High Court grants leave to appeal and certifies key questions regarding CPO confirmation and protected structures.

[2025] IEHC 311

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000919]

BETWEEN

ANGELA HEAVEY

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

FINGAL COUNTY COUNCIL (BY ORDER)

NOTICE PARTY

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 30th day of May 2025

1. The applicant’s property adjacent to Swords Castle is the subject of an impugned compulsory

purchase order (CPO). The applicant unfortunately did not open the inspector’s report to the court

when seeking leave, so the refusal of leave was impeccable on that basis or any other basis that I

can see. She now seeks leave to appeal and endeavours in that context to rectify her earlier

omission. Such an exercise would be viewed as totally impermissible in relation to a final order in

inter partes litigation, but the special context of refusal of an ex parte application unavoidably raises

the procedural question as to the extent to which a moving party can mend their hand subsequently

in relation to that specific type of application.

Judgment history

2. In Heavey v. An Bord Pleanála (No. 1) [2024] IEHC 480 (Unreported, High Court, 2nd August

2024), the applicant’s ex parte application for leave to seek judicial review against a decision of the

board made on 28th May 2024 to confirm, following an oral hearing, the Fingal County Council

Compulsory Purchase (17 & 17A North Street, Swords, Co. Dublin) Order 2022 (the CPO), was

dismissed. As stated above, the issue now is leave to appeal.

Geographical context

3. The board decision (https://www.pleanala.ie/en-ie/case/315077) involves the confirmation

of a CPO in respect of the applicant’s property which is located adjacent to the grounds of Swords

Castle (a protected structure (RPS ref. 351) and a national monument (NIAH ref. DU011-034001)).

4. It is situated at approximately: https://maps.app.goo.gl/UJQxrvPe897H3YX58.

5. The inspector describes the location as follows (para. 1.2):

“The site accommodates a single storey (former office) building. It is in the centre of Swords

town on the western side of North Street, roughly 25m north of the junction between North

Street and Seatown Road. The Swords Court House is opposite, on the other side of the

street, and the offices of Fingal County Council are roughly 150m to the south on the corner

of Main Street and Seatown Road.”

Facts

6. In June 2004, under reference ABP ref. 06F.CH22107, the board annulled a CPO entitled

‘Fingal County Council Compulsory Purchase (North Street, Swords) Order, 2003’ at the subject site.

The stated reasons and considerations are as follows:

“Having regard to the stated purpose for the acquisition and to the objections made to the

Compulsory Purchase Order, the Board does not consider that the acquisition of the entirety

or a substantial part of the lands referred to in the order is necessary in order to carry out

a specifically defined proposal or satisfy any significant community need or in the interest of

the common good.”

7. In November 2005, under reference ABP ref. PL06F.212263 (reg. ref. F05A/0244), the board

refused outline permission for the demolition of existing offices and an outbuilding and the

construction of five-storey commercial development.

8. In 2015, a Swords Cultural Quarter Masterplan was published

(https://www.fingal.ie/swords-cultural-quarter-masterplan).

9. In July 2022, a Part 8 application was made under reg. ref. Part XI/002/22 to progress the

Swords Cultural Quarter (SCQ) project. The development proposed was permitted in September

2022, and gave consent to a civic and cultural building, various public realm upgrades and

improvements, demolition works and associated site works in the middle of Swords town centre, at

the junction of North Street, Seatown Road, Main Street and Bridge Street, adjacent to Swords

Castle and Fingal County Offices. The application included the subject site (nos. 17 and 17A North

Street, Swords) and is identified as part of the SCQ project as a significant civic open-space area

and important public realm element.

10. The council made the CPO on 3rd November 2022. It provides as follows

(https://www.fingal.ie/fingal-county-council-compulsory-purchase-17-17a-north-street-swords-co-

dublin-order-2022):

“COMHAIRLE CONTAE FHINE GALL (FINGAL COUNTY COUNCIL)

LOCAL GOVERNMENT ACT 2001 (AS AMENDED)

FORM OF COMPULSORY PURCHASE ORDER UNDER SECTION 76 OF THE HOUSING ACT 1966

(AS EXTENDED BY SECTION 10 OF THE LOCAL GOVERNMENT (NO. 2) ACT, 1960

(SUBSTITUTED BY SECTION 86 OF THE HOUSING ACT, 1966), AS AMENDED BY SECTION 6

AND THE SECOND SCHEDULE OF THE ROADS ACTS 1993 TO 2015 AND SECTION 222 OF

THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2022) AND THE THIRD SCHEDULE TO

THE HOUSING ACT, 1966 (AS AMENDED), EXTENDED BY THE PLANNING AND

DEVELOPMENT ACTS 2000 TO 2022 (INCLUDING PART XIV THEREOF); THE LOCAL

GOVERNMENT ACTS 1925 TO 2019 (INCLUDING SECTIONS 11 AND 184 OF THE LOCAL

GOVERNMENT ACT, 2001); THE LOCAL GOVERNMENT (NO.2) ACT, 1960 (AS AMENDED);

THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2022 (INCLUDING PART XIV THEREOF);

THE HOUSING ACT 1966 (AS AMENDED) AND ALL OTHER ACTS THEREBY ENABLING

WHEREAS in pursuance of Section 10 of the Local Government (No 2) Act, 1960 as

substituted by Section 86 of the Housing Act, 1966 (as amended) and by the Planning and

Development Acts 2000 to 2022 (including Section 213 in Part XIV thereof, and all other

relevant provisions of that Part) and the Local Government Acts 1925 to 2019 and all other

Acts enabling, Fingal County Council (hereinafter referred to as ‘the local authority’) has

decided to effect the acquisition permanently of the lands, including substrata thereof,

described in the Schedule hereto (entitled Schedule Part I) to which this Order (‘the Lands’)

relates under the Housing Act 1966 (as amended, extended and substituted).

NOW THEREFORE it is hereby ordered that:

1. Subject to the provisions of this Order, the local authority is hereby authorised:-

To acquire permanently compulsorily the Lands, including the substrata thereof, for purposes

including -

a) protecting, conserving and enhancing the historic site and views of Swords Castle,

a national monument, and its environs,

b) the development of Swords Castle as a major amenity, tourist attraction and cultural

hub for Swords

c) the development of Swords Castle as a central feature of an enhanced and improved

public realm and urban space of Swords Town Centre, improving connectivity and

accessibility between and around Swords Castle, Swords Town Centre and Swords Town

Park

d) the development of the Swords Cultural Centre, including a new County Library,

Theatre, Arts Centre, civic spaces, and public realm improvements as the key development

within the Swords Cultural Quarter

the Lands described in Part I of the Schedule hereto are shown on a map marked ‘Fingal

County Council Compulsory Purchase (17 & 17A North Street, Swords, Co. Dublin) Order

2022’ (Drawing No. LA-265-22) and sealed with the seal of the local authority and deposited

at the offices of the local authority (hereinafter referred to as ‘the deposited map’).

2. The Lands, as described in Part I of the Schedule hereto delineated in red and

coloured grey (permanent acquisition) on the map marked ‘Fingal County Council

Compulsory Purchase (17 & 17A North Street, Swords, Co. Dublin) Order 2022’ (Drawing

No. LA-265-22), are lands other than lands consisting of a house or houses unfit for human

habitation and not capable of being rendered fit for human habitation at reasonable expense.

3. Subject to any necessary adaptations, the provisions of:

(a) the Land Clauses Acts (except Sections 127 to 132 of the Lands Clauses

Consolidation Act, 1845, and article 20 of the Second Schedule to the Housing of the Working

Classes Act, 1890), and

(b) the Acquisition of Land (Assessment of Compensation) Act, 1919, as amended by

the Acquisition of Land (Reference Committee) Act, 1925, the Property Values (Arbitrations

and Appeals) Act, 1960, and the Local Government (Planning and Development) Act 1963

(as applied by Section 265(3) of the Planning and Development Act 2000) as modified by

the Third Schedule to the Housing Act, 1966 (as amended and substituted) and Planning

and Development Acts, 2000 to 2022 are hereby incorporated in this Order and the

provisions of those Acts shall apply accordingly.

4. This Order may be cited as the ‘Fingal County Council Compulsory Purchase (17 &

17A North Street, Swords, Co. Dublin) Order 2022.’

SCHEDULE

PART I

Lands other than lands consisting of a house or houses unfit for human habitation and not

capable of being rendered fit for human habitation at reasonable expense.

Number on Quantity, Owners or Lessees or Occupiers

map deposited description and reputed owners reputed (except tenants

at the Offices of situation of the lessees for a month or

the local land a less period

authority than a month)

1 (on Drawing Building and Angela Heavey None Owner

No. LA-265-22) land (545.67 …

sq. metres)

Angela Heavey None Owner

Electoral …

Division -

Nethercross

Townland –

Townparks

County – Dublin

The official seal of the local authority was affixed hereto this 3rd day of November 2022 in

the presence of:

NOMINATED EMPLOYEE

CHIEF EXECUTIVE

DIRECTOR OF SERVICES, ECONOMIC, ENTERPRISE, TOURISM & CULTURAL DEVELOPMENT”

11. The matter then came before the board for confirmation. The applicant objected to the

proposed CPO, and the grounds of the objection are summarised by the inspector as follows (para.

5.1):

“The main concerns raised are summarised as follows:

• There is a ‘Protection and Prohibition Order’ made by An Bord Pleanála from early 2000

which states that the development of the Old Castle Walls and Garden at Swords could not

forcibly involve a CPO of the subject property.

• Fingal County Council (FCC) were free to appeal this Order to the High Court within a

specific time. However, they did not do this and, consequently, the Board's Order is now

the law.

• The Board cannot now undermine or second guess this Order – this would be ultra vires –

and it cannot be lawfully called back to the present for further assessment. The legal

principles of res judicata and estoppel apply.

• FCC has neglected to secure and police the old castle walls, gardens, and parklands for

many years.

• FCC has ‘taken away’ several car parking spaces associated with the property and business.

• FCC had made previous attempts to buy the property. However, this was not accepted.

• The inclusion of the subject property is not essential to the development of the old castle

walls and its environs.

• The Council has engaged in oppressive behaviour and inappropriate conduct to force

through a sale through of the property.

• The Local Authority intends on purchasing the site using their CPO powers to sell the

property on at a future date.

5.2 [Note: Other matters were raised in the objection that are not relevant to whether the

proposal is in keeping with the proper planning and sustainable development of the area.

For example, there is various correspondence on the file from the Objector, and submissions

made during the Oral Hearing, regarding non-payment of rates, that the Objector’s intention

to develop the site for a commercial building has been refused by the Local Authority for

reasons other than proper planning and development, and that the Council is seeking to

compulsorily acquire the site for reasons improper.]”

12. Site inspections took place on 6th March 2023 and 6th April 2024. An oral hearing was

held on 2nd April 2024.

13. The inspector’s report is dated 8th May 2024.

14. On 28th May 2024, the board decided to confirm the CPO without modification.

Procedural history

15. The procedural history consists of three phases – the leave application, the appeal, and the

leave to appeal application.

Phase I – July to August 2024 – the leave application and its refusal

16. A statement of grounds was filed on 16th July 2024.

17. On 18th July 2024, the applicant sought a hearing date for her leave application, and the

matter was listed for 29th July 2024.

18. On 19th July 2024, a ShareFile folder was created for the matter, and confirmation was sent

to the applicant.

19. On the same date, the applicant sought an in-person listing on 29th July 2024. The court

offered her the option to hear her in person on the following day, the 30th, and the applicant took

that option.

20. On 20th July 2024, the applicant wrote to the list registrar confirming that hard copies of

papers had been lodged in the List Room.

21. An affidavit was filed on 24th July 2024.

22. On 24th July 2024, the applicant requested ShareFile access for Mr O’Brien, solicitor, who

was not representing her but who appears to have kindly agreed to assist her with some

administrative tasks.

23. On 29th July 2024, Mr O’Brien was granted access to the ShareFile folder and provided

guidance on how to use ShareFile.

24. The matter was heard on the 30th July 2024. As set out at para. 16 of the judgment, the

court heard the matter for two periods of 30 minutes (each seems to be the implication). The matter

was eventually put back to 12:30, at which point the court proposed a 45-minute hearing at 14:00.

The applicant requested a longer hearing. In the event the court sat for about 1 hour and 25 minutes

in the afternoon, thus making a total hearing time of 2 hours 25 minutes – a period considerably in

excess of that normally afforded to applicants. During the hearing, the applicant handed in maps to

aid the court. In general terms the hearing was conducted on a question-and-answer basis as the

digital audio recording (DAR) confirms.

25. On 31st July 2024, the court indicated orally to the applicant that it would refuse her

application for leave and give its reasons later electronically.

26. On 2nd August 2024, the judgment was delivered and sent to the applicant.

Phase II – August to November 2024 – the appeal

27. On receipt of the judgment, the applicant wrote to the list registrar indicating her intention

to appeal the refusal of leave and seeking the DAR and the return of papers. The list registrar

advised the applicant that he would revert once a decision had been made as to the court’s return

of the maps to her, and that if she wanted the DAR, she should issue a motion for it. This gave rise

to further correspondence.

28. The order dismissing the leave application was perfected on 6th August 2024.

29. On 26th August 2024, the Court of Appeal advised that the applicant had lodged an appeal

[2024/221].

30. On 14th October 2024, the court returned the 47-page book to the applicant. It does not

seem that the applicant filed the intimated motion for the DAR.

31. When the matter was listed in the Court of Appeal on 15th November 2024, that court raised

the need for the applicant to obtain leave to appeal from the High Court.

Phase III – November 2024 to date – the leave to appeal application

32. On 28th November 2024, the applicant requested the trial judge to grant leave to appeal.

Normally that is dealt with by the judge who gave the original judgment, but there is no absolute

rule, and the trial judge requested that I deal with it, a request which obviously he is perfectly

entitled to make for reasons that seem proper to him. He notified the registrars of that request on

29th November 2024.

33. The matter was then listed on 2nd December 2024, at which point I added the council as a

notice party and directed that the application for leave to appeal be brought on notice. I also stayed

the CPO on a temporary basis for reasons set out below.

34. In case the DAR was necessary, I inquired with the trial judge about accessing it and he

kindly informed me that I was welcome to obtain it myself without further reference to him. I did

so and shared it with the parties.

35. On 10th December 2024, the order of 2nd December 2024 was corrected under the slip rule

(it had referenced the wrong judge in error).

36. The matter was then listed on Monday 16th December 2024. For logistical reasons, the

physical hearing was switched to remote, and the applicant stated that she was unable to properly

hear the audio. In the interests of having a meaningful hearing there was no alternative but to

adjourn the matter to the next list 13th January 2025. In the circumstances the stay had to continue

until further order. The hard copy papers I had received from the trial judge were in court at that

point and were handed by the list registrar to the applicant.

37. On 7th January 2025, the applicant furnished the court with an affidavit that exhibited a

report from Mr Andrew Carberry of Power Property and an affidavit of Mr Joseph Morton.

