Heather Hill Management Co & anor v An Bord Pleanala [2019] IEHC 820 (05 December 2019)

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IN THE MATTER OF SECTION 50A(7) OF THE PLANNING AND DEVELOPMENT ACT 2000

JUDGMENT of Mr. Justice Garrett Simons delivered on 5 December 2019

1. By judgment delivered on 21 June 2019, Heather Hill Management Company v. An Bord

Pleanála [2019] IEHC 450 (“the principal judgment”), this court held that a decision of An

Bord Pleanála to grant planning permission for a “strategic housing development” was

invalid. This second, supplementary judgment is delivered in respect of an application for

leave to appeal to the Court of Appeal. The within proceedings are subject to the special

statutory judicial review procedure provided for under Sections 50 and 50A of the

Planning and Development Act 2000 (“the PDA 2000”). One of the features of the

procedure is that there is no automatic right of appeal to the Court of Appeal; rather, it is

necessary for a putative appellant to obtain leave to appeal from the High Court.

2. An Bord Pleanála has identified three points of law in respect of which it seeks leave to

appeal (“the draft points of law”). The parties have exchanged written legal submissions

on these points and the application for leave to appeal was heard on 13 September 2019.

3. The applicant for planning permission, Burkeway Homes Ltd (hereinafter “the Developer”)

had indicated earlier that it did not intend to participate in the application for leave to

4. Sub-sections 50A(7) and (8) of the PDA 2000 provide as follows.

(7) The determination of the Court of 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 Court of Appeal] in either case save with

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 Court of

(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

5. The sub-sections had originally referred to “the Supreme Court”, but by virtue of Section

75 of the Court of Appeal Act 2014, this is now to be read as a reference to “the Court of

6. It should be noted that the form of the certified point of law operates to define the Court

of Appeal’s jurisdiction on the appeal. See Section 50A(11) of the PDA 2000, as follows.

(11) On an appeal from a determination of the Court in respect of an application referred

(a) have jurisdiction to determine only the point of law certified by the Court

under subsection (7) (and to make only such order in the proceedings as

(b) in determining the appeal, act as expeditiously as possible consistent with the

7. The leading judgment on the interpretation of the statutory criteria governing leave to

appeal remains that of the High Court (MacMenamin J.) in Glancré Teoranta v. An Bord

Pleanála (No. 2) [2006] IEHC 250 (“Glancré”). The judgment sets out ten principles or

“1. The requirement goes substantially further than that a point of law emerges in or

from the case. It must be one of exceptional importance being a clear and

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that

such law be clarified so as to enable the courts to administer that law not only in

4. Where leave is refused in an application for judicial review i.e. in circumstances

where substantial grounds have not been established a question may arise as to

whether, logically, the same material can constitute a point of law of exceptional

public importance such as to justify certification for an appeal to the Supreme Court

5. The point of law must arise out of the decision of the High Court and not from

discussion or consideration of a point of law during the hearing.

6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the

public interest’ are cumulative requirements which although they may overlap, to

7. The appropriate test is not simply whether the point of law transcends the

individual facts of the case since such an interpretation would not take into account

8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’

9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a

question as to the point of law. Rather the authorities appear to indicate that the

uncertainty must arise over and above this, for example in the daily operation of

10. Some affirmative public benefit from an appeal must be identified. This would

suggest a requirement that a point to be certified be such that it is likely to resolve

8. As discussed presently, almost all of these considerations are “in play” in this case. The

parties are in disagreement on the following issues (i) whether the draft points of law

actually arise from the principal judgment; (ii) whether there is any uncertainty in the

law; (iii) whether the draft points of law transcend the facts of the case; and (iv) whether

the second limb of the statutory test is met, namely whether an appeal to the Court of

9. There have been a number of legal developments since the delivery of the landmark

10. The first development is the establishment of the Court of Appeal and the reordering of

the Supreme Court’s jurisdiction. This has implications for the High Court in the

discharge of its certifying role under Section 50A(7) of the PDA 2000. Moreover, the case

law of the Supreme Court in relation to the exercise of its constitutional jurisdiction to

grant leave to appeal may provide some guidance, by analogy, for the High Court in the

exercise of its own statutory jurisdiction. I will elaborate on this first development under

