Dempsey v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 09 October 2020
• Neutral Citation: [2020] IEHC 462
• Docket Number: 2019 No. 825 J.R.
• Court: High Court
• Date: 09 October 2020

BETWEEN

MICHAEL DEMPSEY EVA DEMPSEY EAMONN COURTNEY JACINTA COURTNEY

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

ARDSTONE HOMES LTD

NOTICE PARTY

[2020] IEHC 462

Garrett Simons J.

2019 No. 825 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Reference – Preliminary ruling – Joinder – Attorney General seeking to be joined in the proceedings – Whether the court might be obliged to rule upon the validity of the impugned planning permission notwithstanding that the applicants wished to withdraw their proceedings

Facts: As appears from a judgment delivered in these proceedings on 24 April 2020 ([2020] IEHC 188), the High Court decided to seek the guidance of the Court of Justice of the European Union, by way of a reference for a preliminary ruling under Article 267 of the TFEU, as to the court’s obligations under the Environmental Impact Assessment Directive (2011/92/EU). In particular, guidance was to be sought as to whether the court might be obliged to rule upon the validity of the impugned planning permission notwithstanding that the applicants, Mr and Ms Dempsey and Mr and Ms Courtney, wished to withdraw their proceedings. The Attorney General was given liberty to issue a motion seeking to be joined in the proceedings returnable for 19 June 2020. On that date, an order was made, with the consent of all of the parties, joining the Attorney General to the proceedings. The court made an order on 25 August 2020 that these proceedings be struck out in their entirety, with no order as to costs. The purpose of this judgment was, first, to set out the reasons for joining the Attorney General to the proceedings, and, secondly, to set out the reasons for the decision not to make a reference to the Court of Justice.

Held by Simons J that the Attorney General wished to make a submission on an important issue of constitutional law concerning the nature and extent of the judicial power; the Attorney, as the guardian of the public interest, was a proper party to be heard in respect of these matters.

Simons J held that, having mistakenly found that domestic law afforded a broader discretion than it does, the court considered that the guidance of the Court of Justice was necessary to allow it to identify the factors to be taken into account in the exercise of this supposed discretion; this mistake having been identified and acknowledged, the premise for the proposed preliminary reference falls away.

Proceedings struck out.

JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 9 October 2020

INTRODUCTION

1 A judgment was delivered in these proceedings electronically on 24 April 2020 (” the initial judgment“). The judgment bears the neutral citation [2020] IEHC 188. As appears from the initial judgment, this court had decided to seek the guidance of the Court of Justice of the European Union, by way of a reference for a preliminary ruling under Article 267 of the TFEU, as to this court's obligations under the Environmental Impact Assessment Directive (2011/92/EU) (” the EIA Directive“). In particular, guidance was to be sought as to whether the High Court might be obliged to rule upon the validity of the impugned planning permission notwithstanding that the Applicants now wish to withdraw their proceedings.

2 A draft of the intended reference to the Court of Justice had been included as an appendix to the initial judgment. It was explained that the formal order for a reference would not be drawn up for twenty-one days. The parties were invited, in the interim, to bring to the attention of the court any error in the draft reference by emailing the Registrar assigned to this case.

3 This approach had been in accordance with the protocol of 24 March 2020 on the delivery of judgments electronically, which indicates that issues arising from a judgment should generally be dealt with without the necessity for a further oral hearing.

“The parties will be invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of delivery subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made, where appropriate.”

4 The Attorney General, by way of a letter from the Chief State Solicitor's Office dated 14 May 2020, wrote to the Registrar and requested that the drawing up of the order for reference be adjourned for a further twenty-one days, i.e. until 5 June 2020. The reason for this request was that the Attorney General wished to consider the advice of counsel, and, if appropriate, to issue an application to the court to be joined to the proceedings as a notice party.

5 By ruling published on the courts.ie website on 15 May 2020, this court confirmed that the formal order for a reference would not be drawn up until the issue of the Attorney General's participation in the proceedings before the High Court had been resolved. The Attorney General was given liberty to issue a motion seeking to be joined in the proceedings returnable for 19 June 2020.

6 On that date, an order was made, with the consent of all of the parties, joining the Attorney General to the proceedings. Directions were also given as to the exchange of written submissions. This exchange concluded with the filing of submissions on behalf of the Developer on 23 July 2020. The parties had been advised that the court would deliver its reserved judgment on the first Friday of the new legal term, 9 October 2020.

7 The Developer, in its submission, had requested that, given the urgency of the matter from the Developer's perspective, this court should announce its decision, i.e. on whether the preliminary reference is to proceed, at the soonest possible opportunity, and, if necessary, in advance of the publication of its reasoned decision.

8 By direction of the court, the Registrar wrote to the parties as follows on 18 August 2020.

“In circumstances where the notice party developer has requested, in its submission of 23 July 2020, that the court give its ruling on whether it intends to proceed with a reference to the Court of Justice as a matter of urgency, and, if necessary, in advance of publishing its reasoned decision. Mr Justice Simons has directed me to inform you that no preliminary reference will now be made. Mr Justice Simons is persuaded, for the reasons set out in the initial parts of the Attorney General's written submission, that he has no jurisdiction, as a matter of national constitutional law, to make a reference. Accordingly, an order will now be drawn up granting the Applicants leave to withdraw their proceedings, and, in consequence thereof, an order will be made striking out the proceedings in their entirety without any order as to costs. If there is any difficulty with the proposed form of order, the parties have liberty to write to me, as the Registrar, by lunchtime on Monday, 24 August 2020, setting out their concerns.

The reasoned decision of the court will be published on Friday 9 October 2020 as previously advised.”

9 In the event, none of the parties raised any issue in respect of the proposed order, and the formal order of the court has since been perfected on 25 August 2020.

10 The purpose of the within judgment is, first, to set out the reasons for joining the Attorney General to the proceedings, and, secondly, to set out the reasons for the decision not to make a reference to the Court of Justice.

(1). JOINDER OF THE ATTORNEY GENERAL

11 The Attorney General has a well-established role of defending the public interest, and, relevantly, has on a number of occasions intervened in planning and environmental law proceedings to ensure compliance with EU law. A recent example of such an intervention is provided by the proceedings challenging the grant of planning permission for the Apple data centre in Galway, Fitzpatrick v. An Bord Pleanála [2018] IESC 60. On the facts of that case, the Attorney General and the Minister for Housing, Planning and Local Government, who had not participated in the proceedings before the High Court, successfully applied to be heard on the appeal to the Supreme Court as amici curiae.

12 More recently, in Friends of the Irish Environment clg v. Legal Aid Board [2020] IEHC 347, the High Court (Hyland J.) directed that the Attorney General be put on notice of proceedings raising issues under the Aarhus Convention on access to justice in environmental matters.

13 The circumstances in which the Attorney General might be allowed to intervene in judicial review proceedings under the planning legislation had been the subject of some debate in Usk and District Residents Association Ltd v. An Bord Pleanála [2009] IEHC 346; [2010] 4 I.R. 113 (” Usk“). The facts of Usk were unusual. The applicant had initially sought relief as against the State for its alleged failure to transpose properly certain EU environmental law directives. Ireland and the Attorney General had, accordingly, been joined as respondents to the proceedings. However, at the hearing, the applicant for judicial review withdrew its claim as against the State respondents. The Attorney General then indicated, through counsel, that he wished to continue to participate in the proceedings, and to support...