38. On 13th January 2025, the applicant objected that the council hadn’t filed an appearance.

The council and board were willing to put in appearances so I gave them liberty to do so albeit that

this was without prejudice to whether it was necessary.

39. The matter then went to the List to Fix Dates on 3rd March 2025. I had understood that Mr

Carberry had effectively offered to extract from his report questions that could be the basis of legal

questions for a proposed appeal. The applicant was to produce a list of questions and followed that

up with emails of 10th and 11th February 2025 although not necessarily in a form that had been

envisaged.

40. On 3rd March 2025, when the matter was listed again, I was able to ascertain that Mr

Carberry was still willing to prepare suitable questions and it was agreed that Mr Carberry would

provide such questions within two weeks, and the matter was listed for hearing on 28th April 2025

for 1 hour plus. Insofar as Mr Carberry’s document does have a somewhat legal flavour, it needs to

be understood that he isn’t purporting to engage in legal activity – he was simply endeavouring to

respond to my having suggested he set out the relevant points and to my having pointed out that

the points of appeal have to be points of law although I attempted, in hindsight with insufficient

emphasis, to indicate that he shouldn’t worry too much about that aspect. If the attempt to assist

was arguably over-enthusiastic, that needs to be put down to a lack of clarity on my part as to the

parameters of the exercise. Either way, he wasn’t providing or purporting to provide any form of

legal assistance in the document he prepared at my request for the purposes of trying to get greater

clarity as to the applicant’s points.

41. On 28th April 2025, the matter was due to be heard, but again for logistical reasons I had

to sit remotely on that date which did not suit the applicant, so the matter was adjourned to 12th

May 2025.

42. On 12th May 2025, the applicant sought certain procedural clarifications about the procedure

under s. 50A of the 2000 Act which I endeavoured to provide, possibly unsuccessfully. The applicant

also sought further information whether by way of disclosure or discovery from the opposing parties,

specifically the council, which was opposed on the grounds that it was late in the day and nebulous

but more significantly was unnecessary. I had no option but to accept that objection because the

primary focus of leave to appeal has to be on what was before the trial judge. Whether that can be

expanded in defined ways is discussed further below, but it appeared an unnecessary if not

improvident exercise to engage in a more open-ended evidential trawl at the leave to appeal stage.

43. The applicant had outlined her case for leave to appeal on previous mentions and in writing

and did so further on 12th May 2025, which thereby constituted the opening of the leave to appeal

application. I then endeavoured to outline to the applicant my summary of my understanding of her

basic headings (obviously subject to further argument and consideration) and subsequently sent this

to the parties in writing. The opposing parties were to reply to this in writing by 14th May 2025 and

orally on 20th May 2025, with the applicant to give a final reply provisionally on that date within a

two hour envelope.

44. At the outset of the resumed hearing on 20th May 2025, I confirmed with the parties a

probably excessive time allocation of two hours for the balance of the hearing (not to be taken as a

precedent), with the opposing parties having half an hour each and the applicant having an hour for

an overall reply. There was no objection when those arrangements were announced. This was

pretty much double what I had initially proposed.

45. Judgment was then reserved. I would like to record my thanks to all of the trial participants

for their endeavours to be of assistance in the matter.

The rationale for the stay

46. While I had regard to Okunade v. Minister for Justice [2012] IESC 49, [2012] 3 I.R. 152,

[2013] 1 I.L.R.M. 1 (Clarke J.), the basis was more the protection of the effective exercise of the

right to appeal. A court can grant a stay in aid of the appeal process without having to formally find

that the Okunade criteria are satisfied. That is consistent with, for example, the recent judgment of

the Supreme Court in An Bord Banistíochta, Gaelscoil Moshíológ v. The Department of Education &

Ors. [2024] IESC 38 (Unreported, Supreme Court, 31st July 2024) at paras. 120 and 121. O’Donnell

C.J. directly linked the grant of a stay with provision for time to consider an appeal (even though

the trial judge thought that the proposed appeal was wholly without merit and so inevitably the

Okunade criteria would not have been held to have been satisfied). It follows that contrary to what

might be understood by many parties, and contrary to the submissions here, the stay jurisdiction is

in certain circumstances wider than Okunade alone.

47. The council argued that a stay should not be continued on the grounds that a point in respect

of which leave was refused was insufficiently substantial to allow the grant of a stay let alone the

grant of leave to appeal. The problem with that argument is that it elevates the importance of the

merits of the matter over and above the protection of the processes before the appellate courts.

Allowing a stay at least pending the determination of the leave to appeal issue at least permits

matters to be addressed in an orderly manner and best respects the jurisdiction of the appellate

courts, at least in the absence of sufficiently weighty counter-factors.

Material before the court

48. As regards the material provided to me in hard copy by the trial judge, I arranged for these

documents to be uploaded to ShareFile in the interests of clarity as to what was before the court.

49. The board order and inspector’s report, while not initially exhibited (although subsequently

uploaded) are public records of a public body and hence well within the scope of matters of which

judicial notice can be taken without formal proof. Accordingly I have had regard to such official

public domain material regarding the matter. Indeed, making sense of the history of the matter

would be difficult without it.

50. For completeness, on 13th January 2025, the applicant passed up a map apparently

prepared by the council showing the proximity of her property to the castle, and I returned this on

the same date.

51. At the resumed leave to appeal hearing on 20th May 2025, the applicant handed up a number

of further documents which were shown to the opposing parties and then returned to her. In my

perhaps erroneous view, these did not materially advance matters beyond what was already on the

papers. In any event, handing up papers is not a correct procedure in case-managed proceedings

in the Planning & Environment Court – papers need to be exhibited and uploaded in advance. Also

handing loose items up, in cases such as the present, inevitably leads to erroneous suggestions that

papers have gone missing. That complaint was of course made at the hearing but in fact all such

papers were returned to the applicant in open court, which I think was ultimately accepted.

52. The parties have either direct or indirect access to the ShareFile folder and have had the

opportunity to exhibit and upload anything they think relevant.

Relief sought

53. The reliefs sought in the statement of grounds include an order quashing the CPO and related

reliefs.

The issue of the lack of an appearance

54. Order 12 RSC rr. 1 to 2 includes the following:

“1. Appearances shall be entered in the Central Office, Four Courts, Dublin, except in the

case of minor matters, when the appearance shall be entered in the Office of Wards of Court,

or except as otherwise provided in these Rules.

2. (1) Save as otherwise provided for in rule 2(3), an appearance to any plenary summons,

or summary summons shall be entered within eight days after the service of the summons,

exclusive of the day of service, unless the Court shall otherwise order.

(2) Save as otherwise provided for in rule 2(3), a defendant in proceedings commenced by

special summons may enter an appearance thereto at any time, but shall not, without the

leave of the Court, be entitled to be heard in such proceedings unless he has entered an

appearance.

(2A) (a) A respondent in proceedings commenced by originating notice of motion pursuant

to Order 81A, Order 84B or Order 84C, and to whom notice of such motion has been given,

shall enter an appearance to such notice of motion in the Form No 9 in Appendix A, Part II,

within eight days after service of the notice of motion. Where a respondent is given notice

of such motion after the date first fixed for the hearing of the notice of motion, he shall enter

an appearance thereto within the time fixed by the Court for that purpose. A respondent in

such proceedings shall not, without the leave of the Court, be entitled to be heard in such

proceedings unless he has entered an appearance.

(b) Subject to paragraph (a), the provisions of rules 1, 3 to 8 inclusive, 10 to 13 inclusive,

and 26, shall, as far as applicable and with any necessary modifications, apply to an

appearance entered in accordance with this sub-rule.

(3) An appearance to an originating summons or a reply to an originating document in

respect of proceedings issued for service out of the jurisdiction under Order 11A, rule 2,

Order 11B, rule 2 or Order 11C, rule 2 (including an appearance or reply entered solely to

contest jurisdiction) shall be entered:

(a) within five weeks after the service of the summons or document exclusive of the day of

service where an originating summons or other originating document or notice of summons

or other originating document is served in the European territory of another Member State

of the European Union or of another Contracting State of the Lugano Convention, or

(b) within six weeks after the service of the summons or document exclusive of the day of

service where an originating summons or other originating document or notice of summons

or other originating document is served in any non-European territory of any Member State

of the European Union or Contracting State of the Lugano Convention, or any co-defendant

who is not domiciled in a Member State of the European Union or Contracting State of the

Lugano Convention.”

55. This does not apply to ordinary judicial review. That is a bit of a lacuna in the rules. It is

not an answer that there will be a statement of opposition, because a lot can go on prior to a

statement of opposition, or by way of intervention from notice parties or other interested parties –

as the present case demonstrates, but so do a large number of other cases. So it would be far

preferable if the rules provided for appearances in judicial review to allow some order on who appears

and for what parties. At the applicant’s request, I have provided by specific order in the present

case for appearances without prejudice to the fact that they are not required by the rules, but it

follows that the opposing parties here didn’t contravene the rules by not filing appearances because

there is unfortunately no such requirement at present.

The substantive judgment

56. The critical points of the substantive judgment can be summarised as follows:

(i) Insofar as concerns malfeasance and animus by the council, this had not been

demonstrated to the appropriate standard (para. 24).

(ii) In the absence of exhibiting relevant previous CPO papers, any claim of res judicata

or the like should fail (para. 26).

(iii) It was not necessary in the interests of justice to revert to the applicant in relation

to missing papers in this regard (para. 29) because the papers available indicated

that the point was not arguable (para. 30).

(iv) There was no or inadequate evidence for animus by the council in respect of a

rejected 2005 planning permission (para. 34), and it was not necessary to have the

full engineering report to come to that conclusion (several pages were missing)

(para. 32).

(v) There was no evidence of conspiracy between the council and board (para. 35).

(vi) The oral hearing held by the board was brief and informal, and time for cross-

examination was constrained, but there are no particulars of prejudice (para. 37).

A complaint that the inspector did not ask enough questions has not been

particularised in terms of prejudice (para. 38).

(vii) In particular the inspector’s report was not before the court and this omission

seemed to be intentional (para. 38).

(viii) A complaint of being written to the day before the hearing is not a ground for relief

(para. 40).

(ix) A complaint of lack of access to decision-makers does not amount to unfairness

(para. 41).

(x) There was no challenge to the constitutionality of the legislation (para. 44).

(xi) Allegations of oppression by the council in respect of the cultural quarter were not

evidenced (para. 45).

(xii) Various materials including maps were considered although not exhibited (para. 46).

(xiii) Reduction of the land to grass and trees as opposed to allowing the applicant to

develop it does not give rise to a legal ground for complaint (para. 47).

(xiv) Some of the computer visualisations involve the applicant’s property remaining in

situ. This was characterised not as an issue about what would actually happen, but

as something for the board’s judgement within the scope of reasonableness (para.

48).

(xv) It was not possible to read the pleaded complaint as one of irrationality as opposed

to wrongness (para. 48).

(xvi) The statement of grounds was not amenable to benevolent and limited adjustment

as this would involve wholesale re-writing (para. 51).

(xvii) The applicant was not in a position to benefit from such assistance in any event

(para. 51).

(xviii) Overall the statement of grounds was insufficiently precise to allow the grant of

leave, and the interests of justice did not require the court to get involved to rectify

that (para. 51).

(xix) Overall there are a large number of passages that perhaps take an unflattering view

of the applicant’s approach (judgment, passim).

The court’s role in ensuring that a personal litigant is not disadvantaged

57. McGreal v. Minister for Housing, Local Government and Heritage (II) [2024] IEHC 690

(Unreported, High Court, 6th December 2024) at paras. 31-37 outlines some basic issues regarding

the extent to which the court should ensure that a personal litigant is not disadvantaged through

lack of procedural knowledge. The fact that this applicant is a barrister doesn’t render this

jurisprudence irrelevant.

58. In O’Doherty and Waters v. Minister for Health [2022] IESC 32, [2023] 2 I.R. 488, [2022]

1 I.L.R.M. 421, O’Donnell C.J. said at para. 29:

“The respondents agreed that G. v. DPP is the appropriate threshold to apply in this case

but disagreed with the appellants’ claim that they have surmounted it. They argued that

the threshold is not whether an arguable case could be made that a measure is unlawful,

but whether, on the facts and pleadings of these proceedings, an arguable case has, in fact,

been made. It is the respondents’ contention that this threshold has not been met.”

59. As noted in McGreal II, O’Donnell C.J. referred to extensive additional authorities and indeed

extensive factual matters, drawn from public domain material it would appear, relied on by Hogan

J. in a dissenting judgment that would have granted leave, and said at para. 96:

“However, the sheer breadth and novelty of the material relied on in the judgment point to

the fact that the matter focused upon and discussed at length in the judgment is certainly

radically, and in my view, fundamentally, different to the case made by the appellants. This

raises a difficult question as to the extent to which it is permissible for a court considering

the grant of leave to seek judicial review, or indeed an appeal from a refusal to grant leave,

to remould or refashion the claim. Put shortly, given the short time limits in judicial review,

the constraints imposed by the doctrine of res judicata, and the rule in Henderson v.

Henderson (1843) All E.R. Rep. 378, I do not consider that, even allowing for the importance

of clarity and precision in pleadings as set out in O.84, r.20(3) that an applicant’s case must

be considered solely on the precise formulation of the case contained in the pleadings: some

latitude may be allowed. However, I consider that the length to which it is necessary to go

to reach the position set out in the judgment of Hogan J. is well beyond any permissible

adjustment of the case being advanced by the applicants and has only the most tenuous

connection to it.”

60. He went on to characterise the reformulation in the dissent as follows:

“Here the approach advocated by Hogan J. would, at least in my view, involve the grant of

leave for a challenge to regulation which were not challenged by the applicants, or even in

existence when these proceedings were commenced, and by reference to evidence which

has not been adduced in respect of the course of the pandemic and the development of

scientific knowledge in relation to it and by reference to arguments not advanced by the

applicant. Indeed, it is a further objection to this course, that it would appear to foist upon

the applicants an argument not only not made by them, but which, in so much as it depends

upon an acceptance that general restrictions were justified by the scientific evidence at least

at the outset of the pandemic, runs counter to the arguments which the applicants did make.

I would not grant leave to seek judicial review on the basis suggested by Hogan J.”

61. He referred in a number of places to the point (the right to protest) on which the dissent

would have granted leave as not being the “focus” of the applicant’s complaint, and said at para.

114:

“However, I do not agree that it would now be permissible for the Court to attempt the

radical surgery necessary to convert these proceedings into the almost entirely different

claim envisaged by Hogan J.”

62. As in McGreal II, I emphasise that the test for amendment is the same for lay litigants and

represented litigants – the interests of justice judged by reference to arguability to the appropriate

threshold, explanation and lack of irremediable prejudice. The issue is not the test for amendment

– well canvassed elsewhere. But the question is how far the court should go to itself identify the

appropriate amendment in the case of an unrepresented litigant. In doing so I prefer not to think

in terms of assisting a lay litigant but rather trying to even the scales to avoid a situation where a

party is avoidably prejudiced due only to her lack of legal knowledge, particularly procedural

knowledge.

