Proving point of law of exceptional public importance is higher onus than 'substantial grounds' for appeal
Kevin Hodgers and Elizabeth Hodgers (applicants) v Cork County Council (respondent)
Judicial Review - Application for certificate to appeal refusal of leave - Standard required to establish a point of law of exceptional public importance - Planning and Development Act 2000, s.50 - Planning and Development Regulations 2001, Art 33
The High Court (Mr. Justice Roderick Murphy); judgment delivered May 5th, 2006.
In order to obtain leave for judicial review an applicant must establish to the satisfaction of the court that it has an arguable case. In a statutory review application under the Planning Acts, an applicant must establish, to the satisfaction of the High Court, substantial grounds for contending that the decision is invalid or ought to be quashed.
The determination of the High Court is final save by certification that the 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.
The standard required to establish a point of law of exceptional public importance must necessarily be greater than that required to establish substantial grounds.
The High Court so held in refusing the application in respect of each of the grounds.
Brian Murray SC, James O'Mahony SC with Elizeabth O'Connell BL for the applicants; David Holland SC with Stephen Dodd BL for the respondent.
Mr Justice Murphy said the application before the court was for a certificate for leave to appeal to the Supreme Court following refusal by the High Court of leave to apply for judicial review. The application for leave to apply for judicial review was refused by way of ex tempore judgment delivered on December 22nd, 2005. The present application for a certificate for leave to appeal was made on behalf of the applicants on March 15th, 2006. The court had also refused an application to amend the grounds for ease to apply for judicial review. The background to the case concerned a refusal in January, 2004, by the respondent, of planning permission for works consisting of a dwelling house and lands in Cork.
The grounds of the application for leave to apply for judicial review were, inter alia, that the respondent's use of the procedures under Article 33 of the Planning and Development Regulations, 2001, requiring further information by way of letter dated December 15th, 2003, was an improper and invalid use of that power. The reason given for refusal of planning permission was that the proposed location would result in an undesirable density of development in a rural area where public water supply and sewage facilities were not available and would therefore be contrary to proper planning and development of the area.
Mr Justice Murphy said that the site on which it was proposed to build the applicants' dwelling house was located in an area where the Coastal Housing Control Policy, set out in the County Development Plan 2003, applied. The development plan recognised that sensitive, scenic and coastal parts of the county had relatively limited capacity (both environmentally and in terms of scenic amenity) to accommodate individual houses in significant numbers. It was considered that priority should be given to the fulltime housing needs of local people who live in the area. The respondent had written to the applicants by registered post on December 15th, 2003, at the address on the planning application and on the planning notice, asking whether the applicants currently owned a residence in Midleton. The applicants averred that they had not received that letter. Nonetheless the applicants, by letter dated December 22nd 2003, headed 'Response to (Certain) objections/observations . . .' referred to the house situate at 21 Midleton Downs as not being suitable and did not meet their needs. The respondent did not reply but, on January 28th, 2004, refused to grant planning permission.
Mr Justice Murphy said that the applicants had pleaded that the respondent had acted unreasonably and ultra vires its powers and in violations of the principles of natural and constitutional justice in determining the applicants application for planning permission by reference to an alleged facility in the area in relation to people from, or living in, that area whom the respondent considered to have a genuine housing need and in failing to advise would be applicants for planning permission, including the applicants, of such policy and/or facility.
Mr Justice Murphy said that the Cork County Development Plan, 2003 (issue 1: February 2003) provides, in relation to overall strategy, certain requirements in relation to rural, coastal and island areas. The special requirements in respect of scenic and coastal areas, followed the policy of the previous Development Plan, and recognised "that the sensitive scenic and coastal parts of the county have relatively limited capacity (both environmentally and in terms of scenic amenity) to accommodate individual houses in significant numbers. In such areas, where there are high levels of pressure for development of this kind, it is considered that the priority must be given to the full time housing needs of local people who live in the area. Allowing exceptions for local people in such scenic and coastal areas also allows local people to have access to sites which otherwise might be prohibitively expensive." The 2003 Development Plan set out three objectives for rural houses in such areas as follows:
"(a) It is an objective to recognise that the scenic and coastal parts of the county generally have limited capacity, both in environmental and scenic amenity terms, to accommodate individual dwellings in the countryside.
(b) It is an objective to strongly discourage new dwellings in such areas except within established villages (or village nuclei). This restriction is relaxed in principle for the year-round occupation of people from the local area and subject to suitable sites being available.
(c) For the purposes of this objective, 'coastal areas' means those areas within sight of the sea, a lake or an inlet and 'scenic areas' includes those areas identified as scenic landscape . . ."
