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Kimmage Dublin Residents Alliance Company Ltd By Guarantee v An Coimisiun Pleanala and Ors [No. 2] (Approved)
Factual and Procedural Background
The Applicant challenged planning permission for a residential development comprising 208 apartments and associated works. Earlier permissions were quashed or remitted in separate proceedings, and a subsequent judicial review of the permission granted on remittal was refused. [1][2][3][4]
The Applicant sought leave to appeal from the substantive judgment. The application was heard after written submissions were exchanged, and judgment was reserved. [5][6][7]
Legal Issues Presented
- Whether section 37(2)(a) of the Planning and Development Act 2000 contains limitations restricting the power to grant permission in material contravention of a development plan. [8]
- Whether section 37(2)(a), interpreted in light of the SEA Directive, precludes permission materially contravening a development plan subject to strategic environmental assessment, and what limitations the Directive imposes. [9]
- Whether Article 288 TFEU requires Member States to amend transposing legislation when subsequent Court of Justice case law gives a directive a particular interpretation. [10]
- Whether any proposed EU-law questions properly arose, involved exceptional public importance, and justified a reference to the CJEU. [11][12]
Arguments of the Parties
Applicant's Arguments
- Section 37(2)(a) should not permit an unlimited departure from the hierarchy of planning documents and should be subject to significant or exceptional reasons. [13][14]
- The SEA Directive imposed limits on material contravention of a development plan, and the relevant derogation or justification should have been subject to environmental assessment or screening. [15][16][17]
- Domestic legislation had not transposed all constraints allegedly required by the SEA Directive, and administrative practice or conforming interpretation could not cure inadequate transposition. [18][19][20]
- The proposed questions were matters of exceptional public importance concerning the planning hierarchy, environmental assessment, and EU-law transposition. [21][22][23]
Commission's Arguments
- None of the proposed questions met the cumulative statutory requirements for leave to appeal because they were unpleaded, inaccurate, non-determinative, abstract, and unsupported by exceptional public importance. [24]
- The judgment did not confer an unlimited power: the Commission remained subject to mandatory legal provisions, relevant standards, and proper planning and sustainable development. [25]
- The SEA Directive applies to plans and programmes rather than individual development consents, and no genuine legal uncertainty existed. [22][26]
- The transposition question was dependent on the unsuccessful SEA argument and mischaracterised the judgment's treatment of conforming interpretation. [26][27]
State Respondents' Arguments
- The State Respondents relied on the Commission's submissions concerning the second and third questions. [28][29]
- The questions were not pleaded, were not determinative, and did not identify exceptional public importance or a public-interest basis for an appeal. [30][31][32]
- The SEA Directive had been transposed through legislation, and the additional controls asserted by the Applicant were not contained in the Directive. [33][34]
Notice Party's Arguments
- The Applicant had recast an unpleaded argument as open-ended appeal questions, contrary to the limits imposed by pleadings. [35][36]
- The proposed questions were roving, abstract, and incapable of determining the proceedings, particularly because the Applicant lacked standing on the transposition issue. [37][38][39]
- An appeal would delay a significant housing development, contrary to the public interest in finality and expedition in planning judicial review. [40][41][42]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28 | Leave permits pursuit of identified legal errors, not new grounds. | The proposed questions were outside the pleaded case. [43][44][45] |
| Doyle v. An Coimisiún Pleanála [2026] IESCDET 123 | Appeal questions must arise from the lower-court judgment and not be abstract. | The Applicant's formulations were open-ended and untethered to the judgment. [44][46][47][48] |
| Leech v. An Bord Pleanála [2025] IESCDET 106 | Pleading disputes and case-specific application of principles generally do not raise public-importance questions. | The pleading issues did not establish a suitable point of law. [49][50] |
| Minister for Justice and Equality v. Andrzejczak (No. 2) [2018] IEHC 11 | A question must arise on the facts and not be abstract. | The proposed questions lacked the necessary factual foundation. [51] |
| GOCE Limited v. An Bord Pleanála [2025] IEHC 43 | A proposed question must actually have been argued and not be newly formulated on appeal. | The Applicant altered its case after the substantive hearing. [52] |
