The High Court has refused An Taisce’s application for certification or leave to appeal points of law arising from an earlier judicial review concerning a quarry. Mr Justice Max Barrett delivered the ruling on 19 November 2018.
The application was made under section 50A(7) of the Planning and Development Act 2000. An Taisce argued that its proposed questions raised points of law of exceptional public importance. The court said the law in the area was well settled and declined to certify the questions.
On the first proposed point, An Taisce questioned whether the court had correctly applied Supreme Court authority on out-of-time challenges and impermissible collateral attacks. The judge said asking whether the earlier judgment was right or wrong did not itself raise a point of exceptional public importance. He also said the Supreme Court decision relied on by An Taisce did not change the substantive law on collateral attack.
The earlier judgment had concluded that the proceedings were out of time. It held that if An Taisce wished to argue that the quarry operator was not entitled to consent under section 177D(1)(a), it had to bring that challenge within eight weeks of the decision granting leave. The judge said that conclusion applied established standing case law.
The second proposed point concerned the meaning of “exceptional circumstances” in an EU court case and whether Irish law met any applicable minimum standards. The judge said merely posing a legal question did not establish exceptional public importance. He also observed that the earlier decision was essentially based on the proceedings being out of time, with its other remarks being obiter. The questions therefore could not be certified.
An Taisce accepted that it could not succeed on a third proposed point if leave was refused on the first two. The judge did not consider that point.
The fourth point concerned whether An Taisce could challenge the Board’s acceptance of the adequacy of a revised environmental impact statement after not raising the issue during the planning process. The judge said that, under Irish law, a judicial review applicant typically cannot raise an issue that was not previously put to the decision-maker, and that the EU law doctrines cited did not alter the position in this case.
The court declined to grant the certification or leave sought. The ruling addressed whether the proposed points could proceed under the statutory test; it did not reconsider the substantive issues decided in the earlier judgment.