The Implementing and Monitoring of Settlement Policy stated that the planning principles and objectives presented had set out a settlement policy "that seeks to establish a strong network of settlements throughout the county, to build up rural villages and to safeguard the needs of rural communities in a practical way. An important effect of this is that in certain circumstances there will be strict policy controls on individual rural dwellings."
Mr. Justice Murphy said that the applicants submitted that the respondent improperly and invalidly sought information relating to the applicants' existing dwelling house under the Planning and Development regulations. Article 33 of those regulations falls under the heading of "further information" and provides as follows:
Article 33. - (1) Where a planning authority acknowledges receipt of a planning application in accordance with Article 26, it may, by notice in writing, within eight weeks of receipt of the planning application, require the applicant -
(a) to submit any further information (including any plans, maps or drawings, or any information as to any estate or interest in or right over land), which the authority considers necessary to enable it to deal with the application, or
(b) to produce any evidence which the authority may reasonably require to verify any particulars or information given in or in relation to the application.
(2) A request under sub article (1) may not require the submission of any further information in respect of the matters specified in Articles 18, 19(1)(a) or 22, save the proposals referred to in Article 22(1)(h).
(3) The planning authority shall not require an applicant who has complied with a requirement under sub article (1) to submit any further information or evidence save - paragraph
(a)as may be reasonably necessary to clarify the matters dealt with in the applicants response to a requirement to submit further information or evidence or to enable them to be considered or assessed, or
(b) where a request for further information is made under Article 108(2) or 128(1).
(4) Where a requirement under sub article (1) is not complied with, the planning application shall be declared to be withdrawn after a period of six months from the date of the requirement for further information or evidence has elapsed.
Mr Justice Murphy said that assuming that the respondent improperly and invalidly required information, the applicants submit that they are entitled to have the court certify a point of law by way of appeal in relation to the issue of the propriety and validity of requiring information. Mr Justice Murphy referred to Section 50(2) (f) of the Act of 2000 which provides that:
" the determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except 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."
The applicants submitted that, in relation to each of four questions following, there was a point of law of exceptional public importance which transcended well beyond individual facts or parties. The applicants pointed to the uncertainty in the law and the desirability that an appeal be taken in the public interest. The first question that the applicants posed was whether a planning authority, in exercising the power under regulation 33(1) of the 2001 Regulations, is entitled to seek further information from an applicant relating to the existence of a right or interest in lands other than lands the subject of the planning application and/or ownership of a home, where information relating to such an interest or ownership was not sought in the original planning application form? Counsel for the applicants, contended that the request as to whether the applicants owned a residence in Midleton was not a proper request for information within the meaning of Article 33. As Article 33 was in practical terms a critically important provision, utilised frequently, it was of exceptional importance that the scope and operation of the provision insofar as applied in the present case be clarified as there was a clear public interest in obtaining such clarification. In relation to the first question, counsel for the respondents, said that it was unclear whether the question merely suggested that a planning authority may never seek information about a right of interest in lands other than lands the subject of the planning application or whether it was precluded from seeking this information because it has not been sought in the original planning application form. The information requested in the letter of December 15th, 2003, was to the effect that it had been represented to the planning authority that the applicants currently owned a residence in Midleton and a request, in the interest of transparency and clarity that they submit documentary evidence to clarify whether or not of both of them owned a residence. The court had held that the planning authority was entitled to make such request in the context of the Coastal Housing Control Policy. The applicants did not challenge the development plan nor seek to quash it on grounds that the "housing need" criterion therein was invalid. Mr Justice Murphy said that where neither the development plan nor the criterion was challenged then the applicants were not entitled to raise this point on appeal. Mr Justice Murphy said that the meaning of "housing need" did not need to be and was not determined in the judgment of December 22nd, 2005, and therefore certification of such a point would constitute a moot and would therefore be inappropriate. As leave for judicial review had not been granted the question did not arise. It could not be a point of law. It was a factual issue relating to the particular planning application lodged to be determined by the planning authority. It was not a point of law of exceptional public importance. The issue in question related to sub para. (1)(b) of Article 33 which appeared to extend beyond the submission of further information in relation to plans, maps or drawings or information regarding estate or interest in or right over land as it relates to information given in or in relation to the application. Mr Justice Murphy said that the planning authority is entitled to seek further information which was not sought in relation to the application. Such information relates to the matters referred to in Regulation 33(1)(a) and necessarily, in relation to the relaxation of restrictions on developments, (posed in the second question), requires the information requested extends to housing need. The court had already held that housing need assessment requires information as to the current ownership of a residence before such a decision can be taken. The court, accordingly, refused to certify the first question
The second question posed was whether the fact that a person owns a home, a legitimate or proper consideration to have regard to in determining an application for planning permission for the construction of a dwelling and it is lawful for a planning authority to relax restrictions on development in relation to people from or living in an area who are considered by the local authority to have a genuine housing need? The applicants argued that this question was fundamental to the operation and extent of the powers vested in law in the planning authorities. It was agreed that the phrase "local people who live in the area" in the County Development Plan was clear. The applicants submitted that the phrase "fulltime housing need" was not. Mr Justice Murphy said that whilst housing need was not defined, it is not a technical term. Mr Justice Murphy said that in relation to coastal housing control it is clear that control may be attenuated by reference to the housing demand of local people who live in the coastal area. Such demand or need is for permanent or full time residence use not for ancillary or holiday demand and for residential rather than commercial purpose. It seemed to follow that the authority may, indeed, must inquire whether the applicant has already residential accommodation. Moreover, the applicants had not challenged the validity of the housing need criterion in the judicial review proceedings. It was not, accordingly, a matter fit for certification as it did not arise in the proceedings. Mr Justice Murphy said that the question as to the legality of the relaxing of restrictions on development in scenic and coastal areas is a matter of policy for the local planning authority. The parameters of the implementation of such policy was specified in the Development Plan. No issue had been raised in the judicial review application as to the exercise of such policy.
