Supporting Documents:
 Application for Leave to Appeal. Callaghan v ABP.doc  Respondents Notice. Callaghan v An Bord Pleanala.pdf Respondents Notice.doc
An Chúirt Uachtarach
The Supreme Court
DETERMINATION
Between:
John Callaghan
APPLICANT
AND
An Bord Pleanála, Ireland and the Attorney General
RESPONDENTS
AND
Element Power Ireland Limited, Element Power Ireland and North Meath Wind Farm Limited
NOTICE PARTIES
APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION
RESULT: The Court declines an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered ex tempore on the 9th Day of December 2015.
REASONS:
1. This determination concerns an application brought by the applicant in which the applicant seeks to appeal the ex tempore judgment of Finlay Geoghegan J, sitting alone, in which the applicant sought a stay on all proceedings before An Bord Pleanála relating to or connected with an application directly to the Board for a wind farm about 4.5km distance from the applicant’s home in County Meath. The applicant is a noise sensitive person. Due to the size of the wind farm, the application for planning permission was made as part of the sections of the planning code dealing with strategic infrastructure. The respondent is the Board. The three notice parties are the firms engaged in the planning and/or construction of the proposed wind farm.
2. The applicant was applicant before the High Court in a judicial review case, judgment in which was delivered by Costello J on 11th June 2015. The decision sought to be quashed was that of the Board concerning the proposed development at Emlagh in the County of Meath, came within sections of the Planning and Development Act 2000, as amended, dealing with strategic infrastructure; see [2015] IEHC 357. The applicant claims that he was not enabled to make observations on this planning permission application which in any ordinary case before a local authority he claims he could. By a separate judgment dated 24th July 2015, Costello J gave the applicant a certificate to appeal a point of law of exceptional public importance, which was:
Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in the light of Sections 50(2) and 143 of the Planning and Development Act 2000 such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to Section 37A of the Planning and Development Act 2000.
3. By the time of the judgment under appeal, this point had not yet been considered by the Court of Appeal. What then happened was that the applicant brought an application for a stay of all proceedings before the Board. However this application might be phrased, it was in reality one for an injunction to stop the Board issuing any determination in the wind farm case until such time as the point of law, certified by Costello J as being of exceptional public importance, was decided in the Court of Appeal. By a determination issued on 15th December 2015, [2015] IESCDET 60, this Court refused leave to the applicant to appeal the point of law certified directly to the Supreme Court. The appropriate court to consider the appeal is thus the Court of Appeal.
4. Before the Court of Appeal, the applicant had argued that a notification received by him from An Bord Pleanála on 20th November 2015, that it might make a decision 14 days after same had made an application to seek a stay both appropriate and urgent. The application was argued on a twofold basis. Firstly, that the appeal would be rendered moot if there had been, in the intervening period between the hearing before the Court of Appeal and judgment, a decision on the planning application by the Board. Secondly, in such an eventuality, the applicant would be obliged to issue a second set of judicial review proceedings and obtain leave on same in order to challenge the jurisdiction of the Board in issuing a decision without wider consultation, should the certified point go in favour of the applicant. The judgment of the Court of Appeal shows at paragraph 13, that an approach was taken to the matter which accords with existing precedent.
There is little dispute about the legal principles which are to apply; by reason of the certificate granted by the High Court, the appellant has established that there is an issue to be tried on the appeal. In so far as whilst the appellant states that he is seeking a stay it is important to emphasise that it is not a stay on a High Court order which is being sought pending the appeal, but it is in substance an injunction which is being sought to restrain An Bord Pleanála from continuing with a planning application which has been lodged before it. Given that there has clearly been established an issue to be tried, the real question in accordance with the authorities is the balance of convenience between the relevant parties, the appellant and the notice parties.
That standard statement of the law was followed up by a consideration of the fear of mootness issue at paragraph 14:
Insofar as there is a concern being expressed on behalf of the appellant in relation to the potential contention that the appeal would, before this Court, be rendered moot by a decision it is important to note and stress that both the Board and the notice parties have contended that they have agreed that they will not take any point that the appeal is rendered moot by a decision granted by the Board. That of course is not quite the end of the matter as the court itself could view the appeal as rendered moot, but in my view that is rendered improbably and I cannot obviously completely bind colleagues but it is rendered improbable by reason of the nature of the claim and the relevant statutory scheme. That is also relevant to my reasoning.
