High Court refuses certificate of appeal right as point lacks exceptional public importance and further appeal would cause undue delay.

THE HIGH COURT PLANNING AND ENVIRONMENT

[2025] IEHC 701 RECORD NO: 2024/1278 JR

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED) AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

Between:

JOHN MOREHART Applicant -and-

AN COIMISIÚN PLEANÁLA Respondent -and-

ABBOTT IRELAND Notice Party

JUDGMENT of Ms. Justice Emily Farrell delivered the 8th December 2025

Introduction

1. The Applicant has challenged the refusal of An Bord Pleanála to grant him leave to appeal planning permission granted to the Notice Party despite not having participated in the process before Monaghan County Council. An Bord Pleanála has since been replaced by An Comisiún Pleanála (‘the Commission’) and, in accordance with section 495(3) of the Planning and Development Act, 2024, all references herein are to the Commission.

2. It was not in dispute that if the Commission found the Applicant had shown that the conditions in section 37(6)(d), Planning and Development Act, 2000 were satisfied, it was required to grant leave to appeal. Otherwise, it is agreed, the Commission had no discretion to grant such leave to appeal. It was also agreed that the Applicant has an interest in the lands adjoining the site which was the subject of the planning application. The Commission found that section 37(6)(d)(i) was not satisfied i.e. that the Applicant had not shown that “the development in respect of which a decision to grant permission has been made will differ materially from the development as set out in the application for permission by reason of conditions imposed by the planning authority to which the grant is subject”. No finding was made in respect of sub-paragraph (ii).

3. These proceedings relate to the third decision of the Commission on the Applicant’s application for leave to appeal the decision of Monaghan County Council to grant permission to the Notice Party, subject to conditions. The first and second decisions were the subject of previous judicial review proceedings (Record Nos. 2023/352 JR and 2024/307 JR) and it was conceded by the Respondent in each case that the decision to refuse the Applicant leave to appeal was not validly made. The High Court was satisfied that it was appropriate to grant certiorari in both cases, and orders were made by Hyland and Holland JJ. on 5th December 2023 and 29th July 2024 respectively.

4. The validity of the third decision was challenged by the Applicant in the instant case, and the application for judicial review was opposed by both the Commission and the Notice Party. The Applicant failed in his challenge to the substance of the findings made by the Commission in relation to section 37(6)(d)(ii) and has not sought a certificate for leave to appeal in respect of those aspects of the principal judgment. However, I found as a fact that the Inspector was directed by the Director of Planning, a person authorised to make such a direction under section 146(1) of the Planning and Development Act, 2000, to prepare a report or memorandum on the application for the Board. I also found that this occurred between 5th July 2024, the date on which the Applicant was notified of the concession that the (second) refusal was invalid and before that decision was quashed by the High Court and the application remitted to the Commission. The Inspector’s report and recommendation was dated 31st July 2024, two days after the Order of remittal had been made. I rejected the contention that the report and recommendation dated 31st July 2024 had been made by the Inspector prior to the remittal of the application to the Commission, although I accepted as a matter of probability that the Inspector had commenced working on the file before the remittal order was made.

5. In the principal judgment I found that there was no power to assign an Inspector to prepare a report under section 146 between 9th January 2024, on which date the second impugned

decision had been made and the making of the remittal order on 29th July 2024. The assignment of the Inspector had occurred before the High Court had quashed the previous

decision, although it was done after the Commission had conceded that it was invalid. I decided that, in the exercise of the Court’s discretion, it was appropriate to refuse rather than grant certiorari of the decision to refuse leave to appeal made the 21st August 2024, and that the grant of certiorari solely by reason of the date on which the Inspector was assigned to make a report and recommendation under section 146 would be disproportionate in all the circumstances. The Applicant failed on all other grounds. The challenge to the substance of the Memorandum and the Commission’s reliance thereon has not succeeded.

6. The Applicant asks this Court to certify the following question – he submits that this is a point of law of exceptional public importance which arises from the principal judgment and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal:

“What steps (administrative or other) can An Bord Pleanala (as it then was) take where this Honourable Court has determined that, at the time the Applicants application for leave to appeal was assigned to the Inspector and in respect of which the Inspector commenced consideration of same, the Board was in fact functus officio in circumstances where the Order had not been made nor had the terms of the Order been agreed and therefore the Board was deprived of jurisdiction to take any step administrative or other in respect of the determination of the application in accordance with law ?”

Criteria for the grant of a certificate

7. The parties do not disagree in relation to the test which ought to be applied in an application for a certificate of leave to appeal under section 50A(7) of the Planning and Development Act, 2000. The requirements that the decision of the High Court 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 are cumulative.

