The High Court has certified one question for appeal concerning whether Peter Sweetman has sufficient interest to bring a free-standing challenge under EU law to section 5 of the Planning and Development Act 2000.
In a judgment delivered on 3 March 2017, Mr Justice Robert Haughton said the question had become one of exceptional public importance following a recent Supreme Court judgment on standing in environmental cases. He considered an appeal desirable in the public interest because greater certainty was needed on who may bring such challenges.
The certification judgment concerned an application to appeal the judge’s principal judgment of 2 February. That earlier decision set aside leave to challenge two section 5 declarations by Cork County Council and Kerry County Council that the Grousemount windfarm grid connection was exempted development. The judge said that leave was set aside because the challenge was brought outside the statutory eight-week period and there was no good and sufficient reason to extend time. He expressly clarified that this was not a decision that Mr Sweetman lacked sufficient interest to challenge those declarations.
The court had also set aside leave for a free-standing challenge to the validity of section 5. In the principal judgment, the judge had found Mr Sweetman lacked sufficient interest to make that general challenge. After the Supreme Court’s decision in Grace and Sweetman v An Bord Pleanála, the High Court said questions about standing in environmental cases remained uncertain, including whether a person with a general environmental interest but no sufficient proximity or specific connection to a site could bring such a challenge.
The certified question is: “Does the applicant have sufficient interest or locus stand for the purposes of a free standing challenge in this judicial review to the validity under EU law of section 5 of the Planning and Development Act, 2000?” The judge stressed that success on appeal would permit only that free-standing challenge, subject to the appellate court’s decision. It would not reinstate leave to challenge the two council declarations.
The court refused certification on proposed questions about statutory time limits, extensions of time and remedial obligations. It said those questions either involved settled law, depended on the facts, had not been decided in the principal judgment, or concerned issues that could be argued at the substantive hearing. It also found that an appeal on those matters would not be desirable in the public interest, given likely further prejudice to the notice party from delay.
The substantive judicial review, including the challenge to An Bord Pleanála’s approval of the windfarm, remained scheduled for 7 March 2017. The judge said certification of the standing question was not a reason to defer that hearing.