Supreme Court allows EU law arguments on statutory construction but rejects pure transposition claims outside leave scope.

THE SUPREME COURT

[Appeal No: 19/2017]

Clarke J.

MacMenamin J.

Dunne J.

Between/

John Callaghan

Applicant/Appellant

and

An Bord Pleanála, Ireland and the Attorney General

Respondents

and

Element Power Ireland Limited, Element Power Ireland and North Meath Windfarm Limited

Notice Parties/Respondents

Judgment of Mr. Justice Clarke delivered the 27th July, 2017.

1. Introduction

1.1 This Court has recently granted leave to appeal (see Callaghan v. An Bord Pleanála & ors [2017] IESCDET 32) to the appellant

(“Mr. Callaghan”) against a decision of the Court of Appeal delivered by Hogan J. on the 21st December, 2016 (Callaghan v. An Bord

Pleanála & ors [2016] IECA 398). In the ordinary way a notice of intention to proceed was filed on behalf of Mr. Callaghan and written

submissions were thereafter filed on his behalf and on behalf of three sets of respondents being, respectively, the first named

respondent (“the Board”), the second and third named respondents (“the State”) and the notice parties (“Element Power”). In each

of the submissions filed by the Board, the State and Element Power a suggestion was made that Mr. Callaghan had, in the written

submissions filed on his behalf, gone beyond the scope of the appeal permitted in accordance with the determination of this Court

granting leave to appeal.

1.2 In those circumstances, when the matter first was before the Court for the purposes of case management, it was determined

that an issue be tried as to the proper scope of the appeal in order to bring clarity to those matters in advance of the substantive

hearing. Such an oral hearing then ensued and this judgment is directed to the issues raised. Before going on to deal with the specific

issues which arise in the circumstances of this case it is appropriate to identify the general principles by reference to which a decision

such as this should be taken.

2. General Principles

2.1 In Grace & Sweetman v. An Bord Pleanála & ors [2017] IESC 10 this Court, confirming its previous decision in McEnery v.

Commissioner of An Garda Síochána [2016] IESC 26, indicated that, subject to very limited exceptions, the only questions which are

properly addressed by the Court on an appeal under the new constitutional architecture, which has been in place since the 33rd

Amendment to the Constitution came into effect, “are the issues which can fairly be said to come within the ambit of the grounds on

which leave to appeal is given”. However, in an analogous area, this Court has also recently, in a determination in SPV Osus Limited v.

HSBC Institutional Trust Services (Ireland) Limited & ors [2017] IESCDET 84, indicated that the Court should not adopt an “overly

technical attitude to the question of whether the relevant issues were raised in precisely the same form in the court or courts below”.

For like reasons this Court should not adopt an overly technical approach to the precise boundaries of the issue or issues in respect of

which leave to appeal was granted. An application for leave to appeal is necessarily made in a relatively summary form and the Court

does not have access to all of the materials which were before the Court below. Because of this the precise boundaries of the

arguments which may be properly addressed to the Court should not be regarded as written in stone by reference to the exact

language used in the determination of this Court granting leave. Rather, by analogy with the question of whether an issue sought to

be relied on was raised in a court or courts below (which issue was addressed in SPV Osus), the Court should consider whether the

arguments sought to be put forward can fairly be said to arise within the terms on which leave has been given recognising that

arguments will necessarily be refined or adjusted to some extent as the appellate process progresses.

2.2 Indeed, a similar issue is addressed by O'Donnell J. in his judgment in McDonagh v. Sunday Newspapers Limited ([2017] IESC 59)

which is also delivered today. The difficulty which arose in that case stemmed from complications which derived from the fact that

the Court had certified some but not all of the issues in respect of which leave to appeal was sought. As O'Donnell J. points out the

Court considers leave to appeal on the basis of limited materials and it may become clear as the appeal develops that some latitude

on the issues which require to be considered must be afforded to the parties. The alternative, as O'Donnell J. also points out, is a risk

of a descent into Dante’s inferno. On the facts of McDonagh, O'Donnell J. held that the Court was entitled to review the scope of the

issues which can be argued. It is not necessary to go that far in the circumstances of this case. However, McDonagh is certainly

authority for the proposition that a court should not adopt a narrow or overly technical approach to the scope of the appeal.

