Dublin 8 Residents Association v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 11 March 2022
• Neutral Citation: [2022] IEHC 116
• Docket Number: [2021 No. 525 JR]
• Year: 2022
• Court: High Court

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planing and Development Act 2000 and in the Matter of an Application

Between

Dublin 8 Residents Association

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

DBTR-SCR1 Fund, a Sub-Fund of the CWTC Multi-Family ICAV

Notice Party

[2022] IEHC 116

[2021 No. 525 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Environmental NGO – Capacity – Applicant seeking an order of certiorari of a decision of the first respondent – Whether the applicant met the statutory criteria set out for environmental NGOs

Facts: The applicant, Dublin 8 Residents Association, sought an order of certiorari of a decision of the first respondent, An Bord Pleanála, of 15th April, 2021 granting provision for the demolition of all buildings, excluding the original fabric of the former Player Wills factory, on a site at South Circular Road, Dublin 8, and the construction of 492 build-to-rent apartments, 240 build-to-rent shared accommodation units, a community arts and cultural and exhibitions space, retail, café and office spaces, a crèche and associated site works. The notice party developer, DBTR-SCR1 Fund, a sub-fund of the CWTC Multi-Family ICAV, questioned whether the applicant organisation met the statutory criteria set out for environmental NGOs and said that, if not, the sufficient interest test did not confer capacity to sue. On 8th December, 2021, the notice party issued a motion to set aside the grant of leave.

Held by the High Court (Humphreys J) that the following questions were ones of interpretation, rather than application, of EU law, that they were not acte clair or acte éclairé, that they were necessary for his decision, and that it was appropriate in all the circumstances to exercise the discretion to refer the questions to the CJEU: (1) Does art. 11(1)(a) of directive 2011/92/EU read in conjunction with Article 47 of the Charter of Fundamental Rights and/or art. 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC have the effect that where an environmental NGO meets the test for standing set out in that provision, the NGO concerned is to be regarded as having sufficient capacity to seek a judicial remedy notwithstanding a general provision of domestic law which precludes unincorporated associations from bringing legal proceedings? (2) If art. 11(1)(a) does not have the effect set out in the first question in general circumstances, does it have that effect where domestic law provides that an NGO that meets the test for standing conferred by art. 1(2)(e) of the directive is thereby conferred with capacity to seek a judicial remedy? (3) If art. 11(1)(a) does not have the effect set out in the first question in general circumstances, does it have that effect where domestic law and/or the procedures adopted by the competent authority have enabled an environmental NGO which would not otherwise have legal capacity in domestic law to nonetheless participate in the administrative phase of the development consent process? (4) If art. 11(1)(a) does not have the effect set out in the first question in general circumstances, does it have that effect where the conditions set by the law of a member state in order to enable an NGO to qualify for the purpose of art. 1(2)(e) are such that it the required period of existence of an NGO in order to so qualify is longer than the statutory period for determination of an application for development consent, thus having the consequence that an unincorporated NGO formed in response to a particular planning application would normally never qualify for the purposes of the legislation implementing art. 1(2)(e)? (5) Does art. 11(1)(a) have the effect that a discretion created by a provision of national procedural law of a member state to allow the substitution of an individual applicant or applicants who are members of an unincorporated association in lieu of the unincorporated association itself must be exercised in such a way as to give full effect to the right of access to an effective judicial remedy such that that substitution could not be precluded by a rule of domestic law regarding limitation of time for the action? (6) If art. 11(1)(a) does not have the effect referred to in the fifth question in general circumstances, does it have that effect in circumstances where the action was brought by the original applicant within the time fixed by domestic law and where the grounds of challenge on which the right of access to a judicial remedy was sought by the substituted applicant remained unchanged? (7) If art. 11(1)(a) does not have the effect referred to in the fifth question in general circumstances, does it have that effect if domestic law regarding the application of limitation periods in such situations are unclear and/or contradictory such that an applicant does not enjoy legal certainty prior to bringing proceedings as to whether such substitution is permissible?

