High Court denies certification of points of law regarding collateral attacks and EU exceptional circumstances in planning review.

[2018] IEHC 640

THE HIGH COURT

2014 No. 342 JR

Between:

AN TAISCE

Applicant

– and –

AN BORD PLEANÁLA, IRELAND and the ATTORNEY GENERAL

Respondents

– and –

J McQUAID QUARRIES LIMITED,

MONAGHAN COUNTY COUNCIL, PETER SWEETMAN

Notice Parties

JUDGMENT of Mr Justice Max Barrett delivered on 19th November, 2018.

1. An Taisce claims that the court’s principal judgment ([2018] IEHC 315) involves points of law of exceptional public importance

justifying certification/leave under s.50A(7) of the Planning and Development Act 2000 (PADA). The law in this area is well-settled.

The court proceeds by reference to Dunnes Stores v. An Bord Pleanála [2016] IEHC 263. As is commonplace (though still odd) the

within application falls to be decided by the judge who decided the principal judgment. The court does not know any other walk of life

in which a person whose decision it is hoped to challenge plays a role in deciding whether that challenge proceeds. However, all the

parties were satisfied for the court to hear this application.

2. POINT 1. “Has the Court correctly applied the recent decision of the Supreme Court on out of time impermissible

collateral attacks? In particular was the court correct to proceed on the basis that because ‘the later decision could never

have been granted were it not for the decision of the 28th May 2012’ the challenge to the later decision was an

impermissible collateral attack on the decision of 28th May, 2012?” What is placed in issue by Point 1 is whether the court’s

judgment was right/wrong. That is not a point of law of exceptional public importance. Emphasis was placed by An Taisce on whether

the court correctly applied Sweetman v. An Bord Pleanála (Houston) [2018] IESC 1. Two points arise. (1) In Sweetman (Houston) the

Supreme Court considered whether the time/collateral point could properly be determined preliminarily. Here, the time/collateral attack

issue was considered by the court in the substantive judicial review and in conjunction with the substantive issue. (2) The decision in

Sweetman (Houston) does not change the substantive law on impermissible collateral attack, viz. that a party cannot bring a

challenge to A if that challenge is in truth a challenge to B, where a challenge to B is out of time. Here, the court concluded that

once the quarry operator was through the s.177D(1)(a)/PADA gateway, the operator would not have to satisfy additional criteria. So

if An Taisce wished to argue that the quarry operator was not entitled to consent under s.177D(1)(a)/PADA, it had to do so within

eight weeks of the decision to grant leave. That is an application of standing case-law on collateral attack. There is no point of law

of exceptional public importance in that.

3. An Taisce has sought to rely on the Supreme Court’s determination in Sweetman v. An Bord Pleanála [2016] IESCDET 92. Two

points arise. (1) The court recalls the Supreme Court’s observation in Callaghan v. An Bord Pleanála [2017] IESCDET 32 that “It will

not save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having…precedential value”. The court does

not see “the rarest of circumstances” to present here. In any event, while the particular determination in Callaghan can have

precedential value in applicable cases, it has no such value in a s.50A(7)/PADA application which involves the application of a

different law/standard from that applicable in an application made before the Supreme Court pursuant to the 33rd Amendment.

4. POINT 2. “Is the concept of “exceptional circumstances” identified by the CJEU [Court of Justice] in Case C-215/06 a

matter exclusively for member states to identify or one with a European dimension requiring certain minimum standards? If

so, does the relevant Irish legislation and/or circumstances of this case meet those standards? Was the Court correct to

characterize the result here as consistent with the “proper reading of the import of [Case C-215/06] Commission v.

Ireland?” A number of points arise. (1) Merely to raise a question of law is not to identify “a point of law of law of exceptional public

importance”. (2) Where (as here) the sole legal uncertainty presenting is uncertainty that it is sought to introduce by the question

posed and which does not otherwise present that fails to identify such a point of law. (3) This Court’s principal judgment proceeds,

inter alia, by reference to the most recent CJEU case-law (Case C-196/16 Comune di Corridonia). So it is difficult to see how

uncertainty of the type contended for could arise. (4) There is no support in law for the proposition that the State cannot legislate

for categories of ‘exceptional circumstances’. (5) The court’s decision in its principal judgment was essentially that these proceedings

were commenced out of time; all else is obiter. Hence the queries raised in Point 2 cannot be certified (see Ryan v. Meath County

Council (No. 2) [2017] IEHC 297). Items (1)–(4) offer reason why Point 2 presents “no point of law of exceptional public importance”.

Item (5) offers reason why Point 2 cannot in any event be certified.

5. POINT 3. An Taisce conceded that if it failed to win leave on Points 1 and 2, it could not succeed on Point 3. The court will not

therefore consider Point 3.

6. POINT 4. “Was An Taisce precluded from challenging the Board’s decision to accept the adequacy of the rEIS if it had not

made any comment on the issue in the course of the planning process?” Under Irish law, one cannot typically raise in a judicial

review application a matter not previously put to the relevant decision-maker. The European Union law doctrines of

equivalence/effectiveness do not vary this position here. Case C-263/08 Djurgården-Lilla is not authority for free-wheeling

competence on the part of judicial review applicants to raise points not raised before the decision-maker. Case C-664/15 Project

Natur- (see paras.[88]-[89]) expressly anticipates timing requirements as regards making objections. If there was an Irish rule that

rendered European Union law less effective than national law that would cause difficulty; nothing of the like presents.

7. For the reasons set out above, the court declines to grant the certification/leave sought.