63. McGreal II concluded that one can envisage a spectrum of situations where the court might

be asked to reformulate the claim when granting leave (or later, such as in a discharge of leave

application):

(i) a point is included in some form in the material put before the court by the litigant

and is the “focus” of the argument but its “precise formulation” as a pleaded ground

is lacking or inadequate;

(ii) a point is included in some form in the material put before the court by the litigant

although not the focus of the argument made, but any reformulation of the formal

pleaded grounds would not be radical and would be a “permissible adjustment”;

(iii) a point is not the focus of the argument although it is included by a legally

inadequate reference in the material put before the court by the litigant, but any

reformulation would amount to “radical surgery”; or

(iv) a point is not only not included and not the focus, but is “counter” to points actually

made by the applicant.

64. Thus if a court at leave stage can reformulate points made by an applicant into permitting

an amendment to add a properly phrased ground, then it would be open to the court to formulate

questions which a personal litigant has not managed to formally achieve, within the reasonable

contours of the material put before the court by the litigant and not by radical surgery. There is no

obvious reason why such a procedure should not apply to the formulation of questions in the leave

to appeal context. Indeed leaving personal litigants aside, there has always been a flexibility in how

the court phrases or reformulates questions for certification, as the caselaw demonstrates.

Test for leave to appeal

65. Section 50A(7) of the 2000 Act provides for leave to appeal:

“(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 Court of Appeal 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 Court of

Appeal.”

66. The caselaw in this regard is well-rehearsed elsewhere. However there is an overall question

as to whether some additional flexibility arises in circumstances such as here.

Overall question – the nature of an appeal from a refusal of an ex parte application

67. The overall question is whether the leave to appeal criteria should be more flexible in the

case of an ex parte application to the extent that an appeal from an ex parte refusal is a fresh

application as opposed to a review for error.

68. The board’s position is:

“The Board’s view is that the leave to appeal criteria should not be more flexible. The text

of section 50A(7) of the 2000 Act (as amended) is clear and does not provide for nor

envisage any such flexibility or difference as between a determination of an application for

section 50 leave on the one hand and the determination of an application for judicial review

on foot on such leave on the other. In both situations, without distinction, the subsection

(as amended by virtue of s.75 of the Court of Appeal Act 2014) provides that no appeal shall

lie from the decision of the High Court to the Court of Appeal ‘in either case’ save with leave

of the High Court and in both cases ‘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’. It is

clear from the text of s.50A(7) that the Oireachtas intended to limit appeals from

determinations of leave applications in the same manner as substantive determinations of

judicial review applications. It was open to the Oireachtas to have introduced a distinction

in respect of a determination of application for section 50 leave when, for example, the

procedure for making leave applications was changed to an ex parte procedure following the

enactment of s.32 of the Planning and Development (Amendment) Act 2010 but it did not

do so.

In circumstances where an application to appeal an ex parte leave determination will only

involve the situation of an applicant who has been unsuccessful in obtaining leave, had the

Oireachtas intended a more flexible approach, it would have legislated differently and

devised a different test/criteria other than that in section 50A(7). Instead, it chose in clear

terms to apply the same limitation in respect of section 50 leave determinations and

substantive determinations. Even if (which is not accepted) that could be described as giving

rise to a potential harshness, that cannot in and of itself afford a rational basis for altering

the law where same is expressed in otherwise clear terms (which is the case here).

Further, there is a basis for taking an equally limited approach in respect of applications for

a certificate to appeal the refusal of ex parte leave, as articulated in point 4 of the principles

set out in Glancré Teoranta v An Bord Pleanála [2006] IEHC 250:

‘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).’

The foregoing reference to Kenny is a reference to the judgment of the High Court

(McKechnie J., as he then was) in Kenny v. An Bord Pleanála [2001] 1 IR 704, [2002] 1

ILRM 68, wherein the applicant had been refused leave to apply for judicial review to

challenge a decision of the Board grant planning permission for significant residential

development (including, inter alia, 180 apartments, a dining facility, launderette, students'

shop, a new atrium and further and other associated buildings, works and facilities). The

permitted development also involved the refurbishment of a listed building, and the removal

of a single storey gate lodge. Leave to apply for judicial review had been refused by the

High Court (McKechnie J.) by reserved judgment dated 15 December 2000. The applicant

then applied for leave to appeal. It was urged on behalf of the applicant that the decision

of the High Court to refuse leave to apply had involved three points of law of exceptional

public importance. In refusing leave to appeal, McKechnie J. made the following obiter

comments at §21 et seq, which insofar as relevant here, militate against the Applicant being

granted a certificate in the present case:

‘21. In its incorporation into the planning legislation, which of course is a civil and not a

criminal code, one major point of distinction is immediately evident. It is, that given the

requirement to obtain leave and in the process to establish “substantial grounds”, the

relevant part of subparagraph (b) applies not only to the court's decision on an application

for judicial review but it also applies to its decision when dealing with the leave application.

This unlike the background to s. 29 where a full hearing only is envisaged. Whereas I can

see no difficulty in applying the subsection after a determination of an application for judicial

review, where the resulting decision either granting or refusing relief, may indeed contain a

point of law of exceptional public importance, I have however some difficulty in reconciling

its ability to operate on and after a negative decision is given on the leave application.

22. The decision of the court on such an application is usually arrived at from a consideration

of the facts and any appropriate inferences, and from some assessment of the law — with

the precise extent of the court's involvement, at this stage of the process, being irrelevant

to the point at hand. To obtain leave, “substantial grounds” must be shown and where so

established the decision granting leave may or may not contain such a point. However when

the applicant is unsuccessful matters may well be different.

23. 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.

24. 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 refused, one could see how in certain circumstances certification would still be possible.

For example, if the notice of motion 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 KSK Enterprises Ltd v. An Bord Pleanála [1994] 2 IR 128; [1994] 2 ILRM 1 and

Costco UK Ltd v. An Bord Pleanála High Court 1998 No. 462JR (Smyth J) 18 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. […]’

(Emphasis added)

Whereas the above quoted remarks of McKechnie J were in the context of inter partes leave,

there is no reason to suggest that the Court’s remarks in that case do not apply with equal

measure to ex parte leave applications given that ‘substantial grounds’ is still the relevant

threshold. The refusal of leave by Holland J. and the Court’s holding that there were no

substantial grounds on which the Board’s Decision might be quashed, and that, in any event,

the Applicant’s Statement of Grounds was ‘incapable, as a matter of pleading, of supporting

the grant of leave. I do not see that it could be rehabilitated to that end by amendment’

arises in the fact-specific context of this particular case. In this case, as illustrated by the

Substance Points set out above, the Applicant seeks merely to re-agitate points that the

High Court did not accept in refusing leave to apply for judicial review in this case. A

certificate application is not a re-run of the application for leave to apply for judicial review,

less still one with new or additional material. There is no authority that supports such an

approach being taken (and which the Applicant continues to take) and same is inconsistent

with the settled and well-established principles that apply in the context of s.50A(7)

certificate applications.”

69. The council submitted:

“Additional query raised by the Court on 14 May 2014:

The court would like the parties views on (either in the written comments or at the hearing)

whether the leave to appeal criteria should be more flexible in the case of an ex parte

application to the extent that an appeal from an ex parte refusal is a fresh application as

opposed to a review for error.

Notice Party’s Position:

There is no basis for a more flexible approach to be taken by the High Court in deciding

whether to allow an appeal against a decision to refuse leave to apply for judicial review.

The wording of section 50A(7) is clear:

(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 [Court of Appeal] 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 [Court of Appeal].

It should be noted that when the 2000 Act was enacted, the procedure for obtaining leave

was by way of motion on notice, which resulted in contested leave applications. This also

contained a restriction on the entitlement to appeal, which was framed in similar terms to

section 50A(7), as set out in section 50(4)(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.’

Following the enactment of the Planning and Development (Amendment) Act 2010, the

leave-on-notice procedure was replaced with an ex parte procedure, subject to the Court’s

entitlement to direct that the leave application should proceed on notice. However, the

requirement to obtain a certificate of leave to appeal in order to appeal both decisions on

leave on substantive hearing following the grant of leave continued to apply. In the

circumstances, it is clear that the Oireachtas intended to restrict the ability to appeal from

a decision on leave in the same manner as a substantive decision. Given that an application

to appeal an ex parte leave application will only involve an applicant who has been

unsuccessful in obtaining leave, if the legislature had intended a more flexible approach, it

would have devised another test than that in section 50A(7).

Moreover, there is actually a basis for taking a stricter approach with applications for a

certificate to appeal the refusal of ex parte leave, as articulated is point 4 of the principles

against which an application for a certificate under section 50A(7) should be considered as

set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250:

‘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).’

The foregoing reference to Kenny is a reference to the judgment of the High Court in Kenny

v. An Bord Pleanála [2001] 1 IR 704, [2002] 1 ILRM 68, wherein the applicant had been

refused leave to apply for judicial review to challenge a decision of the Board grant planning

permission for significant residential development (including, inter alia, 180 apartments, a

dining facility, launderette, students' shop, a new atrium and further and other associated

buildings, works and facilities). The permitted development also involved the refurbishment

of a listed building, and the removal of a single storey gate lodge. Leave to apply for judicial

review had been refused by the High Court (McKechnie J.) by reserved judgment dated 15

December 2000. The applicant then applied for leave to appeal. It was urged on behalf of

the applicant that the decision of the High Court to refuse leave to apply had involved three

points of law of exceptional public importance. In refusing leave to appeal, McKechnie J.

made the following obiter comments at §21 et seq, which insofar as relevant here, militate

against the Applicant being granted a certificate in the present case:

‘21. In its incorporation into the planning legislation, which of course is a civil and not a

criminal code, one major point of distinction is immediately evident. It is, that given the

requirement to obtain leave and in the process to establish “substantial grounds”, the

relevant part of subparagraph (b) applies not only to the court's decision on an application

for judicial review but it also applies to its decision when dealing with the leave application.

This unlike the background to s. 29 where a full hearing only is envisaged. Whereas I can

see no difficulty in applying the subsection after a determination of an application for judicial

review, where the resulting decision either granting or refusing relief, may indeed contain a

point of law of exceptional public importance, I have however some difficulty in reconciling

its ability to operate on and after a negative decision is given on the leave application.

22. The decision of the court on such an application is usually arrived at from a consideration

of the facts and any appropriate inferences, and from some assessment of the law — with

the precise extent of the court's involvement, at this stage of the process, being irrelevant

to the point at hand. To obtain leave, “substantial grounds” must be shown and where so

established the decision granting leave may or may not contain such a point. However when

the applicant is unsuccessful matters may well be different.

23. 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.

24. 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 refused, one could see how in certain circumstances certification would still be possible.

For example, if the notice of motion 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 KSK Enterprises Ltd v. An Bord Pleanála [1994] 2 IR 128; [1994] 2 ILRM 1 and

Costco UK Ltd v. An Bord Pleanála High Court 1998 No. 462JR (Smyth J) 18 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….’

Although the dicta of McKechnie J were in the context of inter partes leave, the principles

apply with equal force to ex parte leave applications, given that the ‘substantial grounds’

threshold has been carried over. In the present case, the trial judge considered the

Applicant’s grounds (her ‘essential complaint’) in some detail, as recorded in the Judgment,

and concluded that she did not meet the test to be granted leave. In those circumstances,

it is difficult to ascertain how she could identify matters of exceptional public importance

arising from the Judgment, which must be a higher threshold than that of substantial

grounds.

The Notice Party reserves the right to elaborate on this issue at the resumed hearing of the

certificate application on 20 May 2025.”

70. In inter partes litigation, one can’t generally appeal on the basis of something that was only

introduced into the proceedings after the hearing. In terms of an appeal from a substantive order,

under Murphy v. Minister for Defence [1991] 2 I.R. 161, p. 164 per Finlay C.J., such evidence should

not be admitted as it was obtainable by reasonable diligence.

71. However Biehler, McGrath and Egan McGrath comment (Delany and McGrath on Civil

Procedure (4th edn., Round Hall 2018)):

“23-236

Further evidence may be given without special leave on any appeal from an interlocutory

judgment or order. Dispensing with the requirement for leave in the case of an interlocutory

judgment or order is justified on the basis that, by its very nature, such a judgment or order

is not intended to be final in nature and, thus, the policy of trying to achieve finality in

litigation is not undermined by the admission of additional evidence. Another important

factor, recognised by MacMenamin J in Ennis v Allied Irish Banks plc is that interlocutory

matters are heard on affidavit at a stage when all the evidence may not be readily available

and when the parties will not be in a position to avail of the full panoply of procedures

designed to elicit truth in plenary proceedings.

...

23-241

The decision of the Supreme Court in Ennis v Allied Irish Banks plc [[2021] IESC 12 at [30]–

[31].] indicates that, even if the order under appeal is to be regarded as a final order rather

than an interlocutory order, where it has been made following an interlocutory application

on affidavit rather than a plenary hearing, a degree of flexibility will be afforded in relation

to the admission of additional evidence. An example of where this approach will be adopted

is where there is an appeal against the grant of summary judgment. In determining whether

that degree of flexibility should be shown, an important consideration will be whether the

appellate court can address the new evidential material without the need for remittal to the

High Court.”

72. In Ennis v. Allied Irish Banks plc [2021] IESC 12, [2021] 3 IR 733, MacMenamin J. had

commented as follows:

“New Issues: Appeals in Interlocutory Proceedings

21. I now move to deal briefly with interlocutory matters, for the reason that there are

analogies between the principles applicable to such appeals and those which apply to

summary judgments. In what may be described in shorthand as ‘interlocutory appeals’,

there is, too, a ‘spectrum’ and a ‘continuum’. The considerations applicable in appeals from

plenary proceedings may also apply to interlocutory matters but, in such cases, the courts

will adopt a somewhat more flexible approach, dependent upon the justice of the case. It

is necessary to explain why there is this flexibility and, also, to explain this is relevant to

summary proceedings.

22. An ‘interlocutory order’ is generally understood as one made during the course of

proceedings, after the entry of appearance and before final judgment. Such orders are made

to progress litigation or assist a party in advancing or defending their case, but are made

before the court has finally spoken and will, therefore, be provisional in nature, subject to

final orders made after a plenary hearing. An interlocutory injunction, pending a full hearing,

is one example. But an interlocutory injunction is not generally conclusive of the rights of

parties. Rather, it temporarily protects or preserves the status of things or rights pending

the ultimate outcome of the case. This simple distinction between final and interlocutory

orders is one of long standing (see, In re Stockton Iron Furnace Company (1879) Ch D 335,

at p. 339, as discussed in F. McK v. A.F. [2002] 2 I.R. 242, at p. 245). An interlocutory

order will, generally, not have the quality of finality sufficient to give rise to a plea of res

judicata. It may, however, have that effect if it was intended finally to determine rights

between the parties. Courts have a wide discretion in relation to variation or setting aside

interlocutory orders (see the comprehensive treatment in Delany, McGrath and McGrath,

Delany and McGrath on Civil Procedure (4th edn., Round Hall 2018), at para. 25-43 et seq.).

