Legal costs in environmental and planning litigation

Transcription

1 Planning law update Bar Council CPD seminar 17 June 2013 Fintan Valentine BL Legal costs in environmental and planning litigation Section 50B of the Planning and Development Act 2000 The general rule under Order 99 (as amended) is that the costs of legal proceedings follow the event, i.e. the losing side must pay the winning side s legal costs. However, this rule does not apply in certain types of environmental litigation. This reflects the State s obligations under the Aarhus Convention and Article 11 (formerly 10a) of the Environmental Impact Assessment ( EIA ) Directive, 2011/92/EU. The Aarhus Convention is an international treaty which guarantees three procedural rights involving access to information, participation in decision-making and access to justice in environmental matters which underpin the right of every person to live in an environment adequate to his or her health or well-being. While the Convention was only ratified by Ireland in 2012, it has been given partial effect in the EU legal order since 2005, when what is now article 11 was inserted into the EIA Directive. Article 11 concerns access to justice, and, in particular, the entitlement to have access to a review procedure to challenge the substantive or procedural legality of any decision subject to the public participation provisions of the Directive. Article 11(5) provide as follows: Any such procedure shall be fair, equitable, timely and not prohibitively expensive. Ireland initially sought to comply with this requirement by introducing, by virtue of the provisions of the Planning and Development (Amendment) Act 2010, a default rule that in relevant judicial review proceedings taken under section 50 of the Planning and Development Act, 2000, each party would, subject to limited exceptions, bear its own costs. Although this approach was subsequently amended by the Environmental (Miscellaneous Provisions) Act 2011, it is worth noting that in Stack Shanahan v Ireland & Ors. [2012] IEHC 571, O Malley J. expressed doubt as to whether the 2010 costs regime complied with the requirements of article 11. At a late stage in the proceedings in that case, the Applicants sought to amend their Statement of Grounds to seek a Declaration that article 11 of the EIA Directive had been incorrectly transposed into Irish law by means of Section 50B of the Planning and Development Act 2000, as inserted by Section 33 of the Planning and Development (Amendment) Act Although O Malley J. ultimately did not grant the Applicants leave to amend their Statement of Grounds to include the relief sought the requirement to seek leave cannot be simply set aside in that fashion she did make some obiter comments about Section 50B. In this regard, the court noted as follows: 1

2 The court has been told by the Applicants that they attended a lecture given by a barrister known for his expertise in planning and environmental matters, who gave it as his view that s.50b meant the end of pro bono litigation in such cases. They therefore felt they had to represent themselves. They have not given evidence that they actually sought and were refused legal advice or representation nor have they mounted any form of attack on the section. The full impact of the section in either its former or current wording has yet to become clear but I do consider that there is cause for disquiet. There is in my view a certain unreality in saying that the Applicants are at no disadvantage when they are opposed in these proceedings by three sets of Senior and Junior Counsel, all of whom have extensive expertise in this area. Fear of an Order of Costs being made against one may be a serious matter but so too is the inability to obtain representation, no matter how meritorious the case, unless one can pay for it up front. It is hard to see how, from the point of view of legal practitioners, the section could not have a chilling effect on their willingness or capacity to provide their services. There is also the possibility that an unmeritorious cases will take up the time of the courts where timely and effective legal advice could have stopped them. These views tend to suggest that the State was correct in amending Section 50B by the provisions of the Environment (Miscellaneous Provisions) Act Section 21 of the 2011 Act amended subsection (2) and inserted a new subsection (2A), which provides the Court with greater discretion in terms of awarding costs to a successful applicant for judicial review. For ease of reference, section 50B in full now reads as follows: 50B. (1) This section applies to proceedings of the following kinds: (a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of (i) any decision or purported decision made or purportedly made, (ii) any action taken or purportedly taken, or (iii) any failure to take any action, pursuant to a law of the State that gives effect to (I) a provision of Council Directive 85/337/EEC of 27 June 1985 to which Article 10a (inserted by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directive 85/337/EEC and 96/61/EC) of that Council Directive applies, (II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, or (III) a provision of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control to which Article 16 of that Directive applies; or (b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a); (c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in relation to a proceeding referred to in paragraph (a) or (b). (2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986) and subject to subsections (2A), (3) and (4), in proceedings to which this section applies, each party to the proceedings (including any notice party) shall bear its own costs. 2

