The High Court has refused An Bord Pleanála’s application for a certificate to appeal a ruling that quashed its decision on a gate erected on land owned by Cornelius A. Dennehy and Suzanne Dennehy.
In a judgment delivered on 18 September 2020, Mr Justice Meenan considered whether to certify two questions for appeal under section 50A(7) of the Planning and Development Act 2000. That provision requires a point of law of exceptional public importance and that an appeal be desirable in the public interest.
The application followed the court’s principal judgment of 19 May 2020, which quashed the Board’s decision of 30 August 2018. The Board had decided that the gate was not exempted development and therefore required planning permission. The dispute concerned planning rules for fencing land habitually open to or used by the public for recreation or as access to a lakeshore or other place of natural beauty or recreational utility.
The Board’s first proposed question asked whether that rule applies only where the relevant public use is established to be lawful. The judge said the Board had not made that submission during the substantive hearing and described the proposition that unlawful use could establish the relevant use as untenable. He found no uncertainty in the law requiring clarification and no public-interest basis for an appeal on that question.
The second proposed question concerned whether the Board had to consider a Circuit Court decision that was not included in submissions during its public consultation process. The judge said the premise was incorrect: the Circuit Court judgment had apparently been exhibited in earlier judicial review proceedings, and references to those proceedings and the decision had been made repeatedly in submissions to the Board. He also noted that the Board had denied in its statement of opposition that it acted without due regard to a court decision.
The judge found that the second question identified neither uncertainty in the law nor a point of exceptional importance. He refused to grant the appeal certificate. The parties were given 14 days to make submissions on costs and any other orders required; the judgment did not determine those matters.