In fact, divergent views have been expressed in the common law world regarding precisely

what comes within the definition of an interlocutory order, but these are not material to this

appeal.

23. For present purposes, what is relevant is that interlocutory matters are heard on

affidavit. One or other party may not have had the opportunity of stating their full case.

There may not have been cross-examination; not all the evidence may be readily available

at the interlocutory stage. The parties will not be in a position to avail of the full panoply of

procedures designed to elicit truth in plenary proceedings, such as discovery. For these

reasons, Order 58, Rule 8 of the RSC provides that further evidence may be given without

any leave upon any appeal from an interlocutory judgment or order. Such orders are not

intended to be final. The policy-end of achieving finality does not arise in the same way as

in plenary proceedings. These considerations have, therefore, led courts to adopt a more

flexible approach in applications to raise new arguments, or perhaps with more caution, new

evidence, on appeal from interlocutory orders. Nonetheless, one can envisage

circumstances where, to accede to an application to adduce new evidence, even in an

interlocutory matter, might potentially have significant consequences including potentially

the need for rehearing, which would raise the need for consideration of the objectives of

litigation, described earlier. But, at least in some instances, it may be possible that any

detriment or injury to the interests of a party may, in the memorable words of McCarthy J.,

‘be assuaged by the balm of costs’.

24. I mention also that in Minister for Agriculture v. Alte Leipziger A.g. [2000] 4 I.R. 32, a

case arising from Order 12, Rule 26 of the RSC, seeking to set aside proceedings wrongly

brought in this jurisdiction, Keane C.J., albeit in the minority, identified a further distinction,

that is, between the nature of an application before a court and the order thereafter made

by the court. This definition does not cover every contingency either, but it is nonetheless

useful as it makes the point that certain forms of application to a court may not require

finality; rather, there could be a number of potential outcomes. But there are nonetheless

occasions when an order in what might be seen as ‘interlocutory-type’ proceedings may have

a conclusive effect.

...

New Evidence: Applications in Appeals from Interlocutory Orders

37. New evidence applications in interlocutory appeals may be dealt with more briefly. A

party may adduce further evidence in an interlocutory appeal without special leave (Order

6A [sic - recte 86A], Rule 4(b), Court of Appeal; Order 58, Rule 30(b), Supreme Court).

Such evidence may be adduced generally on appeal. Procedural fairness requires there

should be a right to reply, recognising that where there is a conflict, the matter may have

to be remitted to the High Court.

New Evidence: The Approach in Appeals in other Types of Proceedings Heard on Affidavit

Only, including Summary Proceedings

38. Just as in the case of new arguments on appeal, there will also be instances where a

court will allow additional evidence in appeals from orders which have the special

characteristics analogous to interlocutory proceedings. Lopes, IBRC, and Moylist are

illustrations of this approach and are discussed in more detail later in the judgment.

Significantly however, in those cases, this Court was in a position to address the new

evidential material adduced without any need for consideration of remittal to the High Court.

The Criteria Applicable in this Appeal

39. Drawing these strands together, it can be said that the general criteria applicable to

admitting new arguments in appeals proceedings are as outlined in K.D., but as developed

in Emerald Meats, Lough Swilly, and Ambrose. Admission of new evidence is, generally,

governed by the principles in Murphy v. Minister for Defence, as explained in subsequent

case law. In proceedings where the procedure is akin or analogous to interlocutory

proceedings, such as in Lopes, and including judgments in summary proceedings, courts will

be somewhat more flexible in admitting new arguments on appeal, and may consider new

evidence, but exercise caution because of the potential consequences.”

73. The conclusion was to allow further evidence in an appeal against summary judgment, even

though the evidence could have been marshalled originally:

“Proposed Order

77. Any order must take account of the fact that, at minimum, the appellant failed to put

his full case before the High Court. No matter how much he regrets his earlier missteps, he

must, as a legally competent person, accept consequences for non-compliance with the

duties of a defendant in summary proceedings, especially his failure to put forward his full

case at the earliest opportunity. The order made must respect the ends and objectives of

the administration of justice.

78. It would be inappropriate now to direct that the matter be remitted to the Court of

Appeal. I emphasise that neither this Court, nor the Court of Appeal, should be asked to act

as a court of first instance, thereby depriving either party of rights to adduce further

evidence, or perhaps to a further appeal. The Court of Appeal has a heavy case load and

weighty functions vested in it by the Constitution and by statute. Both the constitutional

order, and the policy considerations outlined earlier, militate against that, or any appeal

court, hearing an appeal in a civil matter, having to put itself in the place of a court of first

instance as a result of a failure by a party to present a case properly in the High Court.

79. It seems to me that the balance of justice requires that this Court must now recognise

the reality of the situation. That reality is that the appellant has now presented issues which

indicate that he does, at least, have an arguable defence, where there is now, apparently,

relevant documentary evidence, and points were made in the Court of Appeal which should

have been made in the High Court, but were not. I would allow the appeal, and set aside

the judgment and order of the Court of Appeal. Even were the motion remitted for further

consideration by the Court of Appeal, or the High Court, the reality is that, even if the Bank

were now to adduce further arguments of evidence, there would still be real legal issues to

be considered, and conflicts of evidence which could only be resolved at plenary hearing. In

these circumstances, I would direct that the case be transferred to the High Court for plenary

hearing in substitution for the order of the Court of Appeal. The appellant will be allowed

three weeks from the date of this judgment to file his defence.”

74. A separate but related issue is whether additional evidence can be adduced simply by virtue

of the fact that an appeal from an ex parte order is a fresh application rather than a consideration

of whether the High Court was correct. That was the traditional position, but matters have been

somewhat obscured by amendments to the rules in 2014. Hogan J. outlines the history in Arnold v.

McCarthy [2017] IECA 303, [2017] 11 JIC 2702 (Unreported, Court of Appeal, 27th November

2017):

“10. One complication, however, relates to the nature of the appeal to this Court from the

decision of the High Court. Prior to the establishment of this Court in October 2014, appeals

from decisions of the High Court made ex parte were governed by the provisions of Ord. 58,

r.13 which provided:

‘Where an ex parte application has been refused in whole or in part by the High

Court an application for a similar purpose may be made to the Supreme Court ex

parte within four days from the date of such refusal, or within such enlarged time as

the Supreme Court may allow.’ (emphasis supplied)

11. These provisions of Ord 58, r. 13 were understood in practice to enable the party who

suffered an ex parte refusal of an application in the High Court to renew that application de

novo to the Supreme Court. In the case of judicial review applications, this meant that the

Supreme Court could grant leave if it thought that the case presented arguable grounds

rather than examining – as it would normally do if it were hearing an appeal in an inter

partes matter – whether the High Court judge was correct.

12. These provisions of the old Ord. 58, r. 13 have not, however, been replicated in either

Ord. 86 or Ord. 86A. It is, however, unnecessary to decide for present purposes whether

the former practice of the Supreme Court with regard to ex parte appeals continues to apply

in respect of this Court because the decision of the High Court in this case was not given ex

parte, but was delivered following an inter partes hearing. In these circumstances, it seems

that the essential question which this Court must ask itself is whether the High Court was

correct to hold that the applicants had not demonstrated the existence of arguable grounds

on the evidence adduced on affidavit on which to apply for leave to apply for judicial review.”

75. So the position remains somewhat open but if the traditional approach were to be followed,

the new affidavit could be received by the Court of Appeal (on the basis of the application being a

renewed ex parte application rather than an appeal proper), provided that there is a valid appeal.

76. Ultimately, when McKechnie J. asked in Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R.

704, rhetorically, how can it be said that something that doesn’t give rise to substantial grounds

could give rise to a point of exceptional importance, the potential answer to that is that a situation

where an applicant does come up with a substantial ground, but belatedly, may give rise to an need

to consider that – but only in the context where the appeal is a complete rehearing by way of fresh

application, and not simply a review for error. It has always been accepted that there is more

flexibility in amending pleadings or supplementing them with further evidence at the leave stage

than inter partes, so had the applicant correctly identified a substantial ground that was not clearly

pleaded or properly evidenced, that could have been addressed – and on one interpretation could

be addressed likewise on appeal if there is such a ground and if the appellate courts were to be

persuaded as to the acceptability of amendment or of receiving further information or evidence, or

both.

77. There is thus a prior question as follows. This wouldn’t meet the test for certification in

isolation but it is a necessary ancillary question to the other questions below (admittedly I could

have rolled them together by prefacing the two substantive questions with words along the lines of

“if and to the extent that the applicant can make this point ...”, but I think things will be clearer

logically if we isolate this as a separate ancillary question, and hopefully the appellate courts will

find it possible to forgive such a drafting approach):

Insofar as (a) the making of an ex parte application on appeal a fresh application

such that an applicant is entitled to introduce new evidence on such an application,

albeit evidence that might with reasonable diligence have been available originally,

and/or to apply to amend pleadings for the purpose of such a fresh application

and/or (b) O. 86A r. 4(b) RSC has the effect that the right to submit further

evidence in an interlocutory matter is not conditional on the evidence being

unavailable initially and/or (c) an appellate court has the right to admit further

evidence, albeit available originally, on a discretionary basis, can leave to seek

judicial review be granted on appeal from a refusal of an ex parte application if the

grant of such leave is dependent on either an amendment being sought and/or

regard being had in determining a pleaded point to matters not put before the court

dealing with the leave application, and if so can the High Court evaluate a leave to

appeal application in respect of refusal of an ex parte application through the prism

of having regard to that possibility?

Questions arising on the process before the trial court

78. The following process points are in effect raised in respect of the procedures before the trial

court:

(i) should the court, given the gravity of the decision in the public interest, have

requested the applicant to go away and return with hard copies of the inspector’s reports

prior to refusing the application;

(ii) inadequate time allowed for the hearing;

(iii) lack of reasoning by the trial judge;

(iv) alleged animus by the trial judge; and

(v) lack of opportunity to develop the applicant’s point at the hearing and/or excessive

interruption.

79. The applicant made submissions on these points and in the circumstances it is sufficient to

refer to her papers which will be available to appellate courts should they so wish.

80. The board submitted:

“PROCESS POINTS

(vi) Should the Court, given the gravity of the decision in the public interest, have

requested the Applicant to go away and return with hard copies of the Inspector’s Reports

prior to refusing the application?

No, there is no requirement for a Court to do so, and it is incumbent on an applicant to

include all relevant documents in their application. In any event, there is no prejudice to

the Applicant here given that the Applicant explicitly stated at the leave application that they

‘deliberately and consideredly, after a lot of consideration and reflection, omitted the actual

Inspector's report’. Further, at §38 of the Judgment, [the trial judge] notes that ‘Ms Heavey

has – she says consciously - chosen not to exhibit the Inspector’s report to the Board’. That

being the case, the Applicant cannot now criticise [the trial judge] for not requiring the said

report to be put before him (or, for that matter, going online to source the Inspector’s report

himself) or allege an unfairness in procedure on the basis of the absence of the report. [the

trial judge] was fully entitled to state (§27) that ‘in the absence of an exhibited copy of the

Board’s 2004 decision refusing to confirm a CPO and the Inspector’s report which allegedly

informed it, and indeed a copy of the Inspector’s Report in the Impugned Decision which

would shed appreciable light on the context of the Impugned Decision, it is impossible to

see that Ms Heavey has discharged her onus of satisfying me that there is any substantial

ground for the assertion that a decision by the Board to confirm a CPO approximately 20

years after its refusal to confirm a CPO as to the same land, is legally unsound. To this

proposition there is a caveat to which I will come - but which does not assist her.’ In any

event, it is clear from §§43-49 of the Judgment that [the trial judge] was in a position to

ascertain the Applicant’s ‘essential complaint’ about the scheme and the process concerning

the oral hearing, which he proceeded to identify and consider. The issue is entirely fact-

specific to this case, it is not a point of law, it does not transcend this case, and it is does

not meet the s.50A(7) threshold.

(vii) Inadequate time allowed for the hearing

This is not correct. While the Applicant was informed by the Court that leave applications

are normally done within half an hour, just short of 2h 30m was allowed for the hearing,

much more than typically occurs or is allocated to ex parte leave applications. The primary

complaint of the Applicant appears to be that she should have been allowed a three-hour

hearing at the leave application – there is no entitlement to that, nor does any point of law

arise from not getting a three-hour hearing. The Judgment makes clear that the Applicant

was given a lengthy period to present the leave application, which was conducted on an ex

parte basis. By any objective standard, this was ample time to demonstrate to the Court

that the Applicant had established the necessary threshold issues required in a section 50

leave application.

(viii) Lack of reasoning by the trial judge

The trial judge provided a detailed written judgment (which had been scheduled to be

delivered ex tempore) and this comprised a comprehensive statement of the reasons for

which leave had been refused, not least of which being the failure of the Applicant to

discharge the onus of satisfying the Court that there are substantial grounds for contending

that the decision was invalid or ought to be quashed. The Board refers to its written

submissions in response to this certificate application which consider the Court’s judgment.

There is no substance to this assertion of lack of reasoning on any objective analysis. No

point of law that meets the s.50A(7) threshold arises in relation to this issue at all.

(ix) Alleged animus by the trial judge

This is not correct. The trial judge showed a large degree of latitude to the Applicant in

terms of the manner in which the application was advanced and in spite of the obvious

deficiencies in the materials which were placed before the Court. No point of law that meets

the s.50A(7) threshold arises in relation to this issue at all.

(x) Lack of opportunity to develop the applicant’s point at the hearing and/or excessive

interruption

This is not correct. The trial judge provided the Applicant with ample time to develop their

points despite the submissions of the Applicant featuring significant repetition and baseless

allegations. The trial judge expressly informed the Applicant that any interruptions were for

the purpose of assisting the Applicant in identifying to the Court what their case was. No

point of law that meets the s.50A(7) threshold arises in relation to this issue at all.”

81. The council submitted:

“Process points

(vi) Should the Court, given the gravity of the decision in the public interest, have

requested the Applicant to go away and return with hard copies of the Inspector’s Reports

prior to refusing the application?

Notice Party’s Response:

It is clear from the Judgment that, whilst the trial judge was critical of the absence of the

Inspector’s report (and the Inspector’s report from the Board’s previous (2004) decision)

not to confirm a CPO made by the Council in respect of the same property, he was ultimately

in a position to determine the issues raised by the Applicant without having sight of those

reports.

Moreover, at §38 of the Judgment, the trial judge notes that ‘Ms Heavey has – she says

consciously - chosen not to exhibit the Inspector’s report to the Board’. That being the case,

the Applicant cannot now criticise the trial judge for not requiring the said report to be put

before him (or, for that matter, going online to source the Inspector’s report himself) or

allege an unfairness in procedure on the basis of the absence of the report. This was not a

case where an unwitting self-represented party misunderstood the need to exhibit materials

which were sought to be relied on.