3 (2A) The costs of proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the actions or omissions of the respondent or notice party, or both of them, contributed to the applicant obtaining relief. (3) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so (a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious, (b) because of the manner in which the party has conducted the proceedings, or (c) where the party is in contempt of the Court. (4) Subsection (2) does not affect the Court s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so. (5) In this section a reference to the Court shall be construed as, in relation to particular proceedings to which this section applies, a reference to the High Court or the Supreme Court, as may be appropriate. Recent Irish case law on Section 50B In J.C. Savage Ltd. v An Bord Pleanála [2011] IEHC 488, Charleton J. held that both the literal wording of s.50b and the legislative context made it clear that only three categories of case are to be covered by the new costs rules, namely, (i) EIA projects subject to the Environmental Impact Assessment Directive, Directive 2011/92/EU; (ii) plans and programmes subject to the Strategic Environmental Assessment Directive, Directive 2001/42/EC; and (iii) IPPC projects subject to the Integrated Pollution Prevention and Control Directive, Directive 2008/1/EC. In Shillelagh Quarries Ltd. v An Bord Pleanála (No. 2) [2012] IEHC 402, Hedigan J. approved of Charleton J. s interpretation. On the facts of the Shillelagh case, the application for judicial review had been brought not by a third party objector, but by the developer who unsuccessfully sought to challenge a refusal of planning permission. An Bord Pleanála sought its costs, but the Court held that the developer was entitled to rely on the new costs rules, and was thus not required to pay the costs of either the respondent or of the notice party. This would appear to be correct based on the literal wording of section 50B, but it illustrates the argument that insofar as Irish law allows a developer to rely on the new costs rules, it may go further than the Aarhus Convention and EU law requires. The Convention and the EU Directives are intended to facilitate public participation in environmental decision-making. The entitlement to a review procedure is given to NGOs and members of the public concerned. We are awaiting an important judgment on Section 50B, McCallig v An Bord Pleanála (No.2) in This judgment will, hopefully, resolve the question of whether a party must have pleaded a point of EU law in order to attract the special costs rules, or whether it is sufficient that the project or plan, the subject-matter of the legal proceedings, is one which is subject to the EIA Directive, the SEA Directive or the IPPC Directive. On a literal reading of s.50b, the key determinant of whether the 3

4 new costs rules apply is the nature of the development project or of the plan. It seems that provided the project or plan is subject to the specified EU legislation, then the new costs rules apply irrespective of whether an argument or ground based on a breach of EU law is relied upon. In Indaver NV t/a Indaver Ireland v. An Bord Pleanála [2012] IEHC 11, the High Court was called upon to interpret subsection 3 of section 50B, regarding the circumstances in which the Court could order costs against an unsuccessful applicant (the proceedings were initiated before the Environment (Miscellaneous Provisions) Act, 2011 came into operation on the 23rd August 2011, but subsection (3) was unaltered by the 2011 amendments). The proceedings were listed for hearing on 23rd October, 2012 but were withdrawn by the Applicant on the previous Friday, 20th October The Applicant sought to rely on Section 50B to resist any Order for costs being made against it. However, the Board and the Notice Party sought to rely on Section 50B(3) for an Order of costs in their favour on the basis that such order was appropriate because of the manner in which the Applicant has conducted the proceedings. Kearns P. examined the factual background to the withdrawal of the proceedings in some detail and concluded that the Applicant knew from 10th September 2012 that it would not proceed with its judicial review challenge to the refusal of planning permission, but would instead consider a fresh planning application due to a change in the underlying waste policy of the relevant planning authority. The President held that subsection 3 encompasses the unnecessary prolonging of proceedings when the party no longer has a bona fide belief in its case. He continued: Indaver NV prolonged the case without intending to continue them and withdrew the proceeding at the last moment. From the facts it can be ascertained that the Applicant had no bona fide belief in the case after a certain point in time which the Court finds to be 10th September, Its conduct of the proceedings thereafter can only be seen as an abuse of the Court process and the statutory exemption from liability for costs cannot be availed of on the findings of fact which I have made. Accordingly, pursuant to Section 50B(3), the President awarded the Respondent and Notice Party their costs as against the Applicant from 10th September Three points are made in relation to the judgment. First, it is noteworthy that the President implicitly accepted in principle that the rules on costs set out in Section 50B can apply to protect a developer challenging a refusal of development consent (as per the decision to similar effect of Hedigan J. in the Shillealagh Quarries case). Secondly, it is clear from the judgment of Kearns P. that the exception in subsection (3)(b) to the general rule on costs is much wider than that in subsection (3)(c). To put the matter another way, the Court effectively rejected an argument that only contempt-like behaviour would be sufficient to constitute a conduct of the proceedings which merited the exceptional jurisdiction to award costs against an Applicant under Section 50B(3)(b). Thirdly, it is worth making the observation that the judgment of Kearns P. would appear to give rise to the following anomaly: had the Applicant allowed the case to 4

