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Irish Hardware Association v. South Dublin County Council [2001] IESC 5 (23rd January, 2001)
THE
SUPREME COURT
KEANE
C.J.
DENHAM
J.
MURPHY
J.
MURRAY
J.
McGUINNESS
J.
266/2000
BETWEEN:
IRISH
HARDWARE ASSOCIATION
APPLICANT/APPELLANT
and
SOUTH
DUBLIN COUNTY COUNCIL
RESPONDENT
and
BARKHILL
LIMITED
NOTICE
PARTY/RESPONDENT
and
THE
ATTORNEY GENERAL
NOTICE
PARTY
JUDGMENT
OF THE COURT DELIVERED THE 23RD DAY OF JANUARY 2001 BY KEANE C.J.
[*2] The history of this matter is as follows. On the 18th March 1998, the
notice party applied to the respondent for permission for a development
consisting of retail warehousing at Liffey Valley Town Centre, Fonthill Road,
Clondalkin, Co. Dublin. The original application was for five retail
warehousing units amounting to some 12,165 square metres, all of which units
were to be accommodated under one roof. The respondent sought further
information from the notice party and, in its reply, the latter proposed a
significant alteration to the former plan in that, instead of five retail
warehouse units, there was now to be one
“giant
unit”
of
some 9,650 square metres with, on one side, a garden centre of some 2,100
square metres and on the other side a dry goods store of some 1,912 square
metres. On the 19th May 1999, the respondent issued a notification of its
decision to grant permission and, as no appeal was lodged within the prescribed
time, a grant of permission was issued on the 1st July 1999.
1. The
applicant was unaware of the alteration in the plans until shortly before the
institution of these proceedings.
2. On
the 11th October 1999, the High Court (Barr J.) gave the applicant leave to
apply by way of an application for judicial review for an order of certiorari
quashing the decision of the respondent to grant planning permission [*3] for
the development. While leave was given on a number of grounds, those most
strongly relied on by the applicant were:
(1) That
the development for which permission was granted was significantly different
from the development which was the subject of the application and that,
accordingly, the decision to grant permission was unlawful and
ultra
vires
(2) That,
before deciding to grant any such permission, the respondent should have
required the notice party to notify the public of the alterations in the plans
for the development;
(3) That
the respondent, in dealing with the application, failed to take into account
the criteria laid down for such developments in the relevant statutory
instrument, because of what was claimed to be a mistaken assumption on their
part that, permission having already been granted for the use of the site as a
retail park by a permission granted in 1997, the planning issues had thereby
been resolved.
3. Statements
of opposition having been filed on behalf of the respondent and the notice
party, the application for judicial review came on for hearing before Butler J.
In a reserved judgment delivered on the 19th July last, he dismissed the
applicant’s claim, holding inter alia that the development for [*4] which
permission was granted was not materially different from that which was the
subject of the application but that, in any event, a planning authority was
entitled to grant permission for a development substantially different from
that originally applied for. The learned trial judge also said that he was
satisfied that anyone interested in retail warehousing in the area in question
was properly put on notice that application was being sought for a permission
for retail warehousing and that information as to the modified plans was
available to the public. He also said that he was satisfied that the
respondents took into account the substance of the policy criteria laid down in
the relevant statutory instrument.
4. The
applicant then applied to the learned High Court judge for a certificate that
his decision involved a point of law of exceptional public importance and that
it was desirable in the public interest that an appeal should be taken to this
court. That application was refused by the learned High Court judge on the 31st
July last.
5. The
applicant then brought this motion in this court in which it seeks
(1) an
order directing the learned High Court judge to grant a certificate that the
decision involves a point of law of exceptional [*5] public importance and that
it is desirable in the public interest that an appeal should be taken to this
court;
(2) alternatively,
an order directing that issues identified in an appendix attached to the notice
of motion should be remitted to the High Court for a decision in circumstances
where, it was stated, the applicant had not had the benefit of a decision of
the High Court;
(3) in
the event of both these reliefs being refused, an order directing the learned
High Court judge to give reasons for his decision not to certify that the
decision of the High Court 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.