As to the effect of this, §27 of the Judgment states:

However, in the absence of an exhibited copy of the Board’s 2004 decision refusing to

confirm a CPO and the Inspector’s report which allegedly informed it, and indeed a copy of

the Inspector’s Report in the Impugned Decision which would shed appreciable light on the

context of the Impugned Decision, it is impossible to see that Ms Heavey has discharged her

onus of satisfying me that there is any substantial ground for the assertion that a decision

by the Board to confirm a CPO approximately 20 years after its refusal to confirm a CPO as

to the same land, is legally unsound. To this proposition there is a caveat to which I will

come - but which does not assist her.

Nonetheless, it is clear from §§43-49 of the Judgment that the trial judge was in a position

to ascertain the Applicant’s ‘essential complaint’ about the scheme and the process

concerning the oral hearting, which he proceeded to identify seriatim and consider. The

Inspector’s report would have provided any greater insight to the Court in distilling the

complaints and/or determining whether any of same reached the threshold of ‘substantial

grounds’.

In any event, the absence of the Inspector's report – even if it were a critical piece of

evidence in this case – would not constitute a basis for the test in s.50A(7) being satisfied,

given that it an entirely fact-specific issue to the within case. It is not a point of law and

even if it could be characterised as such, it must be one that transcends the facts of the

case: see, §9 of Nagle View v An Bord Pleanála (No.2) [2025] IEHC 3 at §9.

(vii) Inadequate time allowed for the hearing

Notice Party's Response:

The primary complaint of the Applicant appears to be that she should have been allowed a

three-hour hearing at the leave application. Leaving aside the fact that most leave

applications are disposed of in less than 30 minutes and the Court now facilitates a full

hearing of expedited cases in a time slot of 3.5 hours, the Judgment makes clear that the

Applicant was given a lengthy period to present the leave application, which was conducted

on an ex parte basis.

[The trial judge] specifically deals with the time afforded to the application at §16 of the

Judgment. He notes that the Applicant had sought three hours and points out that she was

heard over two 30-minute periods, before the Court indicated that it would hear her for a

further 45 minutes, but that, in fact, she was afforded 1 hour and 25 minutes after the lunch

adjournment.

So, in total, the Applicant had just short of 2 and a half hours to make her submissions. By

any objective standard, this was sufficient time to demonstrate to the Court that the

Applicant had established the necessary threshold issues required in a judicial review leave

application governed by s.50, namely:

(a) The application was brought within time – the trial judge accepted that this was the

case;

(b) The Applicant had a sufficient interest in the matter to which the application relates

– the trial judge accepted that this was the case;

(c) The proceedings demonstrated substantial grounds for seeking to challenge the

decision – the trial judge concluded that this threshold was not met.

(viii) Lack of reasoning by the trial judge.

Notice Party’s Position:

The trial judge delivered a significant judgment, which addressed both substantive and

procedural short-comings in the Applicant’s case. Moreover, the Judgment set out principles

with regard to how the application should be approached by the Court and as to how the

Applicant, as a self-represented litigant, albeit one with legal training, might be assisted by

the Court in best presenting her case.

A judgment of the length provided by the trial judge is unusual and displays the lengths the

trial judge went to in endeavouring to explain his reasons why leave should not – and could

not – be granted in this case. Whilst the Applicant is entitled to disagree with the Judgment,

this does not provide a basis, in and of itself, for appealing the judgment. Just as judicial

review itself is not an appeal on the merits, neither is an appeal from the decision of the trial

judge to refuse leave.

It is clear from the Judgment that the trial judge was able to identify the Applicant’s ‘essential

complaint’, which the judgment both sets out and addresses at §§43-49.

The Judgment also sets out that the ‘essential complaint’ is gleaned from the Statement of

Grounds (§50), but that ‘the statement of grounds provides no clear or precise basis on

which leave to seek judicial review on identified grounds of complaint in law might properly

be granted’, even with the limited judicial assistance which the Court could provide to a self-

represented litigant, which in and of itself ‘requires refusal of leave to seek judicial review’.

(§51).

It is clear that notwithstanding the deficiencies in the Statement of Grounds, the Court was

able to pull together the essential threads of the case which the Applicant sought to make,

but essentially an impermissible challenge on the merits of the Board’s decision.

(ix) Alleged animus by the trial judge

Notice Party’s Position:

The Court must consider this issue objectively and not only on the Applicant’s subjective

opinion of how the trial judge dealt with the matter. The Judgment indicates that the trial

judge was aware of the Applicant’s status as a self-represented litigant and that, as such,

he could provide her with assistance to a point.

However, the Court also has the benefit of the Digital Audio Recording (DAR), which indicates

that the trial judge approached the matter with due regard to fair procedures, the Applicant’s

status as a self-represented party and sought to extricate the essential issues in the case.

When the Judgment and DAR are considered objectively and dispassionately, it is clear that

the trial judge displayed no animus towards the Applicant. Indeed, in giving the Applicant

a hearing last approximately 2.5 hours and producing a comprehensive written judgment,

the Applicant fared significantly better than most represented litigants would do at an ex

parte leave application.

(x) Lack of opportunity to develop the applicant’s point at the hearing and/or excessive

interruption

Notice Party’s Position:

This is simply not borne out by the Judgment or the DAR.

It is, however, clear from the DAR that the trial judge struggled to understand the grounds

which were being in advanced by the Applicant in seeking to challenge the Board’s decision

to confirm the CPO. It also demonstrates that the Applicant was not in a position to articulate

a coherent or cogent basis for demonstrating to the Court that she had substantial grounds

for challenging the Board’s decision, which is a necessary threshold requirement of being

granted leave to challenge a decision of the Board under s.50 of the Planning and

Development Act 2000 (as amended).”

82. Overall there is nothing of substance in these complaints. As regards the time allocation (in

fact an extremely generous one – not a precedent because leave applicants should have their papers

in order and should thus expect an allocation in minutes measured in the low single digits, not in

hours) and as regards the question-and-answer nature of the hearing rather than allowing an

uninterrupted stream of consciousness from the applicant, trial management must attract a wide

discretion. This has been repeatedly emphasised in the caselaw. Out of many examples I can give

the following, also cited in previous caselaw:

(i) Case management directions attract a high degree of deference for appellate

purposes. As Clarke J. (Denham C.J. and Hardiman J. concurring) pointed out in

Dowling v. Minister for Finance [2012] IESC 32 (Unreported, Supreme Court, 24th

May 2012) at para. 3.1, there is no reality to the achievement of case management

benefits if appellate courts were “on anything remotely resembling a regular basis”

to entertain appeals against such directions and accordingly a high threshold of

irremediable prejudice must be shown (see also Minogue v. Clare County Council

[2021] IECA 98 (Unreported, Court of Appeal, 29th March 2021), para. 100). As

Donnelly J. commented in Ballyboden Tidy Towns Group v. An Bord Pleanála [2024]

IESC 4 (Unreported, Supreme Court, 22nd February 2024) at para. 51, “the High

Court may not always require much time in reaching a decision even on a contested

case”.

(ii) This was recently emphasised by the Court of Appeal in Ballymore Residential Ltd v.

Roadstone Ltd [2021] IECA 167, [2021] 6 JIC 0401 (Unreported, Court of Appeal,

4th June 2021), per Collins J.:

“6 Appellate courts have also recognised that case management is likely to

be an entirely hollow exercise unless appropriate judicial restraint is

exercised on appeals from case-management decisions made by the High

Court. As it was put by Clarke J in Dowling v Minister for Finance [2012]

IESC 32, an appellate court ‘should only intervene if there is demonstrated

a degree of irremediable prejudice created by the relevant case management

directions such as could not reasonably be expected be remedied by the trial

judge (or at least where the chances of that happening were small) and

where therefore, unusually, the safer course of action would be for this Court

to intervene immediately to alter the case management directions.’ (at para

3.5)”

(iii) As Charleton J. (Denham C.J. and Hardiman J. concurring) said for the Supreme

Court in Talbot v. Hermitage Golf Club & Ors. [2014] IESC 57 (Unreported, Supreme

Court, 9th October 2014) (emphasis added):

“The resources of the courts are there for litigants. Those resources are not,

however, unlimited. No litigant is entitled to more than what is reasonably

and necessarily required for the just disposal of a case within the context

of the other demands on court time. Whether it is an unrepresented

litigant or not, the resources which the courts decide to assign to a case

must depend upon: the importance of the legal issues involved; the gravity

of the wrong allegedly suffered by the moving or counterclaiming party; the

monetary sum involved; and the public interest in the outcome of the case.

Courts are entitled, and indeed are required, to foster their resources.

This is both a matter of public and private interest. Court resources used in

litigation are funded by public money. In addition, the parties pay for legal

representation. Litigants should not be faced with cases that are longer or

more expensive than they need to be for a fair resolution. In many

instances, costs if awarded against a losing party may not be recovered. In

that regard, putting reasonable limits on submissions in terms of time

and allowing a measured number of hours or days for each side to

litigate their case is both right and appropriate.”

(iv) In her judgment in that case, Denham C.J. (Hardiman J. concurring) said (emphasis

added):

“2. The traditional practice in common law legal systems was that it was the

parties and their lawyers who set the pace of a case. The courts did not

intervene by actively managing the progress of the litigation process. This

approach reflected the dominant laissez-faire attitude of the

nineteenth century.

However, with the growth in the volume of litigation and the increasing

complexity of cases, it became apparent that judges presiding in the courts

must begin to proactively case manage cases and adopt case

management practices and procedures.”

83. Trial participants, whether represented or otherwise, have to play ball with the court in the

sense of co-operating and assisting the court in getting through the business expeditiously, fairly

and correctly. This involves identifying their best points if they can, and sticking within time limits,

as well as answering the court’s questions, to say nothing of the necessary courtesies such as

adopting a reasonable and not-unnecessarily-confrontational tone with the court and other

participants, not interrupting the court or other participants, and not speaking over the court and

other participants.

84. The complaint about the trial judge not accessing the inspector’s report is misconceived as

a ground of potential appeal. As noted above, the inspector’s report is a public document of a public

body, and the full text, for good measure, is public domain material. It is thus well within the scope

of matters of which judicial notice can be taken and hence was potentially before the court in that

sense. But the fact that the applicant didn’t herself refer to it precludes an argument that the court

erred in some fundamental sense in not referring to it – the court can’t do all the work.

85. Insofar as the applicant complains now that she anticipated that the matter was in for

mention but was then told that she was facing a hearing, that type of misunderstanding could give

rise to unfairness in a particular case, but so far as I can see the DAR does not bear out this complaint

or evidence any clear protest about it (certainly the applicant didn’t direct my attention to this) so

it is not something that can be addressed by way of appeal. In any event there is no basis for a

judicial review applicant to assume that the listing of their application is for mention only – an ex

parte application is listed for hearing by default and the applicant is required to have papers in such

order as would permit the matter to go on when called. Any adjournment for tidying up is a matter

normally within the discretion of the court – if tidying-up is called for the court may in certain

circumstances be able to dispose of the leave application on the basis of an undertaking to rectify

any deficits in the material in a specific way and subject to not perfecting the order until tidied-up

papers are presented.

86. As far as reasons are concerned, the judgment does contain the main reasons on the main

issues, insofar as such issues were properly presented. The applicant unfortunately didn’t

understand the importance of submitting the inspector’s report or at least drawing attention to it as

the potential subject of judicial notice, so in terms of how the application was actually run there isn’t

anything wrong with the decision actually made. Normally if a party doesn’t make significant

reference to something at a hearing, any obligations to give reasons are diluted accordingly, typically

to vanishing point. Which is pretty much what happened here.

87. There is no basis to the animus complaint. There is a big difference between a pre-existing

or irrational animus towards somebody and having a critical reaction if the somebody has acted or

doesn’t act in what the court thinks is the most appropriate way. Or in other words, critical

comments do not necessarily or normally equate to animus and certainly don’t in this case. A judge

has a wide zone of discretion in reacting to or evaluating what a party is actually doing, not doing,

saying or not saying, insofar as concerns the proceedings themselves and the facts underlying the

proceedings, and as long as one is within that zone, it isn’t a question of animus. It is a question of

forming a view, albeit sometimes perhaps a not altogether positive one, on the basis of what is

legitimately before the court. There isn’t anything wrong with that.

88. If I am wrong in respect of any of the foregoing and if the trial judge should have done

something a bit differently, that doesn’t in this case rise to the level of a point of law worthy of

certification.

Questions arising on the substance

89. In broad outline the applicant’s proposed points of law for an appeal are as follows (leaving

aside questions as to exact wording of these):

(i) The second CPO – the unprecedented nature of the second CPO here.

(ii) Presumption – the presumption of correctness of the CPO.

(iii) Necessity / proportionality – the CPO was not necessary or proportionate for a

number of reasons:

i. there was a lack of articulated reasons for the CPO;

ii. the lack of necessity for the CPO is reflected in Mr Thornton’s report;

iii. the trial judge’s erroneous rejection of the relevance of the applicant’s

constitutional rights and/or did the court fail to adequately consider the

constitutional rights of;

iv. were adequate alternatives considered;

v. is the total extinguishment of the applicant’s interest in the lands a

proportionate and reasonable measure;

vi. is it really in the public interest to acquire the lands or is it in the interest of

individuals in Fingal County Council who do not like the appearance of the

subject property in the context of their promotion of the SCQ development;

vii. was the inspector and by extension the court, knowingly or otherwise, misled

at the oral hearing about the purposes for acquiring the lands;

viii. is it really of critical public importance to acquire the lands in the context of

the specific objectives of the CPO when each of those objectives can be

achieved without the acquisition of the lands;

ix. lack of consideration of alternatives – clear direction was given by Mr

Thornton in his recommendation to the board that Fingal County Council

could pursue the acquisition of part of the site and that there would be merit

in this; the council did not take this direction or act upon it;

x. did An Bord Pleanála adequately assess the five test criteria in arriving at

their decision to confirm the CPO; and

xi. did An Bord Pleanála confirm the CPO based on an overly narrow focus on

the tiny portion of the SCQ site which includes the lands?

(iv) Alleged material contravention:

i. did the board err in failing to consider if the local authority materially

contravened their own development plan; and

ii. is the local authority free to materially contravene its own development

plan?

(v) Erroneous factual justification – to say that the subject lands are the only

property not in council ownership adjoining the castle and to promote this as a

primary reason as to why it must be acquired is factually incorrect. There is a

striking comparison between the subject property and The Pound & The Attic Pub

yet the approach to these two properties by the council is very different.

90. There is also a sixth point about the erroneous reliance on views of the castle, which I will

come to later.

91. The applicant relied on the report of Mr Carberry which concludes as follows (emphasis

added):

“13.2 The subject property has been subject to two CPO's. The conclusion of the first was

to annul it and the Council were directed to proceed with their scheme without acquiring the

entire of the subject site. Clear direction was given by Mr. Thornton in his

recommendation to the Board that Fingal County Council could pursue the

acquisition of part of the site and that there would be merit in this. The Council

did not take this direction or act upon it.

