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1. On the 31st day of July last this Court ruled that the Applicant failed to advance substantial grounds warranting this Court giving him leave to seek Judicial Review by way of Order of Certiorari of a decision by An Bord Pleanala granting permission to the Commissioners of Public Works in Ireland for a change of use and extension of a real tennis court to be used as a recital hall at Earlsfort Terrace in the City of Dublin. At the same time the Applicant sought declaratory relief. In light of the determination of this Court the Applicant now seeks leave to appeal to the Supreme Court against the decision of this Court. In order for leave to appeal to be granted this Court must be satisfied 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. This arises under the provisions of Section 82(3B)(b)(i) of the Local Government (Planning and Development) Act, 1963.

2. On behalf of the Applicant Mr MacEochaidh submitted by reference to the decision of the High Court (Morris J.) in the case of Lancefort v. An Bord Pleanala & Ors [1998] 2 IR 511 that the function of the Court in assessing whether to grant a certificate of leave to appeal is not to look at the merits of the argument which resulted in the decision of the Court but to look at the decision itself and if the Court is satisfied that the decision is one of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court then the Court grant the certificate.

3. In the context of what is meant by a point of law of public importance reference has been made to the decision of the Supreme Court in the case of Irish Press Plc. v. Ingersoll Irish Publications Limited [1995] 1 ILRM 117 where Finlay C.J., with whom the other members of the Court concurred, stated at page 120 of the report:-

4. Relying upon this quotation Counsel submits that a point of law of public importance is one which transcends well beyond the individual facts of the case. Counsel further referred me to the decision of the High Court in the case of Lancefort Limited v. An Bord Pleanala [1998] 2 IR 511 where Morris J. (as he then was) having referred to the judgment of the Chief Justice in the case of Fallon v. An Bord Pleanala [1992] 2 IR 380 at page 384 of the report. In that case the Chief Justice indicated that the point at issue regarding to the powers of the Planning Authority under Section 28 of the Act of 1963 could not be characterised as a point of law of importance. He continued as follows:-

5. With regard to the analogy drawn by the Chief Justice with Section 29 of the Courts of Justice Act, 1924, Morris J., having considered the judgment of Walsh J. in the Supreme Court in the case of the The People (Attorney General) v. Giles [1974] IR 422 (which reviewed the circumstances in which certificates were granted in the fifty years prior to that hearing) indicated that he was unable to discover any statement of principle upon which the Court of Criminal Appeal acts in granting such a certificate save that in all cases the law, at the time of granting the certificate, remained in a state of uncertainty and it was in the public interest that the law be clarified so as to enable the Courts to administer the law, not only in the instant case but in future cases. Section 29 refers only to “a point of law of exceptional public importance”

6. Counsel further refers this Court to the nature of the restriction on access to the High Court in the first instance and on appeal to the Supreme Court and submits by reference to the judgment of the Supreme Court in the case of Murphy v. Greene [1990] 2 IR 566 that any statutory curtailment of the right of access to the Courts must be strictly construed.

7. Counsel for the Applicant advances to this Court three questions of law which it is submitted are points of law of exceptional public importance and that it is in the public interest that they be referred to the Supreme Court and these are as follows:-

8. In support of this submission Mr MacEochaidh referred this Court to six cases in which the High Court had certified points of law to be of exceptional importance and in the public interest to refer to the Supreme Court under the provisions of Section 82(3B)(b)(i) of the Act of 1963 as amended. In four of the six cases referred to the court had granted leave to seek Judicial Review. In the other two cases one involved a discreet time point in the construction of an Act while in the sixth case the issue was that raised in the Lancefort case previously referred to herein where the issue was whether An Bord Pleanala was obliged to have regard to the provisions of Council Directive 85/377/EEC notwithstanding the alleged inadequate implementation of its provisions into domestic law.

9. Mr MacEochaidh submitted that on an application such as this the only person entitled to be heard is the party seeking the leave of the Court to appeal to the Supreme Court. He conceded that notwithstanding this submission that the practice has been otherwise. I heard the submissions of counsel not only for the Applicant but also for the other parties in determining whether I should hear them on the substantive points being raised by the Applicant. I concluded that the submission made in this regard by Counsel for the Applicant was not correct and that a proper construction of the section did not preclude this Court from entertaining submissions from the other parties to the application before this Court in determining whether this Court should grant a certificate of leave to appeal to the Supreme Court. In so ruling I had regard to the fact that the section itself does not indicate that the application in question is one to be made ex parte but arises in the context of a wider application which is required to be on notice. I also considered that the fact that the determination of the Court of the application is one which must be made in the public interest.

10. Having ruled on the nature of the application before me I heard submissions of the parties in relation to the questions submitted on behalf of the Applicant. With regard to the second and third questions submitted to the Court I am satisfied that these clearly are essentially questions of fact and furthermore the issues raised are not issues of exceptional public importance and it is not in the public interest that I refer the points raised to the Supreme Court. I also believe that the issues raised do not transcend well beyond the individual facts of this case. In particular in regard to the restriction as to user of the subject property I am guided by the statement of law in Norton on Deeds, Second Edition at page 135 to the effect that extrinsic evidence is not admissible in construing a deed. The first question submitted by counsel on behalf of the Applicant to this Court is one that arises from a preliminary ruling made by me in the course of the application for leave that came before this Court. This ruling was made by me in the context of the relief sought at D5 in the grounding statement of the Applicant for

11. In my ruling I indicated that this was a matter that goes to the process of the adoption of the Dublin City Development Plan by Dublin Corporation which was named as a Notice Party to these proceedings in which the Board is named as the Respondent. In my ruling I further indicated that it was submitted on behalf of Dublin Corporation in raising an objection to a challenge being raised in these proceedings to the adoption of the Dublin City Development Plan that the Applicant could have sought to move in other proceedings either by way of Judicial Review or by Plenary Action to challenge the Development Plan but that it was not open to the Applicant to do so in the context of these proceedings. I indicated that it had been submitted to me in these proceedings that the Court should confine itself to the decision of the Board and should not enter into an adjudication of the process leading to the adoption of the Development Plan. I indicated further in my ruling that the Board is not involved in any way in the adoption of the Development Plan and that it is not for it to defend the manner in which the Development Plan was amended. No steps were taken by the Applicant to challenge the Development Plan until the Board made its decision in this particular case.

12. In my ruling I indicated having considered the submissions that I was of the view that I should restrict the application to the matters before the Board and should not extend same to the validity of the adoption of the Dublin City Development Plan which if sought to be challenged could have formed the basis of a separate application which would not concerned either the Board or the Commissioners of Public Works. It is in the light of this ruling that the question of law submitted has been raised. Having considered the submissions of counsel in relation to the question of law raised and in particular the fact that it is open to a party in separate proceedings to challenge the adoption of a Development Plan I am not satisfied that the point now raised is one of exceptional public importance or that it is in the public interest that an appeal should be taken to the Supreme Court against the decision of this Court on that particular point and accordingly I refuse the leave sought by the Applicant to take an appeal to the Supreme Court against the decision of this Court.