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Appellants entitled to raise argument on appeal that had not been raised at first instance

By: Mark Tottenham BL

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Supreme Court, on appeal from the High Court, determines that an appellant was entitled to raise an argument based on interpretation of EU legislation notwithstanding that it had not been raised at first instance, on the grounds that, in determining the scope of an appeal, the Supreme Court should not adopt an overly technical approach.

Irvine J (nem diss): Leave to appeal against judgment of High Court - refusal of judicial review - determination of An Bord Pleanala - scope of appeal to Supreme Court - oral hearing - ambit of leave to appeal - danger of overly technical approach - point not raised at first instance - s.50A(5) of the Planning and Development Act 2000 Act - whether peat extraction sites were 'exempted development' - Environmental Impact Assessment Directive (85/337/EEC) - Habitats Directive(92/43/EEC) - inability of Board to identify all landowners concerned - failure to serve notices - right of those affected to fair procedures - difficulty in ascertaining identities - 'curial deference' to decision of Board - obligations under Art 2(1) of EIA Directive - failure of objectors to raise issue at first instance.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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