The High Court refused Kevin and Elizabeth Hodgers’ application for a certificate that would have allowed them to appeal to the Supreme Court after the court had refused them leave to seek judicial review of a Cork County Council planning decision.
Mr Justice Roderick Murphy delivered the judgment on 5 May 2006. The application concerned the High Court’s earlier refusal, on 21 December 2005, to grant leave to challenge the council’s refusal of planning permission for a dwelling at Garryvoe Lower, County Cork. The council had refused permission on 28 January 2004, citing the proposed development’s density in a rural area without public water and sewage facilities.
The applicants had argued, among other grounds, that the council improperly used a request for further information under Article 33 of the Planning and Development Regulations 2001. The council had asked whether they owned a residence in Midleton, referring to the Coastal Housing Control Policy in the county development plan. The applicants said they had not received the request. Their letter to the council referred to a property at 21 Midleton Downs, saying it was unsuitable for their needs.
The proposed appeal questions concerned the council’s power to seek information about another home, whether existing home ownership could be considered in assessing housing need, the handling of information before the applicants responded to the request, the availability of an alternative remedy, and whether certification was possible after leave for judicial review had been refused.
The court said the development plan prioritised the full-time housing needs of local people in sensitive coastal and scenic areas. It considered that assessing such need could require the planning authority to ask whether an applicant already had residential accommodation. But the applicants had not challenged the validity of the housing-need criterion in their judicial review proceedings, so the issue did not arise for certification.
On the information request, the court had found that it was served by registered post within the relevant period. It also noted that the applicants’ letter referred to the Midleton property, although they said they had not seen the request before replying. The court considered the circumstances particular to the applicants and not a matter warranting a Supreme Court appeal.
The court said the alternative-remedy question did not arise from the basis of its earlier decision. It also refused the fifth question, finding that the applicants had not established substantial grounds for judicial review and that the proposed appeal did not meet the higher threshold for a point of law of exceptional public importance.
The High Court refused to certify each of the five proposed questions. The judgment did not grant leave to appeal to the Supreme Court.