Dempsey v an Bord Pleanala

JudgeMr. Justice Garrett Simons
Judgment Date24 April 2020
Neutral Citation[2020] IEHC 188
Docket Number2019 No. 825 J.R.
CourtHigh Court
Date24 April 2020

[2020] IEHC 188

Garrett Simons J.

2019 No. 825 J.R.



Judicial review – Planning permission – Strike out proceedings – Applicants requesting the court to exercise its discretion to strike out the proceedings – Whether the High Court might be obliged to rule upon the validity of the planning permission notwithstanding that the applicants wished to withdraw their proceedings

Facts: The applicants, Mr and Ms Dempsey and Mr and Ms Courtney, invoked the High Court’s judicial review jurisdiction in order to challenge the planning permission granted by the respondent, An Bord Pleanála, on 26 September 2019. Two days of the three-day hearing had been completed. The applicants wished to withdraw their proceedings, and requested the court to exercise its discretion to strike out the proceedings.

The High Court sought the guidance of the Court of Justice, by way of a reference for a preliminary ruling under Article 267 of the TFEU, as to its obligations under the Environmental Impact Assessment Directive (2011/92/EU) (the EIA Directive). In particular, guidance was sought as to whether the court might be obliged to rule upon the validity of the planning permission notwithstanding that the applicants wished to withdraw their proceedings. Simons J noted that, in principle, judicial review proceedings pursuant to Article 11 of the EIA Directive may have reached a stage after which it becomes too late for an applicant to seek to withdraw those proceedings. Simons J held that the court would be seised of the proceedings, and if, for example, the court was satisfied that there was a prima facie case that the planning permission had been granted in breach of the public participation provisions of the EIA Directive, then it may have to rule on the application for judicial review. Simons J held that this would be contingent on the court having available to it all of the legal and factual elements necessary for making a determination within the pleadings. Simons J held that the identification of the nature and extent of the national court’s obligations in this regard gave rise to very difficult issues of EU law, and required consideration of the obligations of the court, the rights of the parties, and the public interest in ensuring that the public participation rights under the EIA Directive are vindicated. Simons J found that the fact that there is, generally, a public interest in facilitating the settlement of proceedings cannot necessarily be decisive in this context; otherwise there might be a risk that an objector, who has grounds for invalidating a planning permission, might be “bought off” by the offer of a financial settlement. Simons J held that the court was simply not in a position to deliver its judgment on the application to strike out the proceedings without the guidance of the Court of Justice on these difficult legal issues. Simons J held that the legal issues were not acte claire, i.e. the correct interpretation and application of the EIA Directive was not so obvious as to leave no scope for any reasonable doubt as to the manner in which the questions raised were to be resolved.

A draft of the proposed form of reference was attached as an appendix to this judgment.

EU Article 267 reference made.

JUDGMENT of Mr. Justice Garrett Simons delivered on 24 April 2020

This judgment sets out the reasons for which this court has decided to make a reference to the Court of Justice of the European Union (“ the Court of Justice”) pursuant to Article 267 of the Treaty on the Functioning of the European Union. It should be emphasised that this judgment is, in effect, an interim ruling, confined to the threshold issue of whether a decision by the Court of Justice on the interpretation of the Environmental Impact Assessment Directive is necessary to enable this court to give judgment on the issue which has now arisen in the proceedings before it. The main proceedings will be stayed pending the determination of the reference by the Court of Justice. Thereafter, the parties will be afforded an opportunity to make written and oral submissions to the High Court on the question of whether, in light of the guidance from the Court of Justice, the proceedings should be struck out.


These proceedings have given rise to an important issue of EU law. Specifically, the issue is whether there are ever circumstances in which a national court may be obliged to rule upon an application to set aside a development consent, notwithstanding that the party who initially invoked the court's jurisdiction now wishes to have the proceedings struck out.


The issue arises in the context of judicial review proceedings which seek to challenge a decision to grant development consent for a large-scale residential development. One of the principal grounds of challenge advanced in the proceedings involves an allegation that An Bord Pleanála failed to comply with its obligation to state the “main reasons and considerations” for its decision to grant development consent. This is said to represent a breach both of domestic law and of the Environmental Impact Assessment Directive (2011/92/EU) (“ the EIA Directive”).


As discussed presently, however, the alleged failure to state the “main reasons and considerations” for the decision may conceal another, perhaps more serious, breach of the public participation requirements of the EIA Directive. In brief outline, it is arguable that, on one reading of the inspector's report at least, improper reliance may have been placed upon the pre- application consultation between An Bord Pleanála, the Developer and the Planning Authority.


Counsel for the Applicants indicated on the third day of the hearing before me that a settlement had been reached between the parties, and that his clients were requesting the court to make an order striking out the proceedings. An Bord Pleanála and the Developer have both indicated their consent to this proposed order.


The parties to the proceedings all accept that the court has a discretion under domestic law as to whether or not to accede to the application to strike out the proceedings. It has been urged upon the court that the principal factor informing the exercise of this discretion should be the views of the parties themselves. The parties all submit that there is a strong public interest in the settlement of litigation, and that it would undermine this public interest were a court to deliver a judgment in proceedings in circumstances where the parties all now wish the proceedings to be discontinued.


The within proceedings have been instituted by four local residents who own and occupy houses within the vicinity of a proposed development project (“ the Applicants”). The proceedings take the form of an application for judicial review of a decision of the Planning Board to grant development consent for proposed residential development (“ the development project”). The decision to grant development consent was made on 26 September 2019. (Ref. PL09.304632).


The development project is subject to the requirements of the EIA Directive. This is because the scale of the development project exceeds the threshold prescribed under domestic law for “urban development projects”.


The consent application was subject to the special development consent procedure introduced for large scale residential developments under the Planning and Development (Housing) and Residential Tenancies Act 2016 (No. 17 of 2016) (“ the PD(H)A 2016”). The consent procedure is unusual in that it provides for mandatory consultation between the developer and the competent authorities prior to the making of the consent application (“ pre- application consultation”). Public participation is not allowed as part of the pre- application consultation. Following the pre- application consultation, the Planning Board may issue an opinion to the effect that the documents submitted with the request to enter into consultations require further consideration and amendment.


In the present case, the pre- application consultation took place on 30 November 2018. The Planning Board issued a statutory “opinion” in December 2018, which indicated that a number of matters needed to be addressed, including, inter alia, the “density” of the proposed development project. (The concept of housing “density” refers to the number of residential dwellings per hectare).


The relevant part of the opinion reads as follows.

“An Bord Pleanála considers that the following issues need to be addressed in the documents submitted that could result in them constituting a reasonable basis for an application for strategic housing development.

1. Density

Further consideration/justification of the documents as they relate to the density in the proposed development. This consideration and justification should have regard to, inter aha, the minimum densities provided for in the ‘Guidelines for Planning Authorities on Sustainable Residential Development in Urban Areas’ (May 2009) in relation to such Outer Suburban/Greenfield sites. Particular regard should be had to [the] need to develop at a sufficiently high density to provide for an acceptable efficiency in serviceable land usage given the proximity of the site to Clane town centre, with its established social and community services. The further consideration of this issue may require an amendment to the documents and/or design proposal submitted relating to density and layout of the proposed development.”


The opinion goes on to address a number of other matters including, inter alia, design, layout and unit mix; infrastructural constraints; and surface water management and flood risk assessment.



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6 cases
  • Eco Advocacy CLG v an Bord Pleanála
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