The High Court refused Ógalas Limited’s application for a certificate of leave to appeal a judgment concerning An Bord Pleanála’s decision on the use of a store at Sligo Retail Park.
Ms Justice Baker delivered the certificate ruling on 20 March 2015. The application followed her October 2014 refusal to quash the Board’s decision, made on 23 May 2013 under section 5 of the Planning and Development Act 2000. The court’s task at this stage was to decide whether to certify an appeal to the Court of Appeal. Such a certificate required a point of law of exceptional public importance and a public interest in having an appeal.
In the earlier judgment, Justice Baker found errors in the Board inspector’s analysis, including reliance on the 2012 Retail Guidelines rather than the applicable 2000 guidelines. She concluded, however, that the errors were not reflected in the Board’s decision: the Board had conducted its own reasoned analysis and had not simply followed the inspector’s report.
Ógalas proposed asking what criteria determine whether a Board decision is invalid because of errors of law in an inspector’s report, and whether those criteria had been applied correctly in its case. It argued that the law was unclear on whether the Board must expressly distance itself from an inspector’s erroneous reasoning.
The respondent argued that the Board decides while the inspector recommends, and that an inspector’s error does not by itself invalidate the Board’s separate decision-making exercise. Justice Baker accepted that the Board must decide on the evidence before it, which may include the inspector’s report, other reports, arguments and submissions. Where the Board does not distance itself from an erroneous report, its decision may be invalidated; whether that occurred depends on the decision and the evidence in the particular case.
The judge found no legal uncertainty about the respective roles of the Board and inspector or the requirement for a reasoned decision. She also held that the proposed question was primarily factual: whether the Board had properly distanced itself from the inspector’s errors in this case. She said evidence identified in her earlier judgment supported her conclusion that the Board had considered the competing guidelines and adopted the applicable ones.
The court therefore refused the certificate. The ruling decided only whether an appeal certificate should issue; it did not reopen or overturn the October 2014 judgment refusing to quash the Board’s planning decision.