Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000

AS AMENDED

BETWEEN

RESULT: The Court does not grant leave to the first named applicant to appeal to this Court directly from the High Court.

Reasons given:

1. Jurisdiction

This determination relates to an application by the first named applicant in the underlying proceedings (“Mr. Sweetman”) for leave to appeal under Art. 34.5.4 of the Constitution directly from judgments of the High Court (McDermott J.) delivered respectively on the 4th May 2016 and 24th June 2016. The order appealed against (which encompassed both judgments) was made on the 24th June 2016 and perfected on the 1st July 2016. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition because this is an application for leave to appeal directly from the High Court it is also necessary that it be established that there are “exceptional circumstances warranting a direct appeal” to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

Mr. Sweetman sought, in the underlying proceedings, to quash the decision of the first named respondent (“the Board”) to grant permission to the first named notice party (“Clare County Council”) under s.51 of the Roads Act 1993 relating to the construction of the so-called Killaloe bypass. Certain connected declarations relating to the effect of Council Directive 94/43/EC (“the Habitats Directive”) were also sought for it was to what was alleged to be failure properly to comply with obligations arising under that directive that the principal focus of the case concerning the validity of the permission given to construct the Killaloe bypass was directed.

Leave to seek judicial review was given by Peart J. on the 13th May 2013.

3. The Order appealed against

The High Court (McDermott J.) gave two judgments. In the first judgment McDermott J. dismissed Mr. Sweetman’s application for judicial review following a detailed consideration of the wide range of grounds canvassed.

Thereafter Mr. Sweetman sought a certificate from the Court for leave to appeal to the Court of Appeal under s.50A(7) of the Planning and Development Act 2000 as amended. As appears from para.3 of the judgment delivered by McDermott J. in respect of that question, the draft point advanced on behalf of Mr. Sweetman for certification was as follows:-

“Whether ‘shadow protection’ or ‘de facto protection’ may extend to a habitat designated as a priority habitat in Annex I to Council Directive 92/43/EC, notwithstanding the fact that, as occurs in the instant case, the site hosting such a natural priority habitat has not been identified and/or listed as a Site of Community Importance (SCI) and/or designated as a Special Area of Conservation (SAC) pursuant to the provisions of Article 6 of that directive”.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response of both the Board and Clare County Council (together with the other notice party) are published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

The focus of Mr. Sweetman’s submission in relation to leave centres on the concept of “shadow protection” which is said to be a novel concept where the jurisprudence is said to be evolving and, importantly, where there is said to be a divergence, or at least a potential divergence, between differing decisions of the High Court. On that basis it is said that an issue of general public importance arises.

Insofar as exceptional grounds are put forward for suggesting that a leapfrog appeal to this Court should be permitted reliance is placed, citing Grace & anor v. An Bórd Pleanála & ors [2016] IESCDET 29, for the proposition that the absence of an appeal to the Court of Appeal in the light of the refusal by the trial judge of a certificate in that regard provides such exceptional circumstances.

To a large extent Clare County Council (together with its fellow notice party North Tipperary County Council) adopt the position specified on behalf of the Board in opposing leave. The Board, in particular, suggests that there is no difference in the legal approach between that adopted by McDermott J. in this case and that adopted in other cases such as Sandymount and Merrion Residents’ Association v. An Bórd Pleanála [2013] IEHC 542 and Harrington v. An Bórd Pleanála [2014] IEHC 232. Rather, it is said, the trial judge distinguishes those cases from the present case on the facts. It is further said that the parameters of “shadow protection” as a matter of EU law have been clarified by the CJEU.

5. Discussion

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

Essentially the question of whether it is appropriate to grant leave to appeal in this case comes down to a question of whether it can be said that an issue of general public importance arises. If that is so and, thus, that that aspect of the constitutional threshold for leave to appeal is met then it seems to this Court, following Grace, that it would be appropriate to grant leapfrog leave. To do otherwise would be to deprive a party who has persuaded the Court that the underlying constitutional threshold has been met from having an appeal of any sort. It should also be observed, in passing, that the test by reference to which this Court considers, under the 33rd Amendment, whether to grant leave to appeal is different from the test which McDermott J. was required to consider in deciding whether to certify. The certification test, which requires the identification of a point of law of exceptional public importance, is higher than the leave to appeal threshold which simply requires the identification of an issue of general public importance. For this Court to grant leave to appeal on a point which this Court is satisfied meets that constitutional threshold does not, therefore, mean that this Court necessarily disagrees that the certificate refused by the trial judge was wrongly refused. The trial judge is required to apply a different standard. The reason for that different standard stems not from any case law of the courts but rather from the different wording used by the Oireachtas in putting in place legislation requiring the certification for points for appeal in certain types of cases and the wording adopted by the people in the 33rd Amendment.

The case made on behalf of Mr. Sweetman for suggesting that an issue of general public importance arises stems from the contention that there is uncertainty about the parameters of so-called “shadow protection”. There can be no doubt but that the possibility of shadow protection for certain types of areas has the potential to give rise to issues of general public importance. However, it has been made clear in a number of determinations of this Court that the application of general principles to the facts of an individual case will rarely, if ever, meet the constitutional threshold. It is only if there truly is a question about the general principle itself that a real issue of general public importance can be said to arise.

Having considered the careful judgment of McDermott J. this Court is not satisfied that any issue of principle concerning the scope of so-called “shadow protection” really arises on the facts of this case. Rather, as is pointed out in the Respondent’s notice, McDermott J. distinguished this case from other cases on the facts. Likewise, the CJEU has given clear guidance as to the proper approach in cases such as this. For those reasons the Court is satisfied that this case involves no more than the application of established principles to the facts of the case so that no issue of general public importance arises.

6. Conclusion

The Court, therefore, refuses leave to appeal under Art. 34.5.4.

And It is hereby so ordered accordingly.