The High Court continued an order preventing An Bord Pleanála from processing a planning appeal, preserving the position while Thomas Harding pursued a Supreme Court appeal over the refusal of leave to bring judicial review proceedings. The order is due to expire on 30 June unless the Supreme Court extends it.
Mr Justice Clarke delivered the judgment on 31 January 2007. The underlying judicial review challenge concerned Cork County Council’s notice of intention to grant planning permission to Eces Projects Limited, then known as Kinsale Developments Limited. The High Court had dismissed the proceedings, but certified a point of law of exceptional public importance for appeal to the Supreme Court.
The immediate issue was whether the High Court could continue a stay originally made by Mr Justice Kelly while the Supreme Court appeal was pending. Kinsale Developments argued that the High Court’s jurisdiction ended when it delivered judgment, leaving any further order to the Supreme Court. An Bord Pleanála took a neutral position.
Mr Justice Clarke ruled that both the High Court and Supreme Court had jurisdiction to grant appropriate injunctive relief pending appeal. He said the general aim was to preserve the status quo so a successful appeal would not be rendered ineffective. He also stressed that an earlier interim order did not automatically have to continue after judgment; the circumstances and balance of consequences had to be considered.
If An Bord Pleanála determined the planning appeal before the Supreme Court decided the judicial review appeal, Mr Harding’s appeal could become moot. The judge said the certified public importance of the legal issue weighed in favour of avoiding that result. Kinsale Developments had cited financial consequences from delay, including the loss of time-limited tax relief. However, the judge considered the evidence of losses vague and said the opportunity to meet the conditions for that tax relief had already passed. Initial project expenditure had also been incurred before the original stay application.
Kinsale Developments also argued that Mr Harding had limited means and was “fronting for others”. The judge declined to reach a conclusion on that allegation, noting that the Supreme Court appeal would address whether Mr Harding had the substantial interest required for standing under section 50 of the Planning and Development Act 2000.
The court continued Mr Justice Kelly’s order only until 30 June 2007, to allow Mr Harding to prepare the papers needed for the Supreme Court to consider an appeal timetable. The High Court did not set that timetable. If the appeal was not heard by 30 June, Mr Harding would need to seek an extension from the Supreme Court, which would decide whether to continue the order.