2.3 It follows that the approach of this Court to the scope of an appeal should be to ensure that the arguments sought to be put

forward on behalf of the appellant can be said to come reasonably and fairly within the scope of the issues or grounds identified in the

determination granting leave to appeal but that an overly technical or rigid approach should not be adopted to determining those

boundaries. In particular, refined or adjusted arguments directed to the same general end may well be permissible provided that the

issue to which those arguments are directed comes fairly within the scope of the leave granted.

2.4 There was one further issue which does need to be considered in the context of this judgment which derives from the fact that

the issue of controversy centres on a question of European law, and the issue arises as to whether that fact makes any difference to

the proper approach of the Court. I propose to deal with that question when considering the application of the general principles

identified to the facts of this case.

3. Application to the Facts of this Case

3.1 The underlying issue in respect of which leave to appeal has already been granted concerns the question of whether a party, who

wishes to oppose a proposed development, has an entitlement to be heard at the stage when the Board is considering whether the

development concerned comes within the scope of the type of strategic infrastructural development contemplated by the Planning

and Development (Strategic Infrastructure) Act, 2006 (“the 2006 Act”). The effect of the Board forming an opinion that the proposed

development is such a strategic infrastructural development is, amongst other things, that the application for permission is made

directly to the Board rather than to the local planning authority.

3.2 Much of the debate before both the High Court and the Court of Appeal centred on the question of the extent to which the

Board, having formed that initial opinion and having thus required that the procedures contemplated in the 2006 Act were to be

followed, could nonetheless, in the context of an environmental impact assessment, revisit questions which were determined (or, on

one view, provisionally determined) in the formation of the opinion in question.

3.3 Both the High Court (Costello J.) (Callaghan v. An Bord Pleanála [2015] IEHC 357) and the Court of Appeal (for whom Hogan J.

wrote) (Callaghan v. An Bord Pleanála [2016] IECA 398) determined that, on a proper construction of the relevant statutory

framework and purely as a matter of national law, the Board was entitled, and may well be obliged in an appropriate case, to look

again at any issues which were considered in the course of forming its initial opinion that the development in question was a strategic

infrastructural development, where the same question properly arises in the context of conducting an environmental impact

assessment of the project for the purposes of deciding whether or not to grant permission. On the basis of that finding it was held

that the formation by the Board of the relevant opinion under the 2006 Act did not adversely affect the rights of an objector, such as

Mr. Callaghan, for no determination adverse to his interests would, in those circumstances, be made at the initial stage. On the

contrary, and on the basis of the view taken by the courts below on the proper construction of the statutory framework, any issue

relevant to the grant or refusal of the permission concerned remained open in the course of the environmental impact assessment by

the Board. All objectors were, of course, entitled to submit observations in relation to that environmental impact assessment and the

appropriateness or otherwise of the grant of permission.

3.4 However, Mr. Callaghan has been given leave to appeal against that decision of the Court of Appeal, and there is no dispute but

that the question of whether the proper construction of the statutory framework is as it was found to be by the Court of Appeal is

squarely before this Court. The question which has given rise to controversy concerns the issue of European law raised.

3.5 In the initial case made to the High Court on behalf of Mr. Callaghan it was said that the 2006 Act does not properly transpose

directive 2011/92. The reason why such was said to be the case was that it was argued, on the basis of the construction sought to

be placed on the 2006 Act on behalf of Mr. Callaghan, that members of the public did not have an effective public participation in the

relevant decision making process at a time “when all options are still open to the decision maker” (see the judgment of Costello J. at.

para. 31 in that regard). Having concluded that the Board was obliged, in the course of the environmental impact assessment, to look

again at the sort of socio-economic aspects of the assessment which would have been considered in the formation of the opinion

that the proposed development was a strategic infrastructural development, Costello J. came to the conclusion that an involvement

at the stage of forming that opinion was not necessary to comply with the obligation to permit participation when all options remained

open to the decision maker. Given that, on the basis of the construction favoured by Costello J., all options remained open during the

environmental impact assessment, it followed that participation at that stage was, in her view, sufficient to meet the obligations of

the Directive.