8. The judgment of Holland J. in Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9 was relied on by the Applicant, the Commission and the Notice Party. I have also considered the applicable principles in Leech & Anor v. An Bord Pleanála [2025] IEHC

157 and GOCE Limited v. An Bord Pleanála [2025] IEHC 43. At para. 9 of Monkstown Road, Holland J. held:

“• the High Court's decision in most cases is to be final and not appealable — such that the jurisdiction to certify for an appeal should be exercised sparingly.

• the appeal, to be certified, must invoke a point of law of exceptional public importance.

• for the appeal to be certified, it must be desirable in the public interest that the appeal be taken.”

9. The Applicant accepts that, as Holland J. held in Monkstown Road, “The point of law should be actually determinative of the proceedings, not one which, if answered differently, would leave the results of the case unchanged. The same point can be phrased in terms that a point of law is moot if it raises no dispute the resolution of which in the posited appeal is capable of leading to the reversal or variation of the order made by the High Court.” Similar findings were made by Humphreys J. in Massey v. An Bord Pleanála (No. 4) [2025] IEHC 309, wherein he stated that “generally it should not be one which, if answered in a sense favourable to the would-be appellant, would leave the result unchanged”, referring to S.A.

v. Minister for Justice and Equality (No. 2) [2016] IEHC 646. The Respondent and Notice Party submit that the question which the Applicant seeks to have certified is not such a point as relief was refused in the exercise of the Court’s discretion.

10. The Commission submits that the point which the Applicants seeks to have certified invites the appellate court to “write an essay and/or to provide a roving advisory opinion/response on what the steps or actions the Commission can take in the context of a remitted application”. In S.A. v. Minister for Justice and Equality (No. 2), Massey (No. 4) and Stapleton v. An Bord Pleanála [2025] IEHC 178 it was held that the question or point certified should not be an invitation to an appellate court to write an essay on a particular topic or engage in a discursive, roving response. A question which invites that is not a suitable point of law for certification: Monkstown Road.

11. The Applicant contends that the principal judgment has led to uncertainty in the law and particularly “in respect of what steps, administrative or otherwise the Board (in this case)

can take while functus officio.”

12. It is clear from the authorities, including Monkstown Road and Massey (No. 4), that the judgment must be read correctly – the question must accurately reflect the judgment, and ‘uncertainty’ cannot be ‘imputed’ to the law simply by raising a question as to the point of law. Raising an argument on the proposed point of law which the Court has rejected does not mean that the law is uncertain. The uncertainty must arise over and above this, for example, in the daily operation of the law in question. (Monkstown Road (para. 8(o)).

13. The principal judgment turned on the exercise of the Court’s discretion and not a finding that the Commission was entitled to, or can, take any particular steps, whether administrative or otherwise, while it is functus officio.

14. No finding was made to the effect that the Act permitted or authorised the Commission, or an authorised employee thereof, to direct that a report or memorandum be prepared under section 146(1) at a time when the Commission was functus officio. That is the only step which I have found was carried out otherwise than in accordance with the statutory scheme.

15. I rejected the submission of the Commission that it was entitled to assign an Inspector in anticipation of the High Court making orders quashing a decision which is concerned to be invalid and remitting the application for determination. At para. 79 I stated, “I am not persuaded that the power to assign an Inspector to prepare a report existed before the remittal order was made.” At para. 75, I found that the agreement of the parties that the prior decision should be quashed did not have the effect of preventing the Commission from being functus officio, nor did it empower it to take steps which have legal effect in relation to the application. The only actions referred to in the judgment as ones which could be undertaken while the Commission was functus officio were that proceedings can be defended, and a file could be read or moved from one department or section to another in preparation for an anticipated remittal. The submission that the judgment creates uncertainty as to what steps may be taken by the Commission when it is functus officio is not borne out by the terms of the judgment.

16. It is also submitted by the Applicant that the judgment “gives rise to uncertainty as to how previously decided caselaw is to be interpreted and applied.” The Applicant contends that the Court may only decline to grant certiorari if there is a breach of the statutory scheme if the breach can be regarded as de minimis. The Applicant refers to Southwood Park Residents Association v. An Bord Pleanála [2019] IEHC 504, McAnenley v. An Bord Pleanála [2002]

IEHC 60, [2002] 2 I.R. 763 and Electricity Supply Board v. Gormley [1985] I.R. 129 in which the Court considered whether it was legitimate to treat a breach of the public participation requirements of the planning legislation as de minimis. In Graves v. An Bord Pleanála [1997] IEHC 96, [1997] 2 I.R. 205 the Board had no jurisdiction to entertain an appeal, the time for bringing an appeal having elapsed.

