The High Court has refused Dunnes Stores’ application for a certificate that would allow it to seek leave to appeal the dismissal of its judicial review challenge concerning planning permission for the Ferrybank Centre.
Mr Justice Max Barrett delivered the ruling on 26 May 2016. Dunnes had asked the court to certify two proposed legal questions as involving points of law of exceptional public importance. Under section 50A(7) of the Planning and Development Act 2000, as amended, such a certificate was required before an appeal could be pursued.
The application followed the court’s November 2015 decision dismissing Dunnes’ judicial review as an abuse of process. In that earlier judgment, the court found that the proceedings were brought to delay or avoid Dunnes’ contractual obligations to fit out and occupy the centre’s anchor store, or to create a legal justification for its failure to meet those obligations. It declined to consider the planning grounds.
Dunnes proposed that the court consider whether judicial review proceedings could be dismissed for collateral purpose alone, without a separate improper act in the conduct of proceedings; and whether the court had to decide the planning grounds before dismissing a case on that basis.
Justice Barrett held that neither question met the exceptional-importance threshold. He said the law on abuse of process was settled and that the earlier decision applied established principles to the particular facts. On the first proposed question, he also rejected Dunnes’ premise that the earlier ruling rested only on motive and involved no improper conduct in the proceedings.
On the second question, the judge said the court was not required to determine the substantive planning issues before deciding whether the proceedings were an abuse of process. He noted that the “but for” question—whether proceedings would have been brought without a collateral purpose—arises where a party has mixed legitimate and collateral objectives. The earlier judgment had found that Dunnes’ objectives were collateral, rather than mixed.
The judge also said an appeal would not serve the public interest, referring to the risk of further delay to the Ferrybank Centre. The judgment described the development as idle since practical completion in August 2009, apart from a library and office bought by Kilkenny County Council. It cited potential employment and public amenity benefits, loans taken over by NAMA and, ultimately, the taxpayer, and the absence of public objections to the permission. However, because neither proposed point passed the exceptional-importance test, the court said it did not need to decide the public-interest question.
The court declined to grant the certification. Dunnes was therefore ineligible for the leave to appeal it had sought. The ruling did not decide the underlying planning issues.