The High Court has refused to certify four proposed points of law for appeal to the Court of Appeal in two related judicial review cases concerning substitute planning consent. It held that the first two proposed questions did not raise a point of exceptional public importance or show that an appeal was desirable in the public interest. The other two did not arise from the judgment being challenged.
The applications were brought by Peter Sweetman and An Taisce against An Bord Pleanála, Ireland and the Attorney General. Sharon Browne was named as notice party. Mr Justice Robert Eagar delivered the certification judgment on 14 January 2019.
The applicants sought certificates under section 50A(7) of the Planning and Development Act 2000, as amended. That provision allows an appeal only where the High Court certifies that its decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest. The court noted that the relevant appellate jurisdiction now rests with the Court of Appeal.
The proposed questions included whether the public could participate in decisions about exceptional circumstances for granting leave to seek substitute consent, and whether those matters could be revisited when the substantive application was considered. The applicants’ counsel argued that an earlier judgment’s reference to a “full panoply of participation” left uncertainty about whether those issues remained open. Counsel also relied on other proceedings and the Supreme Court’s decision in Callaghan v An Bord Pleanála.
The Board submitted that the earlier judgment did not decide whether the grant of leave could be reopened. It argued that the judgment referred to public participation in matters considered at the substantive substitute consent stage, while the entitlement to apply had been determined at the leave stage. The Attorney General also opposed certification, saying the proposed questions did not satisfy the statutory test.
Eagar J held that the first two questions disclosed no uncertainty in the judgment and that the applicants had not shown even a point of public importance, much less exceptional importance. On the third question, the court said it did not arise from the judgment and rested on an incorrect interpretation of it. The court found the applicants had made no effort to show that the fourth question raised a point of law arising from the judgment.
The court therefore refused to certify that its decision involved a point of law of exceptional public importance for which an appeal would be desirable in the public interest. This ruling concerned certification for appeal; it did not decide the underlying substitute consent applications.