A High Court judge has referred questions to the Court of Justice of the European Union after identifying potential barriers in Irish legislation that would hamper the ability of newly-formed environmental groups to judicially review certain developments.
Mr Justice Richard Humphreys, who heads the High Court’s Planning/Strategic Infrastructural Development (SID) list, spotted the possible incongruence between domestic and EU law when determining a motion by an investment fund to overturn leave granted to a local residents’ group permitting it to bring its action against An Bord Pleanála.
The Dublin 8 Residents Association wants to quash the board's fast-track permission for 732 apartments, a third of which would be co-living units, at a former cigarette factory on South Circular Road. One of the towers on the 7.6-acre site of the former Player Wills building would stretch to 19 storeys.
There were more than 180 submissions lodged with An Bord Pleanála during the Strategic Housing Development’s (SHD’s) consideration stage.
Legal standing
In its High Court motion, CWTC Multi-Family ICAV, the parent investment fund of planning applicant DBTR-SCR1 Fund, claimed the Dublin 8 Residents Association does not have legal standing to bring its action, noted Mr Justice Humphreys in a judgment.
The association asked the court to take into consideration what it claimed were tactics of a so-called SLAPP (strategic lawsuit against public participation) nature, including demanding details of members and funding sources. The judge said this complaint, even if found to be well-founded, would not assist with establishing the group's standing.
For leave of the court to be granted for SHD judicial reviews, an applicant must have substantial grounds and demonstrate it either has sufficient interest or that it meets certain criteria set out for an environmental non-governmental organisation (NGO) in domestic legislation, he said.
The environmental NGO must have been pursuing its aims of promoting environmental protection during the 12-month period prior to the legal proceedings.
Mr Justice Humphreys said he could not be satisfied from the evidence that the Dublin 8 Residents Association was in a definite form of stand-alone existence as an environmental NGO for a 12-month period prior to the proceedings so as to satisfy the relevant legislation.
The judge accepted the association was indeed an environmental NGO with a functioning committee with a legitimate and sufficient interest in the development. However, the group’s evidence was “insufficiently specific or adequate as to discharge the burden of proof to demonstrate standing on a satisfactory prima facie basis”.
It was important to note, said the judge, that planning applications for SHDs must, by law, be decided within a 16-week period. If an NGO is required to be in existence for more than that, as the relevant legislation suggests, then any unincorporated body established in response to an SHD planning application “could never satisfy the condition set out in domestic law”, he said.
This suggests this section of the law is not a satisfactory alternative to an implicit conferral of standing that has been laid out in the EU’s Environmental Impact Assessment Directive.
The judge laid out a number of questions about the interpretation of the relevant EU law to be answered by the EU court.
The responses are required for his judgment on CWTC’s motion, he said. He adjourned the case for mention later this month.