| S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 | The question should be determinative, timely, specific, and legally focused. | The proposed questions would not alter the result and invited a roving answer. [53][54][55] |
| Rooney v. Minister for Agriculture and Food [2016] IESC 1 | Appeal procedure should not become perpetual litigation focused on isolated points. | The Court rejected continuation based on interesting but non-determinative issues. [53] |
| Monkstown Road Residents Association v. An Bord Pleanála [2023] IEHC 9 | A question must accurately reflect the judgment and not exaggerate it. | The Applicant mischaracterised the judgment. [56][38] |
| B.S. v. Director of Public Prosecutions [2017] IESCDET 134 | Questions applying established law to facts are generally mixed questions, not pure questions of law. | The proposed matters were unsuitable for appeal. [57] |
| Halpin v. An Bord Pleanála [2020] IEHC 218 | Application of legal principles to facts is generally not a pure legal question. | The Court applied this distinction to the proposed appeal. [57] |
| Rushe v. An Bord Pleanála [2020] IEHC 429 | Mixed fact-and-law questions are generally unsuitable in this context. | The proposed questions did not satisfy the legal-question requirement. [57] |
| Stanley v. An Bord Pleanála [2022] IEHC 671 | Same principle concerning factual application of law. | The questions did not identify an independent legal issue. [57] |
| Eco Advocacy CLG v. An Bord Pleanála [2024] IESCDET 62 | Mixed questions and project-specific issues are generally unsuitable. | The proposed issues remained case-specific. [57][58] |
| Patrick McCaffrey & Sons Limited v. An Bord Pleanála [2024] IESCDET 145 | A public-importance question must transcend the facts of the particular case. | The Applicant's questions were tied to its own pleadings and facts. [50] |
| Ógalas v. An Bord Pleanála [2015] IEHC 205 | An appeal may be warranted to resolve genuine legal doubt. | No genuine doubt was demonstrated. [59] |
| Nagle View Turbine Aware Group v. An Bord Pleanála (No. 2) [2025] IEHC 3 | An appeal is generally unwarranted where the law is not uncertain. | The Court found the relevant law clear. [59] |
| Nagle View Turbine Aware v. An Bord Pleanála [2025] IESCDET 41 | An application must engage with the reasoning of the judgment. | The Applicant did not identify a plausible error in the reasoning. [60] |
| Stapleton v. An Bord Pleanála [2025] IEHC 178 | Novelty or official status does not itself make a question suitable for appeal. | Novelty did not establish uncertainty or exceptional importance. [56][61][62][63] |
| Callaghan v. An Bord Pleanála [2015] IEHC 493 | Novelty alone does not establish suitability for appeal. | The Applicant's novel interpretation did not create legal uncertainty. [64][65] |
| Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 8 and [2025] IESCDET 9 | A CJEU-reference request does not cure an abstract or unsuitable question. | The proposed EU-law questions remained unsuitable. [66] |
| Doyle v. An Coimisiún Pleanála [2026] IESCDET 123 | The restricted appeal route is not itself exceptional. | The statutory procedure did not establish exceptionality. [67][68] |
| Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231 | Planning judicial review prioritises finality, certainty, and expedition. | These objectives weighed against an appeal. [58] |
| Dunnes Stores v. An Bord Pleanála [2015] IEHC 387 | Project nature and delay are relevant to public interest. | Delay to the housing development weighed against leave. [58][69] |
| Phoenix Rock Enterprises v. An Bord Pleanála & Ors. [2023] IESCDET 97 | Assertions of practical difficulty require evidence. | No evidence established systemic practical problems. [70] |
| Colbeam v DLRCC & Jennings [2026] IEHC 613 | Judicial notice may be possible, but normally positive evidence is required. | Mere assertion of practical problems was insufficient. [71] |
| Rural Residents Wind Aware and Environmental Group v An Coimisiún Pleanála [No. 3] [2026] IEHC 300 | Leave questions must not be open-ended or recast unpleaded arguments. | The Applicant's first question was impermissibly reformulated. [35][36] |
| Heather Hill Management Co. CLG v An Bord Pleanála [2022] IESC 43 | Statutory interpretation may require attention to context and purpose. | The Court held that it had applied contextual and purposive interpretation. [72][73] |
| Redwood Extended Care Facility v. Tailte Éireann [2026] IESC 3 | Relevant principles of statutory interpretation. | The judgment was said to have applied this authority. [72][74] |
| Raoul Thybaut and Others v Région wallonne, C-160/17 | SEA concerns plans and programmes, not individual projects. | The Court relied on this principle in rejecting the proposed SEA question. [75] |
| Site de St Teresa's Gardens, C-09/22 | Jurisprudence concerning plans or programmes derogating from other assessed plans or programmes. | The Court distinguished that principle from individual project permissions. [76][77] |
| YY v Minister for Justice and Equality (No. 2) [2017] IEHC 185 | Obiter comments cannot ordinarily provide the basis for a certification question. | The SEA discussion was treated as obiter and non-determinative. [39] |