6. The
application was heard by this court on the 19th December last, on which day the
court announced that it would refuse to grant the order sought at (1) above and
would give its reasons at a later date. It was indicated on behalf of the
applicant that the application for the relief sought in (2) and (3) above was
not being pursued. The court now gives its reasons for its refusal to grant the
relief sought in (1) above. [*6] Section 19 of the Local Government (Planning
and Development) Act, 1992, provided
inter
alia
for new procedures in relation to applications for judicial review in respect
of planning decisions. The major features of the new procedure were a
requirement that any such application should be made within two months from the
date on which the decision was given, without any provision for extension of
that period, that the application for leave should be by way of notice of
motion rather than ex-parte, and that such leave should not be granted unless
the High Court was satisfied that there were substantial grounds for contending
that the decision was invalid. In addition, s. 19 amended the Local Government
(Planning and Development) Act 1963 by inserting in s. 82 the following
provision:
“(i)
The determination of the High Court of an application for leave to apply for
judicial review as aforesaid or of an application for such judicial review
shall be final and no appeal shall lie from the decision of the High Court to
the Supreme Court in either case save with the leave of the High Court which
leave shall only be granted where the High Court certifies that its decision
involves a point of law of exceptional public importance and that it is
[*7]
desirable in the public interest that an appeal should be taken to the Supreme
Court.”
"(ii)
This paragraph shall not apply to a determination of the High Court insofar as
it involves a question as to the validity of any law having regard to the
provisions of the Constitution.”
7. The
basis on which the applicant claims to be entitled to an order under (1) above
can be summarised as follows. Article
34.4.3
of
the Constitution provides that
“The
Supreme Court shall, with such exceptions and subject to such regulations as
may be prescribed by law, have appellate jurisdiction from all decisions of the
High Court, and shall also have appellate jurisdiction from such decisions of
other courts as may be prescribed by law.
The
decision by the High Court in the present case to refuse to grant a certificate
under s. 19 is itself a decision within the meaning of that provision and,
accordingly, an appeal lies from it to this court, unless the right to such an
appeal is expressly and unambiguously excluded by law. Since there is no such
[*8] express and unambiguous exclusion in s. 19, it follows that an appeal lies
from the refusal of the High Court judge in the present case and this court is
entitled to substitute for his decision a decision that the High court 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 this court.
An argument that the provision was unconstitutional if it entirely excluded an
appeal unless a certificate was granted by the High Court was not pursued.
The
first difficulty confronted by the applicant in making the submission is that
the precise point at issue has already been determined by this court in
Irish
Asphalt Limited .v. An Bord Pleanála,
[(1996) 2 IR 179]. In that case, the court (Hamilton C.J., O’Flaherty,
Blayney, Denham and Barrington JJ.) unanimously held that the High Court alone
had power to issue a certificate under s. 19 and that, where no such
certificate was issued, this court had no jurisdiction to entertain an appeal
from the High Court.
Speaking
for the court in that case, Barrington J. said (at p. 185):-
“[Counsel
for the appellant] submitted that the High Court when it is dealing with an
application for judicial review in a planning matter may be confronted by two
different kinds of decision. The
[*9]
first
is whether to grant or refuse the application. If however, it refuses the
application it will be confronted with the second decision to wit whether the
application for review raises a point of exceptional public importance. But he
submitted that there is nothing in the provision which clearly excludes an
appeal to the Supreme Court against the decision refusing to certify that the
application raises a point of law of exceptional public importance. Therefore
he submitted that Article 34, s. 4, sub-s. 3 of the Constitution mandates that
an appeal should lie to the Supreme Court against the second decision.”
8. It
will be seen that the argument put forward on behalf of the appellant in that
case was precisely the same as that put forward on behalf of the applicant in
the present case. Barrington J.
dealt
with it as follows:
“The
correct interpretation appears to me to be that the first portion of the
provision under discussion is a statutory provision and does exclude all
appeals from the High Court to the Supreme Court in questions of judicial
review. This result is achieved by the words:
[*10]
‘The
determination of the High Court of an application for leave to apply for
judicial review as aforesaid or for an application for such judicial review
shall be final and no appeal shall lie from the decision of the High Court to
the Supreme Court in either case...’
