High Court: Judge refuses application to determine EU law points in planning case after quashing decision on domestic law grounds

High Court: Judge refuses application to determine EU law points in planning case after quashing decision on domestic law grounds

Killian Flood BL

The High Court has refused an “innovative motion” to decide EU law points in a planning application despite the court already having quashed the decision on domestic law grounds. In Balscadden Road SAA Residents Association Ltd. v. An Bord Pleanála (No. 1) [2020] IEHC 586, the court upheld a challenge to planning permission for a series of apartments in Howth, Dublin 13 but did not definitively determine any of the points of EU law points raised in the case.

After the first judgment, the developer brought an application to the trial judge seeking to determine the EU law points so that those points could not be used against them in a subsequent application for planning permission. However, the court refused the application, noting that it was not necessary or desirable to determine all points in all cases.


The developer, Crekav Trading GP Limited, was the notice party to judicial review proceedings which aimed to quash a decision of An Bord Pleanála to grant planning permission for an apartment complex in Howth. The applicant, the Balscadden Road SAA Residents Association Limited had argued that the permission was flawed due to irrelevant considerations and inadequate drawings. The proceedings also raised a number of issues relating to European Union law, due to Howth’s numerous historical sites and wildlife systems.

In a decision from November 2020, Mr Justice Richard Humphreys accepted that the Board had considered irrelevant matters and that the drawings were fundamentally flawed. As such, the court quashed the permission and refused to remit the matter to the Board.

In making this decision, the court stated that it did not need to determine the EU law issues raised in the case because the permission was flawed on domestic grounds. The court said that the determinations of domestic law were made without prejudice to any of the parties’ rights to argue the issues into the future.

After the judgment had been delivered, the developer issued a motion seeking to have Mr Justice Humphreys revisit the decision and determine the issues relating to EU law. The developer had argued that the permission had been quashed on two occasions and that it did not want to “run the gauntlet” of facing the applicant’s points again in a fresh planning application. Further, the developer wanted clarity on the issues of EU law to avoid those issues being raised against it in a third application to the Board. Finally, it was claimed that the applicant was “holding over” the EU points and waiting in the “long grass” to bring them up again to disrupt the development.

High Court

The High Court rejected the application to revisit the judgment. The court began by examining the jurisdiction to make the order sought and noted that issues can arise for a court where there is a blend of domestic and EU law issues in a case. The court expressed the general view that domestic law issues should be considered before EU law issues, because sometimes the resolution of domestic law issues will be enough to be determinative of a case.

A court has the option of issuing a ruling on all grounds in a case, but “the court generally err on the side of deciding less rather than more,” the court said. However, regardless of the approach taken by the trial judge, the important point was that judges have a choice as to how they determine a case. The manner in which a judge writes a judgment has never been a reviewable decision.

The court said that revisiting a judgment to determine obiter points (as what was contended for in the case) should only occur on a limited basis. The court held that there were no special circumstances in the present case to reconsider the EU law aspects of the case because the matter was determined by the two domestic law points against the developer.

However, the court also went on to consider the merits of the application. While the court said the developer’s frustration over multiple failed applications was understandable, it said that expressing obiter views on EU law points did not resolve those issues. The court noted that future objectors may raise similar or modified points and that any obiter comments at this stage could not be binding on another court in the future.

Secondly, the court said it could not be assumed that the Board would grant a third permission to the developer just because it planned to bring a third application. The court said that the Board may accept the environmental points raised by the applicants to reject another application. As such, the was “an element of speculation” to the developer’s point that it required clarity on the EU law issues for the future planning application.

Finally, on the issue of the applicants “holding over” the EU law points for further disruption, the court said that “a hypothetical decision by me on European law points at this stage could not have the alleged preclusive effect because if it did, that would compel the otherwise successful applicant to appeal any such hypothetical decision if negative from their point of view.” This would “pointlessly add to the workload of appellate courts,” the judge said.

Moreover, a decision in the present judicial review proceedings could not have an estoppel effect on any further judicial review in the case, because that further case would be “a challenge to a different decision and different facts will to some extent apply.”


Mr Justice Humphreys also took the view that there were many counter-arguments to revisiting the decision, including that the proceedings were moot as a result of the first decision. Further, court said that a hypothetical decision on EU law would not alter the legal position of the parties. The motion would also cause costs to rise and limited court time would be taken up. The court also held that there had to be some finality to proceedings and that, if it acceded to the application, any aggrieved litigant in other cases would seek similar remedies.

Accordingly, the court dismissed the motion.

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