11. The second development is the introduction, under the Planning and Development

(Amendment) Act 2010, of special rules in relation to the legal costs of certain types of

environmental litigation. These rules are set out at Section 50B of the amended PDA

2000, and give effect to inter alia the requirements of the Environmental Impact

Assessment Directive (2011/92/EU) (“the EIA Directive”). Member States are obliged to

provide a “review procedure” which is “fair, equitable, timely and not prohibitively

expensive”. An issue arises as to whether it would be consistent with these requirements

to allow an appeal in circumstances where the appeal is moot. Even if An Bord Pleanála

were to succeed in the putative appeal, the decision to grant planning permission would

nevertheless be invalid by reference to other (unchallenged) findings in the principal

judgment. I will return to this point at paragraph 56 below when discussing the second

limb of the statutory test, namely whether it is desirable in the public interest that an

12. Following on from the establishment of the Court of Appeal in October 2014, an appeal

from a decision of the High Court in respect of a challenge to a planning permission

might, in principle, be brought before either the Court of Appeal or the Supreme Court.

13. The gateway to the Supreme Court differs in four significant respects from that which

controls access to the Court of Appeal. First, access to the Supreme Court is controlled

by the Supreme Court itself; the High Court has no function in this regard and cannot

grant leave to appeal. Secondly, the criteria for leave to appeal are different for the two

appellate courts. In one respect, the criteria for leave to appeal to the Supreme Court are

less onerous: it is enough that the decision of the High Court involves a “matter” of

“general public importance”, which is a lesser standard than a “point of law” of

“exceptional public importance” under Section 50A(7) of the PDA 2000. In another

respect, however, the criteria are more onerous: there is an additional requirement to

satisfy the Supreme Court that there are exceptional circumstances warranting a direct

appeal to it. Thirdly, the application to the Supreme Court is a paper-based application,

i.e. the Supreme Court usually determines the matter on the basis of the written notices

filed by the parties, and there is not normally an oral hearing. Fourthly, it seems that

access to the Supreme Court cannot be limited by legislation whereas there can be

legislative exceptions to the Court of Appeal’s jurisdiction (save in cases which involve

14. The Supreme Court in Grace v. An Bord Pleanála [2017] IESC 10 stated that it would be

appropriate for High Court judges, in considering whether to grant a certificate of leave to

appeal, to at least have regard to the new constitutional architecture. More specifically,

the High Court should have regard to the fact that an appeal to the Supreme Court under

the leapfrog provisions of Article 34.5.4° is open but also to the fact that an appeal to the

Court of Appeal should remain the more normal route for appeals from the High Court.

15. Notwithstanding the differences between the constitutional test and the statutory test

governing access to the two appellate courts, the Supreme Court’s case law on the

determination of an application for leave to appeal provides valuable guidance to the High

Court. In particular, the distinction drawn between (i) the interpretation of, and (ii) the

application of, legal principles can usefully be applied by analogy. The case law of the

Supreme Court indicates that it will not normally be enough for a putative appellant to

complain that the High Court did not properly apply established legal principles to the

particular facts of the case; rather it seems that the basis of any appeal must be that the

very legal principles relied upon by the High Court judge were incorrect.

16. This distinction has been explained as follows by the Supreme Court in B.S. v. Director of

“It obviously follows from what has just been set out that it can rarely be the case that

the application of well established principles to the particular facts of the relevant

proceedings can give rise to an issue of general public importance. It must, of

course, be recognised that general principles operate at a range of levels. There

may be matters at the highest level of generality which can be described as the

fundamental principles applying to the area of law in question. Below that there

may well be established jurisprudence on the proper approach of a Court to the

application of such general principles in particular types of circumstances which are

likely to occur on a regular basis. The mere fact that, at a high level of generality,

it may be said that the general principles are well established does not, in and of

itself, mean that the way in which such principles may be properly applied in

different types of circumstances may not itself potentially give rise to an issue

