my view, open to reasonable argument.

5.3 I am satisfied that the point of law concerned is of “exceptional public importance”. It goes to the constitutionally important

question of the entitlement of persons to have access to the courts to challenge decisions in the planning and environmental field. It

also goes to the entitlements of persons who may have the benefit of decisions in that field to avoid challenge by persons who do not

have the necessary standing. Such an issue has the potential to be relevant in a great number of cases and to be of importance to

many parties whether objectors or developers. It can undoubtedly be said that the point transcends the facts of this individual case.

5.4 I am further satisfied that there will be a significant public benefit in having a determination by the Supreme Court as to the

principles applicable to a consideration of whether a person has standing under the “substantial interest” test. This issue arises, and

appears to be increasingly arising, in a significant number of cases. While there will always remain questions as to whether an

individual applicant meets whatever criteria may be specified, it would undoubtedly make a resolution of such issues easier, and allow

for a more consistent approach, if a definitive ruling from the Supreme Court is obtained. Furthermore it seems likely that such a

definitive ruling would substantially dispose of at least some of those cases.

5.5 Finally I should state that I agree, at least in part, with the views expressed by counsel for Cork Council to the effect that it may

be difficult to express in overly precise terms the approach which should be taken. That means that there are likely to remain

questions as to the application of any principles determined as applicable by the Supreme Court to the facts of any individual case.

However that fact, of itself, does not, it seems to me, mean that there would not be a significant public benefit in having a definitive

ruling as to the proper approach which this court should take when confronted with an issue as to whether a particular applicant has

a substantial interest under the 2000 Act.

5.6 In all the circumstances I am, therefore, satisfied to certify the question which I have set out at paragraph 4.7 above.