High Court refused leave to appeal on two points but certified one point of exceptional public importance for further appeal.

Neutral Citation [2015] IEHC 493

THE HIGH COURT

COMMERCIAL

[2014 No. 647 J.R.]

[2014 No. 170 COM]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT 2000 ACT, AS AMENDED

BETWEEN

JOHN CALLAGHAN

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND AND NORTH MEATH WIND FARM LIMITED

NOTICE PARTIES

JUDGMENT of Ms. Justice Costello delivered the 24th day of July, 2015

1. On 11th June, 2015, I gave judgment in this matter and I refused the applicant’s application for leave to seek judicial review in

respect of a decision by An Bord Pleanála (“the Board”) to designate the proposed application for a wind farm by the first named

notice party to be strategic infrastructure development within the meaning of the Planning and Development (Strategic

Infrastructure) Act 2006. The applicant has applied for a certificate for leave to appeal in respect of that judgment. The applicant

seeks a certificate on three points of law which he says are of exceptional public importance in the following terms:-

“Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when

construed in the light of Sections 50(2) and 143 of the Planning and Development Act 2000 such that:-

(a) It is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord

Pleanala reaching an opinion pursuant to Section 37A of the Planning and Development Act 2000.

(b) It precludes or effectively precludes An Bord Pleanala, when reaching its decision whether to grant or refuse

permission, from reaching a decision on the question of whether the proposed development would be of strategic,

economic or social importance to the State and/or would contribute substantially to the fulfilment of any of the

objectives of the National Spatial Strategy or any regional planning guidelines for the time being in force different to that

reached when forming its opinion pursuant to Section 37A(2) of the Planning and Development Act 2000.

(c) It fails to properly transpose Directive 2011/92 into Irish law by failing to ensure that there is effective public

participation in the decision-making process at a time when all options were still open to the decision maker.”

2. Section 50A(7) of the Planning and Development Act 2000, as amended, provides that an appeal may only be taken 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. Subsection (7) provides as follows:-

“(7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot

of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case

save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point

of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to

the Supreme Court.”

3. The principles upon which the court should approach an application for a certificate for leave to appeal were summarised by

MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 and have been followed consistently in many cases. He

stated:-

“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 a point of law emerges in or 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 clarified so as to

enable the courts to administer that law not only in the instant, but in future such 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 for 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 ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative

requirements 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 word ‘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.”

4. In Ógalas Limited (Trading as Homestore and More) v. An Bord Pleanála & Ors [2015] IEHC 205, Baker J. at para. 4 held:-

“McMenamin J. summarised the law applicable to a grant of certificate in Glancré Teoranta v. An Bord Pleanála [2006]

IEHC 250 and I will not repeat the ten criteria outlined by him at pp. 4 and 5 of his judgment but accept his proposition

that it is not sufficient for an applicant for a certificate to show that a point of law emerges in or from a case, but an

applicant must show that the point is one of exceptional public importance and must be one in respect of which there is

a degree of legal uncertainty, more than one referable to the individual facts in a case. There must be a public interest

in requiring that the point of law be clarified for the common good, but to an extent, if there exists uncertainty in the

law, and because clarity and certainty in the common law is a desirable end in itself, and important for the

administration of justice, if it can be shown the law is uncertain the public interest suggests an appeal is warranted”.

5. I accept that each of these points raised by the applicant is of importance and that they each transcend the individual case. They

apply to any application for planning permission which could be designated strategic infrastructure under the Act of 2006. This means

that the points automatically affect all strategic infrastructure development within the State which by definition will be large scale

and of importance to the State or a region of the State. This point was not really in dispute.

6. The point raised must be important to cases other than the case in issue, it must transcend the facts of the particular case and

help in the resolution of future cases. It must also be of exceptional importance. I consider this aspect below.

7. It is a separate requirement that it is also desirable in the public interest that an appeal should be taken. As was pointed out by

Baker J., clarity and certainty in the common law is a desirable end in itself and important for the administration of justice. So if it can

be shown that the law is uncertain then the public interest suggests that an appeal is warranted. Obviously this is not always the

case. In Arklow Holidays Limited v. An Bord Pleanála & Ors [2008] IEHC 2, Clarke J. held that there was a point of exceptional public

importance but the delay in bringing forward absolutely necessary public infrastructure (a waste water treatment plant) meant that

an appeal was not in the public interest. In this case there has been no significant delay in relation to necessary public infrastructure.

8. In the case of People Over Wind v. An Bord Pleanála & Ors [2015] IEHC 393, Haughton J. was asked to certify points of law in

relation to a judicial review relating to a large wind farm which was to be developed by Coillte. In opposing the certificate, Coillte

argued that the inevitable delay consequent upon such an appeal would have very damaging commercial consequences such that the

development might in fact not proceed. It was pointed out that the proposed development, if carried out, would contribute very

significantly to the renewable energy targets of the State. Haughton J. held that essentially this was a private commercial interest

and while it was a factor to be taken into account in the court’s assessment as to whether or not the grant of a certificate was in

the best interest of the public, it was not determinative.

