- Bookmark
- Share
- CaseIQ
Freeney v An Bord Pleanala [No. 2] (Approved)
Factual and Procedural Background
This opinion concerns an application by the Applicant for a certificate pursuant to section 50A(7) of the Planning and Development Act 2000 (as amended) to appeal a prior High Court judgment. The principal judgment refused the Applicant's challenge to the decision of An Bord Pleanála dated 1st November 2021, which granted planning permission to Company A for a change of use and related works to premises located at Fairgreen House, Fairgreen Road, in the City. The current application seeks certification to appeal the refusal of judicial review against that decision.
Legal Issues Presented
- Whether the propositions from Nee v An Bord Pleanála (No.1) and South West Regional Shopping Centre v An Bord Pleanála as applied in the principal judgment with regard to section 37(2) of the Planning and Development Act 2000 are correct.
- Whether the test for the validity of a public notice is objective (whether it is inadequate or misleading from the perspective of potentially interested persons) or subjective (whether the Applicant and/or the planning authority is misled).
- What is required for a screening assessment under the Habitats Directive.
- Whether An Bord Pleanála is entitled to abdicate its consideration of the planning regulation of a proposed use to the different statutory code of the Gaming and Lotteries Act 1956.
Arguments of the Parties
Applicant's Arguments
- The Applicant contends that the legal propositions applied in the principal judgment concerning material contravention under section 37(2) are erroneous and require correction by the Court of Appeal.
- The Applicant argues that the validity test for public notices was improperly applied subjectively rather than objectively, contending that the notices inadequately described the change of use from retail to gaming.
- The Applicant submits that the screening assessment under the Habitats Directive was inadequate, criticizing the syntax and clarity of the Inspector’s report and the Board’s endorsement thereof.
- The Applicant asserts that An Bord Pleanála improperly abdicated its planning regulatory function to the licensing regime under the Gaming and Lotteries Act 1956.
Respondent and Notice Parties' Arguments
- The Respondent and notice parties oppose the application for a certificate, supporting the principal judgment’s application of established legal principles and its conclusions on the adequacy of public notices, screening for appropriate assessment, and the planning authority's functions vis-à-vis the Gaming and Lotteries Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nee v An Bord Pleanála (No.1) [2012] IEHC 532 | Interpretation of material contravention under section 37(2) of the Planning and Development Act 2000. | Applied to confirm that no material contravention process was engaged in the decision under challenge. |
| South West Regional Shopping Centre v An Bord Pleanála [2016] 2 IR 481 | Clarification of the material contravention process and planning permission considerations. | Applied consistently with Nee to uphold the decision of An Bord Pleanála. |
| Balz and Heubach v An Bord Pleanála & Ors [2016] IEHC 134 | Consideration of material contravention in planning decisions. | Distinguished as not analogous to the facts of the principal judgment. |
| Byrnes v Dublin City Council [2017] IEHC 19 | Standards for adequacy of public notices under planning regulations. | Relied upon to determine that the public notices in the principal judgment were adequate both objectively and subjectively. |
| Dunne and MacKenzie v An Bord Pleanála [2006] IEHC 400 | Prejudice and timing considerations in relation to site notices. | Referenced to support the adequacy and timing of notices in the present case. |
| Eoin Kelly v An Bord Pleanála & Anor [2019] IEHC 84 | Appropriate assessment screening under the Habitats Directive and pleading requirements in judicial review. | Applied to reject the Applicant’s challenge based on alleged inadequacies in the screening assessment. |
| Ross & Ross v An Bord Pleanála [2015] IEHC 484 | Requirement that grounds for appeal must have been pleaded and granted leave in judicial review. | Applied to preclude appeals on points not properly pleaded or granted leave. |
| Glancré Teoranta v An Bord Pleanála [2006] IEHC 250 | Principles governing certificate applications including exceptionality and public interest. | Set the framework for assessing the certificate application in this case. |
| Monkstown Road Residents' Association v An Bord Pleanála [2023] IEHC 9 | Requirement for precise formulation of points of law for certificate applications. | Applied to reject overly general or unpleaded points of law. |
| Sherwin v An Bord Pleanála [2024] IESC 13 | Limits on revisiting findings in principal judgments and the importance of points arising from the decision itself. | Applied to deny certification for points not decided in the principal judgment. |
| Turbine Aware v An Bord Pleanála (No.2) [2025] IEHC 3 | Clarification that questions of application of principles to facts are unsuitable for appeal as points of law of exceptional public importance. | Applied to reject the certificate application on similar grounds. |
Court's Reasoning and Analysis
The Court analyzed each proposed point of law against the statutory requirements under section 50A(7) of the Planning and Development Act 2000, emphasizing that the point must (i) arise from the decision in the principal judgment, (ii) be of exceptional public importance, and (iii) be in the public interest that an appeal be brought. The Court rejected the Applicant’s challenge on the material contravention point, finding no uncertainty or error in the application of precedent and that the issue was not decided in the principal judgment.
Regarding public notices, the Court applied established jurisprudence including Byrnes v Dublin City Council to hold that the notices were adequate both objectively and subjectively, noting the Applicant was not misled and had made no complaint during the planning process.
On the screening for appropriate assessment under the Habitats Directive, the Court found the Applicant’s criticisms to be general and not properly pleaded as required for certification. The Court emphasized that questions involving the application of established principles to facts do not constitute points of law of exceptional public importance.
Lastly, the Court addressed the alleged abdication of planning functions to the Gaming and Lotteries Act 1956, concluding that the Board properly considered the planning merits and did not abdicate its function, with the licensing regime operating separately and conditionally.
Holding and Implications
The Court REFUSED the application for a certificate pursuant to section 50A(7) of the Planning and Development Act 2000 in respect of all four proposed points of law.
The direct effect is that no appeal will be permitted to the Court of Appeal on these matters, thereby affirming the finality of the principal judgment. No new precedent was established, and the decision reinforces the high threshold for certification of points of law of exceptional public importance and the public interest requirement in planning judicial review appeals.
Alert