However, having said that, the more the questions which might arise on appeal approach

the end of the spectrum where they include the application of any principles which

might be described as having any general application to the facts of an individual

case, the less it will be possible to say that any issue of general public importance

arises. There will, necessarily, be a question of degree or judgment required in

forming an assessment in that regard in respect of any particular application for

leave to appeal. However, the overall approach to leave is clear. Unless it can be

said that the case has the potential to influence true matters of principle rather

than the application of those matters of principle to the specific facts of the case in

17. An example of this approach being applied to a planning case is provided by Buckley v. An

Bord Pleanála [2018] IESCDET 45. The Supreme Court refused leave to appeal in

circumstances where the judgment of the High Court had merely entailed the application

of well-established principles of planning law to the facts of the case.

18. It is proposed to address each of An Bord Pleanála’s three draft points of law in turn

(1). Is the breach of that part of a Development Plan included on foot of a statutory

obligation contained in section 10(2A) of the Planning and Development Act, 2000

19. This draft point of law does not arise out of the “decision” of the High Court, i.e. the

principal judgment. The question posed seeks to imply that the High Court’s finding that

the proposed residential development would involve a material contravention of the

Galway County Development Plan 2015 – 2021 had been based on some “bright line” rule

to the effect that any breach of the “core strategy” of a development plan is automatically

a material contravention. This is not how the issue was dealt with in the principal

judgment. As explained below, the issue of whether or not the proposed residential

development would involve a material contravention had been addressed at a granular

level, and involved a careful consideration of the detail of the development plan.

20. Before turning to that explanation, it may assist the reader in better understanding the

issues were I to pause briefly, and to clarify what is meant by the reference to Section

10(2A) of the PDA 2000. As a result of amendments introduced primarily under the

Planning and Development (Amendment) Act 2010, a local planning authority must now

include a “core strategy” which shows that the development objectives in the

development plan are consistent, as far as practicable, with national and regional

development objectives. The matters to be included in the “core strategy” are elaborated

upon under Section 10(2A). Relevantly, the “core strategy” for a county council, such as

Galway, must include a “settlement strategy” which indicates inter alia projected

population growth of cities and towns in the hierarchy. A “town” for this purpose is a

21. As An Bord Pleanála itself notes, at §5 of its written legal submissions, “the statutory

provision speaks in terms of detailing ‘projected growth’ rather than requiring a planning

22. As it happens, the Galway County Development Plan went further than strictly required by

statute, and the town of Bearna had been “assigned” a “population growth target” of 420

persons by 2012, with a land allocation of 12.12 hectares provided to accommodate new

residential development over the plan period. See paragraph [45] of the principal

23. The issue before the High Court was whether the proposed residential development—

which would have exceeded the allocated number of residential units (130) by 50 per cent

and the allocated population target by almost 25 per cent—represented a material

contravention of the development plan. An Bord Pleanála had conceded at the hearing

that the exceedance of the population growth target represented a contravention of the

development plan. The dispute between the parties centred on the narrow question of

24. This issue was resolved in the principal judgment by the application of well-established

principles governing the interpretation of a development plan. There had been no

significant dispute between the parties as to the applicable legal principles. Each of the

parties relied, in particular, upon Tennyson v. Dun Laoghaire Corporation [1991] 2 I.R.

527, and Tesco Stores Ltd. v. Dundee City Council [2012] UKSC 13. This latter judgment

has been cited with approval by the High Court (McGovern J.) in Navan Co-ownership v.

25. As appears from paragraphs [44] to [60] thereof, the principal judgment sets out the

relevant provisions of the development plan, and attempts to interpret same as they

would be understood by a reasonably intelligent person, having no particular expertise in

law or town planning. This is the legal test set out in Tennyson v. Dun Laoghaire

26. The principal judgment draws attention to the fact that in the Bearna Plan (which had

been introduced by way of a variation to the development plan a mere eight days prior to

the making of the planning application), it is expressly stated that Bearna has been

“assigned” a population growth target of 420 persons by 2021. Reference is also made to

the provisions of the plan which are intended to ensure that the quantum of zoned land

that is available for development remains within the allocation under the core strategy.