9. Similar considerations apply in this case. The proposed development, if carried out, is likely to contribute significantly to the State’s

renewable energy targets. However, it is a private development being carried out for commercial gain. Therefore, the fact that the

delay may have an extremely detrimental impact upon the commercial viability of the project is a factor to which the Court may have

regard but it is not determinative of the matter, notwithstanding the potential to contribute significantly to the State’s renewable

energy targets.

10. It is, of course, clear that the intention of the Oireachtas was that in the majority of cases judicial review of decisions made

under the planning code would be determined finally by the High Court and there would, in most cases, be no appeal. This is the

reason why the jurisdiction to grant a certificate to appeal should be exercised sparingly. But this in no way detracts from the fact

that in appropriate cases, if the court is otherwise satisfied that the point raised is of exceptional public importance and that it is in

the best interest of the public that the appeal be taken then a certificate should properly be granted.

11. The crucial point I have to consider is whether there is uncertainty in the law in relation to each point of the applicant’s three

points. If there is no uncertainty then it is clear from Glancré Teoranta (and the many cases in which it has been followed) that a

certificate for leave to appeal must be refused.

Uncertainty

12. It is common case that this is the first case to challenge the procedures introduced by s.37A of the Act of 2000, as amended.

There are no authorities relevant to any of the points raised and therefore the law cannot be said to be uncertain by reason of the

existence of conflicting authorities.

13. The applicant argues that the point raised is novel and the law is uncertain because it is a new point raised for the first time

(assuming, as I must for the purposes of determining of whether or not to grant a certificate for leave to appeal, that my judgment

may be wrong) and therefore, would benefit from a ruling by the Court of Appeal or the Supreme Court. The respondents and the

notice party argue that the law is certain and that the applicant cannot impute uncertainty to the law where none exists simply by

raising an argument which, in fact, the court has rejected. This is in line with point 9 in MacMenamin J.’s judgment in Glancré

Teotranta.

14. It seems to me the fact that a point of law is novel does not of itself answer the question whether or not the law on this point is

certain or uncertain. The fact that the point is novel and the issue was raised in the case for the first time logically does not mean

that there is no uncertainty in the law. There must always be a first case when a point is raised. However, equally logically (as was

accepted by counsel for the applicant), the law may be clear even though there is no decided authority on the point.

15. The respondents and the notice party pointed to the fact that this legislative regime has been in operation for nine years and

there had been no challenge along the lines advanced by the applicant during those nine years and therefore, they argued it was

clear there was no uncertainty in the day to day operation of the law. The applicant pointed to the fact that in Arklow Holdings, the

relevant provision had been in operation for twelve years and no challenge had been taken and nonetheless Clarke J. held that there

was uncertainty in the law (even though he had refused the application for judicial review) and he refused to grant a certificate on

the grounds that it was not desirable in the public interest that an appeal be taken. It follows that I cannot conclude that the law is

clear simply because no challenge was brought to these provisions in the nine years since the statute was enacted.

16. It seems to me that the Court, therefore, must have regard to the individual point of law raised in order to assess whether that

particular point is unclear or uncertain. In doing so, I wish to emphasise that the Court is not assessing the merits of the argument or

assessing the strength of the appeal. This was made abundantly clear by Morris J. in Lancefort Limited v. An Bord Pleanála

(Unreported, High Court, Morris J., 23rd July, 1997) when he held that the court was not to look at the merits of the arguments which

resulted in the decision (which it was sought to appeal) but to the decision itself.

17. In People Over Wind v. An Bord Pleanála, Haughton J. stated at para. 20:-

“20. In that these submissions suggest the law on the correct interpretation and ambit of Article 6(3) is settled and

certain, I disagree. The CJEU decision in Sweetman was not expressly concerned with a conservation objective of

restoration (it concerned loss of limestone pavement from a road development impinging on a ‘site of Community

Importance’); the Briels case was also concerned with total loss of part of a Special Area of Conservation (‘SAC’). Neither

case concerned a habitat or species the current conservation status of which is unfavourable to the extent of being at

risk, as in the present case. Moreover, the Opinions of Advocate General Sharpston, while weighty, do no have the

status or force of law. Indeed it seems to me that the law is still evolving in respect of appropriate assessment

under the Habitats Directive. The question raised concerns a novel issue that has not previously been decided in

the Irish courts, or, I believe, in the CJEU.”(emphasis added)

18. Haughton J. referred to the fact that the law in relation to the Habitats Directive (with which he was concerned) was evolving. It

seems to me that the combination of a novel point in an area of law which is evolving is likely to lead to the conclusion that the law is

unclear and that it would be in the public interest that the law be clarified.