13.3 The Council controlled an adjoining derelict property since 1981 and did not do

anything with it or demolish this until 2018 or 2019. This conflicts with Ms. May, the County

Architect's opinion at the Oral Hearing (para 7.5.5 of Mr. Boyle's Report) that ‘the “do

nothing” scenario was considered but rejected in view of the continuing negative impact

caused by the property on the setting of the Castle.’ This is a double standard and

particularly so in the context that the subject lands are not derelict, are in active use and

are in reasonably good condition and are reasonably well maintained.

13.4 There is no doubt in my mind that the subject lands have been actively targeted by

the Local Authority for over 20 years. I think that Council would agree that the subject lands

are desirous and they would prefer them to be included in their public realm work or

whatever development ultimately takes place on the site. However, to say that the

subject lands are the only property not in Council ownership adjoining the Castle

and to promote this as a primary reason as to why it must be acquired is factually

incorrect. There is a striking comparison between the subject property and the

Pound & The Attic Pub yet the approach to these two properties by the Council is

very different.

13.5 The Council state there are only two options, acquire the subject property

and demolish the buildings on it and replace these with public realm amenity space

or do nothing. They failed to take Mr. Thornton's direction referred to above and

try to integrate the subject site into the scheme as they have apparently done with the

Courthouse opposite. I used an example local to me in Athlone to illustrate how this could

be done. This narrow focus is a fundamental flaw in the Council's approach and I think the

acceptance of this by the Inspector was wrong.

13.6 The subject lands are zoned for Major Town Centre Uses in the Council's own

Development Plan. The effective downgrading of the subject property from such a

fundamentally important town centre zoned site to effectively amenity land is a gross

underdevelopment of a such a site which has been in commercial and residential use for

generations.

13.7 The plan for the subject lands is unclear and not well defined in the SCQ

Project. No planning has been granted so it remains to be seen if what is proposed to be

developed in terms of public realm is actually delivered or if a second cultural hub and

ancillary buildings for economic activity is ultimately developed on the subject lands if the

CPO proceeds. I note the Architectural Masterplan proposes to develop the subject

lands and erect buildings thereon.

13.8 I find that the 5 key test to prove the necessity and proportionality of acquiring the

subject property have not been met or, at the very least, the findings of the Inspector, Mr.

Boyle, are dubious and do not stand up under scrutiny. It is clear to me that the necessity

to acquire the subject property is not absolute in terms of accessibility,

connectivity and visibility and the consideration of alternatives was only focussed on (a)

demolish or (b) do nothing. The Board erred in accepting the Council's argument that there

are only two options and this blinkered, narrow focussed approach is prejudicial to the owner

of the subject lands.

13.9 I share the view of Mr. Thornton in 2004 that the Council can get on with their

enhancement works and can leave the Appellant alone and the end result will not be

detrimental to the success of the SCO Project. I can understand why the Council want to

acquire the subject lands but I cannot see the need to acquire the subject property and I

would suggest that a collaborative approach to the meaningful redevelopment of the subject

lands would be a win-win for the Council, the community and the land owner.”

92. The board submitted:

“SUBSTANCE POINTS

(i) The second CPO - The unprecedented nature of the second CPO here

This complaint is entirely fact-specific and not a point that meets the high threshold for

s.50A(7) certification. There is no impediment to Fingal County Council seeking to acquire

the lands for the purpose for which it sought here, which differs from the purpose for which

the previous CPO sought to acquire the lands. There is no basis for contending that a fresh

CPO in respect of the Applicant’s lands, based on new considerations, is precluded because

the Board refused to confirm an earlier CPO, which is the incorrect premise that underlies

this point (and indeed the Report from Mr. Carberry prepared on behalf of the Applicant

states at §3.3.3 that ‘it is accepted that there is no “immunity” from a second CPO’). The

judgment of [the trial judge] addresses the issue at §25 and §27 in a conventional and lawful

manner and/or no certifiable issue has been identified by the Applicant in relation to same.

(ii) Presumption - The Presumption of correctness of the CPO

The presumption of validity (which equates with the ‘presumption of correctness’ which is

the Applicant’s terminology) for administrative decisions is well established law (see e.g. Eco

Advocacy v An Bord Pleanála [2025] IEHC 15 at §63) and there is nothing unlawful or

erroneous in the manner in which this presumption was applied by [the trial judge], less still

is there any basis for contending that any aspect of its application meets the high threshold

for s.50A(7) certification. There is nothing exceptional in the notion that the CPO must be

regarded as correct and lawful, rather than invalid. Mere assertion that the law should be

otherwise is not a basis for leave to appeal under s.50A(7) where, as here, the law is well-

settled on the point.

(iii) Necessity / proportionality – the CPO was not necessary or proportionate for a

number of reasons:

[the trial judge] correctly identified that this was a merits judgment for the Board which

could only be struck down for irrationality, which had not been pleaded, and even if it had

been pleaded the materials before the Court made it clear that it was impossible to

characterise the Board's decision in this regard as irrational. The Board’s position is that

none of the points under this heading meet the high threshold for s.50A(7) certification.

i. There was a lack of articulated reasons for the CPO

This is an impermissible attempt to reagitate submissions in respect of a mere assertion

which was not substantiated. The complaint is not made out on the facts. As noted at §19

of the judgment of [the trial judge], the CPO itself expressed the purposes for which it was

made. At §39 of the judgment, [the trial judge] referred to the Council’s written statements

to the oral hearing (which the Applicant exhibited), which set out the Council’s rationale for

the CPO. Thus, there was a clear basis put forward by the Council justifying the CPO. The

Applicant’s disagreement with the reasons put forward by the Council is not the same as an

absence of reasons.

ii. The lack of necessity for the CPO is reflected in Mr Thornton’s report

This is a merits-based assertion which relies on an Inspector's Report prepared in respect of

a prior decision of the Board (made 20 years prior to the Impugned Decision) which was

taken in respect of an acquisition proposal at that time (Mr. Thornton was the Inspector in

that earlier CPO confirmation application, which the Board refused, wherein he concluded

that, at that time, the Council had not established a sufficient justification to acquire the

Applicant’s property). In the context of the later CPO application at issue herein, the Council

put forward a justification that was acceptable to the Board. This is not a certifiable point

of appeal.

iii. The trial judge’s erroneous rejection of the relevance of the applicant’s constitutional

rights and/or Did the Court fail to adequately consider the constitutional rights of the

Applicant?

This is an impermissible attempt to reformulate and reargue points rejected by [the trial

judge] in refusing leave (Rushe & Anor. v An Bord Pleanála [2020] IEHC 429 at §32). There

was no error in rejecting the relevance of the Applicant's constitutional rights and these

rights were adequately considered. For example, at §44 of the judgment of [the trial judge],

the Court discerned that the Applicant sought to invoke her Constitutional rights of property

but did not make out any challenge to the constitutionality of the legislation in question.

Further, Mr. Carberry’s report confirms that the constitutionality of the legislation is not

being challenged (at §3.5.1 of same). There is no suggestion that the Applicant’s

constitutional rights were not adequately considered and/or truncated. In fact, [the trial

judge] noted the importance of the constitutional right of access to the Courts for self-

represented litigants (§7) and also noted that fair compensation is essential to the

constitutionality of the compulsory purchase system as it relates to the property rights of

the citizen (§47).

iv. Were adequate alternatives considered?

This is an impermissible attempt to litigate the merits of the decision and is not a certifiable

point that meets the s.50A(7) threshold. Alternatives were considered. The Inspector and

the Board came to the conclusion that alternatives had been properly considered, including

an alternative of omitting the Applicant’s property.

v. Is the total extinguishment of the Applicant’s interest in the Lands a proportionate

and reasonable measure

This is a merits-based consideration, in circumstances where the Board has considered the

confirmation of the CPO to be an appropriate outcome, based on the information that was

put before it and having heard from the Council and the Applicant at an oral hearing. As

regards proportionality the Board was evidently satisfied that in confirming the CPO, that

the Applicant would be able to avail of compensation under the statutory code in the event

that the Council proceeded to acquire the property. This is not a certifiable point that meets

the s.50A(7) threshold.

vi. Is it really in the public interest to acquire the Lands or is it in the interest of

individuals in Fingal County Council who do not like the appearance of the subject property

in the context of their promotion of the SCQ development?

This is a merits-based disagreement with the CPO which is not a legal ground nor a certifiable

point that meets the s.50A(7) threshold. As apparent from the judgment of [the trial judge]

(at §19 and §39), the CPO set out a rationale, which was supplemented by evidence given

at the oral hearing as to why acquisition of the Applicant’s lands in order to implement the

Swords Cultural Quarter scheme was appropriate, by reference to planning, architectural

and aesthetic grounds.

vii. Was the Inspector and by extension the Court, knowingly or otherwise, mislead at

the Oral Hearing about the purposes for acquiring the Lands?

The allegation that the Inspector and/or the Board and/or the Court was misled is entirely

unsupported by evidence. The clear basis put forward by the Council for acquiring the lands,

as set out in the CPO itself the advance of the Swords Cultural Quarter scheme. This is but

a further articulation in a different form of merits-based disagreement with the CPO, which

does not give rise to any basis for challenging the Board’s decision nor any certifiable point

that meets the s.50A(7) threshold.

viii. Is it really of critical public importance to acquire the Lands in the context of the

specific objectives of the CPO when each of those objectives can be achieved without the

acquisition of the Lands?

This is in substance a merits-based question. The Board was entitled to conclude on the

evidence before it that the Council had put sufficient evidence before it to justify the

acquisition of the Applicant’s lands in order to complete the scheme. This merits-based

disagreement with the CPO does not give rise to any basis for challenging the Board’s

decision nor any certifiable point that meets the s.50A(7) threshold.

ix. Lack of consideration of alternatives - Clear direction was given by Mr. Thornton in

his recommendation to the Board that Fingal County Council could pursue the acquisition of

part of the site and that there would be merit in this. The Council did not take this direction

or act upon it.

The Inspector and the Board ultimately came to the conclusion that alternatives had been

properly considered, including an alternative of omitting the Applicant’s property. There is

no basis to the assertion that alternatives were not considered, the complaint is mere

assertion.

x. Did An Bord Pleanala adequately assess the five test criteria in arriving at their

decision to confirm the CPO?

The criteria were identified and considered by the Inspector. The application to confirm the

CPO, against the Applicant’s objection, was considered by reference to same. However, the

Statement of Grounds does not raise as a ground the suggestion that these criteria were not

considered by the Board and, accordingly, the matter is not addressed in the Judgment of

[the trial judge] The point does not arise from the judgment, is not pleaded, and cannot be

and is not a certifiable point that meets the s.50A(7) threshold.

xi. Did An Bord Pleanala confirm the CPO based on an overly narrow focus on the tiny

portion of the Swords Cultural Quarter site which includes the Lands?

This is a merits-based question. The Board was entitled to conclude that the delivery of the

scheme was best served by the inclusion of the Applicant’s lands. That conclusion can only

be challenged on grounds of irrationality, which, as the Judgment of [the trial judge] makes

clear, does not form part of the Applicant’s case. It is also entirely fact specific to this case.

As such, it cannot provide a basis for a certificate of leave to appeal being granted under

s.50A(7).

(iv) Alleged material contravention:

i. Did the Board err in failing to consider if the Local Authority materially contravened

their own Development Plan?

ii. Is the Local Authority free to materially contravene its own Development Plan?

These are points which were not raised before [the trial judge], material contravention is

not pleaded, it is not a point that arises from the judgment of [the trial judge] and is not a

certifiable point that meets the s.50A(7) threshold. A certificate application is not a re-run

of the application for leave to apply for judicial review with new unpleaded grounds.

(v) Erroneous factual justification - to say that the subject lands are the only property

not in Council ownership adjoining the Castle and to promote this as a primary reason as to

why it must be acquired is factually incorrect. There is a striking comparison between the

subject property and the Pound & The Attic Pub yet the approach to these two properties by

the Council is very different.

This is a fact specific manner and, even if correct, it is not a certifiable point that meets the

s.50A(7) threshold. As is clear from the judgment of [the trial judge], the basis for the

Council’s justification in acquiring the property is that it is ‘the only element of the curtilage

of the eastern curtain wall of Swords castle, which is not in the ownership of the council’

(§39). It was entirely a matter for the Board to decide whether to approve on the basis of

the justification put forward by the Council. The Applicant cannot challenge the Board’s

decision, less still appeal from a refusal of leave, on the basis that she thinks the Board

made the incorrect decision on the merits. Further, as noted by [the trial judge], the decision

of the Board is not challenged on irrationality grounds (§48 and §49 of the judgment).”

93. The council submitted:

“Substance points

(i) The second CPO - The unprecedented nature of the second CPO here

The Judgment at §25 addresses this issue:

‘25. Ms Heavey also alleged that in 2004, An Bord Pleanála had, in reliance on an Inspector’s

report which she extolled but did not exhibit, refused to confirm a 2003 CPO by the Council

of the same property. Nor did she exhibit the Board’s decision of 2004. She considered

herself unique, which I confess to doubting, in having been, as to the same property, the

recipient of two CPOs. Her essential points seemed to be that

• the Board was bound in the Impugned Decision by the precedent of its 2004 decision.

• the second CPO was oppressive.

• the second CPO was of a piece with – perhaps the underlying purpose of - the alleged

animus and oppressive conduct described above.’

Ms. Heavey appears to be of the view that the decision of the Board in 2004 not to confirm

a CPO of her property created something akin to a binding precedent, which prevented the

Council coming back with a fresh CPO or the Board from confirming same. The report

prepared by Mr. Carberry on behalf of the Applicant (at the Court’s request on 3 March 2025)

states at §3.3.3 that ‘it is accepted that there is no “immunity” from a second CPO’.

There is no basis for contending that a fresh CPO in respect of the Applicant’s lands, based

on new considerations, is precluded because the Board refused to confirm an earlier CPO.

This was confirmed at §27 of the Judgment:

‘27. Though Ms Heavey’s objection to the recent CPO does not cite the 2004 decision or

object that the present CPO is oppressive in that light, she exhibits with that objection a

statement dated 14 December 2022 by an estate agent, which I presume, in her favour,

was before the Board when it made its Impugned Decision. It records his presence at the

oral hearing in 2004 and asserts that the inspector in that matter “ruled” in favour of Ms

Heavey to the effect that the CPO was not necessary to the development of the towards

castle walls and grounds. Of course, this must be incorrect as an Inspector has no power to

rule anything and an experienced estate agent should be well aware of that. ..’

There is nothing in the foregoing paragraph which is unusual or surprising and certainly

nothing to give rise to a point of exceptional public importance, which would justify leave to

appeal being granted. Insofar as the Applicant continues to agitate that the Council was

legally precluded from making a second CPO, she has advanced no legal basis for this

position.

In any event, the complaint is entirely fact-specific context and, thus, cannot meet the

threshold for certification in section 50A(7).

