High Court: Application to appeal North-South interconnector judgment fails

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Criticising the applicants for protracting the proceedings with an overly optimistic application under s.50A(7) of the Planning and Development Act 2000, Mr Justice Max Barrett found that the judgment did not involve a point of law of exceptional public importance, nor was desirable in the public interest to grant the appeal.

Background

In August 2017, the Court delivered its principal judgment, in which Justice Barrett sympathised with the applicants but found that there was no lawful basis for granting 16 reliefs sought by North East Pylon Pressure Campaign Limited and Maura Sheehy.

The present application to the High Court was brought by the applicants pursuant to s.50A(7) of the Planning and Development Act 2000, which requires as a pre-requisite to the bringing of an appeal from the principal judgment, that the Court certify that its decision in the principal judgment 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 Court of Appeal.

High Court discussion

Justice Barrett adopted the legal principles identified in Glancré Teoranta v. An Bord Pleanála IEHC 250, 4-5, as the guiding principles for the present application. Justice Barrett noted a further eight propositions to bear in mind in the context of the present application.

In considering whether the principal judgment involved a point of law of exceptional public importance, 19 purported points of law were raised by the applicants. Justice Barrett considered and rejected each of the points in turn, finding that some of the issues had not been raised in the principal application and could therefore not be certified.

The Court then considered the question of whether it was desirable in the public interest that an appeal should be taken to the Court of Appeal; from the outset Justice Barrett stated that even if the Court was satisfied “that among the plethora of purported points of law of exceptional public importance contended for by the applicants there was (and there is not) one or more actual points of law of exceptional public importance”, that the court was not satisfied that the second limb of the test for certification was met in the within application.

The Court had regard to the benefits to be delivered by the development of the interconnector (Arklow Holidays Ltd v. An Bord Pleanála 4 I.R. 112, Dunnes Stores v. An Bord Pleanála IEHC 263, and Fitzpatrick v. An Bord Pleanála IEHC 644, considered).

Emphasising its “considerable sympathy” for the applicants whose “lands and lives are impacted by the intended development”, Justice Barrett was satisfied that the public interest in the benefits of the development outweighed “any possible element of public interest claimed by the applicants in respect of an appeal”, some of which were “factually unsound”.

Criticising the “excessively optimistic” application, Justice Barrett quoted Connolly v. An Bord Pleanála IEHC 624, para. 2, in which it was noted “hat two judgments would be contended to raise, between them, some thirteen points of law of exceptional public importance suggests, at the very least, that there is something of a yawning chasm growing between bar and bench as to the true nature of exceptionality.”

Like Connolly, the present application was another application which sought to raised excessive points of exceptional public importance, the abundance of which in the judgment would “require the most remarkable of circumstances and the most remarkable of judgments”.

Emphasising that the facts in the present application, and in the principal judgment were “not especially remarkable”, Justice Barrett stated that if such applications were not tempered, this would be reflected in costs orders “in order that a court might express its disapproval of conduct that it considers inappropriate”.

For all the reasons outlined, Justice Barrett found that the application must fail.

• by Seosamh Gráinséir for Irish Legal News