Introduction

In the landmark case of Conway & Ors v. An Bord Pleanála & Ors; Clonres CLG [2022] IESCDET 71, the Supreme Court of Ireland addressed pivotal issues surrounding the criteria for granting leave to appeal directly from the High Court, particularly within the context of the Planning and Development Act 2000. This case emerged from a series of judicial reviews challenging the decision of An Bord Pleanála ("the Board") to approve a substantial development project in Raheny, County Dublin. The applicants, including John Conway and Clonres CLG, sought to escalate their appeals directly to the Supreme Court, invoking arguments of general public importance and the potential to influence future planning applications. The Supreme Court's decision to deny leave to appeal reinforces and elucidates the stringent requirements for such direct appeals, thereby impacting the procedural landscape of planning and development law in Ireland.

Summary of the Judgment

The Supreme Court was presented with an application for leave to appeal directly from the High Court under Article 34.5.4° of the Constitution, bypassing the Court of Appeal—a process known as a "leapfrog appeal." The applicants, represented by Crekav Trading GP Ltd, contended that six issues arising from the High Court's judgment were of general public importance and thus merited direct consideration by the Supreme Court. These issues primarily related to the interpretation of development plans, statutory instruments, the strategic importance of developments under the SHD regime, and specific guidelines governing building height and zoning.

After meticulous consideration, the Supreme Court denied the application for leave. The Court reasoned that the issues raised did not sufficiently meet the constitutional criteria of general public importance. Moreover, the circumstances did not present exceptional grounds that would justify bypassing the Court of Appeal. The Court emphasized that the proposed appeal could not lead to the reversal or alteration of the High Court's decision, rendering the appeal futile.

Analysis

Precedents Cited

The Supreme Court extensively referenced previous determinations to underpin its decision. Notably, the Court referred to:

• B.S. v. Director of Public Prosecutions [2017] IESC DET 134: This case established foundational principles for determining leave to appeal, particularly emphasizing the necessity of general public importance.
• Price Waterhouse Coopers (A Firm) v. Quinn Insurance Ltd. [2017] IESC 73: A unanimous judgment that further articulated the criteria for granting leave, reinforcing the high threshold required for direct appeals.
• Wansboro v. Director of Public Prosecutions [2017] IESCDET 115: This decision clarified the additional criteria for "leapfrog appeals," ensuring that only cases of exceptional significance warrant such a procedural leap.
• Lofinmakin v. Minister for Justice [2013] 4 I.R. 274 and ELG v. HSE [2021] IESC 82: These cases solidified the principle against granting advisory opinions, underscoring that appeals must resolve actionable disputes rather than theoretical questions.

By grounding its decision in these precedents, the Supreme Court reaffirmed the established legal framework governing the granting of leave to appeal, ensuring consistency and predictability in judicial proceedings.

Legal Reasoning

The Court commenced its analysis by reiterating the constitutional criteria post the 33rd Amendment, which necessitates that applications for leave to appeal must meet stringent standards of general public importance. It acknowledged that the applicant's claims, though substantive within the context of the specific development case, did not transcend to issues of overarching public relevance that would influence the broader legal landscape significantly.

The Court dissected each of the six issues raised by the applicant, determining that none individually or collectively sustained the threshold required for a direct appeal. Specifically:

• The interpretation of the "ordinary and reasonably informed person" did not present a novel legal challenge warranting Supreme Court intervention.
• Clarifications on whether a development plan is a statutory instrument under the Interpretation Act 2005 were deemed more procedural than substantive public concerns.
• Assessments of whether SHD meets statutory criteria did not introduce new legislative interpretations.
• Interpretations of the Building Height Guidelines and zonal "existing use" were considered specific to the facts of the case and thus not of general import.

Furthermore, the Court dismissed the argument of mootness by asserting that the proposed appeal lacked the capacity to effectuate any meaningful change to the High Court's decision, rendering the appeal futile.

Impact

The Supreme Court's decision delineates the boundaries of what constitutes a case of general public importance worthy of direct appeal. By declining to grant leave, the Court reinforces the necessity for applicants to initially navigate through the Court of Appeal before seeking Supreme Court intervention, unless unequivocal exceptional circumstances are present. This judgment serves as a clarion call for litigants to meticulously evaluate the public significance of their cases before embarking on the arduous path of a leapfrog appeal.

Additionally, for practitioners in planning and development law, this decision underscores the limited scope for elevating specific procedural or interpretative disputes to the highest judicial authority without clear evidence of broader legal implications. Future cases will likely cite this judgment when contending with the thresholds for direct appeals, ensuring that only genuinely impactful issues reach the Supreme Court.

Complex Concepts Simplified

Leave to Appeal

"Leave to appeal" refers to the permission a party must obtain to take their case to a higher court. In this context, applicants sought the Supreme Court's approval to bypass the Court of Appeal and elevate their case directly.

General Public Importance

For a case to qualify as being of general public importance, it must involve legal questions or issues that affect the wider community, set significant precedents, or have the potential to influence future legislation or judicial decisions.

Leapfrog Appeal

A "leapfrog appeal" is a legal procedure where a case is appealed directly from a lower court (like the High Court) to the Supreme Court, skipping intermediate appellate stages such as the Court of Appeal. This is typically only permitted in exceptional circumstances.

Certiorari

"Certiorari" is a legal term referring to an order by a higher court to a lower court to transmit the record of a case for review. In this judgment, it pertains to the High Court's decision to quash the Board's approval of the development on specific grounds.