The High Court refused An Bord Pleanála’s application to certify seven proposed questions of law for appeal arising from its June 2016 judgment in Kathleen Connolly’s planning case.
In a judgment delivered on 8 November 2016, Mr Justice Max Barrett said the questions did not meet the statutory test: a point of law of exceptional public importance, where an appeal would be desirable in the public interest. Under section 50A(7) of the Planning and Development Act 2000, as amended, an appeal from the earlier decision required such a certificate.
The earlier judgment had found the Board’s decision unlawful because it failed to provide proper information. In the certification judgment, the court said the Board’s proposed questions about its reasons for disagreeing with its inspector, its environmental impact evaluation and appropriate assessment did not raise qualifying points of law. The court said the legal obligations were clear and had been addressed in its June decision and in existing case law.
The court also noted that, in this case, the inspector had not carried out an appropriate assessment, had not seen the Natura Impact Statement, and the Board had not undertaken or recorded its own assessment. It rejected the Board’s proposed question about the applicant’s assumed knowledge as irrelevant to those facts.
The ruling concerned only whether the proposed legal questions could be certified for appeal. It did not revisit the underlying planning decision or grant leave to appeal. The court declined certification of all seven questions.
Separately, the judge commented that future applications of this kind should typically be heard by a judge other than the one who delivered the original judgment, to avoid a disappointed applicant perceiving the process as biased. He described those comments as obiter, meaning they were not part of the decision on the application.