Supreme Court allows appeal beyond High Court Certificate ground due to statutory ambiguity and constitutional right of appeal.

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 I.R. 704.

The Court was referred to K.S.K. Enterprises Limited v. An Bord Pleanála 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 I.R. 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.