The third question was whether it was a breach of the principle of fairness and/or the requirements for Article 33, to determine a planning application where a request for further information is made under Article 33, before the applicant has responded to that request, and based upon information obtained elsewhere? The applicants submitted that this was a matter of considerable practical importance. The respondent submitted that the "information obtained elsewhere" in fact consisted of exactly the information sought in the request for further information and referred to by the applicants themselves after the service of the request. Mr Justice Murphy said that while the applicants asserted that they had not seen the request when furnishing that information and did not believe themselves to be responding to such a request the court had found as a fact that the request had been served by registered post on the applicants, at the address given in the application, within the relevant time. No evidence was given as to who accepted the registered letter. The applicants' letter of 22nd, 2003, was headed in the matter of the planning application as well as in the December matter of certain objections. Even if there were some issue in relation to the reply, the circumstances in which the reply was made was unique to the applicants and could in no sense be desirable in the public interest that an appeal should be taken. It would appear that this question was an attempt to revisit the arguments rejected at the hearing under the guise of a point of law. It was not an appropriate basis for a certificate. The applicants, whether aware or not of answering the question raised, did not deny the ownership of 21 Midleton Downs but simply said that it was not suitable to their needs. Mr Justice Murphy noted the applicants' submissions that they did not receive the notice of request dated December, 2003, before they replied on December 22nd, 2003. However, the court had already found that the request had been served within the relevant period. On its face it appeared to address the query even if in a somewhat dismissive manner. It did not seem that this question was of practical importance given that the respondents, on their understanding, provided the information without being requested to do so.
The fourth question was whether the existence of an alternative remedy such as to preclude the applicants from seeking relief from the court where the essential claims were to the effect that the respondent had not raised a valid request for further information pursuant to Article 33 of the Planning Regulations, and that the refusal of planning permission was affected in a manner violative of the applicants' right to fair procedures? Mr Justice Murphy said that the court had indicated that it was more appropriate for the applicants to have appealed to Bord Pleanála rather than proceed by way of judicial review. However, as acknowledged by the applicants, this was not the ratio decidendi of the court's judgment. Accordingly, as the question did not arise out of a decision of the court, it was not appropriate to certify this question.
The fifth question was whether it is ever possible to clarify an issue to the Supreme Court where leave to seek judicial review has been refused and/or leave to amend a statement of grounds refused? The applicants submitted that it was self-evidently a matter of critical public importance as to whether an unsuccessful applicant for judicial review could invoke certification.
The respondent urged that leave may only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance. Mr Justice Murphy said that in order to obtain leave for judicial review an applicant must establish to the satisfaction of the court that it has an arguable case. In statutory review applications such as under the Planning Acts, an applicant must establish, to the satisfaction of the High Court, substantial grounds for contending that the decision is invalid or ought to be quashed.
The determination of the High Court is final save by certification that the 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. Mr Justice Murphy said that in the instant case the applicants had not satisfied the court that they had substantial grounds for judicial review. The decision of the court did not appear, for the reasons given, to involve a point of law of exceptional importance. It did not appear to be in the public interest that an appeal should be taken to the Supreme Court.
Mr Justice Murphy said that he found it difficult to see how a party who was refused leave could satisfy the court that grounds involved a point of law of such public importance existed accordingly, the court refused to certify the question posed as there had been a failure to establish substantial grounds. The standard required to establish a point of law of exceptional public importance must necessarily be greater than that required to establish substantial grounds. The court refused the application in respect of each of the questions proposed.
Solicitors: C.F. O'Connell & Company (Cork) for the applicants; Law Agent Cork County Council for the respondent.
P.J. Breen, barrister