The High Court has ruled that it had no jurisdiction to issue a certificate allowing an appeal to the Supreme Court against its earlier refusal to grant an appeal certificate in a planning judicial review case.
Mr Justice Clarke delivered the judgment on 8 September 2006 in proceedings brought by Arklow Holidays Limited against An Bord Pleanála, Ireland and the Attorney General. Wicklow County Council, Arklow Town Council, several residents’ and environmental groups, and two named individuals were notice parties.
The application arose from earlier proceedings concerning a proposed development. In January 2006, the court granted Arklow Holidays leave to seek judicial review on some grounds, but refused leave on others. One refused ground challenged how the proposed development site was delineated on maps accompanying the planning application. The court had considered that the company had not been misled by the maps, had participated fully in the hearing, and had suffered no prejudice from the alleged deficiency.
The company later sought a certificate to appeal aspects of the leave decision. In March 2006, the court found that one issue raised a point of law of exceptional public importance, but refused a certificate because it was not in the public interest to grant one. The company then sought a certificate to appeal that refusal, arguing that the court could certify a question arising from its decision on the earlier certificate application.
In addressing the background to the refusal, Mr Justice Clarke said the court had not assessed the project’s merits. He said the relevant public interest was the early resolution of legal questions that could delay major public infrastructure projects, weighed against Arklow Holidays’ reliance on what the court had described as a technical argument, on which it had suffered no prejudice.
The judge considered whether section 50 of the Planning and Development Act 2000 allowed a certificate to be granted in relation to a refusal to certify an appeal. He concluded that the section, as interpreted in earlier Supreme Court authorities, excluded appeals in planning judicial review matters except through the limited certification process, with the certificate decision reserved to the High Court. He said permitting a further appeal about a certificate refusal could create successive hearings and undermine the legislation’s aim of expedition.
The court therefore held that it had no jurisdiction to grant the further certificate. It did not go on to decide whether such a certificate would have been appropriate on the facts, had the jurisdiction existed. The judgment did not determine the underlying judicial review challenge or the legality of the proposed development.