Humphreys J held that there would be an order under O. 15, r. 13 RSC substituting CWTC Multi-Family ICAV as notice party in lieu of DBTR-SCR1 Fund on the basis that the ICAV was acting on behalf of the sub-fund. He gave the parties the directions specified in Eco Advocacy v An Bord Pleanála (No. 1) [2021] IEHC 265, noting that the CJEU requested the submission of documents in electronic form which, when the formal order for reference was complete, should be provided to the List Registrar together with a schedule of such documents. He adjourned the matter to 21st March, 2022 for mention, to confirm the timetable involved.

Reference to CJEU.

JUDGMENT of Humphreys J. delivered on Friday the 11th day of March, 2022

1 The applicant seeks an order of certiorari of a decision of the board of 15th April, 2021 granting provision for the demolition of all buildings, excluding the original fabric of the former Player Wills factory, on a site at South Circular Road, Dublin 8, and the construction of 492 build-to-rent apartments, 240 build-to-rent shared accommodation units, a community arts and cultural and exhibitions space, retail, café and office spaces, a crèche and associated site works.

2 Judicial review in the planning and development context is governed by s. 50A of the Planning and Development Act 2000.

3 Subsection (3) lays down two requirements for the grant of leave for such judicial review: (a) substantial grounds, and (b) a demonstration of either sufficient interest or that the applicant meets certain criteria set out for an environmental NGO.

4 The notice party developer has questioned whether the applicant organisation in this case meets the statutory criteria set out for environmental NGOs and says that, if not, the sufficient interest test doesn't confer capacity to sue.

5 The developer's enquiries are based on various internet searches carried out in relation to the applicant by their solicitor's “Relativity Master”, a formidable title worthy of a character from Dr Who, albeit that it refers to an electronic discovery qualification.

6 In late 2018 or early 2019 an organisation known as “Players Please” was founded to articulate concerns in relation to developments being carried out by the notice party. Mr Joe Clarke says that this body was formed at a meeting on 7th November, 2018 whereas Ms Sinead Kerins seems to put it at early 2019 (para. 20 of affidavit of 10th January, 2022).

7 At some point the name “Dublin 8 Residents Association” began to be used by some of the relevant residents, and a credit union account was established in that name on 29th October, 2020.

8 A Facebook page in the new name was set up on 18th November, 2020 alongside a pre-existing separate Facebook page for Players Please which continued in being.

9 On 20th January, 2021, a press release was issued in the name of Players Please which referred to the Dublin 8 Residents Association as having sought judicial review. That was a reference to the case of Kerins v. An Bord Pleanála (No. 1) [2021] IEHC 369, ( [2021] 5 JIC 3102 Unreported, High Court, 31st May, 2021).

10 On 21st April, 2021, Players Please tweeted that Dublin 8 Residents Association was doing a community Zoom call. That was also listed on Eventbrite.

11 The statement of grounds in the present proceedings was filed on behalf of Dublin 8 Residents Association on 9th June, 2021.

12 The matter was mentioned to the court on 14th June, 2021 and a number of orders were made thereafter allowing amendments to the statements of grounds, including on 28th June, 2021, 5th July, 2021 and 27th July, 2021.

13 On 30th July, 2021, I granted leave on the basis of the fifth amended statement of grounds. That statement lists the address of the applicant as “Players Please, … South Circular Road, Dublin 8”.

14 On 22nd November, 2021, the notice party's solicitors wrote querying the standing of the applicant by reference to its date of establishment.

15 A separate letter was sent querying the funding arrangements for the litigation and seeking detailed information in that regard suggestive of an allegation of maintenance and champerty. The applicant characterises this as a SLAPP (Strategic Litigation against Public Participation) tactic.

16 On 3rd December, 2021, the applicant replied stating that Dublin 8 Residents Association was formed in the period immediately following the publication of the notice relating to phase 1 of the notice party's development application. There was no reference in that letter to the organisation being a renamed version of Players Please.

17 On 8th December, 2021, the notice party issued the present motion to set aside the grant of leave.

18 The applicant then set out a more detailed position on affidavit to the effect that Players Please changed its named to Dublin 8 Residents Association, but retained the old name...