The High Court has refused Friends of Ardee Bog’s application for a certificate allowing it to appeal a May 2024 judicial review decision to the Court of Appeal.
The application concerned a judgment that had refused the group’s requested relief in a challenge involving An Bord Pleanála’s planning decision. The group sought certification of three legal questions under section 50A(7) of the Planning and Development Act 2000. That provision permits an appeal only where the High Court certifies that a decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest.
In a judgment delivered on 5 November 2024, Ms Justice Miriam O’Regan rejected all three proposed questions. She said the requirements for certification are cumulative and that a proposed point must arise from the High Court’s decision, be capable of affecting its order and offer added value to issues already before the Court of Appeal.
The first proposed question concerned whether site-specific conservation objectives were required before An Bord Pleanála could conduct an appropriate assessment. The judge found that the group’s pleadings had raised a different jurisdictional argument: that the Board could not act without an application for development consent. The absence of conservation objectives had been pleaded in connection with best scientific knowledge, not as a bar to the Board’s jurisdiction. The judge also noted that the proposed question had already been certified in another case.
The second proposed question concerned environmental impact assessment and land restructuring. The judge concluded that the point now proposed had not arisen from the pleadings or the earlier judgment. Discussion of a legal issue during the hearing was not enough to make it a point arising from the decision. The judgment also referred to a Supreme Court decision addressing authority over rural restructuring.
The third question concerned when an applicant must provide expert evidence about gaps in an appropriate assessment. The judge found that the Board had not identified the alleged gap described by the group. She also concluded that the proposed question was not pleaded and was not shown to arise from, or determine, the earlier judgment. The earlier refusal of relief had cited, among other matters, a lack of scientific evidence and insufficiently specific pleadings.
The court therefore refused the application for a certificate to appeal in its entirety. On costs, the judge stated a provisional view that there should be no order. She allowed the parties 14 days to make written submissions of up to 1,000 words if they disagreed; if none are filed, the proposed costs order will be made.