New Appeal: Court to review jurisprudence on standing and right to appeal in planning matters

In this determination (Grace & Sweetman v An Bord Pleanala) the Supreme Court allowed an appeal direct from the High Court on:

(1) whether it is necessary to review the jurisprudence on standing in environmental matters in light of recent European Court of Justice case law (Case-137/14, Commission v Germany (here));

(2) whether it is necessary to review the jurisprudence that an appeal from the High Court to the Court of Appeal in planning matters is limited to an appeal certified by the High Court, in light of the new constitutional architecture (33rd Amendment) which does not restrict such an appeal to the Supreme Court; and,

(3) whether a substantive appeal of the High Court decision should be allowed.

Background

In July 2014, An Bord Pleanala granted planning permission for a wind farm on Keeper Hill in County Tipperary. Grace (& Sweetman) applied to the High Court for an order of certiorari quashing that decision on grounds that the Bord failed to carry out an adequate Environmental Impact Assessment as required by the Habitats Directive and the Planning and Development Act 2000. They also sought a declaration that, although they did not take part in the planning process, they had sufficient interest to challenge that decision, subject to s 50A (3)(b) of the 2000 Act.

On review of the case law, the High Court held that Grace did not have standing to challenge the Bord’s decision; it also held that the Environmental Impact Assessment was adequate. Grace then applied to the High Court for a certificate to appeal the decision on standing to the Court of Appeal and to make a reference to the European Court of Justice on whether the assessment was adequate. The High Court refused both applications. Grace applied for leave to appeal to the Supreme Court.

Issues

(1) Jurisprudence on the 2000 Act allows the restriction of an appeal from a High Court decision on planning matter to where the High Court certifies an appeal. However, subsequent to the 33rd Amendment, appeals to the Supreme Court cannot be restricted by law: the Court decides whether to allow an appeal based on whether the case meets the constitutional threshold. Therefore, there is now a situation whereby an appeal to the Court of Appeal is restricted, but an appeal to the Supreme Court in the same case may not be.

(2) Whether the recent European Court of Justice case law establishes that there is a right to appeal to the Court of Appeal.

(3) Whether, if Grace successfully argues for an appeal on the substantive issues, should that appeal be heard before the Court of Appeal or the Supreme Court.

Decision

Granting leave to appeal, the Supreme Court determined that the EU and constitutional issues raised are questions of genuine public importance, and the fact that an appeal to the Court of Appeal is not available could provide the exceptional circumstances to justify an appeal directly to the Supreme Court.

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  1. The Jurisdiction of the Supreme Court of Ireland | scoirl

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