5 be heard, it probably would not have had an Order for costs made against it. It is difficult to envisage how, had the case proceeded to hearing, the Court could have reached the view that the Applicant did not have a bona fide belief in its challenge to the Board s decision. Decision of European Court of Justice in Edwards v Environment Agency A final decision of note in relation to the implementation of the requirements of Article 11 of the EIA Directive is that of the ECJ in Edwards v Environment Agency Case C-260/11. In Edwards, the Applicant, had previously sought to review the decision of the Environment Agency to issue a permit for the operation of cement works at a factory in Rugby. The Applicant lost judicial review proceedings before the High Court and the Court of Appeal, but was granted leave to appeal to the House of Lords. She applied for a Protective Costs Order, limiting her liability for costs, in respect of her appeal to the House of Lords. However, her application for a PCO was rejected. She proceeded with her appeal, but this was dismissed by the House of Lords. The House of Lords then ordered that she pay the costs of the appeal. The detailed assessment of the Defendant s costs fell to be carried out by two Costs Officers, the equivalent of the Taxing Master of the Irish High Court. The Costs Officers held that the compliance with the EIA Directive was a relevant factor for them to take into account in deciding costs, and that they should disallow any costs which they considered to be prohibitively expensive. In other words, the Costs Officers of the U.K. Supreme Court took it upon themselves to reduce the costs to be awarded in the light of the provisions of Article 11. The Environment Agency applied for a review of the decision of the Costs Officers. The Supreme Court, having taken over the jurisdiction of the House of Lords, upheld that review. The Court held that the limit of the Costs Officers jurisdiction was to carry out a detailed assessment of costs. Decisions as to whether the party to whom costs were to be paid was to receive less than one hundred per cent of the assessed costs was a decision reserved to the Court. The question of whether the costs were prohibitively expensive was also a matter to be addressed by the Court. Accordingly, the ruling by the Costs Officers that they had jurisdiction to implement the EIA Directive was quashed. The Supreme Court went on, however, to consider the basis on which the House of Lords had made an Order for Costs against the Applicant. Lord Hope of Craighead noted that the Court had looked at the question of costs on a purely subjective basis, and concluded that it was least questionable whether in taking this approach [ ], it fulfilled its obligations under the Directive. Accordingly, the U.K. Supreme Court made a preliminary reference to the ECJ which included, inter alia, the following question: Should the question whether the cost of the litigation is or is not prohibitively expensive within the meaning of Article 9(4) of the Aarhus Convention as implemented by the Directives be decided on an objective basis (by reference, for example, to the ability of an ordinary member of the public to meet the potential liability for costs), or should it be decided on a subjective basis (by reference to the means of the particular claimant) or upon some combination of these two bases? In the course of its judgment, the ECJ made a number of noteworthy comments. 5

6 First, it emphasised that the requirement that judicial proceedings not be prohibitively expensive does not prevent the national courts from making an order for costs against an application. Secondly, the Court expressly noted that the requirement concerns all the costs arising from participation in the judicial proceedings. This is potentially important as it suggests that, in implementing article 11, Member States must not only consider the risk of a costs order being made against an unsuccessful applicant for judicial review, but also at the costs an applicant him or herself incurs by participating in the proceedings. The Court stated, [t]he prohibitive nature of the costs must therefore be assessed as a whole, taking into account all the costs borne by the party concerned. The Court emphasised that the objective of the relevant EU legislation was to give the public concerned wide access to justice and held that the national rules must not make it in practice impossible or excessively difficult to exercise rights conferred by European Union law. As regards the central question posed by the U.K. Supreme Court, the ECJ suggested that a combination of an objective and subjective assessment was required: That assessment cannot, therefore, be carried out solely on the basis of the financial situation of the person concerned but must also be based on an objective analysis of the amount of the costs, particularly since, [ ] members of the public and associations are naturally required to play an active role in defending the environment. To that extent, the cost of proceedings must not appear, in certain cases, to be objectively unreasonable. Thus, the costs of proceedings must neither exceed the financial resources of the person concerned nor appear, in any event, to be objectively unreasonable. The ECJ added that the national court could also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure and the potentially frivolous nature of the claim at various stages. It was held that the fact than the applicant in Edwards had not, in practice, been deterred from asserting her claim is not in itself sufficient to establish that the proceedings are not, as far as the claimant is concerned, prohibitively expensive. The principles enunciated by the ECJ in Edwards are expressed in quite general terms. From the point of view of the interaction of the EU case law with the provisions of section 50B, the most interesting aspect is the emphasis placed on consideration of the Applicant s own costs of participating, which will arise regardless of whether the applicant succeeds or fails in his application for judicial review. Certainly, if a situation arose where applicants were unable, in practice, to secure expert legal advice because practitioners would only recover costs if successful, the State would have to consider whether it was in compliance with its obligations under article 11. The prospect of securing costs if successful, as introduced by the 2011 Act, does, however, thus far, seem to have enabled potential applicants to secure appropriate representation. 6