(ii) Presumption - The Presumption of correctness of the CPO

In M.U.A. (Pakistan) v. Refugee Appeals Tribunal [2019] IEHC 739, Humphreys J explained

the basis of the presumption of validity (which equates with correctness) in the following

terms:

‘…the overall principle must be one of a presumption of validity of an executive act: see per

Finlay J., as he then was, in Re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 14th

December, 1977). If a decision can be construed in a way that renders it valid and if reasons

can be construed in a way that makes sense, that is how the court should construe them.

It would be just as much a breach of separation of powers to fail to construe reasons in a

way that renders the decision valid, assuming such interpretation to be legitimately open,

as it would be to fail to construe legislation in a way that renders it valid, assuming such an

interpretation is legitimately open.’

See also, Eco Advocacy v. An Bord Pleanála [2025] IEHC 15 at §63(vii):

‘Should not read as invalid – a decision must be read in a way that makes sense and is lawful

– it is not the case that decisions must be read in the most erroneous way possible so that

applicants can get their order of certiorari (e.g. Rostas v. DPP [2021] IEHC 60 (Unreported,

High Court, 9th February 2021) at §50; St. Margaret’s Recycling v. An Bord Pleanála [2024]

IEHC 94 (Unreported, High Court, Phelan J., 20th February 2024) at §57). Related to that

is that a decision should be read in a way that renders it valid rather than invalid: see Mulloy

v. An Bord Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12th March 2024)

at §178 (citing O’Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1st

November 2023); M.R. (Bangladesh) v. The International Protection Appeals Tribunal & Anor

[2020] IEHC 41 (Unreported, High Court, 29th January 2029) at §7; Save Roscam Peninsula

CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335 (Unreported, High Court, 7th June 2024)

at §64); a decision should be read “not solely from an applicant’s point of view (an impossible

standard), but from the starting point of it being valid rather than invalid where possible.

One has to stand back and ask what the decision is fundamentally saying (O’Donnell & Ors

v. An Bord Pleanála [2023] IEHC 381 [Unreported, High Court, 1st November 2023] (para.

54)” in St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High

Court, Phelan J., 20th February 2024) at §57; thus for example “unhelpful” statements

should not be read as inconsistent with statutory factors if the decision can be read as valid

– E.M. v. Minister for Justice and Equality [2024] IESC 3 (Unreported, Supreme Court, 21st

February 2024) per Dunne J.’

This also resonates with the fact that the onus of proof remains on the Applicant at all times,

as noted in Eco Advocacy at §63 (vi):

‘Onus on applicant – the onus of proof remains on the applicant at all times: per Denham J.

in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R.

701 at p. 743; Cork County Council v. Minister for Housing, Local Government and Heritage

(No. 1) [2021] IEHC 683 (Unreported, High Court, 5th November 2021) at §57; Monkstown

Road Residents Association v. An Bord Pleanála [2022] IEHC 318 (Unreported, High Court,

31st May 2022) at para. 96 per Holland J.; Sherwin v. An Bord Pleanála [2023] IEHC 26,

[2023] 1 JIC 2701 (Unreported, High Court, 27th January 2023) at para. 85; the onus

remains on an applicant even when in a constitutional challenge it is proved that

constitutional rights have been interfered with – O’Doherty and Waters v. The Minister for

Health [2022] IESC 32, [2023] 2 I.R. 488, [2022] 1 I.L.R.M. 421 per O’Donnell C.J. at para.

116.’

Thus, there is nothing particularly unusual with the notion that the CPO must be regarded

as correct and lawful, rather than invalid. Mere assertion that the law should be otherwise

is not a basis for securing leave to appeal under s.50A(7), particularly where the law is well-

settled on this point.

(iii) Necessity / proportionality – the CPO was not necessary or proportionate for a

number of reasons:

Note: In addressing the following points, the Notice Party’s position is that none of the items

raised under this heading fall within the scope of section 50A(7) so as to justify a certificate

of leave to appeal being granted.

i. There was a lack of articulated reasons for the CPO

Notice Party: This is not borne out by the facts. As noted at §19 of the Judgment, the CPO

itself expressed the purposes for which it was made. Furthermore, at §39 of the Judgment,

the Court referred to the Council’s written statements to the oral hearing (which the

Applicant exhibited), which set out the Council’s rationale for the CPO. Thus, there was a

clear basis put forward by the Council justifying the CPO.

Judicial review is not an appeal on the merits and the Applicant cannot seek to impugn the

Board’s decision (or the CPO) on the basis that she disagrees with the reasons put forward

by the Council.

ii. The lack of necessity for the CPO is reflected in Mr Thornton’s report

Notice Party: Mr. Thornton was the Board inspector in the earlier CPO confirmation

application, which the Board refused. His decision that, at that time, the Council had not

established a sufficient justification to acquire the Applicant’s property. However, in the

context of the later application, the Council clearly put forward a justification that was

acceptable to the Board, noting that a test of necessity is not required before the Board can

confirm a CPO.

iii. The trial judge’s erroneous rejection of the relevance of the Applicant’s constitutional

rights and/or did the Court fail to adequately consider the constitutional rights of the

Applicant?

Notice Party: The trial judge did not reject the relevance of the Applicant’s constitutional

rights. Rather, the Judgment makes clear the trial judge’s understanding that the Applicant

was not seeking to challenge the constitutionality of the underlying CPO legislation:

44. On my inquiry, I discerned that Ms Heavey, in invoking her absolute and unassailable

title, does not challenge the constitutionality of the compulsory purchase legislation. Rather

she challenged its application in the circumstances of her case.

Mr. Carberry’s report confirms the position that the constitutionality of the legislation is not

being challenged: §3.5.1.

Beyond that, there is no suggestion that the Applicant’s constitutional rights were not

adequately considered and/or truncated. Indeed, the trial judge noted the importance of

the constitutional right of access to the Courts for self-represented litigants.

In the context of the CPO process, he noted the constitutional protection available to the

Applicant in the form of an entitlement to compensation before the Property Arbitrator

arising from the confirmation of the CPO and in the event that the acquisition proceeds.

iv. Were adequate alternatives considered?

Notice Party: The question of alternatives was addressed at the oral hearing and the

Inspector considered that the scheme could be delivered without the lands, but that same

would represent a lost opportunity. The Inspector and the Board ultimately came to the

conclusion that alternatives had been properly considered, including an alternative of

omitting the Applicant’s property, confirms that this key consideration was addressed by the

Board.

v. Is the total extinguishment of the Applicant’s interest in the Lands a proportionate

and reasonable measure

Notice Party: This is a merits-based consideration, in circumstances where the Board has

considered the confirmation of the CPO to be an appropriate outcome, based on the

information that was put before it and having heard from the Council and the Applicant at

an oral hearing. The fact that the Court might come to a different conclusion is not a basis

for impugning the Board’s decision.

Furthermore, insofar as proportionality is concerned, the Board was clearly satisfied that in

confirming the CPO, that the Applicant would be able to avail of compensation under the

statutory code in the event that the Council proceeded to acquire the property.

vi. Is it really in the public interest to acquire the Lands or is it in the interest of

individuals in Fingal County Council who do not like the appearance of the subject property

in the context of their promotion of the SCQ development?

Notice Party: The premise of this question is of concern to the Council, as it suggests an

improper motive on the part of Council officials. However, as recounted in the Judgment at

§§19 and 39, the CPO set out a rationale, which was supplemented by evidence given at the

oral hearing as to why acquisition of the Applicant’s lands in order to implement the Swords

Cultural Quarter scheme was appropriate, by reference to planning, architectural and

aesthetic grounds. The fact that the Applicant may feel differently about the scheme and its

merits is not a basis for asserting a conspiracy on the part of Council officials in promoting

the scheme and/or considering the Applicant’s lands to be a necessary and integral part of

the delivery of same.

vii. Was the Inspector and by extension the Court, knowingly or otherwise, mislead at

the Oral Hearing about the purposes for acquiring the Lands?

Notice Party: The clear basis put forward by the Council for acquiring the lands, as set out

in the CPO itself and the written and oral evidence at the oral hearing is the advance of the

Swords Cultural Quarter scheme.

Even the Applicant does not appear to challenge that. Rather, the position seems to be that

the scheme should proceed without her lands. This is an opinion as to the merits of the

proposal and does not give rise to any basis for challenging the Board’s decision, much less

seeking to appeal the Court’s decision to refuse leave.

viii. Is it really of critical public importance to acquire the Lands in the context of the

specific objectives of the CPO when each of those objectives can be achieved without the

acquisition of the Lands?

Notice Party: This is really a merits-based question; the Board was entitled to conclude on

the evidence before it that the Council had put sufficient evidence before it to justify the

acquisition of the Applicant’s lands in order to complete the scheme. The fact that the

scheme might be implemented without the lands is not a sufficient basis for impugning the

Board’s decision or the planning judgment which they brought to their decision.

ix. Lack of consideration of alternatives - Clear direction was given by Mr. Thornton in

his recommendation to the Board that Fingal County Council could pursue the acquisition of

part of the site and that there would be merit in this. The Council did not take this direction

or act upon it.

Notice Party: The question of alternatives was addressed at the oral hearing and the

Inspector considered that the scheme could be delivered without the lands, but that same

would represent a lost opportunity. The Inspector and the Board ultimately came to the

conclusion that alternatives had been properly considered, including an alternative of

omitting the Applicant’s property, confirms that this key consideration was addressed by the

Board.

x. Did An Bord Pleanala adequately assess the five test criteria in arriving at their

decision to confirm the CPO?

Notice Party: The following criteria were specifically identified by the Inspector and used as

a basis for ‘stress-testing’ the application to confirm the CPO:

(i) There is a community need that is to be met by the acquisition of the lands in

question.

(ii) The project proposed and associated acquisition of lands is suitable to meet the

community need.

(iii) The works to be carried out should accord with, or at least not be in material

contravention of, the policy and objectives contained in the statutory Development Plan

relating to the area.

(iv) Any alternatives proposed to meet the community need have been considered but

are not demonstrably preferable.

(v) The extent of land-take should have due regard to the issue of proportionality.

These were identified by the Inspector. The application to confirm the CPO, against the

Applicant’s objection, was considered by reference to same. The Statement of Grounds does

not raise as a ground the suggestion that these criteria were not considered by the Board

and, accordingly, the matter is not addressed in the Judgment. As such, the query does not

arise from the decision of the Court and is not something to consider in determining whether

leave to appeal should be granted.

xi. Did An Bord Pleanala confirm the CPO based on an overly narrow focus on the tiny

portion of the Swords Cultural Quarter site which includes the Lands?

Notice Party: This is a merits-based query. The Board was entitled to conclude that the

delivery of the scheme was best served by the inclusion of the Applicant’s lands. That

conclusion can only be challenged on grounds of irrationality, which, as the Judgment makes

clear, does not form part of the Applicant’s case. As such, it cannot provide a basis for a

certificate of leave to appeal being granted.

(iv) Alleged material contravention:

i. Did the Board err in failing to consider if the Local Authority materially contravened

their own Development Plan?

ii. Is the Local Authority free to materially contravene its own Development Plan?

Notice Party: The issue of material contravention is not advanced by the Applicant as one of

her ‘essential complaints’, i.e., grounds for impugning the Board’s decision.

It is not an issue which can be gleaned as being within the scope of the grounds raised in

the Statement of Grounds. The case-law on certification makes clear that the point must

fall within the pleadings: see also Concerned Residents of Treascon and Clondoolusk v. An

Bord Pleanála & Ors. [2024] IESC 28, [2024] 7 JIC 0402 (Unreported, Supreme Court, 4th

July 2024) per Murray J. at paras. 39 et seq.

A review of the DAR confirms that the issue of material contravention was never raised in

the course of the hearing of the ex parte leave application.

It is clear from section 50A(7) that the point of law must arise from the Court’s ‘decision’.

If the matter was never raised as a ground of challenge to the Board’s decision by the

Applicant and, accordingly, not dealt with in the trial judge’s decision, it cannot be capable

of certification under section 50A(7).

Insofar as the Applicant now seeks raise an issue concerning whether the underlying scheme

is a material contravention of the Development Plan, she cannot do so, as this is not an

appeal on the merits or an opportunity for her to rerun a better case than she originally

sought to make when she framed her proceedings.

(v) Erroneous factual justification - to say that the subject lands are the only property

not in Council ownership adjoining the Castle and to promote this as a primary reason as to

why it must be acquired is factually incorrect. There is a striking comparison between the

subject property and the Pound & The Attic Pub yet the approach to these two properties by

the Council is very different.

Notice Party’s Response:

This is a fact-specific matter and, even if correct, does not give rise to a point of law of

exceptional public importance. Furthermore, as is clear from the Judgment, the basis for

the Council’s justification in acquiring the property is that it is “the only element of the

curtilage of the eastern curtain wall of Swords castle, which is not in the ownership of the

council” (§39). This is not to say that there are not other properties in private ownership

within the curtilage of Swords Castle, which were not considered necessary to acquire in

order to implement the Swords Cultural Quarter scheme.

Even if the position is incorrect and there are other properties not in the ownership if the

Council within the curtilage of the eastern curtain wall of the castle, the error would not, of

itself, raise a point of exceptional public importance, in circumstances where the Council put

forward a coherent justification for the acquisition of the Applicant’s lands in the context of

the scheme. It was entirely a matter for the Board to decide whether to approve on the

basis of the justification put forward by the Council. The Applicant cannot challenge the

Board’s decision, must less appeal from a refusal of leave, on the basis that she thinks the

Board made the wrong decision on the merits. As noted by the trial judge, the decision of

the Board is not challenged on irrationality grounds (§§48 and 49).”

94. The issues of the second CPO and of the necessity/proportionality of the decision don’t raise

any major question of law. There is no legal principle that would prevent a second CPO in general

or here in particular. And necessity or proportionality is for the decision-taker to assess subject to

review – but no substantial ground to impugn that exercise and backed by appropriate admissible

evidence has been identified either at all or in any event of such a nature as to warrant appeal.

95. The presumption of correctness of administrative law decisions is settled law. The applicant

confuses two separate concepts in this regard. Parity of esteem between all litigants – everyone is

equal before the law – doesn’t nullify the onus of proof on an applicant.

96. Material contravention was not pleaded as an issue but even if it had been raised, a conflict

between the plan and the CPO has not been demonstrated in any sense that raises a certifiable

question.

97. That leaves two substance questions. We can start with the failure to acquire another

adjoining property.

The failure to acquire another adjoining property

98. While the applicant says that the council proceeded on the basis that her property was the

only property adjoining the castle not in public ownership, that was phrased in some of the material

in terms of this being the only such property on the eastern side.

99. The inspector noted at 7.2.5:

“During the Hearing, Ms. Fionnuala May (County Architect) made a submission stating that

the properties at 17 and 17A North Street are unique in that they represent the last

remaining element of the curtilage forming the eastern curtain wall of Swords Castle which

is not owned by FCC. Ms. May stated this has meant that this section of the national

monument has not been able to be ‘opened up’ or revealed to a clear public view from along

North Street.”

100. The applicant refers to The Pound & The Attic pub on Bridge St, which is to the south of the

castle.

