Kenny v. An Bord Pleanala (No. 2)

Factual and Procedural Background

On 4th August 2000, Company A was granted planning permission by the Respondent for a substantial development at a property in The City. The Applicant and several Notice Parties objected to this decision and challenged its validity through judicial review proceedings. The Applicant sought leave to apply for judicial review but was unsuccessful as the court found he had failed to establish "substantial grounds". Subsequently, the Applicant applied for a certificate to appeal to the Supreme Court, which is the subject of the present judgment.

Legal Issues Presented

1. Whether the Applicant satisfied the statutory threshold of "substantial grounds" to obtain leave for judicial review of the Respondent's decision.
2. Whether the High Court should grant a certificate allowing an appeal to the Supreme Court on the basis that the case involves a point of law of exceptional public importance and it is desirable in the public interest to do so.
3. Whether specific points of law identified by the Applicant meet the criteria of exceptional public importance for certification.

Arguments of the Parties

Applicant's Arguments

• The judge improperly imposed a higher test than permitted under the relevant statutory provision for determining substantial grounds.
• The judge failed to properly consider the Applicant's argument that the gate lodge was a "protected structure" under a 1999 Act and that the Act applied retrospectively.
• The judge erred in relation to the development plan issue.
• The court's approach to assessing the Environmental Impact Statement (E.I.S.) was legally flawed, effectively granting exclusive jurisdiction to the planning authority to decide on the adequacy of the E.I.S., which the Applicant contends is a point of law of exceptional public importance.
• The Applicant identified three points of law of exceptional public importance arising from the case, including the test for substantial grounds, the E.I.S. issue, and the gate lodge's protected status.

Court's Response to Arguments

• The court found that the test applied for substantial grounds was consistent with established case law, particularly the McNamara decision, and rejected the Applicant's claim of an incorrect or heightened standard.
• The court held that the assessment of substantial grounds necessarily involves some evaluation of the merits of the arguments and case law but not to the extent of adjudicating the full judicial review.
• The issue regarding the gate lodge and its status under the 1999 Act was considered but found not to meet the threshold of substantial grounds as the Act did not apply retrospectively and the development plan did not afford protection.
• Regarding the E.I.S., the court concluded that once statutory requirements were met, the court should not concern itself with the qualitative nature of the E.I.S., and no point of law of exceptional public importance arose from the court's statements on this issue.
• The court emphasized that while the points raised may be important, none met the threshold of exceptional public importance required for certification to appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McNamara v. Respondent [1995] 2 ILRM 125	Established the test for "substantial grounds" in judicial review leave applications.	The court applied the McNamara test as the proper standard for assessing substantial grounds and found the Applicant did not meet it.
Fallon v. Respondent [1992] 2 IR 380	Clarified the meaning of a "point of law of exceptional public importance" in the context of certification for appeal.	Used to determine that the issues raised were not of exceptional public importance, but rather of importance tied to the facts of the case.
Irish Ashfelt Limited v. Respondent [1996] 2 I.R. 179	Confirmed that only the High Court can certify points of law for appeal to the Supreme Court under the relevant statute.	Supported the court’s view on the exclusivity of certification power and finality of its decision.
People (Attorney General) v. Giles [1974] I.R. 422	Set out principles regarding certificates for appeals involving points of law of exceptional public importance.	Referenced to explain the nature and rarity of certification and the necessity for points to transcend the parties involved.
Irish Press plc v. Ingersoll Irish Publications Limited [1995] 1 ILRM 117	Affirmed that certain points of law can be of public importance transcending individual cases.	Used to contrast with the present case, where no such exceptional public importance was found.
Lancefort Ltd v. Respondent [1998] 2 IR 511	Considered challenges to constitutionality and the threshold for points of exceptional public importance.	Applied to reject the Applicant's constitutional challenge as not meeting the threshold for certification.
Luxembourg v. Linster, ECJ (19/9/2000)	Clarified the discretion of Member States in implementing EU directives and the possibility of judicial review of such implementation.	Referenced in relation to the role of domestic courts in reviewing Environmental Impact Statements.
Kraaijeveld B.V. & Ors v. Gedeputeerde Staten Van Zuid Holland, ECJ (24/10/1996)	Confirmed the continuing power of domestic courts to review Environmental Impact Statements.	Supported the court’s view that judicial review of E.I.S. adequacy remains possible under certain grounds.
Boland v. Respondent [1996] 3 I.R. 435	Addressed the role of courts in reviewing planning decisions and compliance with environmental regulations.	Reinforced the court’s position on judicial review limits concerning E.I.S. adequacy.
Scott v. Respondent [1995] 1 IRLM 424	Related to judicial review procedures and standards.	Referenced to support the court’s approach to assessing substantial grounds.
Mulhall v. Respondent HC Unreported (21/5/96)	Judicial review procedural principles.	Used as precedent for the court’s methodology in assessing leave applications.
Blessington and District Community Council Limited v. County Council [1997] 1 I.R. 273	Standards for judicial review in planning matters.	Supported the court’s assessment framework for leave applications.
K.S.K. v. Respondent	Example of certification granted where jurisdictional or procedural defects existed.	Used to illustrate circumstances where certification may be granted despite refusal of leave.
Costco v. Respondent HC Unreported (Smyth J.)	Similar to K.S.K. case regarding certification after refusal of leave.	Referenced to show exceptional situations permitting certification.

Court's Reasoning and Analysis

The court began by outlining the statutory framework governing judicial review of planning decisions, emphasizing the requirement that an Applicant must establish "substantial grounds" to obtain leave. The court reaffirmed that this test, as established in McNamara, was properly applied in the Applicant's initial leave application.

It was explained that the High Court's decision on leave is final unless certification is granted for appeal to the Supreme Court, which requires that the case involves a point of law of exceptional public importance and that it is desirable in the public interest for such an appeal to proceed.

The court analyzed the three points of law raised by the Applicant. On the first point, concerning the test for substantial grounds and the treatment of the gate lodge's protected status, the court found no error in the application of the law and no exceptional public importance. The court noted that some evaluation of the merits is necessary at the leave stage to determine the existence of substantial grounds.

Regarding the second point, the court considered the Applicant's contention that the judgment improperly limited judicial review of the adequacy of the Environmental Impact Statement. The court held that once statutory requirements are met, courts should not revisit the qualitative assessment of the E.I.S., and no exceptional point of law arose.

The third point, relating to the gate lodge's status and its relationship with the development plan, was also dismissed as not raising a point of exceptional public importance.

The court further reflected on the apparent tension in granting certification to appeal where leave for judicial review had been refused, expressing difficulty reconciling how a point of law of exceptional public importance could co-exist with a failure to establish substantial grounds. The court acknowledged that in certain procedural or jurisdictional circumstances certification might be appropriate but found none applicable here.

Holding and Implications

The court REFUSED LEAVE for the Applicant to appeal to the Supreme Court, concluding that none of the points of law raised met the statutory threshold of exceptional public importance required for certification under Section 82(3B)(b)(i) of the 1963 Act.

The direct effect of this decision is that the Applicant's challenge to the planning permission and related issues will not proceed to the Supreme Court. No new legal precedent was established, and the court reaffirmed established principles regarding the assessment of substantial grounds and the limits of judicial review in planning matters.