3.6 It should also be noted that Mr. Callaghan sought a certificate for leave to appeal from the decision of Costello J. to the Court of

Appeal. That matter was the subject of a separate judgment delivered by Costello J. on the 24th July, 2015 (Callaghan v. An Bord

Pleanála [2015] IEHC 493). As appears therefrom one of the issues sought to be certified was a contention that the relevant

provisions of the 2006 Act failed “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”. Costello J.

declined a certificate on that ground but did grant a certificate on the more general ground associated with the proper construction

of the statutory framework.

3.7 It also needs to be recorded that Mr. Callaghan sought leapfrog leave to appeal directly from the High Court to this Court. This

application was made after Costello J. had given the certificate just referred to but before the Court of Appeal had determined the

appeal. The application for leave was refused by a determination of this Court (Callaghan v. An Bord Pleanála & ors [2015] IESCDET

60). Likewise, reliance is placed by Mr. Callaghan’s opponents on the fact that no separate leave to pursue the transposition issue

was sought from this Court when the application for leave to appeal, which was ultimately granted, was made.

3.8 However, at the oral hearing counsel for Mr. Callaghan emphasised that there was a connection between at least one aspect of

the European Union law argument and the issue of construction which is undoubtedly within the scope of this appeal. Counsel

accepted that, in the light of the construction which both the High Court and the Court of Appeal placed on that statutory

framework, the European Union law point did not really arise. However, counsel argued that, in the event that this Court was

persuaded to take a different view of the proper construction of that statutory framework, the European Union law point would clearly

arise.

3.9 On the other hand, counsel for the State (who, with the agreement of counsel for the Board and counsel for Element Power,

made the substantive submissions in opposition to those of Mr. Callaghan), argued that the transposition case as originally advanced

on behalf of Mr. Callaghan in the High Court was different in substance to the case identified in oral submissions by counsel for Mr.

Callaghan.

4. Discussion

4.1 Reference was made during the oral hearing to the judgment of the Court of Justice in joined cases C-430/93 and C-431/93,

Jeroen van Schijndel. That well known case is the original authority for the principle that a national court is not obliged, of its own

motion, to raise a point of European law where the national procedural law of the jurisdiction in question would not require, in an

analogous circumstance, the Court to raise, of its own motion, an overriding issue of national law. It follows that there could be no

European Union law obligation on this Court to raise an issue which was not properly before the Court, under national procedural law,

unless this Court would also raise a similar question which was derived from national law.

4.2 However, in my view, it is possible, in that general context, to identify two different types of situations which might arise within

the Irish legal order. The Irish courts would not be obliged, as a matter of national law, to raise of their motion a question of whether

primary legislation was invalid having regard to the Constitution or whether secondary legislation was invalid having regard either to

the Constitution itself or to the primary legislation which conferred the secondary legislative power under consideration. Unless one or

other of the parties properly raised the question of the validity of the law in question then it would not be regarded, as a matter of

Irish procedural law, to be properly before the Court and would not be considered.

4.3 On the other hand, there may be circumstances where an Irish court would raise overriding issues, such as the application of the

Constitution to legislation, purely for interpretative purposes. The obligation of an Irish court, in accordance with Irish constitutional

law, to interpret legislation, insofar as possible, in a manner consistent with the Constitution has been clear since East Donegal Co-

operative v. Attorney General [1970] I.R. 317. While the precise application of the double construction rule which derives from East

Donegal is not the same as the application of the principle of conforming interpretation which applies in European Union law,

nonetheless the principles are, at least at a very general level, analogous. In both cases, a court in interpreting a measure may be

required to adopt an interpretation, which might not be the normal construction, by virtue of an overriding obligation to ensure

conformity with, on the one hand, the Constitution, or on the other hand, measures of European Union law.

4.4 Where an Irish court is considering the proper interpretation of a statutory measure it may well take into account any

constitutional principles which might impact on the proper construction of the legislation concerned. Indeed, it is fair to say that a

court might very well be reluctant to disregard such constitutional questions of interpretation even if they were not specifically raised

by the parties. A court, and in particular a court of final appeal, is, as a matter of national law, required to give a definitive

interpretation of a legislative measure which comes into question in the course of proceedings properly before it. It could not be ruled

out, therefore, that a court in such circumstances would be reluctant to give a construction to legislation without having regard to

any constitutional issues which might impact on the proper construction of the measure concerned in accordance with East Donegal

principles. This might well be so where there would be a real risk that the Court would give an incorrect interpretation of the

legislation in question if it did not itself raise the constitutional construction issue. It must be recalled that the proper interpretation of

legislation is objective and is not dependent, necessarily, on the arguments put forward by the parties.