27. The principal judgment also refers to the fact that the proposed development would, in

and of itself, exceed the assigned population growth target, and refers to the existence of

other planning permissions which allow for significant residential development in the area.

28. The court’s finding that the proposed development would represent a material

contravention was, therefore, based on (i) the specific wording of the relevant provisions

of the development plan; (ii) the scale of the proposed development; and (iii) the

existence of other planning permissions. The finding is specific to the facts of the case,

and does not entail reliance upon any “bright line” rule of statutory interpretation to the

effect that any breach of the “core strategy” of a development plan is automatically a

29. As appears from the wording of Section 10(2A), a “core strategy” must address a large

number of matters. The principal judgment is not authority for any proposition that

breach of any of these would, automatically, lead to a finding of material contravention.

At the risk of belabouring the point, the finding in the principal judgment was fact-

specific, and informed, in particular, by the scale of the proposed residential development

and the extent by which the assigned population target would have been exceeded.

30. It should also be reiterated that Section 10(2A) does not refer to the assignment of a

population growth target. Whereas there is an obligation to state the projected

population growth of towns, i.e. settlements with a population of more than 1,500, there

is no express statutory obligation to “assign” a “target population growth”. Rather, these

concepts had been introduced to the Galway County Development Plan in order to

address a concern in relation to over zoning in the area of the plan.

31. Finally, not only does the draft point of law not arise out of the principal judgment, it is

incapable of being given a definitive answer in any event. This is because it is presented

at a level of abstraction. The only sensible response which could be given to the question

posed would be to say that the answer is entirely dependent on the specific wording of

the individual development plan under consideration. The question does not admit of an

answer which could be characterised as a general principle transcending the facts of any

(2). Does Objective CCF 6 of the Galway County Development Plan import a mandatory

requirement to carry out a Justification Test as contained in the Planning System

32. This draft point of law is self-evidently specific to the facts of the present case, and, in

particular, is confined to the wording of the Galway County Development Plan. As such,

the draft point of law does not fulfil the requirement, per Glancré, of transcending the

facts of the case. It should be recalled that the High Court in Glancré had refused leave

to appeal in that case precisely because the findings of the court had been referable

exclusively to the specific content of the Connaught Waste Management Plan and had no

33. Moreover, as explained presently, even if this aspect of the principal judgment were to be

overturned on appeal, it would not affect the outcome of the judicial review proceedings

in that the planning permission would be invalid on the separate ground that the

justification test was required in any event under the guidelines.

34. In order to assist the reader in understanding the draft point of law, it is necessary to

explain briefly (i) the circumstances in which this objective came to be included in the

development plan, and (ii) what is meant by a “justification test”.

35. As appears from paragraphs [94] to [100] of the principal judgment, the inclusion of this

objective arose in circumstances where the elected members of the local authority had

sought to designate certain lands in what is now the application site. The executive of the

local authority had recommended that these lands be designated as “open space”.

36. This tension between the elected members and the executive is reflected in the terms of

the development plan and the Strategic Flood Risk Assessment (“SFRA”). More

specifically, the relevant lands are in the anomalous position of being zoned for

development purposes, yet at the same time subject to Objective CCF 6 which refers to

inappropriate development on flood zones, and expressly states that any development

proposals should be considered with caution. This anomalous status is further

emphasised by the SFRA for the Bearna Plan which had concluded that the zoning is

37. The concept of a “justification test” is introduced under the flood risk management

guidelines. The concept is explained in detail at paragraphs [77] to [81] of the principal

judgment. For present purposes, the concept might be summarised by saying that where

a planning authority is considering proposals for new development in areas at a high or

moderate risk of flooding that include types of development that are vulnerable to

flooding (such as, relevantly, residential development), then the development proposals

