The High Court has refused to certify three proposed points of law for appeal in a judicial review concerning peat extraction works in parts of County Westmeath.
Mr Justice Meenan ruled on 7 December 2018 that the applicant, Friends of the Irish Environment Limited, had not shown that the court’s earlier decision involved a point of law of exceptional public importance. The application was made under section 50A(7) of the Planning and Development Act 2000, which allows an appeal only where that test is met and an appeal is desirable in the public interest.
The underlying judicial review concerned An Bord Pleanála’s 3 May 2013 refusal to determine whether certain peat extraction works in the townlands of Lickney/Newcastle, Doon and Carlanstown were exempted development. In an earlier judgment delivered on 9 March 2018, the court refused the application to quash the Board’s determination. It concluded that the Board could not determine the matter without information about who owned or occupied the affected lands, because those people had to be notified.
The applicant proposed appeal questions about the EU Environmental Impact Assessment Directive and the Board’s notice powers; how to identify matters of planning judgment, including whether fair procedures were involved; and whether the Board had to give reasons for not using alternative notice powers or dispensing with notice.
The judge said the first question did not arise in the judicial review decision: that judgment had not referred to Article 2(1) of the Directive. The second also did not arise from the decision. The issue had been the Board’s stated lack of information, rather than an alleged breach of fair procedures. The judge said the need to notify people whose property rights would be affected was not an uncertain legal principle, and that the Board’s choice about other notice methods fell within its discretion.
The third question concerned an alleged failure to give reasons. The applicant had not obtained leave to argue that issue, and it was not addressed in the earlier judgment. The court therefore found no basis to certify it.
The court refused certification, finding that the earlier decision applied established principles to the case facts and raised no point of law of exceptional public importance. The judge added that the applicant could renew its request for a section 5 determination if it obtained basic information identifying the lands’ owners or occupiers. The judgment did not itself decide whether the extraction works were exempted development.