Planning dispute settlement refused by High Court – EIA questions referred to CJEU

The High Court has made a referral to the Court of Justice of the European Union (CJEU) on whether it is obliged to rule on the legality of a decision to grant planning permission, in circumstances where all parties have consented to have the proceedings struck out.

On 24 April 2020, Mr Justice Garrett Simons referred a number of questions to the CJEU, seeking its guidance on the interpretation of national court obligations under the EIA Directive (Directive 2011/92/EU, as amended). The referral arises from judicial review proceedings entitled Dempsey & Ors v An Bord Pleanála and Ardstone Homes Limited (as Notice Party) [2020] IEHC 188, taken by four objectors against a decision of An Bord Pleanála (the Board) to grant permission for 366 new homes to developer Ardstone Homes in Clane, County Kildare under the fast track Strategic Housing Development (SHD) legislation.

The main argument advanced by the applicant in the proceedings was that the Board failed to set out, in its decision, the "main reasons and considerations" for granting the planning permission, as required by domestic law. The High Court noted that these domestic provisions transposed the EIA Directive, and therefore involved a question of European law. Although not raised as a ground of challenge, the High Court also noted that the 'alleged failure to state the "main reasons and considerations" may conceal another, perhaps more serious, breach of the requirements of the EIA Directive,' referring to possible failure to comply with public participation obligations.

On the third day of the hearing, the parties having reached a settlement or compromise, the applicant (with support from the Board and Notice Party) applied for leave to strike out the proceedings. All parties agreed that a court has discretion as to whether to grant the application or not. Judge Simons requested counsel to make submissions on what factors should inform the exercise of the Court's discretion to strike out the proceedings (and he flagged that a reference to the CJEU may be necessary). Arguments were put before the judge that discretion should be exercised in favour of striking out proceedings on a number of grounds. Judge Simons considered arguments that there is a strong public interest in settling litigation arguments but proceeded to distinguish public law proceedings from private law proceedings. The judge noted that a national court is 'obliged to take all measures necessary, within the sphere of its competence, to remedy the failure to carry out an environmental impact assessment in accordance with the EIA Directive (Wells, C0201/02/02, EU:C:2004:12)'. The judge went on to state that parties who settle public law proceedings might be depriving the national court of the obligation to provide a remedy in certain cases involving European law rights. The judge determined that a reference to the CJEU was necessary, in order to seek guidance on whether or not a national court is obliged to rule on the legality of a decision to grant planning permission, even in circumstances where all parties have consented to have the proceedings discontinued.

Comment

It is common place for the courts to accede to a request to settle and strike out proceedings, unless there are compelling reasons not to do so (for example in respect of a vulnerable person or alleged illegality). This CJEU referral therefore has wide-reaching implications for those involved in legal proceedings involving any planning decision where issues relating to Environmental Impact Assessment or Appropriate Assessment (under the Habitats and Birds Directives) are engaged. Until such a time as a ruling is given by the CJEU on the matter, it is uncertain whether parties involved in litigation which engages questions of EU environmental law who agree settlements and seek to strike out proceedings will be allowed to do so where the court has all the legal and factual arguments before it. Parties to these types of proceedings should consider settlement of the proceedings before the matter comes on for hearing. In particular, this referral affects those involved with strategic housing development and strategic infrastructure development.

It can take one year for an Advocate General to issue an Opinion on a referral. The Opinion provides guidance to the CJEU on the interpretation of the law, but itself is not legally binding. This is usually followed by a ruling from the CJEU usually within a further 6-12 months.

If you require further information, please contact Alan Roberts, Partner or Chris Stynes, Solicitor or any member from the A&L Goodbody Environmental & Planning team.

*This article is for general information purposes only and should not be relied upon as a substitute for legal advice. The author(s) do not accept liability for any errors or omissions made.

Date published: 6 May 2020