7 Judicial Review: Procedure Application for leave: ex parte and within eight weeks Pursuant to the provisions of section 50A(2) of the Planning and Development Act, 2000, as amended, an application for leave to apply for judicial review under section 50 of the Act is now made ex parte, with the Court having the option of directing that the leave application should be conducted on an inter partes basis. An application for leave must be made within eight weeks of the impugned decision or act. The Court has a discretion to extend time under section 50(8), but only where it is satisfied that there is good and sufficient reason for so doing, and where the delay was due to circumstances outside the control of the applicant for judicial review. Two recent High Court decisions relating to extensions of time are Bracken v Meath County Council [2012] IEHC 196 and Pearce v Westmeath County Council [2012] IEHC 300. In Bracken, the Applicant sought an extension of time to challenge a determination made pursuant to s.5 of the Planning and Development Act 2000, as amended. On foot of an application by a neighbouring landowner, the Council had issued a declaration to the effect that the substitution of a single larger window for two windows was exempted development. The applicants for judicial review had not been a party to the Section 5 reference, and had only become aware of the existence of the declaration when works commenced on the neighbouring lands on foot of it, well after the eight week period had expired. At that stage, the applicants had already instituted enforcement proceedings pursuant to s.160 of the 2000 Act, and, rather than immediately apply for an extension of time to bring judicial review proceedings, they decided to await sight of a replying affidavit in the s.160 proceedings. The High Court held that once the applicants first learnt of the Section 5 declaration, it was incumbent on them to move with all possible expedition. The applicants had failed to do this, and they were not entitled to an extension of time. Interestingly, the High Court appears to have suggested that the applicants were only entitled to a short period of time less than eight weeks from the date of knowledge within which to institute proceedings. It might be argued, by analogy with section 50(6), that a party who, through no fault of his own, only learns of a decision after the eight week timelimit has already expired, should be allowed a similar length of time thereafter to institute proceedings. In Pearce v Westmeath County Council, the High Court did extend time in circumstances where the making of the impugned decision had not been properly recorded on the public file. The proceedings concerned a decision to agree points of detail pursuant to a planning condition. The planning authority had used a standard form document to record its decision to agree the points of detail, but this had not been properly completed and a number of boxes on the form were left blank. Hedigan J. held that the decision had not been properly recorded and, as a result, members of the public examining the planning file could be and in the case of the applicant were misled as to when the decision was made. The Court therefore extended time of its own motion, notwithstanding that the Applicant had not sought an extension of time. In this regard, Hedigan J. stated that there was a clear and 7

