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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
- 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.
- 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
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9 | Established the doctrine of harmless error in planning law appeals. | Referenced as authoritative for the principle that harmless errors do not require automatic certiorari. |
| Gemeinde Altrip and Others v Land Rheinland-Pfalz, C‑72/12, ECLI:EU:C:2013:712 | CJEU upheld that courts may refuse relief if an error is harmless, based on developer's evidence. | Applied to confirm that the court may rely on evidence to refuse relief where no significant effect is shown. |
| Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28 | Requirements that legal questions must properly arise within pleadings and not be newly formulated for appeal. | Applied to reject unpleaded points and emphasize pleading rules. |
| Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11 | Legal questions must arise on the facts and not be abstract. | Referenced in setting criteria for leave to appeal. |
| GOCE Limited v. An Bord Pleanála [2025] IEHC 43 | Questions must have been argued by the appellant and not newly formulated. | Applied to assess whether points properly arise. |
| S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 | Appeal points must make a difference to the outcome and not prolong litigation unnecessarily. | Used to emphasize that appeal points must be determinative. |
| Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9 | Appeal questions must accurately reflect the judgment and not exaggerate or distort. | Applied to reject exaggerated points. |
| Leech v. An Bord Pleanála [2025] IEHC 157 | Distinction between pure questions of law and mixed questions of fact and law. | Applied to determine suitability of points for appeal. |
| B.S. v. Director of Public Prosecutions [2017] IESCDET 134 | Pure questions of law vs. mixed questions of law and fact. | Referenced in defining appealable issues. |
| Patrick McCaffrey & Sons Limited v. An Bord Pleanála [2024] IESCDET 145 | Points must transcend facts to be of public importance. | Applied to assess public importance of points. |
| Ógalas v. An Bord Pleanála [2015] IEHC 205 | An appeal may be necessary in the public interest to resolve doubt. | Referenced regarding resolving doubt in public interest. |
| Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 | Where law is not uncertain, public interest suggests appeal is not warranted. | Applied to reject appeal where no reasonable doubt exists. |
| Stapleton v. An Bord Pleanála [2025] IEHC 178 | Requirement for appeals to engage with rationale of judgment and not merely repeat positions. | Used to critique applicant's submissions. |
| Callaghan v. An Bord Pleanála [2015] IEHC 493 | Novelty of a point does not alone justify appeal. | Applied to reject appeal based on novelty alone. |
| Maguire T/A Frank Pratt & Sons (No. 2) [2023] IEHC 209 | Disagreement with a conclusion does not create legal uncertainty. | Referenced to reject speculative claims of uncertainty. |
| Phoenix Rock Enterprises v. An Bord Pleanála & Ors [2023] IESCDET 97 | Claims of practical problems must be supported by evidence. | Applied to dismiss unsubstantiated claims of uncertainty affecting industry. |
| McCaffrey v. An Bord Pleanála [2024] IEHC 476 | Leave to appeal refused where no evidence of practical problems exists. | Referenced in context of leave to appeal criteria. |
| R.A. v. Refugee Appeals Tribunal [2015] IEHC 830 and related cases | Leave to appeal will be granted if a solid case exists. | Referenced to explain threshold for granting leave. |
| Kelly v. An Bord Pleanála [2014] IEHC 400 | Determination of effects on European sites as prerequisite to board's jurisdiction. | Referenced to clarify jurisdictional issues and harmless error doctrine. |
| Friends of the Ardee Bog v. An Bord Pleanála [2025] IESC 13 | Pending Supreme Court appeal on related issues. | Referenced but distinguished on facts and issues. |
| Hellfire Massy v. An Bord Pleanála [2022] IESC 38 | No outcome in Luxembourg can require certiorari automatically. | Referenced to support approach to appeals following CJEU judgments. |
| Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231 | Finality, certainty, and expedition in planning judicial reviews. | Applied in context of public interest and appeal considerations. |
| Dunnes Stores v. An Bord Pleanála [2015] IEHC 387 | Public interest considerations in appeals involving delay and infrastructure. | Referenced in assessing public interest. |
| Eco Advocacy CLG v. An Bord Pleanála, Keegan Land Holdings Limited, An Taisce and Client Earth AISBL [2024] IESCDET 62 | Consideration of potential impact of delay on notice parties. | Referenced in public interest analysis. |
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.
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