Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2011

AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

RESULT: The Court grants leave to the Applicant to appeal to this Court directly from the High Court.

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by the applicant in the underlying proceedings (“An Taisce”) for leave to appeal, under Art. 34.5.4 of the Constitution, directly from the judgment of the High Court, Barrett J., delivered on the 8th November, 2016. The order appealed against was made on the 6th December, 2016 and perfected on the 20th December, 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

An Taisce brought proceedings in the High Court in which an order was sought under s.160 of the Planning & Development Act, 2000 (“the 2000 Act”). Essentially the contention made was that a so-called substitute consent (being a form of permission introduced in the light of the findings of the Court of Justice in Case C-2154/06 Commission v. Ireland) could not authorise continuing quarrying works of the type being carried on by the respondent (“McTigue”) without an appropriate Environment Impact Assessment. On that basis, and having regard to the facts of this case, An Taisce suggested that McTigue was carrying on unauthorised development and that the continuation of the quarrying activities in question should be restrained by an order under s.160. McTigue contended for a different construction of the relevant legal framework on the basis of which it was asserted that it was not carrying on unlawful development. In the alternative McTigue suggested that there were certain factors which ought persuade the Court, even if it were to find that McTigue were engaged in unlawful development, not to grant the order sought.

3. The Order Appealed Against

Barrett J. concluded that McTigue was engaged in unauthorised development but that, for a number of reasons identified in his judgment, it was appropriate for the Court to exercise the discretion which it enjoys under s.160 of the 2000 Act, not to grant the order concerned.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response is 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.

Before dealing specifically with the contentions of the parties it is appropriate to note that McTigue have also filed a notice of application for leave to appeal in relation to the same judgment of Barrett J. The basis on which McTigue seeks leave to appeal is the finding of the trial judge that it was engaged in unauthorised development. McTigue wishes to contend that the High Court was in error in coming to that conclusion. It will be necessary to deal with this point in due course and, for reasons which will become apparent, it is proposed to deal with that issue in the course of this determination.

As will be noted McTigue does not oppose the application for leave to appeal although it does make clear in its respondent’s notice that it will oppose the appeal on the merits should leave be granted. In its Notice of Application An Taisce refers to the fact that the particular area of law concerned with substitute consents which is an issue in this case is of reasonably general application and has not as yet been the subject of definitive interpretation by this Court. In addition it is said that the proceedings involve an important question as to the parameters within which the discretion which the Court enjoys under s.160 of the 2000 Act should be exercised not least in cases where the State’s obligations under European law are engaged.

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.

While the Court should, in considering whether to grant leave to appeal, have regard to the fact that the intended respondent to that appeal does not oppose the grant of leave, nonetheless it is necessary for the Court itself to be satisfied that the constitutional threshold is met.

The particular aspects of the substitute consent regime which are at issue in this case are potentially of application beyond the facts of this case and are, in and of themselves, of some public importance not least because of the European Union law obligations which arise. The fact that Ireland has been found to be in breach of its obligations in this area and that the measures which lie at the heart of these proceedings were adopted in an attempt to remedy that situation gives further emphasis to the general public importance of the issues raised.

So far as the Court’s discretion in s.160 applications is concerned, it is true that this matter has been the subject of some recent consideration by this Court. However, the particular focus in this case is on the criteria which ought apply in a case where it is said that there is a breach of a law which is mandated by European law. This is an additional factor which makes this issue also of general public importance.

For these reasons the Court is satisfied that the appeal which An Taisce wishes to pursue raises a general issue of public importance.

However, in addition, it is necessary for this Court to be satisfied, given that this is an application for leapfrog leave, that exceptional circumstances arise which would warrant a direct appeal to this Court. It seems to the Court that this is a mater of urgency and one in which arguments are raised which, if correct, might lead to Ireland being considered to be in breach of the European Union law obligations. That provides a legitimate basis for considering that a direct appeal might be considered appropriate.

In addition, the issues, while important and complex, are relatively net so that there would only be limited gain from requiring that the ordinary process of an appeal to the Court of Appeal be followed. On balance, therefore, the Court is satisfied that the necessary exceptional circumstances, which would justify the grant of leapfrog leave, are present in this case.

It is finally necessary to comment on the cross-appeal sought to be brought on behalf of McTigue. In essence McTigue seeks to argue that the High Court was wrong to conclude that it was engaged in unauthorised development. In the view of this Court it is unnecessary for McTigue to obtain separate leave to pursue a cross-appeal. The question of the distinction between a cross-appeal properly so-called and a case where a respondent simply seeks to argue that the order made by the court below is correct although for additional or different reasons, was fully considered by this Court in McEnery v. Commission of An Garda Siochána [2016] IESC 26. As pointed out in McEnery the key distinction is to be found in the question of whether the respondent concerned actually wishes to alter the order made in the court below. It seems to this Court that the point which McTigue wishes to raise does not amount to a cross-appeal in the sense in which that term has been considered and defined by this Court in McEnery. Rather the issue of whether the High Court was correct to conclude that unauthorised development was occurring represents an additional ground on which McTigue may seek to argue that the High Court was correct in the ultimate order which it made being to refrain from making an order under s.160 of the 2000 Act. Clearly if McTigue is correct in this contention then there could be no question of the grant of such an order for there would be no breach of planning law to restrain. It follows that, if McTigue were to successfully persuade this Court that it is correct in that regard, then such a conclusion would not give rise to any change in the order of the High Court for the proper result in this Court would remain one refusing the order sought.

In the light of what is set out in McEnery it is clear that, strictly speaking, the proper procedure which should have been followed by McTigue would have been to include in its respondent’s notice to An Taisce’s application for leave to appeal, a statement in the appropriate form that it wished to rely on additional grounds to support the ultimate order of the High Court with those grounds being its contention that the High Court was incorrect to conclude that it was engaged in unauthorised development. However, the Court will deem what is set out in McTigue’s separate application for leave to appeal to be an assertion by it, in the context of An Taisce’s application, that it wishes to uphold the ultimate decision of the High Court by means of additional grounds being that the High Court was incorrect to conclude that McTigue was involved in unauthorised development. For those reasons it is unnecessary to grant separate leave to appeal to McTigue.

5. Conclusion

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

The grounds on which an appeal may be pursued are as to whether it was open to the High Court, in all the circumstances of this case, to exercise a discretion not to make an order under s.160 of the 2000 Act notwithstanding a finding of unauthorised development.

For the avoidance of doubt the Court would wish to make clear that, in resisting that appeal, McTigue are free to argue that the High Court was incorrect to conclude that there was an unauthorised development in all the circumstances of this case.

And It is hereby so ordered accordingly.