Ross & anor -v- An Bord Pleanala [2015] IEHC 484 (21 July 2015)

Judgment

Title:	Ross & anor -v- An Bord Pleanála
Neutral Citation:	[2015] IEHC 484
High Court Record Number:	2014 242 JR
Date of Delivery:	21/07/2015
Court:	High Court
Judgment by:	Noonan J.
Status:	Approved

___________________________________________________________________________

Neutral Citation [2015] IEHC 484

THE HIGH COURT

JUDICIAL REVIEW

[2014 No. 242 JR]

BETWEEN

NOEL ROSS AND GARY ROSS

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

JUDGMENT of Mr. Justice Noonan delivered on the 21st day of July, 2015.

1. Judgment in this matter was delivered by me on the 23rd of April, 2015 ([2015] IEHC 256) in which I dismissed the application. The applicants now seek to appeal that judgment and to that end, seek a certificate pursuant to s. 50A(7) of the Planning and Development Act 2000 which provides as follows:

“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 Supreme Court in either case save with leave of the Court, which 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.”

2. Section 75 of the Court of Appeal Act 2014 provides that references to the Supreme Court as in the above section are to be construed as references to the Court of Appeal.

3. The facts of the matter are fully set out in the judgment and need not be repeated here. The applicants have formulated three questions which they say arise from the judgment and constitute points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken. These are as follows:

1. Where a dwelling/development is destroyed by fire or otherwise perishes, is it permissible for the respondent board, in granting an application for planning permission allowing for the replacement of substantially the same development, to restrict or interfere with an existing established use?

2. Having regard to s.39 (1) of the Planning and Development Act, which expressly states that planning permission shall “inure for the benefit of the land and for the time being all persons interested therein”, is it permissible in the grant of that permission to expressly prohibit, restrict or otherwise interfere with the right to alienate that property in perpetuity or at all?

3. Is there a requirement to apply for planning permission for the replacement of substantially the same development and/or a dwelling which had been destroyed by fire or otherwise perishes, in circumstances where the existing use of the land is established for, in this instance, mobile home use and that use has not been extinguished?

4. The principles to be applied in applications of this nature were distilled by McMenamin J. in his judgment in Glancré Teoranta v. An Bord Pleanála (unreported High Court 13th July 2006) and are as follows:

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 significant additional requirement.

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 the instant, but in future such cases.

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 some extent require separate consideration by the court.

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 the use of the word ‘exceptional’.

8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.

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 the law in question.

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 other cases.

5. The proceedings herein concern a challenge by the applicants to condition number 2 attached to a planning permission of the 27th February 2014 granted by the respondent in respect of the retention of a replacement mobile home in County Wexford. The challenged condition provides as follows:

“The use of the replacement mobile home shall be confined to use as a holiday home during summer months. It shall not be let or sold for use at the site location as a holiday home or for any other purpose.”

6. I propose to deal with each of the applicant’s questions in turn.

7. Question 1: Where a dwelling/development is destroyed by fire or otherwise perishes, is it permissible for the respondent board, in granting an application for planning permission allowing for the replacement of substantially the same development, to restrict or interfere with an existing established use?

8. As the formulation makes clear, the applicants seek to argue that any restriction on their use, described as an existing established use, is unlawful. In my earlier judgment, I dealt with this matter at para. 36 in the following way:

“Thus, the applicants have gone from a position of obtaining leave from this court on the grounds that the user restriction to summer months is vague and uncertain to a position where they now allege that any restriction on use is unlawful. Whilst I do not think that the applicants ought to be permitted to even advance that argument in the circumstances, the proposition that no restriction on user can be imposed is devoid of any merit. “

9. Accordingly, it would appear that the applicants now seek to appeal on a ground in respect of which no leave to apply for judicial review was granted. I cannot conceive how an appeal could lie in such circumstances. It would be an unusual state of affairs, to say the least, if an appellate court were asked to determine an appeal on the basis of a point that was never even pleaded, less still the subject matter of a grant of leave.

10. Quite apart from that, the question posed in itself presupposes that condition 2 does in fact restrict or interfere with an existing established use. That point did not arise for consideration, nor was it determined, in these proceedings. No question arose for determination as to what the applicant’s alleged established use was. Reference was made in the documents to a prior owner having a mobile home on the site in question since 1959 which was replaced by the first named applicant when he purchased it in 1973. The applicants variously sought to suggest that they used the mobile home for holidays in the summer months and then laterally sought to suggest that they used it all year round, a point dealt with in the judgment at para. 37.

11. The respondents argue that if the precise nature of the applicant’s alleged established user had been in issue, they would have addressed it but it simply never arose. Accordingly, it seems to me that whether condition 2 actually restricts the applicant’s user at all is entirely dependant on facts never determined or sought to be determined in these proceedings.

