The High Court has refused Donal Kenny’s application for a certificate permitting him to appeal the court’s earlier refusal of leave to bring judicial review proceedings concerning variations to two development plans. The court also made no order as to costs on the certificate application.
Mr Justice Barr delivered the decision on 4 June 2021. The underlying leave application had been refused on 18 January 2021, and the court had separately awarded the costs of that contested application to Roscommon County Council.
Under section 50A(7) of the Planning and Development Act 2000, as amended, an appeal from a decision on planning judicial review leave requires a High Court certificate. The court must be satisfied both that the decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest.
Kenny’s affidavit raised several criticisms of the earlier judgment. The court said he had not formulated precise points of law. It rejected his arguments that the plan variations were adopted before completion of the joint retail strategy for the relevant area, referring to affidavit evidence from Mary Grier that the court had accepted in the substantive judgment. It also said his claim that the earlier court had misinterpreted the strategy did not raise a legal question: that court had considered the procedure used to make the variations, rather than interpreting or evaluating the strategy itself.
Kenny also relied on documents suggesting that a council member was an auctioneer practising in the area and might have had a conflict of interest when voting on the variations. The court said the earlier challenge had been rejected because there was no evidence of an actual conflict. It found that this ground did not raise a point of law for an appeal.
The court concluded that the statutory test for a certificate had not been met and refused the application. It did not revisit or change the earlier refusal of leave for judicial review. On costs, it considered that the certificate application had lasted about 45 minutes, that Kenny was a lay litigant who had not known court leave was required to appeal, and that costs had already been awarded against him for the contested leave application. It therefore made no order as to costs for this separate application.