Dublin 8 Residents Association v an Bord Pleanala
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 16 August 2022 |
| Neutral Citation | [2022] IEHC 482 |
| Court | High Court |
| 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
and
[2022] IEHC 482
[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, challenged the legality of a decision of the first respondent, An Bord Pleanála, dated 15th 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. The phase of the dispute before the High Court was the preliminary question of whether the applicant had standing and capacity to bring the proceedings. The notice party, CWTC Multi-Family ICAV, contended that as an unincorporated association, the applicant lacked such standing and capacity.
Held by Humphreys J that seven questions of European law arose in the proceedings, that these related to the interpretation rather than application of EU law, that these questions were necessary for the decision of the court, that the answers to these questions were not acte clair or acte éclairé, and that it was appropriate in all circumstances to make a reference to the Court of Justice of the European Union under art. 267 TFEU.
Humphreys J held that the questions were as follows: (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?
Reference to CJEU.
(No. 3)
JUDGMENT of Humphreys J. delivered on Tuesday the 16th day of August, 2022
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.
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.
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.
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.
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.
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).
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.
The statement of grounds in the present proceedings was filed on behalf of Dublin 8 Residents Association on 9 th June, 2021.
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.
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”.
On 22 nd November, 2021, the notice party's solicitors wrote querying the standing of the applicant by reference to its date of establishment.
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}).
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.
On 8 th December, 2021, the notice party issued a motion to set aside the grant of leave.
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”.
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...
To continue reading
Request your trial
-
Dublin 8 Residents Association v an Bord Pleanála and Others (No. 4)
...467. On 16th August, 2022, Humphreys J made the formal order for reference: Dublin 8 Residents Association v An Bord Pleanála (No. 3) [2022] IEHC 482. The CJEU requested further information. Held by Humphreys J that there was no rule, European or domestic, that prohibited new evidence in re......