19. In Dunnes Stores v. An Bord Pleanála & Ors [2015] IEHC 387, McGovern J. at paras. 14-16 stated:-

“14. The jurisdiction to certify a case such as this must be exercised sparingly. See Glancré Teoranta v. An Bord Pleanála

(Supra). In this case, I have already held that the section is clear and unambiguous and in those circumstances, it is

difficult to see how any substantial grounds could be said to exist that might involve a point of law of exceptional public

importance.

15. In circumstances where the court has held that s. 37(1)(b) is clear and unambiguous, there is no difficult point of

law in which the views of the Court of Appeal or Supreme Court are required for the public interest. The court is also

entitled to take into account the nature of the development and the issues involved in the case and the potential

consequences of a significant further delay in the matter being resolved by the court.

16. Merely raising a question as to a point of law does not point to its uncertainty. The decision of this Court on the

judicial review applies the legislative scheme in an unexceptional fashion and was stated to be clear and unambiguous. In

those circumstances, there is no difficult point of law in which the views of the Court of Appeal or Supreme Court are

required for the public interest….”

Discussion

20. In my view the law is clear in relation to the applicant’s points (b) and (c). In relation to point (b), the issue was resolved by

applying ordinary rules of statutory interpretation. There is no evolving jurisprudence in relation to prejudgment which can give rise to

uncertainty as to its application in this instance. For the reasons outlined in my judgment of 11th June, 2015, I was satisfied that this

argument was incorrect and I am not satisfied that the law is uncertain in relation to this point and following Dunnes Stores therefore

I refuse a certificate of leave to appeal in respect of this point.

21. Point (c) was resolved by the application of established decisions of the CJEU (or the EJC) to the statutory scheme. Of particular

significance in this regard is the fact that the case of C-416/10 Križan and Others v. Slovenská inšpekcia životného prostredia says

that it is a matter for the national courts to assess whether or not there is effective public participation in the decision-making

process at a time when all options were still open to the decision-maker. This effectively is the first point of appeal raised by the

applicant. On the basis of my analysis of the national law, I concluded that all options were open and I do not believe that the law is

evolving or uncertain in relation to the application of the Križan test to the national procedure. I therefore refuse a certificate in

respect of this point.

22. The situation is different in relation to the first issue. The first issue raises the question as to whether or not the applicant is

entitled to fair procedures in respect of the pre-application process mandated by the s.37A procedure in the Act of 2000, as

amended. In Dellway Investments Limited v. NAMA [2011] 4 I.R. 1 at para. 460, Fennelly J. stated:-

“The courts have never laid down rigid rules for determining when the need to observe fair procedures applies.

Everything depends on the circumstances and the subject matter. The fundamental underlying principle is fairness. If a

decision made concerning me or my property is liable to affect my interests in a material way, it is fair and reasonable

that I should be allowed to put forward reasons why it should not be made or that it should take a particular form. It

would be unjust to exclude me from being heard.”

It is clear from the terms of this judgment that the law in relation to fair procedures is evolving and to that extent uncertain. This is

not to say that in every case where a point of fair procedures is raised that it will follow that the law is uncertain and that a

certificate of leave to appeal will usually be granted (all other factors in Glancré being satisfied). The strategic infrastructure

designation legislation has not been the subject of judicial scrutiny. The interface between a novel point on this legislation with the

evolving law of fair procedures and how it is to be applied to this legislation is open to debate. As Haughton J. said, another view of

the law is possible. In my opinion this issue can be described as uncertain within point 3 of MacMenamin J’s decision in Glencré.

23. I reached the conclusion that there was no substantial ground raised by the applicant in relation to this point because of my

construction of the operation of s.37A procedure. Based on that construction, I therefore concluded that any right to fair procedures

was not triggered. As was the case of Morris J. in Lancefort, my opinion has not changed in that regard. However, the very point of

leave to appeal is that the High Court may have made an error. It is salutatory to note that in Dellway, a divisional court of the High

Court held that the applicant’s claimed rights to fair procedures were not engaged and this decision was overturned unanimously by a

Supreme Court of seven judges.

24. If the applicant has a right to participate in the pre-application procedures under s.37A, which right is not afforded to him in the

present statutory scheme, in my opinion that is a matter of exceptional public importance and it is desirable in the public interest that

an appeal be taken in respect of this question. Therefore a certificate for leave to appeal should be granted. In my judgment this is

so even taking into account the contribution the proposed development, if carried out, would make to the State’s renewable energy

targets and the risk that the project might fail entirely on commercial grounds by reason of the delay inherent in an appeal against my

judgment.