4.5 By analogy it seems to me that it is at least arguable that an Irish court, in order to comply with the principle of conforming

interpretation, would be required to have regard, even on its own motion, to provisions of Union law where those provisions might

have an impact on the proper interpretation of national measures under consideration.

4.6 Essentially the key issue in this case will be as to whether, as is argued on behalf of Mr. Callaghan, it is necessary to imply a right

to be heard at the stage of the decision by the Board to form an opinion on whether the relevant proposal involves a strategic

infrastructural development for the purposes of the 2006 Act. As counsel for Mr. Callaghan has pointed out, Irish courts have implied

similar entitlements to be heard where same was required to comply with national constitutional values, even though the legislation in

question did not make express reference to such an entitlement. Irish law does not, therefore, preclude that a right to be heard may,

if required, be implied. Likewise, it is difficult to see how a right to be heard could not be implied if same were necessary to comply

with relevant provisions of Union law.

4.7 In those circumstances, it seems to me that it would not be appropriate for this Court to embark on the question of the proper

interpretation of the overall statutory framework while ignoring the obligation of this Court to ensure, insofar as possible, that that

framework is construed in a manner consistent with Union law. The proper interpretation of that statutory framework must be

objectively considered, independent of the arguments of the parties, and must have regard both to principles of Irish constitutional

law and provisions of Union law insofar as those principles and measures may legitimately impact on the proper construction of the

statutory framework in question.

4.8 Furthermore, the question of whether Union law may be relevant to the proper construction of that statutory framework is very

closely allied to the underlying issue of the construction of that framework which question is clearly within the scope of this appeal.

The potential deployment of Union law as an argument on that interpretative question can properly, therefore, be regarded as a

refinement of the argument which Mr. Callaghan seeks to advance in favour of what he contends is the proper construction of the

relevant framework. I would, therefore, propose that Mr. Callaghan should not be excluded from making any argument which suggests

that the 2006 Act must be construed in a particular way (consistent with the overall approach which he adopted in the courts below)

while calling in aid, in favour of that proposition, arguments based on Union law.

4.9 However, I would not go so far as to permit Mr. Callaghan to raise the pure transposition argument which was before the High

Court on the pleadings. That issue does not seem to me to be within the scope of the leave granted. That issue is not a question of

interpretation but rather a question similar to one of validity. It is, therefore, analogous to an issue of constitutionality rather than

constitutional interpretation. Such an issue of constitutional validity would not be permitted to be argued before this Court in a case

where it did not properly arise on the pleadings and the grounds of appeal permitted.

5. Conclusions

5.1 For the reasons set out in this judgment I have come to the view that the proper approach of the Court to determining the scope

of an appeal subsequent to the 33rd Amendment is to confine an appellant to issues which can fairly be said to arise within the scope

of the appeal as identified in the determination of this Court granting leave to appeal. However, I also propose that the Court should

not, in so confining an appeal, adopt an overly technical or narrow approach but rather should consider whether, on a fair basis, it

can be said that the arguments sought to be relied on come within the broad scope of the leave granted.

5.2 In addition, I have come to the conclusion that, where the potential construction of a statute or legislative measures is at issue

in proceedings, this Court should not ignore arguments which might impact on the proper objective construction of the measures

concerned which derive either from the principle of constitutional construction or from the requirement of conforming interpretation as

a matter of European Union law.

5.3 In those circumstances, I would propose that Mr. Callaghan be permitted to rely on any European Union law arguments which

might be relevant to the proper construction of the statutory framework under the 2006 Act which is at the heart of these

proceedings provided that those arguments are directed towards a construction of that statutory framework in the manner advanced

on behalf of Mr. Callaghan in the courts below.

5.4 However, I would not propose that Mr. Callaghan should be entitled to raise a pure transposition argument. I would, therefore,

confine Mr. Callaghan’s arguments under European law to matters which might legitimately be said to have an impact on the proper

construction of the relevant statutory framework.