The High Court has refused Dunnes Stores leave to appeal a ruling concerning its attempt to challenge planning permission granted to Indego, finding that the proposed appeal did not meet the statutory test for certification.
In a judgment delivered on 18 June 2015, Mr Justice Brian J. McGovern considered an application under section 50A(7) of the Planning and Development Act 2000. That provision permits an appeal only where the court certifies that its decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest.
The application followed an order made on 21 May 2015. In that earlier order, the court refused Dunnes Stores leave to bring judicial review proceedings challenging South Dublin County Council’s grant of planning permission to Indego. It also refused applications to add the council as a respondent, amend the proceedings to add relief and grounds, and extend time for joining the council. The judgment now addressed only the request for a certificate to appeal that order.
Dunnes Stores proposed asking whether section 37(1)(b), which provides that an An Bord Pleanála decision on appeal annuls the planning authority’s decision, prevents a later challenge to the authority’s decision based on alleged predetermination or a reasonable apprehension that the application had been prejudged. The notice parties disputed the premise that predetermination had occurred.
Dunnes Stores argued that refusing a certificate could leave planning authorities beyond scrutiny where alleged bias or fraud came to light after the Board’s decision. South Dublin County Council submitted that the planning scheme provides separate consideration by the planning authority and the Board, which considers an appeal afresh. Indego argued that the law was clear and that the certification threshold balanced appeals against timely operation of the planning system.
Justice McGovern said he had already held section 37(1)(b) to be clear and unambiguous. He found no uncertainty in the law or exceptional public importance in the proposed point. He also referred to the public interest in resolving planning matters expeditiously and avoiding unnecessary delay to major infrastructure projects.
The court was not satisfied that Dunnes Stores met the certification test and refused leave to appeal. The judgment did not determine whether predetermination or bias had occurred; the proposed question’s premise was disputed. The decision concerned certification of an appeal, not a fresh determination of the underlying planning permission challenge.