12. At para. 1.6 of their written submissions, the applicants state:

“The impugned condition barred absolutely the alienation of the structure on the land, together with its established use, which had been in existence since 1959. The respondent in effect, extinguished the established use by way of a condition imposed pursuant to s.34 (4) of the PDA, 2000. The use is now significantly restricted and is now a limited use, considerably less than the use previously enjoyed.”

13. This statement appears to proceed on the basis of assumed facts never argued or established and yet underpins the point of law that is said to arise from the judgment. I cannot envisage how an appellate court could be asked to determine a point of law based on facts never canvassed or decided.

14. In my judgment, I decided in essence that the applicants got what they applied for. In the light of that finding, it is difficult to see in any event how it can be suggested that their user is in fact restricted. Nor can it be said that the alleged point of law arising transcends the facts of the case, particularly in circumstances where those very facts on which the point is based have never been determined.

15. The applicants also argued that the absence of a s. 47 agreement rendered the condition invalid. Here again, this contention was not advanced at the trial, was not pleaded, was not the subject of an application for leave and does not arise out of the judgment.

16. Question 2. Having regard to s.39 (1) of the Planning and Development Act, which expressly states that planning permission shall “enure for the benefit of the land and for the time being all persons interested therein,” is it permissible in the grant of that permission to expressly prohibit, restrict or otherwise interfere with a right to alienate that property in perpetuity or at all?

17. In my judgment, I said at para. 40:

“There is of course no restriction on the applicant’s right to sell the land comprising the site. If a new purchaser were to seek to use the mobile home on the site, he or she would have to make an appropriate planning application. Whether extenuating circumstances could then be said to exist would of course be a matter for the planning authority. “

18. The judgment therefore makes clear that the condition does not restrict the applicants from alienating the real property that comprises the site. It is equally clear that the applicants are entitled to sell the mobile home. The condition however places a restriction on the applicant’s right to let or sell the mobile home “at the site”. I came to the conclusion that this restriction was valid in the particular and unusual circumstances of this case. As stated at para. 39:

“The situation here is quite different. The applicant’s entire application was predicated upon their personal circumstances. Indeed, it was essential for them to make the application on that basis if they were to have any hope of convincing the planning authority or the respondent of the existence of extenuating circumstances. Yet, the applicants now appear to suggest that those very circumstances may not be taken into account in imposing appropriate conditions. Here again it seems to me that the applicants are simply being confined to using the property for the purpose for which they have always used it. That was what they told the planning authority that they wished to retain.”

19. It is thus quite clear that my determination on this point was very fact specific. There is thus absolutely no question of the judgment determining as a matter of law that a grant of permission may, as a general proposition, expressly prohibit or restrict the right to alienate property. That seems to me to be an entirely different question that is unrelated to the particular facts of this case. Although much emphasis was placed by the applicants on the fact that the mobile home is a dwelling to which particular constitutional significance attaches, the fact remains that it is, by definition, a mobile dwelling which, unlike a house made of bricks and mortar, can be located anywhere. In my view therefore, the condition is concerned with user and not alienability.

20. Thus I am satisfied that as there is no point of general applicability arising here, there could equally be no point of law of exception public importance and certainly not one that transcends the facts of this case in any respect. Rather, it comes back to the applicants’ fundamental contention that they cannot be subjected to any restriction on user, a contention with which I have already dealt.

21. Question 3. Is there a requirement to apply for planning permission for the replacement of substantially the same development and/or a dwelling which has been destroyed by fire or otherwise perishes in circumstances where the existing use of land is established for, in this instance, mobile home and that use has not been extinguished?

22. Here again, this question is predicated on the applicants’ alleged, but undefined, existing use of the land. This point has already been dealt with.

23. Further, the applicants again seek to make a case that was not advanced at the trial in either written or oral submissions. They submit that because of the alleged established use of the land, planning permission was not required. Accordingly the applicants now seek the certification of a point of law which was not only not argued but which I held they were estopped from raising, a finding not sought to be appealed.

24. As before, the question posed is entirely dependant on facts that have not been established. As I stated in the judgment, the s.5 referral conclusively determined this issue against the applicants and furthermore, they did not challenge that determination by way of judicial review within the permitted eight week period but rather opted to apply for planning permission. I took the view that this amounted to an estoppel against the applicants. If they were permitted to advance this argument now, it would be a clear collateral attack on the s.5 decision, which they accepted, years out of time.

25. As in the previous questions, in my view there is no existing factual basis against which this question could be tested and thus no point of law of exceptional public importance that transcends the facts of the case.

Conclusion
26. For the reasons already explained, I am satisfied that no point of law of exceptional public importance arises in this case. I am also satisfied that there is no uncertainty in the law arising as a result of my earlier judgment. No authorities have been cited which are said to be in conflict with the views I have expressed. Having regard to the very particular, and perhaps even unique, facts of this case, I fail to see how any element of public interest could arise in relation to an appeal. Quite apart from that, no challenge has been made to my determination that the condition cannot be severed from the permission as a whole with the consequence that an appeal would in any event be entirely moot.

27. I will accordingly refuse leave to appeal.

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