The High Court has refused an application by Margaret Power for a certificate allowing an appeal to the Supreme Court over an earlier planning judgment involving An Bord Pleanála and Waterford County Council.
In a judgment delivered on 2 October 2006, Mr Justice Quirke considered whether any of seven points identified by Ms Power met the statutory test under section 50(4)(f) of the Planning and Development Act 2000. The Act permits leave 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 application concerned the High Court’s earlier decision of 17 January 2006 in judicial review proceedings challenging the Board’s approval of a proposed development within and adjacent to a site protected under European nature conservation rules. The judgment does not identify the development’s location or describe it further.
Ms Power argued, among other things, that the Board had applied the wrong legal test under the Habitats Directive and related regulations. The Board disputed that account and also argued that an appeal would be moot. Justice Quirke said he did not need to address the mootness submission because none of the proposed points qualified as a matter of exceptional public importance.
On the first point, the judge said the earlier judgment had identified the applicable test, drawn from the Court of Justice decision in Waddenzee. He said the dispute in the judicial review had been factual and that the High Court had concluded the Board applied the correct test and its decision was not irrational. He declined to certify the question as the correct legal test was not in dispute in those proceedings.
The judge said the second and fifth proposed points concerned whether there were substantial grounds to argue that the Board had failed to apply the test or adequately consider relevant waste directives. Those questions had been determined in the High Court and were important to the applicant, but did not meet the statutory threshold for a Supreme Court appeal. He said the Board, as a competent planning authority, was required to take account of and give effect to the relevant directive provisions.
The judgment described the third and fourth questions as self-evident. It said the sixth and seventh points were misconceived because the High Court had adjudicated on whether there were substantial grounds to argue that the Board failed to apply the correct test, so those issues did not arise from the January decision.
The court declined to certify any of the seven points. The ruling decided only the application for a certificate; it did not grant leave to appeal.