| Commission v. Netherlands, Case C-339/87 | Inadequate transposition may arise where domestic powers conflict with a directive. | The State Respondents said the case was irrelevant because no such failure existed. [34] |
| Minister for Justice v Workplace Relations Commission, Case 378/17 | National courts may need to disapply conflicting national legislation. | The authority was relied on in the pleaded case, but did not establish a certifiable question. [78] |
| Glancré Teoranta v An Bord Pleanála [2006] IEHC 250 | Most planning cases are intended to be determined in the High Court, with appeals exceptional. | This supported refusal where an appeal would cause further delay. [40] |
| Massey v An Bord Pleanála (No.4) [2025] IEHC 309 | Delay and the nature of a development bear on public interest. | The Court endorsed the notice party's reliance on these considerations. [79] |
| McNamara v An Bord Pleanála [1998] 3 IR 453 | Raised an issue concerning jurisdiction to make a CJEU reference after final judgment. | The Notice Party relied on it in opposing a reference. [80] |
| Grace & Anor v An Bord Pleanála [2015] IEHC 870 | Relevant to the availability of a CJEU reference in a certificate application. | The Notice Party relied on it to contend that the reference request was misconceived. [80] |
| Persidera, Case C-112/16 | A preliminary reference is inappropriate where the issue is hypothetical. | The Commission relied on it against the proposed reference. [81] |
| Van der Weerd, Case C-222/05 | References must concern questions necessary to decide the case. | The Commission relied on it against a hypothetical reference. [81] |
| Friends of the Irish Environment v. An Coimisiún Pleanála (No. 2) [2026] IEHC 413 | Illustrative use of the conditional answer “If” where the premise is not established. | The Court used the formulation to explain why the transposition question did not arise. [82][83] |
Court's Reasoning and Analysis
The Court treated the statutory requirements for leave as cumulative. A proposed question had to arise from the pleadings and judgment, be a genuine question of law, be of public importance of an exceptional character, and support an appeal in the public interest. [84][85][86][87][88]
The central defect was procedural: the proposed questions did not arise from the pleaded case. The Applicant's pleaded case concerned whether individual permissions derogating from an SEA-assessed plan should themselves have been subject to SEA. The proposed appeal questions instead suggested that section 37(2)(a) might generally prohibit or restrict material contravention. [89][90][91][92][93]
The Applicant had also expressly disclaimed at the hearing the premise that individual permissions should be subject to SEA. The Court held that SEA applies to plans and programmes, not individual projects, making the pleaded major premise untenable. [94][95][96]
The first and second questions were therefore unpleaded, roving, and disconnected from the case. The third question was parasitic on the failed SEA argument and did not provide an independent basis for relief. [93][97]
The Court nevertheless considered the substance. It found no reasonable doubt concerning the statutory limits on section 37, the application of SEA, or the principles governing transposition. It also noted that the Applicant's alleged heightened standard would not have altered the result because the reasons for permission would have satisfied it in any event. [98][75][99]
The Court rejected the submission that the judgment had treated transposition as merely textual. It held that conforming interpretation remained available, while legislative intervention would be required only where domestic law positively conflicted with an EU obligation and could not be interpreted consistently with it. [93][100][101][102][103]
An appeal was not in the public interest. Planning judicial review requires finality, certainty, and expedition, and further delay would affect a proposed development of 208 social and affordable housing units. [104][40][41][42]
No CJEU reference was necessary. The first proposed reference was outside the pleadings and based on a misconceived application of SEA to individual consents. The second question had an answer already accepted by the Court and did not arise on the facts. [105][106][101][103]
Holding and Implications
APPLICATION FOR LEAVE TO APPEAL DISMISSED. The Court directed that, if leapfrog leave were granted by the Supreme Court, costs would be costs in that appeal; otherwise there would be no order as to costs. The substantive dismissal and related orders were to be perfected forthwith. [107][108][109][110]
The direct consequence was that the Applicant could not pursue the proposed appeal or CJEU reference on the questions formulated. The decision applied established principles concerning pleadings, certification, public importance, and planning-law finality; the opinion did not purport to establish a new precedent. [111][112][113][114][115]
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