Dublin 8 Residents Association v an Bord Pleanala

JurisdictionIreland
CourtHigh Court
JudgeHumphreys J.
Judgment Date16 August 2022
Neutral Citation[2022] IEHC 482
Docket Number[2021 No. 525 JR]

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

CWTC Multi-Family ICAV (By Order)
Notice Party

[2022] IEHC 482

[2021 No. 525 JR]

THE HIGH COURT

JUDICIAL REVIEW

(No. 3)

JUDGMENT of Humphreys J. delivered on Tuesday the 16th day of August, 2022

Subject matter of the dispute
1

The applicant is an unincorporated environmental NGO representing local residents in the Dublin 8 area. The applicant challenges the legality of a decision of An Bord Pleanála (the board) dated 15 th April, 2021 granting permission for 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 on a site at South Circular Road, Dublin 8, as well as the demolition of all buildings on site, excluding the original fabric of the former Player Wills factory.

2

The phase of the dispute currently before the court is the preliminary question of whether the applicant has standing and capacity to bring the proceedings. The notice party contends that as an unincorporated association, the applicant lacks such standing and capacity.

Facts
3

In late 2018 or early 2019 an unincorporated organisation known as “Players Please” was founded to articulate concerns in relation to developments being carried out by the notice party.

4

At some point probably around October, 2020, 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 29 th October, 2020.

5

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

6

On 20 th 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).

7

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

8

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

9

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

10

On 30 th July, 2021, I granted leave to seek judicial review under Order 84 of the Rules of the Superior Courts 1986 as amended 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”.

11

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

12

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 (see European Commission, Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”) {SWD(2022) 117 final}).

13

On 3 rd 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.

14

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

15

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 as “a brand wholly controlled by the association”.

16

In Dublin 8 Residents Association v. An Bord Pleanála (No. 1) [2022] IEHC 116, ( [2022] 3 JIC 1106 Unreported, High Court, 11th March, 2022), I decided that the applicant had not discharged the onus to show on a satisfactory prima facie basis that it had been in continuous pursuit of its objectives for 12 months prior to the proceedings so as to satisfy s. 50B(3)(b)(ii) of the Planning and Development Act 2000. I also decided that the applicant does exist as an environmental NGO and has a functioning committee and a legitimate and sufficient interest in the development to which the judicial review relates (para. 74 of No. 1 judgment), so the issue was whether the applicant had capacity to bring the proceedings as an unincorporated body. I granted an order amending the title of the proceedings and decided in principle to refer certain questions to the CJEU.

17

In ( [2022] IEHC 467 Dublin 8 Residents Association v. An Bord Pleanála (No. 2) Unreported, High Court, 12th August, 2022), I addressed certain procedural matters.

18

I now make the formal order for reference.

Relevant provisions of EU law
19

The most pertinent provisions of EU law are as follows:

  • (i). Article 47 of the Charter of Fundamental Rights, which provides as follows:

    Right to an effective remedy and to a fair trial

    Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

    Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

    Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

  • (ii). Article 1(2) of directive 2011/92/EU, as amended, which inter alia defines the “public concerned” for the purposes of environmental impact assessment as follows:

    “(e) ‘public concerned’ means the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2). For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest;”

  • (iii). Article 11 of directive 2011/92/EU, as amended, which provides inter alia as follows:

    “1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

    (a) having a sufficient interest, or alternatively;

    (b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition; have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

    3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To that end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2) shall be deemed sufficient for the purpose of point (a) of paragraph 1 of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of point (b) of paragraph 1 of this Article.

    …”

  • (iv). Article 9 of the Aarhus Convention, which provides inter alia as follows:

    “…

    2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned

    (a) Having a sufficient interest or, alternatively,

    (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,

    have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

    What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

    3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

    …”

  • (v). Council Decision...

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