Massey v An Bord Pleanala [No. 4] (Approved)

Factual and Procedural Background

This opinion concerns an application pursuant to sections 50, 50A and 50B of the Planning and Development Act 2000, involving an applicant challenging decisions related to a strategic infrastructure development project. The applicant has previously brought several challenges, including a dismissal of a challenge to the categorisation of the development as strategic infrastructure development, a dismissal of a claim for certiorari with some declaratory relief granted, and a reference of a question to the Court of Justice of the European Union (CJEU). The current matter concerns the applicant's request for leave to appeal against the High Court's prior decisions.

Legal Issues Presented

1. Whether a court can withhold certiorari where appropriate assessment screening was carried out in the absence of valid conservation objectives, and whether the criteria for withholding certiorari were correctly applied in the present case.
2. Whether section 37A of the Planning and Development Act 2000, specifically the phrase "if the following condition is satisfied," is to be interpreted as directory or mandatory.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the applicant's proposed questions for leave to appeal against established criteria, including whether the questions properly arose, were points of law, of public importance, and whether an appeal would be in the public interest. The court found that the first question was hypothetical and did not properly arise as drafted, and that much of the applicant's submissions raised unpleaded points or impermissible expansions beyond the pleadings, which is not acceptable. The applicant failed to produce expert evidence to challenge the uncontroverted evidence that the alleged error had no effect on European sites.

The court emphasized the well-established doctrine of harmless error, as upheld by the Supreme Court and the CJEU in Altrip, which allows courts to refuse relief where errors are shown to be harmless on the evidence. The applicant's reliance on a recent EFTA Court judgment was found to be a misunderstanding, as that case dealt with a complete lack of assessment rather than a defective assessment, and thus was not applicable.

The second question, concerning statutory interpretation, was acknowledged as a legal question but was deemed to lack public importance as it was a technical corporate identity issue without meaningful impact on rights or public interest.

The court rejected the notion that the applicant's points were of exceptional public importance or that an appeal was in the public interest, noting the urgent need for renewable energy infrastructure and the disproportionality of further delay. The court also noted that the applicant would have further appellate opportunities following the CJEU judgment in relation to declaratory relief.

Finally, the court dismissed the application for leave to appeal, reserving costs and setting procedural directions for the listing of the matter pending the CJEU outcome.

Holding and Implications

The court's final decision was to DISMISS THE APPLICATION FOR LEAVE TO APPEAL.

The direct effect of this decision is that the applicant's request to proceed with an appeal on the identified points is refused, thereby allowing the planning permission and prior decisions to stand without further delay. The court emphasized that the doctrine of harmless error applies, and that no new precedent was established by this judgment. The applicant retains the opportunity to pursue declaratory relief following the anticipated CJEU judgment, but further appeals on the current points are not warranted. The decision underscores the court's commitment to finality, certainty, and expedition in planning judicial review cases, particularly in the context of urgent renewable energy projects.