8 pressing public interest in the proper administration of the planning process and the proper recording of vital decisions made therein. Locus standi/sufficient interest Section 50A(3) provides that the Court shall not grant section 50 leave unless it is satisifed (i) that there are substantial grounds for contending that the decision the subject matter of the application is invalid or ought to be quashed, and (ii) that the applicant has a sufficient interest in the matter which is the subject of the application, or is an non-governmental organisation meeting certain criteria, as discussed further below. The requirement of sufficient interest was substituted for that of substantial interest by section 20 of the Environmental (Miscellaneous Provisions) Act This change is intended to reflect the language of article 11 f the EIA Directive, and also brings the locus standi requirement in planning judicial review back into line with that of judicial review more generally. NGOs and the issue of capacity As an alternative to the requirement to demonstrate sufficient interest, the Court can grant section 50 leave where there are substantial grounds and where, in the case of EIA development, the applicant for leave: (i) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection, (ii) has, during the period of twelve months preceding the date of the applications, pursued those aims or objectives, and (iii) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under Section 37(4)(c), would have to satisfy by virtue of Section 37(4)(d)(3) (and, for this purpose, any requirement prescribed under Section 37(4)(e)(iv) shall apply as if the reference in it to the class of matter into which the decision, the subject of the appeal, falls where reference to the class of matter into which the decision or act, the subject of the application for Section 50 leave, falls. In Sandymount and Merrion Residents Association v An Bord Pleanála, unreported, High Court, Charleton J., March 25 th, 2013, the Notice Party, Dublin City Council, applied to set aside a grant of leave to the Applicant to challenge the Board s decision to grant approval for the extension and upgrading of Ringsend Wastewater Treatment Works. The application to set aside was based on the contention that the Applicant did not have the legal capacity to maintain the proceedings. In this regard, the Notice Party and State Respondents sought to make a distinction between locus standi and capacity. In effect, they argued that the rules set out in section 50A(3) of the Planning and Development Act, 2000, above related to the former only. Charleton J. noted that the standing of the Applicant under section 50A(3) was not in doubt its objectives related to environmental protection and it was more than one year old but that the Notice Party and State Respondents were arguing that capacity 8

9 was a separate issue, not covered by this statutory provision. However, while the Court accepted as a general rule and in the absence of legislation that unincorporated associations are not legal persons and do not have capacity to bring proceedings, he held, as a matter of interpretation, that section 50A(3) must be given effect as applying to or conflating both standing and capacity: Multiple cases might be cited as to sufficiency of interest, but there is no doubt that the applicant has that by virtue of section 50A(3) of the Act of 2000, so locus standi to bring this application is not in doubt. Capacity is in issue, on the other hand. I see little advantage to the citation of multiple cases from various jurisdictions where the issue is the construction of legislation. Generally, in the absence of legislation, an unincorporated association has no legal standing and therefore has no capacity to take either a public law challenge or a private action; R v Darlington Borough Council ex parte Association of Darlington Taxi Owners [1994] COD 424. In some cases in England and Wales the requirement of capacity seems to be conflated with that of sufficiency of interest: R v Ministry for Agriculture, Fisheries ad Food ex parte British Pig Industry Support Group [2000] Eu LR 742. In looking to legislation, the amendments of the Planning and Development Act must be taken to speak for themselves and to have effect [as] if provision is made in respect of both sufficiency of interest and of capacity to bring a challenge. The Court placed considerable emphasis on the fact that section 37(4)(e) of the 2000 Act expressly permitted the Minister to prescribe additional requirements as to the types of organisations or bodies that could bring appeals or be granted leave to apply for judicial review in respect of EIA development, but that the Minister had not done so. Such requirements could relate to its membership and its aims and objectives and the possession of a specified legal personality. The Judge continued: Until such additional criteria are prescribed by the Minister, the fundamental test for whether a non-governmental organisation is entitled to avail of the special locus standi rules depends on the aims and objectives of the organisation and whether the organisation has been active in promoting environmental protection for at least 12 months. Capacity is also conflated in the legislation with standing through the words quoted. [ ] Once there is no requirement made by ministerial regulation that appeals to An Bord Pleanála cannot be taken by an association such as the applicant, leave means an entitlement to argue the merits of the case through to its conclusion. It may be that it might be argued that this subsection deals only with sufficiency of interest. But that is not, in respect of environmental matters, what it says: it establishes capacity, otherwise how is the High Court to give leave under the criteria set out in the legislation? Furthermore, as a matter of statutory construction I am obliged to give the section the meaning which it expresses. Bearing in mind, as I do, the need to avoid an absurd construction, the applicants were clearly entitled to leave to bring these proceedings. That being so, the applicant is entitled to continue with the litigation since to rule otherwise would offend common sense. (Emphasis added). Charleton J. emphasised that his judgment was confined to judicial review proceedings that relate to EIA development. In this respect, it is noteworthy that in the first part of his judgment, he set out in considerable detail the international context to the enactment of section 50A(3). Charleton J. s decision on Dublin City Council s application to set aside the grant of leave is currently under appeal. 9

