The High Court granted Arklow Holidays Ltd a certificate to appeal to the Supreme Court over whether the rule in Henderson v. Henderson can bar grounds raised in a later judicial review of a planning decision.
Mr Justice Clarke said on 11 January 2008 that the point was of exceptional public importance and that an appeal was desirable in the public interest. The certificate covers the rule’s application to planning cases, including how any discretion should account for the public importance of issues and the conduct of other parties.
The application followed an earlier judgment in which the court refused Arklow Holidays’ challenge to planning permission for a wastewater treatment plant serving the Arklow area. The judge had held that the company was precluded from pursuing its permitted grounds under the rule, because they could and should have been raised in earlier proceedings concerning the same planning process.
The certificate judgment does not determine whether that interpretation is correct. Nor does it resolve the underlying planning grounds. The judge said those grounds had not needed to be decided after his ruling on the procedural bar. He also stated that a certificate could concern only a point of law arising from the decision under appeal, not a point left undecided.
In considering the certificate, the judge said the law on applying the rule to successive challenges in a planning process involving different parties was not clear. He considered the issue significant beyond the individual case because the rule, if applicable, could prevent a party from raising in a later challenge a point omitted from an earlier one, subject to the court’s discretion.
The judge weighed that issue against the delays already encountered in the planning process and related court challenges. He said the point differed from an earlier certification issue he had described as technical: if Arklow Holidays succeeded on appeal, the underlying grounds could require substantive scrutiny of the planning process. He granted the certificate on the basis that the legal question met the statutory tests.
The Board and Arklow Council opposed the certificate application; the other parties did not participate at this stage. The judgment grants permission to seek a Supreme Court appeal on the stated legal question. It does not decide the appeal or determine the validity of the planning permission.