The High Court has refused Cleary Compost and Shredding Limited a certificate for leave to appeal to the Supreme Court over an earlier judicial review concerning a waste facility at Larchill, Monasterevin, Co. Kildare.
Ms Justice Baker delivered the decision on 13 June 2018. The application was made under section 50A(7) of the Planning and Development Act 2000. To grant a certificate, the court had to be satisfied both that its decision involved a point of law of exceptional public importance and that an appeal was desirable in the public interest.
The underlying judicial review concerned An Bord Pleanála’s dismissal, on 8 June 2015, of the company’s appeal against Kildare County Council’s refusal of permission to extend or expand waste activity at the site. An Bord said the existing facility did not have planning permission, did not qualify for relevant exemptions, and required an environmental impact assessment and an appropriate assessment. The High Court had refused the judicial review in a substantive judgment delivered on 10 July 2017.
The company argued that the earlier judgment raised two points warranting an appeal. The first concerned how a planning authority or An Bord should treat successive declarations about whether works or activity require planning permission. Justice Baker said the earlier decision turned on the evidence and the finding that the activity had changed in nature and extent over time. The proposed point, she said, was hypothetical in this case and did not arise from the judgment.
The second point concerned the distinction between determining that development is not exempt and determining that it is unauthorised. The judge acknowledged that the term “unauthorised” may continue to cause difficulty in understanding the respective powers of An Bord, planning authorities and the courts. She also said the first sentence of paragraph 117 of the earlier judgment might be incorrect or might not account for statutory limits.
However, she concluded that an appeal was unlikely to clarify the issue because An Bord’s decision rested on the planning history and its statutory power under section 34(12), and the judicial review had been refused on findings specific to the evidence and process in this case. The court refused the certificate. It did not grant an appeal or revisit the underlying judicial review decision.