17. Insofar as I have found that the Commission acted outside the four corners of the Act in this case, there was no impact on third party rights, nor did the Commission assume jurisdiction which it would not otherwise have had by instructing the Inspector to prepare a memorandum prior to the anticipated orders being made on 29th July 2024. That would have been the effect of the Commission accepting an appeal which had been made out of time, as in Graves.

18. In finding that the breach could be regarded as de minimis in Murphy v. Cobh Town Council [2006] IEHC 324, MacMenamin J. found that there had been substantial compliance with the statutory requisites. He reviewed the authorities including Ní Chonghaile and Others v.

Galway County Council [2004] IEHC 317, [2004] 4 I.R. 138, Monaghan UDC v. Alf-a-Bet Promotions Limited [1986] ILRM 64 and MacMenamin J. held:

“In Ní Chonghaile it was held that the de minimis rule should be applied, in that the public had not been misled, and that the spirit of the regulation was more important than its letter. While this decision arose in the circumstance where the court, on discretionary grounds, declined to grant certiorari, should a distinction in principle should be made between the circumstances of that case and those which arise here even accepting that there must be strict interpretation and compliance?

… No "prejudice has occurred to the procedures of the Board save in the most technical and, perhaps trivial way. The objection raised by the Board was essentially itself "technical". Does the deviation from the mandatory requirement come within the description of being "trivial", "technical" or "peripheral" identified by Henchy J. in Alf-a-Bet Promotions.? If not complete, the compliance here was substantial.”

19. MacMenamin J. distinguished McCann v. An Bord Pleanála [1997] 1 I.R. 264, and Rowan v. An Bord Pleanála [2006] IEHC 180, in which cases the Board had failed to comply with a mandatory time requirement. He considered that in both of those cases, the absence of compliance necessarily entailed a substantive or fundamental non-fulfilment of a statutory procedural requirement, more analogous to the failure to issue a summons within a statutory limitation period.

20. Whilst I did not use the phrase de minimis in the principal judgment, I am satisfied that the

decision not to quash the impugned decision is consistent with the authorities and does not give rise to tension or uncertainty with previous judgments of the Superior Courts, as asserted by the Applicant. The breach of the statutory code was not substantial; it did not lead to any risk to public participation, nor did it expand the jurisdiction of the Commission.

21. In this case, the assignment of the Inspector was not challenged on any basis other than the timing; her report and recommendation was made at time when the application was properly before the Commission. Nothing of substance turns on the timing of the assignment to the Inspector and the Applicant has not pointed to any possible prejudice or difference in the manner in which the application was, or could have been, considered had the same assignment been made on or after 29th July 2024. While the Inspector was assigned and started work at a time when the Commission had no jurisdiction, the report was completed and the Inspector’s recommendation was made after the Commission had jurisdiction to determine the application which had been made on 28th February 2023. The breach of the statutory scheme by the assignment of the Inspector, and the fact that she commenced considering the file does not impact on public participation or third-party rights.

22. The factors which were relied on in finding that it was appropriate to exercise the Court’s discretion to refuse rather than to grant certiorari despite the Inspector having been assigned to prepare a report prior to the Commission regaining jurisdiction in respect of the application were:

- The assignment was made by an employee who was duly authorised to make such assignments.

- The report was completed and the recommendation made at a time when the Board had jurisdiction to consider the application.

- Although the Board was functus officio on 11th July 2024, it was abundantly clear to the parties that if the decision of 9th January 2024 was quashed by the High Court, the Board having conceded that it was appropriate to do so, the application would be remitted to the Board. Whilst it was open to the Notice Party in those proceedings to have opposed the grant of relief, it did not do so.

- No unfairness or prejudice was created by the assignment of the Inspector in anticipation of the remittal of the application.

- The Applicant failed in his challenge to the substance of the decision of the Commission, which had been made in reliance on the Memorandum of 31st July 2024.

- The decision of Monaghan County Council which the Applicant sought leave to appeal was appealed to the Commission by An Taisce on 28th February 2023. That appeal remains extant. The Applicant made observations on that appeal and has averred that, if granted leave to appeal under section 37(6), the grounds of his appeal “would be not dissimilar to the observation which is already before the Board”. He maintains that the two appeals could be determined together.

- The complaints made by the Applicant as to the impact of the proposed development on his lands relate exclusively, or almost exclusively, to the development itself and not any variations to the development required by the conditions imposed by Monaghan County Council. Insofar as he has concerns relating to Condition 4, I found that the Applicant has misinterpreted that condition.

- While the Applicant is in a more precarious position than an appellant before the Commission, as he could not prevent An Taisce from withdrawing its appeal, there is no evidence to suggest that it is likely to do so. That is the only disadvantage, or potential disadvantage, experienced by the Applicant as an observer rather than appellant.