10 Leave to appeal to the Supreme Court Section 50A, subsections 7 and 8 of the 2000 Act provide as follows: (7) The determination of the Court on an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with the leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. (8) Subsection (7) shall not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution. The test to be applied in this regard arose in the recent decision of the High Court in Shillelagh Quarries Ltd. v An Bord Pleanála (No. 3) [2013] IEHC 92. By decision dated 27 th June 2012, (Shillelagh Quarries Ltd. v An Bord Pleanála (No. 1) [2012] IEHC 257), Hedigan J. had refused the Applicant s application for leave to apply for judicial review of the Board s decision to refuse planning permission for the continued operation of the Applicant s quarry. The Applicant sought leave to appeal this decision pursuant to section 50A(7). The point of law which the Applicant contended was one of exceptional public importance was whether the Board had erred, in reaching its decision to refuse permission of 24 th December 2010, in taking into account the Board s finding on a section 5 referral in relation to the quarry. While the Board had considered and decided that referral at a meeting on the previous day, 23 rd December 2010, the formal decision on the referral was not taken until 24 th December 2010 at the earliest. Thus, when it was deciding the appeal on the planning application, the Board had regard to its own decision on the referral which, formally at least, had not yet been determined. In this regard, the Applicant relied upon the decision of MacMenamin J. in Urrinbridge v An Bord Pleanála [2011] 400 IEHC, to the effect that an appeal to the Board could be withdrawn right up until formal order of the Board deciding the appeal has been signed, and even after the Board had met and made its decision. MacMenamin J. held that [ ] while the Board may determine matters at its meeting, this is not the final step in the decision making process at all. Hedigan J. summarised the position as follows: Thus, following this, where a decision is made by the Board at a meeting, it has no legal effect until notice is given of the decision and it has not determined the matter until the board s formal order is signed. MacMenamin J. granted a certificate of leave to appeal that judgment and that appeal has yet to be determined by the Supreme Court. There is a question regarding the legal status of an undetermined decision of the Board, and in particular if the board may have regard to a decision it had made but which it has not determined. It is submitted by the applicant that this is a point of law of exceptional public importance and it is in the public interest to have it determined. As regards the principles applicable in considering an application for leave to appeal, Hedigan J. endorsed the principles set out by MacMenamin J. in Glancré Teoranta v 10

11 An Bord Pleanála [2006] IEHC 250. Of these, the following was of particular relevance in the instant case: The point of law must arise out of the decision of the High Court and not from discussion or consideration of the point of law during the hearing. Hedigan J. noted that the point of law upon which an appeal was to be brought, namely the entitlement of the Board to take account of its finding in the section 5 referral before that finding had been determined in the sense of Urrinbridge, does not arise from the judgment but it did arise in the course of the argument during the hearing. The point was not raised in the grounds upon which the applicant sought relief. The Judge continued: In short, the applicant did not seek judicial review on the basis of the board s reliance on its decision under s.5 of the Planning and Development Act If it was intended to raise the point and rely upon it, the applicant should have immediately amended his grounds to reflect this. The requirement to do so is not a mere technical formality but has a substantial significance. The grounds allowed on a leave application constitute the extent of the jurisdiction of the court. This does not change in a telescoped hearing. The applicant in such a case ought to apply to amend the grounds upon which he seeks leave. The applicant did not do so and that is why the point was not specifically referred to in the judgment herein. However counsel for the applicant did argue the point at the hearing and I allowed him to do so. In all the circumstances and with some hesitation, I think I should consider the point. Given the express principle that the point of law must arise from the decision, it is somewhat surprising that Hedigan J., albeit reluctantly, was prepared to consider certifying the point in question for the purposes of an appeal to the Supreme Court. In any event, however, the Court went on to distinguish the point being relied by the Applicant upon from that which arose in Urrinbridge and which is the subject of a pending appeal to the Supreme Court in the Urrinbridge case. In this regard, Hedigan J. stated as follows: The applicant contends that time should have been allowed by the board for the s. 5 decision to become legally determined before dealing with the planning application. That would not, in my view, be a correct manner in which to deal with the planning process. The point seems highly technical. In my view it is an unreal approach to decision making by a body charged with serious matters of great public importance. Having just made a decision on the section 5 matter, it was something within the board s knowledge and it was bound to take account of it. Moreover, I do not accept the applicability of Urrinbridge to the situation herein. The decision in that case that a matter had not been determined until notice had been given does not mean that the decision is so devoid of effect that the board that made that very decision itself cannot even refer to it or take account of the existence thereof. I detect a slight whiff of pettifoggery. The applicant was fully engaged with what the board was doing. There is no question but that the applicant was aware of the fact that the respondent would take into account its submissions in the section 5 refusal and decide them together. No claim could arise that the applicant was taken by surprise. It was the applicant that asked the board to do what it now complains of. Thus no question of any lack of fair procedure can arise. Fintan Valentine 17 th June