38. The principal judgment contains two distinct findings in respect of the application of the

“justification test” to the lands as follows. First, Objective CCF 6 had been interpreted as

making the carrying out of a “justification test” mandatory in the case of development

proposals in respect of the relevant lands. This finding had been reached by interpreting

the development plan in accordance with the well-established principles of interpretation

referred to under the previous heading above. Secondly, aside entirely from the

provisions of Objective CCF 6, the principal judgment had found that the carrying out of a

“justification test” would have been required under the flood risk management guidelines

39. An Bord Pleanála seeks to challenge only the first of these two findings. The Board has,

mistakenly, sought to elevate what is a fact-specific finding, which is firmly rooted in the

language and structure of the Galway County Development Plan, to an issue of legal

principle. The Board appears to suggest that the judgment has established some

principle governing the interaction between statutory guidelines and development plans in

40. The first finding identified above is confined to the interpretation of a specific provision of

a specific development plan, which provision had been inserted in the very unusual

circumstances whereby the elected members had purported to zoned lands within a flood

risk zone for development. This finding is fact-specific and does not transcend the

41. The second finding, namely that the carrying out of a “justification test” would have been

required under the flood risk management guidelines in any event, has not been

challenged by An Bord Pleanála. The consequence of this is twofold. First, it undermines

entirely the argument that the principal judgment, by allegedly misinterpreting the

development plan, had brought about a situation whereby the flood risk management

guidelines were being applied excessively. The core of the Board’s argument is that, but

for the erroneous interpretation of the development plan, the carrying out of a

“justification test” would not have been required. This argument collapses in

circumstances where there is an unchallenged finding that the carrying out of a

“justification test” is triggered under the guidelines themselves.

42. Secondly, any appeal in respect of the first finding would be wholly academic. Even if the

Board succeeded in its appeal, the outcome of the judicial review proceedings would be

the same. The decision to grant planning permission would be invalid by reason of the

failure to carry out a “justification test” as required under the flood risk management

43. Finally, even if the draft point of law did arise from the principal judgment—which it does

not for the reasons set out above—there is no uncertainty as to the relationship between

statutory guidelines and a development plan. The relationship has been clearly stated in

the judgment of the High Court (Baker J.) in Brophy v. An Bord Pleanála [2015] IEHC 433,

and there is no suggestion made by An Bord Pleanála that this judgment is incorrect.

(3). Is it permissible to make a reference to best practice measures, whose stated

purpose is not to avoid or reduce an identified harmful effect on a European Site, as

an additional assurance but not the determinative factor in reaching an AA

44. The third of the draft points of law concerns the carrying out of screening determinations

for the purposes of the EU Habitats Directive (Directive 92/43/EEC). It is apparent from

An Bord Pleanála’s written legal submissions that the Board’s complaint is not so much

that the legal principles are misstated in the principal judgment, but rather that the High

Court erred in the application of those principles to the circumstances of the case.

45. This draft point of law does not fulfil the statutory criteria for leave to appeal for two

reasons. First, it will not normally be enough for a putative appellant to complain that the

High Court did not properly apply established legal principles to the particular facts of the

case; rather it seems that the basis of any putative appeal must be that the very legal

principles relied upon by the High Court judge were incorrect. (See, by analogy, B.S. v.

Director of Public Prosecutions [2017] IESCDET 134 (discussed at paragraph 18 above).

An Bord Pleanála expressly states at §20 of its written legal submission that it does not

dispute the analysis of the legal position undertaken by the High Court at paragraphs

46. Secondly, the draft point of law does not arise from the principal judgment. More

specifically, the factual premise underlying the point of law is contrary to the finding

actually made by the High Court. That finding was to the effect that the Board’s inspector

had attached importance to the “best practice measures”, and had not relied solely on

tidal dispersion in reaching her screening determination. See paragraphs [167] to [179]

47. The draft point of law is predicated on an entirely different factual premise, namely, that

the reference in the inspector’s report to “best practice measures” had been “an

additional assurance but not the determinative factor”. With respect, this factual premise

is not only unsupported by the actual wording of the inspector’s report, it is entirely

contrary to the findings of fact made in the principal judgment. Any appeal under Section