- The Oireachtas has decided, subject only to section 37(6), that a person who has not made submissions to a planning authority may not appeal a decision to grant permission. The Applicant did not make submissions to Monaghan County Council, although he tried to make a submission out of time.

- Any person may make submissions or observations on an appeal to the Commission. The nature or scope of such submissions or observations are not restricted and are no different to the submissions which can be made by an appellant.

- The Notice Party applied for planning permission on 29th November 2022 and has not contributed in any way to the delays in the determination of the appeal, caused by the Commission making two invalid decisions on the Applicant’s application for leave to appeal, and these proceedings.

- Quashing the decision of the Commission to refuse the Applicant leave to appeal would be disproportionate in all the circumstances.

23. The point or question which the Applicant seeks to have certified does invite the Court of Appeal to deliver a roving or discursive opinion rather than to answer a point of law which arises from the principal judgment, and which would resolve the issues in the case. I do not consider that, as the Applicant contends, the exercise of discretion to refuse certiorari in this case creates uncertainty in how previous judgments of the Superior Courts should be applied, or that a point of law of exceptional public importance arises.

Desirability of an appeal to the Court of Appeal

24. Although it is not necessary to decide whether an appeal would be desirable in the public interest in light of the findings made above, I have also considered the submissions made in that regard. The factors which I relied upon in exercising the discretion to refuse certiorari are also relevant to the question of the desirability of an appeal to the Court of Appeal, or whether the judgment of the High Court should be final. The Oireachtas has decided that in most cases the judgment of the High Court should be final and that the of a certificate should only be granted sparingly, or in limited circumstances.

25. The project to which the application for permission relates was made on 29th November 2022. The Council's decision to grant permission subject to 12 conditions was made on 1st February 2023. Mr. Morehart did not make submissions or observations on that application, which is the reason why he could not bring an appeal to the Commission without leave to appeal being granted under section 37(6). Whilst he attempted to lodge submissions, he did so out of time, and the rejection of those submissions by the Council has not been challenged. No details have been provided in evidence to explain why he failed to make submissions within the prescribed time, but it was submitted that he was not aware of the application in time. An unsuccessful application for leave to seek judicial review of the

decision of Monaghan County Council was brought in tandem with the application to the Board for leave to appeal.

26. An appeal was brought in respect of the Council’s decision, by An Taisce. The Applicant made submissions on that appeal, which the Board is required to consider. That appeal has not been determined as the Commission had given an undertaking not to determine it prior to the resolution of these proceedings. Understandably, the Notice Party, who is the developer, is very keen to have the appeal determined.

27. It is neither the fault of the Notice Party nor the Applicant that two invalid decisions were made on the Applicant’s application for leave to appeal. The need for that application arose as the Applicant had not made a submission or observation to the Council. More importantly, Mr. Morehart has averred in his grounding affidavit that the substance of his appeal (if he were granted permission to appeal) would be similar to the submissions which he has already made to the Board in the appeal by An Taisce. As I found in the principal judgment, there is no basis for inferring that An Taisce will not proceed with its appeal. Had it wished to withdraw the appeal, it could have done so at any time since it was lodged in February 2023. The determination of that appeal has been delayed by the three sets of judicial review proceedings.

28. It is in the public interest that the appeal by An Taisce be determined without undue delay.

I cannot accept that it is desirable in the public interest that an appeal on the point the Applicant seeks to have certified would be brought to the Court of Appeal. As already noted, the Applicant has failed in his challenge to the substance of the Commission’s decision under section 37(6) and has not sought a certificate in respect of those parts of the judgment.

Even if the Applicant were to succeed on an appeal to the Court of Appeal, and certiorari were granted, the Commission would then be required to make a further decision on the application for leave to appeal. The substance of the issues considered by the Commission in the event that leave were granted would not change to any significant degree as the Applicant has averred that the issues he would raise in any such appeal are very similar to the issues he has already raised in the An Taisce appeal. If I am wrong in finding that the question sought to be certified does not amount to a point of law of exceptional public importance, I do not consider that it is desirable in the public interest that such an appeal would be brought. The inevitable further delay in the determination of the An Taisce appeal, and finality in respect of the Notice Party’s application for permission, would not be justified or desirable in all the circumstances.

Conclusion

29. I am satisfied that the requirements of section 50A(7) are not met and that the point, or question, proposed by the Applicant is not a point of law of exceptional public importance arising from the principal judgment. Nor am I satisfied that it is desirable in the public interest that there should be an appeal from that judgment.

Order

30. Therefore, I shall make an Order refusing the application for a certificate.

Emily Farrell