The
subsection, having excepted these cases from the appellate jurisdiction of the
Supreme Court, then goes on to create what [counsel] for the respondent called
‘an exception to the exception’. As [counsel] puts it, it is the
subsection which excludes the appeals but at the same time there is a provision
whereby the High Court may, as an exception to this exception, allow an appeal
if the case involves a point of law of exceptional public importance and it is
in the public interest that an appeal should be taken to the Supreme
Court”.
9. Assuming
for a moment that the construction advanced of the section in that case and
again in this case was at least arguable, that would not be [*11] enough to
justify this court in declining to follow its earlier decision. As Henchy J.
pointed out in
Mogul
of Ireland .v. Tipperary (NR) C.C.
(1976) IR 261 at p. 272:-
“A
decision of the full Supreme Court (be it the pre-1961 or the post-1961 court),
given in a fully argued case and on a consideration of all the relevant
materials, should not normally be overruled merely because a later court
inclines to a different conclusion”.
10. In
the earlier decision of
Attorney
General .v. Ryan’s Car Hire Limited
(1965) IR 642, it had been held that, where the court was clearly of opinion
that an earlier decision was erroneous, it should be at liberty to refuse to
follow it, at all events in exceptional cases, such as where some point had
been entirely overlooked or conceded without argument.
11. To
say that the construction of the section which found favour with this court in
the earlier decision is so clearly wrong that there are compelling reasons for
now not following it is a wholly unsustainable proposition. The court has no
hesitation in rejecting the invitation to overrule its earlier decision in
Irish
Asphalt Limited .v. An Bord Pleanála
.
[*12]
Even if the issue had not been conclusively resolved by the decision in
Irish
Asphalt
,
it is clear that the submissions advanced on behalf of the applicant in this
case would have to fail. It has of course been held by this court on a number
of occasions that a statutory provision which has as its object the excepting
of some decisions of the High Court from the appellate jurisdiction of this
court, or any particular provision seeking to confine the scope of such appeals
within particular limits, must be clear and unambiguous. (See in particular the
observations of Walsh J. in
The
State (Browne) .v. Fearon
(1967) IR 147 and again in
The
People (A.G.) .v. Conmey
(1975)
IR
341 and of Hamilton C.J. in
Hanafin
.v. The Minister for the Environment
(1996) 2 IR 321). In this case, the provision under consideration does not seek
to exclude in its entirety an appeal to this court: rather, it seeks to
regulate it by providing that no appeal is to lie from the decision of the High
Court
“save
with the leave of the High Court which leave shall only be granted where the
High 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.”
[*13]
The words
“shall
only
be granted where the
High
Court
certifies...”
make
it clear beyond argument that the Oireachtas envisaged that it was the High
Court, and that court alone, which was to grant leave for an appeal and then
only where it issued a certificate in the terms of the section.
12. It
remains to be noted, as was emphasised by Barrington J. in his judgment in
Irish
Asphalt
,
that the policy considerations underlying the relevant provisions of s. 19 are
clear. The rigid time limit within which proceedings must be brought and the
requirement that leave be granted for such proceedings only where substantial
grounds are shown reflect the view of the Oireachtas that there should be a
greater degree of certainty and expedition in the determination of such
proceedings. The restriction of a right of appeal to this court to those cases
where the High Court certifies that a point of law of exceptional public
importance is involved similarly reflects that policy. It would be in the teeth
of it if this court were to construe the provisions as enabling an appeal in
every case to be brought from either the refusal to grant such a certificate
or, indeed, the grant of the certificate. That would involve this court in at
least some consideration of the merits of the substantive decision in the High
Court, entirely contrary to the philosophy which clearly prompted the relevant
provisions.
[*14]
It was for these reasons that the court declined to grant the relief sought
in
paragraph (1) above.
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