Kenny v An Bord Pleanála

25. What then of the conundrum posed by McKechnie J. in Kenny v. An Bord Pleanála [2001] 1 I.R. 407? In that case McKechnie J.

queried whether there could logically be any circumstances in which a court could find that there were no “substantial grounds” for

judicial review in a case and yet also conclude that the same case involved a point of law of “exceptional public importance”. He

stated at pp. 715-716 as follows:-

“When leave is refused, it is, I feel, so refused by reason of and resulting from the decision of the court which must

mean that the threshold of substantial grounds had not been established. Otherwise leave should be granted. If this is

so, I ask how logically can it then be said, that within the same decision, one can have, on the one hand, a failure to

establish substantial grounds and yet, on the other, on the same material, whether this be fact, inference or law, have

a point of law of exceptional public importance? If such a point exists, surely the ground thereof must meet the required

threshold and therefore leave should be granted. If the court is not so satisfied how can such a point emerge? No

matter what standard is applied to the existence of ‘substantial grounds’, it cannot be less than that applicable to

establishing a point of law of exceptional public importance. Assuming that a court would not incorporate into its

judgment such a point, on any basis other than that which falls squarely within the ratio of a case, and assume,

reasonably I feel, that such a point must derive from the relevant facts, inferences or law, I have in the circumstance

some trouble in seeing how at the same time, leave can be refused and yet certification follow.

These remarks apply to a situation where the court has entered into a full determination of all relevant matters on the

leave application, involving as it would some appraisal of the facts, inferences and law. If such a hearing was not

possible or necessary but nonetheless leave was refused, one could see how in certain circumstances certification would

still be possible. For example, if the motion of notice was not served within time or on the mandatory parties then a

court, because of this non-compliance, would have no jurisdiction to embark upon the leave application proper. In such

instances it might well certify a point of law: see the case of K.S.K. Enterprise Ltd. v. An Bord Pleanála [1994] 2 I.R. 128

and Costco v. An Bord Pleanála (Unreported, High Court, Smyth J., 18th March, 1999). One could also see how the

subsection could apply where, unusual as it might be, an unsuccessful respondent on a leave application might seek

certification as a means of appeal to the Supreme Court. Even here, though this example is unlikely to have been a

priority in the legislative mind, the required threshold would have been met and hence no possible inconsistency. But it is

difficult to see how an unsuccessful applicant having had the type of hearing above described, can thereafter in his

favour invoke the certification process.

In conclusion I am of course aware of many cases where, notwithstanding refusal, certification has followed. In making

the above remarks therefore, which are entirely obiter, I intend no more than to raise an issue which in an appropriate

case may require further consideration.”

26. In my opinion it is possible for a court to hold that a point does not satisfy the threshold of substantial grounds on the basis of its

analysis of the relevant law and facts which lead logically to that conclusion, but it is also possible to acknowledge, that if a different

view were taken of a fundamental point underlying that analysis that it could lead to a different conclusion. I was not satisfied that

the argument advanced met the threshold of substantial grounds for the reasons outlined in my judgment. My conclusion was

predicated on my assessment of the nature of the decision made by the Board when giving its opinion under s.37B(4). Starting from

that assessment, I rejected the applicant’s argument that his right to fair procedures was triggered and on that basis I concluded

that he had not established substantial grounds that he was entitled to participate in the pre-application procedure. However, I

acknowledge that logically if a court accepted the applicant’s characterisation of the nature of the decision of the Board under

s.37B(4) (which I rejected) it could well reach the conclusion that he was entitled to fair procedures in respect of that stage of the

process. In my opinion the law in this area is uncertain and as the whole point of affording an appeal is to overturn a decision where

the High Court has been in error, I believe that it is desirable in the public interest that there be an appeal on this point, given that it

is a point of exceptional public importance.

Conclusion

27. In the words of MacMenamin J., uncertainty cannot be imputed to the law by an applicant simply by raising a question as to the

point of law. The uncertainty must arise over and above this. I am of the opinion that the applicant has failed to establish this fact in

respect of two of his points. That being so, it cannot be said that the appeal is of exceptional public importance. As the requirements

of s.50A(7) regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements, the failure to

satisfy this requirement leads to a conclusion that a certificate for leave to appeal must be refused in respect of grounds (b) and (c).

28. On the other hand I am satisfied that in point (a) the applicant has raised a point of exceptional public importance and that it is

desirable in the public interest that an appeal should be taken to the Court of Appeal or the Supreme Court. I certify that the

applicant may appeal the judgment of 11th June, 2015, as follows:-

Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed

in the light of Sections 50(2) and 143 of the Planning and Development Act 2000 such that it is necessary to read into

the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion

pursuant to Section 37A of the Planning and Development Act 2000.