101. That said, another part of the inspector’s report refers to the property as the only oasis of

land not owned by the council, which is a more questionable statement, especially if “oasis” is

artificially intended to mean only oases the acquisition of which is intended, rather than oases

adjoining the castle:

“7.6.4. However, whilst I accept that there would be certain negative, but unavoidable,

impacts caused by the CPO on the affected landowner I consider its overall impact

proportionate to the objective being pursued. I am satisfied that the extent of the proposed

amount of land-take is acceptable and does not exceed the requirement of the scheme.

Furthermore, the Local Authority has demonstrated as part of their submission to the Board

that they have purchased sites from other landowners on a voluntary basis and that this

been in the interests of achieving the overall aims and objectives of the wider project. The

subject site could therefore be described as the last remaining ‘oasis’ of land not controlled

by the Council and that this prevents the full implementation of the Swords Cultural Quarter

project.”

102. This is phrased in general terms which imply proximity to the monument and not merely to

its eastern flank.

103. The challenge to the validity of this reasoning would be, I think, a plausible ground to impugn

the order and one capable of sustaining a certifiable point. That is subject to the first question,

because the extent to which this point is pleaded is obscure at best (so the pleadings appear to

require amendment if the applicant seeks that and if the appellate courts see fit to do that) and of

course we have the problem of the court not having initially been invited to take note of the

inspector’s report.

104. The question is therefore:

Subject to the answer to the first question, does significant reliance by the

inspector and board, in confirming a CPO, on the status of a property being

acquired as being the sole oasis of land (inferentially being adjacent to a

monument) not controlled by the acquiring authority, give rise to a substantial

ground to seek judicial review of the CPO where another property adjoining the

monument is also not so controlled?

105. Obviously this rephrases the applicant’s wording somewhat but as noted above that isn’t an

impermissible exercise, as much caselaw on leave to appeal demonstrates.

The board’s reliance on views of the castle in upholding the CPO

106. That finally leaves the question of the board’s reliance on views of the castle, which the

applicant pleads was not dependent on the CPO. This was not included in my list of substance points

but was raised at the hearing and is considered below.

107. The issue is that the inspector’s report included a focus on opening up views of the castle

from North Street due to demolishing the applicant’s property, but failed to qualify such comments

by express reference to the fact that the masterplan involved erection of new buildings on the site

of the demolished applicant’s property (see section 3.7 of the masterplan).

108. The inspector said:

“7.2.2. There would be other benefits derived from the CPO, including the unveiling of the

Swords Castle eastern curtain walls and improved access to the existing town park which is

adjacent nos. 17 and 17A North Street. However, in my view, the main community need

which would be met by the CPO is the full delivery and implementation of public realm works

in this part of Swords Town Centre.”

109. The report went on:

“7.2.5. During the Hearing, Ms. Fionnuala May (County Architect) made a submission stating

that the properties at 17 and 17A North Street are unique in that they represent the last

remaining element of the curtilage forming the eastern curtain wall of Swords Castle which

is not owned by FCC. Ms. May stated this has meant that this section of the national

monument has not been able to be ‘opened up’ or revealed to a clear public view from along

North Street. The acquisition of the site would facilitate an uninterrupted visual link into the

Town Park and connect it with the centre of the town, thus, making it more visible and

accessible. It would also provide for a better appreciation of the Castle and enhance visitor

appreciation of it. This would support the development of Swords Castle as a major amenity

and tourist attraction, which, I note is a specified purpose of the CPO, namely ‘the

development of Swords Castle as a major amenity, tourist attraction and cultural hub for

Swords’.”

110. And:

“7.3.3. I note that the Council has been successful in acquiring other properties in the area

on a voluntary basis and that the CPO relates to the last remaining parcel of land required

to deliver the full range of public realm works envisaged for this part of North Street. There

are no other sites required to allow the eastern Castle Walls to be opened-up and exposed

to uninterrupted views to the public.”

111. And:

“7.4.4. The Architectural Heritage Protection Guidelines for Planning Authorities (2011) seek

to enhance built heritage and promote care and maintenance of protected structures. In

this regard, I note that the proposed CPO, and related Swords public realm strategy, seek

to reveal the original eastern curtain wall of the Castle, which would enhance the setting and

curtilage of the castle as an important national monument and protected structure. The

acquisition of nos. 17 and 17A North Street would help to achieve this objective, in my view,

by making it possible to walk around the greater part of the perimeter castle walls on its

eastern side and to open-up views towards the monument both along North Street and

facing northwards from Main Street.”

112. And:

“7.4.8. Importantly, I note that the subject site is the only property situated along the

eastern curtain wall of the Castle which is not owned by Fingal County Council. Therefore,

this side of the Protected Structure has not been able to be revealed to clear, unobstructed

public views, either within the Town Park or from along the local street network. I consider

that were the buildings at nos. 17 and 17A North Street removed, this would lead to a much-

enhanced appreciation of this historic building both during the day and at night and enable

significant public realm upgrades to be achieved. The removal of a concrete wall, which at

present extends deep into the grounds of the park and abuts the Castle Walls, would also

be able to be removed. In my opinion, this would further help to facilitate best practice in

relation to the management, care and maintenance of Protected Structures, which is in

accordance with CDP Objectives HCAO58 and HCAO28.”

113. The inspector goes on:

“7.5.5. The County Architect stated as part of their Witness Statement at the OH that the

‘do nothing’ scenario was considered but rejected in view of the continuing negative impact

caused by the property on the setting of the Castle. The point was made that the new

Swords Cultural Centre would – unless the proposed acquisition were confirmed – continue

to have its view of a significant portion of the (eastern) Castle walls obscured by the existing

buildings on the site. The CPO would therefore be able to facilitate the enhancement of the

historic site by ‘protecting, conserving and enhancing the historic site and views of Swords

castle, a National Monument, and its Inspector’s Report Page 25 of 45 ABP-315077-22

environs’, which is, I note, is a specific purpose referenced within the CPO application

documentation under paragraph (a).”

114. The council’s evidence was recorded as including:

“Fionnuala May

• Ms. May confirmed as part of her oral submission that she has been involved with the

Swords Cultural Quarter Project since its inception in 2014. In her role as County Architect,

she has provided ongoing architectural and conservation services and advice to FCC and its

CEO.

• Ms. May proceeded to set out the architectural and design context underpinning the Council

position and a rationale for development proposal associated with the SCQP. This included

the proposed demolition of 17 and 17A North Street, justification for the formal acquisition

of the entire property (having regard to community need), and how the consideration of

alternatives has been addressed as part of the overall CPO application process.

• Ms. May stated that the Part 8 approval demonstrates that a significant cultural centre for

the community can be developed with unfettered views towards Swords Castle (national

monument) from along the street.

• She also stated that the site is unique within the cultural quarter area in that no other site

can offer the full unveiling of the eastern curtain wall to North Street and that significant

community benefit could be derived from this in terms of an enhanced public realm, civic

space and improved linkages that could accrued as a result.

• Ms. May concluded that it is on this basis FCC can justify the acquisition of the full

property.”

115. The inspector noted the adoption of the masterplan:

“4.1.3. Swords Castle Cultural Quarter Architectural Masterplan The ‘Swords Castle Cultural

Quarter Architectural Masterplan (‘Masterplan’)’ was prepared in 2015. It seeks to energise

the layout potential of the existing town centre – focusing on the castle environs as a new

cultural hub. With regard to Swords Castle and its environs, the Masterplan states Main

Street is of poor quality in terms of its finishes, pedestrian spaces, landscaping, materials

and interface with its buildings. The proposed public realm works would assist in improving

the quality of Main Street through proposing a Main Street Plaza at the front of Fingal County

Hall. As part of the design, Main Street would be re-aligned, and the pedestrian zone

widened to allowed for increased pedestrian activities. The proposed public realm upgrade

works would create pedestrian usable spaces through design, landscaping and the use of

street furniture. The Planning Authority envisages that the Main Street Plaza would create

an attractive focal point within Swords Town Centre where North Street, Seatown Road,

Main Street and Bridge Street would meet. In addition to this, the proposed Swords Civic

and Cultural Plaza is intended to form a fulcrum of intersecting pedestrian circulation to

provide a better defined area for various community events.”

116. The report appears to have accepted the continued relevance of the masterplan in the

context of the proposed acquisition:

“7.2.7. In my opinion, the main community benefit which would be delivered through

permitting the acquisition of these lands, and subsequent demolition of the in-situ

structures, would be the potential full realisation of the Swords Cultural Quarter project.

This is a scheme which has been in train for a significant amount of time and has been the

focus of several strategic planning documents stretching back over an extended period. I

note that the Swords Castle Architectural Masterplan was released back in 2015

(‘Masterplan’). One of the main aims of the Masterplan was to revitalise and rejuvenate the

northern part of Swords town centre and that a crucial way in which to achieve this was by

recognising and focusing on the Castle and its parkland environs, as an identifiable

landmark, and one which would have the ability to anchor a new cultural hub for Swords. I

would concur with the Local Authority that until recently Swords Castle – despite its historical

importance and central location in the town centre – has not capitalised on the opportunity

it presents in terms of enabling heritage-led urban regeneration and acting as a catalyst for

urban renewal.

7.2.8. Having regard to this, I consider the submission made by the County Architect very

relevant in the assessment of this CPO application, particularly where it states that the

Swords Masterplan has sought to take advantage of existing resources of the lands around

the Castle to create outstanding and sustainable civic and cultural spaces, but that this has

not happened to date. Although the Masterplan is accepted as non-statutory, I note that it

subsequently fed into a comprehensive design brief being worked up. There are also several

related planning policies and objectives set out in the Fingal Development Plan 2023-2029,

which is the relevant statutory document governing the area. [See Section 4.1.1 of my

report above includes the main relevant policies and objectives from the Fingal CDP.]

…

7.2.10. During my physical inspection of the site, and its surrounding area (6th March 2023

and 6th April 2024), it was clear that certain elements of the Masterplan have come to

fruition, that physical elements of the Castle have been recently restored, and there is a

concerted focus by the Council to improve the public realm in accordance with the general

aims and objectives of the SCQ Project. The Witness Statement by the County Architect

provides affirmation of this, in my opinion, and notes that the creation of a cultural quarter

in this part of the town has been a longstanding ambition with significant investment being

made since 2014 through property acquisitions, enabling works and consultant

appointments. I consider that the delivery of a useable, valuable and community-focussed

civic plaza would be aided through the acquisition of the subject lands, and that the space

would allow for better integration between the Castle, Town Park and town centre as a

result.”

117. However, if one compares the map on p. 37 of the masterplan (link cited above and referred

to in the inspector’s report) with a map of the location of the applicant’s property, it certainly appears

as if the plan is to erect new buildings – apparently larger and taller buildings – on the site of the

acquired property. Thus one has to ask how it was correct to lay so much stress on the necessity

for acquisition for the purpose of opening up the view of the castle.

118. Admittedly the inspector said:

“7.5.7. I have reviewed the deposit maps and relevant Part 8 application information from

previous, including the Proposed Landscape Plan (drwg. no. SCQ-ZZ-L00-DRDFLA-LA-

02001). I consider that a proportion of the wider proposed public realm improvements and

related works surrounding the Castle could still be delivered independent of acquiring the

site. This includes works south of the Castle along Main Street, towards the west on Bridge

Street, and a portion of works at North Street. However, the exclusion of the site would

significantly undermine the design arrangement and unification of the public realm at this

important confluence between where the Castle, town centre and entrance to the park meet.

It is clear to me that the removal of the site from the proposed redevelopment and public

realm improvement works would be a significant ‘lost opportunity’ in terms of facilitating the

envisaged improved linkages, connectivity and legibility – both physical and visual – in this

part of the urban fabric and would lead to a lack of cohesion, integration and consistency

between the three aforementioned elements (i.e., the castle, town and park).”

119. Even acknowledging that the main focus of the inspector’s recommendation was on the basis

of the public realm works, there appear to be grounds for arguing that there was significant reliance

on the views of the castle issue, taking the report as a whole.

120. The applicant specifically pleads (text lightly corrected and converted to sentence case):

“There are no reasonable ... explanations ... being put forth at all [for the impugned order.

The explanations] here are vague[,] unsubstantiated[,] not particularised [and] not

objectively measured[.] [The] issues of better connectivity - views from so called "plazas"

of a small bit of the outside of a small stretch of grey stone old - once Norman [-] wall [a]nd

greater accessibility to old walls and parks land and the likes ... can happen without

bothering [the applicant] ... at all here [so the explanation for the impugned order s]imply

makes no common sense ...”

121. While this was a pleaded point, and doesn’t I think require amendment of pleadings to make

it viable, we still have the problem that the applicant didn’t put the inspector’s report before the

court – hence this is subject to the first question.

122. In all of the circumstances, the point of law that arises, is:

Subject to the answer to the first question, does significant reliance by the

inspector and board, in confirming a CPO, on the benefits of the overall project of

acquisition and works of which the CPO forms part including in particular enhanced

public views of a monument, give rise to a substantial ground to seek judicial

review of the CPO where some of the benefits and particularly the enhanced views

concerned are not dependent on the confirmation of the CPO?

123. In my view the two substance questions meet the criteria for certification if those criteria

are to be construed in a flexible way having regard to the first question which is a necessarily

ancillary one and on that basis should also be certified (there are previous instances of questions

being certified as ancillary when they did not meet the test in isolation). If the answer to the first

question is such that the criteria should not be applied flexibly then no harm is done ultimately

because the applicant won’t be able to pursue the substance points.

Stay pending appeal

124. The logic for the stay therefore continues having regard to the foregoing and in order to

ensure the orderly processing of the appeal, but subject of course to further order of the appellate

courts.

Summary

125. In outline summary, without taking from the more specific terms of this judgment:

(i) The objection to a lack of an appearance was unfounded because an appearance is

not required in judicial review at present without an order to that effect.

(ii) The criteria for grant of leave and leave to appeal in the context of refusal of an ex

parte application raise a certifiable question as necessarily ancillary to the substance

questions, on the basis set out in the judgment.

(iii) The trial judge’s handling of the hearing was well within his zone of discretion in

terms of trial management. No complaint of unfairness or other irregularity has

been shown to have arguable merit, still less to a level that would permit leave to

appeal.

(iv) The objections as to the substance of the board’s decision largely do not reach the

level of being points of exceptional public importance, other than as below.

(v) Subject to the procedural question, the “oasis” point and the “views of the castle”

issue warrant certification in all of the circumstances.

(vi) The continuation of the stay is appropriate having regard to the foregoing and to

ensure that appellate matters can be processed in an orderly way.

Order

126. For the foregoing reasons, it is ordered that:

(i) the application for leave to appeal be granted;

(ii) the questions identified in the judgment be certified for that purpose;

(iii) the costs of the leave to appeal application be costs in that appeal;

(iv) the stay on the impugned order continue until the final determination of the

proceedings or further order of the Court of Appeal; and

(v) the foregoing order be perfected forthwith with no further listing in the High Court

unless and until developments at appellate level render a re-listing appropriate.