50A(7) of the PDA 2000 is confined to an appeal on a “point of law”. A putative appellant

is not entitled to seek to reopen findings of fact made by the High Court. The Oireachtas

have chosen to prioritise expedition and finality in planning litigation over perfection. An

error of fact on the part of the High Court is not normally amenable to appeal. The PDA

2000 does, of course, allow for the correction on appeal of errors of law, at least in

circumstances where the point of law is of exceptional public importance and transcends

48. The principal judgment most certainly did not find that the “best practice measures”

recommended by the Developer’s ecologist were an “additional assurance but not the

determinative factor” in the Board’s’ screening determination. Had the findings of the

principal judgment been as suggested in the draft point of law, then the answer to the

question posed would be obvious, namely “yes”. There would be no need for an appeal.

49. Finally, it should be noted that counsel for An Bord Pleanála had suggested that there is

an inconsistency between the judgment of the High Court in Kelly v. An Bord Pleanála

50. With respect, the alleged inconsistency is illusory. There is a clear factual distinction

between the two cases in that the alleged “mitigation measures” considered by the High

Court (Barniville J.) in Kelly involved general urban drainage requirements which applied

to all developments within a particular area. By contrast, the “mitigation measures” in

the present case were ones which were drawn up specifically by the ecologist acting on

behalf of the Developer, and were endorsed by the inspector and, ultimately, by An Bord

Pleanála. There is a clear distinction between the two cases. In one case the measures

51. For the reasons set out above, I have concluded that none of the three draft points of law

constitute a point of law of exceptional public importance within the meaning of Section

52. For the sake of completeness, I should say that even if I had considered that any one of

the draft points of law met this statutory requirement, leave to appeal would have been

refused in any event on the basis that the second limb of the statutory test is not met.

The court must consider not only whether there are points of law of exceptional public

importance, but also whether an appeal would be desirable in the public interest. It

seems to me that an appeal is not desirable in the present case for the following two

53. First, it would not be an efficient use of scarce judicial resources to entertain an appeal

which is, in effect, a moot. Even if An Bord Pleanála were to succeed in an appeal on any

of the three draft points of law, this would not affect the outcome of the judicial review

proceedings. This is because the court’s separate finding that there had been a failure to

comply with the flood risk management guidelines in assessing the planning application

would remain undisturbed, and the decision to grant planning permission would be invalid

on this basis. Put shortly, the planning permission is lost in any event. It is, perhaps,

telling that the Developer has chosen not to participate in the application for leave to

54. The courts are under a statutory obligation “to act as expeditiously as possible consistent

with the administration of justice” in determining statutory judicial review proceedings

under the PDA 2000. It would be more in keeping with the spirit of this statutory

obligation to allocate scarce judicial resources to proceedings the outcome of which are

55. Secondly, it would not be in the public interest to put the Applicants to the time, trouble

and expense of defending an appeal. The Applicants’ interest in pursuing the judicial

review proceedings in the first instance had stemmed from a concern that they would

have been affected by the proposed residential development. The Applicants would not

have any substantial interest in the appeal in circumstances where, as explained above,

the appeal could not affect the outcome of the judicial review proceedings. Yet, if leave

to appeal is granted, then the Applicants might have to defend any appeal if for no other

reason than to ensure that they were not exposed to legal costs. An Bord Pleanála

maintains the position that the Applicants are not entitled to the benefit of the special

costs rules applicable to certain types of environmental litigation under Section 50B of the

PDA 2000. (The question of the applicability of the special costs rules is the subject of a

separate self-contained appeal to the Court of Appeal (Appeal 2019 No. 204)).

56. Insofar as the costs of any substantive appeal to the Court of Appeal are concerned, the

Board has, to date, declined to give an undertaking to pay the Applicants’ costs of an

appeal. To require the Applicants to participate in an appeal, on hazard as to costs, in

circumstances where the appeal is moot would appear to be contrary to the principle that

the “review procedure” prescribed under Article 11 of the EIA Directive should be “fair,

57. The application for leave to appeal pursuant to Section 50A(7) of the PDA 2000 is

dismissed.

Result: Leave to appeal to the Court of Appeal refused.

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