On the basis of the balance of convenience, related to the effect of the order sought on the applicant and on the third party developers, the Court of Appeal refused the application. The applicant now seeks to appeal that interlocutory decision to the Supreme Court.
5. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; under Article 34.2 establishes the Court of Appeal; and under Article 34.4.1° sets out its appellate jurisdiction. This reads:
4 1° The Court of Appeal shall—
i save as otherwise provided by this Article, and
ii with such exceptions and subject to such regulations as may be prescribed by law,
have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
6. Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is set out in Article 34.5.3° and 4° of the Constitution. The former relates to appeals where there has been a determination by the Court of Appeal and the latter where a litigant seeks to come directly from the High Court to the Supreme Court. The article relevant to this appeal, that where the Court of Appeal has already given judgment on a matter, is now quoted:
3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—
i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.
7. The decision of the Supreme Court under Article 34.5.6° is in all cases “final and conclusive.”
8. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal “involves a matter of general public importance” or, alternatively, that it is, “in the interests of justice”, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act 2014, and in particular the provisions of s. 44 of that Act which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
9. The Constitution has retained the entitlement of one appeal as of right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.
10. On the question of an issue or issues of general public importance, the applicant John Callaghan has argued that the decision of the Court of Appeal refusing a stay has failed to preserve the status quo; has required him to potentially issue further proceedings; and has vitiated the use of the appeal. He argues further that where a stay on the making of a planning decision is sought “in circumstances where a point of law of exceptional public importance is certified” that the rule of law applicable “ought to be that the status quo should be preserved pending the determination of the appeal, so that the appeal, if successful, is not rendered nugatory.” Thus, it is contended that the interests of justice render such an appeal appropriate.
11. The respondent contends that “there is no basis advanced in” this application “which could entitle the applicant for an order granting leave to appeal.” The respondent points out that the order sought to be appealed is interlocutory and references the determination of this court not to allow an appeal directly to this Court. The tacit argument being that it would not be logical to allow an interlocutory appeal from the Court of Appeal while refusing a direct appeal from the High Court. The notice parties point to the lack of any new development in the established case law for the consideration by the Court of Appeal in this application. The notice parties state that this appeal is “not necessary in the interests of justice” as the matter “does not advance grounds addressing the contention that an appeal from the decision of the Court of Appeal is necessary in the interests of justice.” The notice parties state that the status of an appeal as a first or second appeal is not important. According to them, “no issues have been raised to bring the application within the category where it is in the interests of justice necessary that there should be an appeal to the Supreme Court.”
12. From the standpoint of the tests whereby this Court may assume jurisdiction to allow an appeal from a judgment of the Court of Appeal under Article 34.5.3° of the Constitution, the applicant John Callaghan has not met these. No fundamental test as to the administration of the stay application or injunction application on an interlocutory basis pending an appeal hearing is engaged in the Court of Appeal judgment. The reasoning of Finlay Geoghegan J at paragraph 24 was that balancing the interests of the parties, there would “be potentially a very considerable prejudice if by reason of a stay” being granted by the Court of Appeal “the Board were not permitted to make a decision (one way or the other obviously) on the application.” Thus, the application of standard tests led to the decision of the Court of Appeal and there is nothing in the analysis that might be said to impact more generally and outside the specific and individual circumstances of this case. Nor has such a potential injustice been demonstrated that an appeal should nonetheless be taken. The concessions made on the mootness point, noted by Finlay Geoghegan J at paragraph 14 of her judgment in the Court of Appeal are to be noted in that regard.
13. On neither ground as set out in Article 34.5.3° does this Court have an entitlement under the Constitution to allow an appeal from the Court of Appeal in this case.
14. It follows that the applicant is not entitled to a further appeal.
AND IT IS HEREBY ORDERED ACCORDINGLY
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