Supporting Documents:
109-17 AFL (3).pdf109-17 Rspndt Notce a& L.DOC109-17 Rspndt Notce.pdf

SUPREME COURT

DETERMINATION

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

Result: The Court does not grant leave to the Applicant to appeal to this Court directly from the High Court.

Reasons Given:

1 In this case the applicant seeks both an extension of time within which to bring this application, and also leave to appeal to this Court from the decision of the High Court (Haughton J), delivered on the 31st of May 2017, in which it appears that he determined a number of matters: first, a determination that the applicant’s application for judicial review was itself out of time; second, refusing to extend time for judicial review on the express grounds that the applicant’s case could not succeed; third, setting aside the leave to seek judicial review granted by Humphries J on the 12th of December 2016; fourth, holding that a certificate of the High Court was required under s.50A(7) of the Planning and Development Act 2000 (as amended) to permit an appeal to the Court of Appeal from a decision of the High Court which terminated an application for judicial review in planning matters, and where that decision was made on the basis of consideration of the merits of the case even though the decision before the Court was whether or not to extend time for the grant of judicial reviews; and fifth, refusing such a certificate.

2 It is apparent that a number of potentially complex legal issues arose in this case. Furthermore, the judge was careful to observe that his decision that the application for judicial review was itself out of time, was not a decision to which s.50A applied. However, it does not appear that the applicant has taken any steps to appeal that decision. That said, the applicant seeks leave to appeal pursuant to Article 34.5.4 of the Constitution (leapfrog) to this Court from the entirety of the High Court decision.

3 This Court has observed in the determinations in Grace v An Bord Pleanála [2016] IESC Det 29, and OMR v Minister for Justice [2017] IESC Det 14, that arising from the 33rd amendment of the Constitution it is now possible to seek to appeal to the Supreme Court under the leapfrog provisions from decisions of the High Court which are subject to statutory restrictions on appeal which appeal would normally lie to the Court of Appeal. There are at least three statutory regimes in which such a certificate is required, namely planning, immigration, and European Arrest Warrants. As set out in the OMR determination, there is a very significant overlap between the statutory tests set out in for example s.50A, and that posed by Article 34.5.4, and accordingly the Court will normally expect a party, before bringing an application for leave under the leapfrog provisions in such a case, to have brought an application to the High Court for a certificate. That course was followed here, and as set out above the certificate was refused.

4 The applicant has represented himself at all stages. The case concerns the permission granted by An Bord Pleanála for the development of a wind farm in County Mayo. It is certainly regrettable that in a case which in the High Court involved questions of time limits and an extension of time, that a further issue should have arisen in this case and that it should be demonstrably the case that the application for leave is out of time. The applicant seeks to extend time by pointing to the fact that he sought to launch an appeal on the 7th of July but had filed the wrong form. The respondent points out however, that even on that date the application was out of time, and the applicant has not sought to explain the delay up to that point or seek to establish certain basic criteria such as for example that he had formed the intention to appeal within the statutory period. Nevertheless, the period involved is short, and the Court will accordingly address the question of extension of time in the context of the substance of the application.

5 The essential ground raised by the applicant relates to what the so called capacity factor of the proposed wind farm development is, and which is itself also related to the contribution to the Community Benefit Fund. It is asserted by the applicant that “false information” was provided by the applicant for planning permission described as the State, which it is also asserted, accepted in an affidavit, that the amount of energy generated would be one third greater than that referred to in the planning permission. It is also asserted that the High Court decided that the capacity factor information included in the application was “economic in nature” and “as a consequence An Bord Pleanála was not required to consider the information in doing an environmental impact assessment”. The applicant then refers to a decision of the Commission for Environmental Information, CEI, in which the Commissioner found that information on a wind farm’s capacity accurately reflected the true generational capacity of the undertaking and was therefore environmental information within the meaning of the relevant regulations.

6 The respondent denies that the State applicant had “admitted” that the capacity factor was greater than that included in the application and furthermore points out that there has been no finding that any information supplied was “false”. More specifically it also asserts that the High Court did not find that information in relation to the capacity factor and output was not environmental information. Rather, it is asserted that the application for judicial review failed because the fundamental contention of the applicant in this regard was that An Bord Pleanála ought not to have accepted the capacity factor information submitted. As was pointed out by the judge in his ruling, the case law had established that the adequacy of an EIS was a matter for the planning authority. This is significantly different from a determination that information in relation to capacity is economic information and therefore not environmental information.

7 The High Court judge observed that the applicant’s contention was really a broad side attack on the planning system and a generalised attack on the 2000 Act and Regulations made thereunder, it was so lacking in specificity it could not give rise to a point of law for certification. The trial judge concluded that the point made by the applicant was really directed at the merits of the decision. Having regard to the fact that it is clear there was no determination that the capacity information was not environmental information, this Court is unable to detect a ground of appeal which satisfies the Constitutional threshold and accordingly leave to appeal is refused.

And It is hereby so ordered accordingly.