Dublin 8 Residents Association v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 12 August 2022
• Neutral Citation: [2022] IEHC 467
• 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

Between

Dublin 8 Residents Association

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

CWTC Multi-Family ICAV (By Order) (No. 2)

Notice Party

[2022] IEHC 467

[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. In Dublin 8 Residents Association v An Bord Pleanála [2022] IEHC 116, Humphreys J granted an order amending the title of the proceedings and decided in principle to refer certain questions to the CJEU. In the No. 1 judgment, he gave the parties the option of proposing the addition of any amici curiae that might assist the formulation of the formal order for reference and that might assist the CJEU, but no such proposals were made. He then dealt with certain procedural matters prior to the formal order for reference.

Held by Humphreys J that, to assist the CJEU, a full list of the relevant EU, international and domestic legal material was set out in the appendix to the judgment together with web links. He held that it was necessary to give directions for the purpose of ensuring the timely submission of the reference to the CJEU. With those matters addressed, he held that the order for reference would be dealt with in a separate judgment.

Humphreys J directed that the applicant lodge the following documents with the List Registrar in an electronic form having agreed the contents with the other parties, as soon as practicable and in any event not later than 9th September, 2022, for transmission to the CJEU by the Principal Registrar: (i) a contents page in electronic form of the documents submitted; and (ii) a PDF containing all pleadings, with any names of natural persons redacted from orders and judgments (leaving initials only). He held that if this PDF exceeded 30MB, it was to be split into separate PDFs each of which should not individually exceed 30MB. He held that the PDF(s) should include among other pleadings and papers: (1) a scanned copy of the signed approved version of all judgments (including the judgment for reference (the No. 3 judgment) when issued), however the version to be included of this judgment should be a scan of the signed copy of the substantive part of the judgment together with an electronic version of the appendix which preserves the clickable links); and (2) a scanned version of the order for reference. He adjourned the hearing of the balance of the matter pending the decision of the CJEU. He held that the matter would be listed for mention on 3rd October, 2022 at 2 p.m.

Directions given.

JUDGMENT of Humphreys J. delivered on Friday the 12th day of August, 2022

1 In Dublin 8 Residents Association v. An Bord Pleanála [2022] IEHC 116, ( [2022] 3 JIC 1106 Unreported, High Court, 11th March, 2022), I granted an order amending the title of the proceedings and decided in principle to refer certain questions to the CJEU.

2 I now deal with certain procedural matters prior to the formal order for reference.

3 In the No. 1 judgment I gave the parties the option of proposing the addition of any amici curiae that might assist the formulation of the formal order for reference and that might assist the CJEU, but no such proposals were made.

4 To assist the CJEU, a full list of the relevant EU, international and domestic legal material is set out in the appendix to the judgment together with web links.

5 It is now necessary to give directions for the purpose of ensuring the timely submission of the reference to the CJEU.

6 With those matters addressed, the order for reference will be dealt with in a separate judgment.

7 Accordingly, the order will be as follows:

• (a). I will direct that the applicants lodge the following documents with the List Registrar in an electronic form having agreed the contents with the other parties, as soon as practicable and in any event not later than 9th September, 2022, for transmission to the CJEU by the Principal Registrar:

  • (i). a contents page in electronic form of the documents submitted; and

  • (ii). a PDF containing all pleadings, with any names of natural persons redacted from orders and judgments (leaving initials only). If this PDF exceeds 30MB, it is to be split into separate PDFs each of which should not individually exceed 30MB. The PDF(s) should include among other pleadings and papers:

    • 1. a scanned copy of the signed approved version of all judgments (including the judgment for reference (the No. 3 judgment) when issued); however the version to be included of the present judgment should be a scan of the signed copy of the substantive part of the judgment together with an electronic version of the appendix which preserves the clickable links); and

    • 2. a scanned version of the order for reference;

• (b). I will adjourn the hearing of the balance of the matter pending the decision of the CJEU; and

• (c). the matter will be listed for mention on Monday 3rd October, 2022 at 2 p.m.

APPENDIX – RELEVANT LEGAL MATERIALS

European law

(i). Article 47 of the Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012.

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012P/TXT&from=EN

(ii). Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. OJ L 175, 5.7. 1985, p. 40–48.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31985L0337

(iii). Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. OJ L 327, 22.12. 2000, p. 1–73.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32000L0060

(iv). Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters. OJ L 124, 17. 5.2005, p. 1–3.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32005D0370

(v). Directive 2011/92/EU of the European Parliament and of the Council of 13 ^th December, 2011 on the assessment of the effects of certain public and private projects on the environment (as amended by council directive 2014/52/EU).

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX: 32011L0092&from=EN

(vi). Directive 2014/52/EU of the European Parliament and of the Council of 16 ^th April, 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (OJ L 124, 25. 4.2014, p. 1–18).

https://eur-lex.europa.eu/eli/ dir/2014/52/oj

European Caselaw

(i). Case C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening v. Stockholms kommun genom dess marknämnd (European Court of Justice, 15 ^th October, 2009, ECR 2009 I-09967, ECLI:EU:C:2009:631).

https://curia.europa.eu/juris/document/document.jsf?text=&docid=76763&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1978244

(ii). Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein Westfalen eV v. Bezirksregierung Arnsberg (Court of Justice of the European Union, 12 ^th May, 2011, ECLI:EU:C:2011:289).

https://curia.europa.eu/juris/document/document.jsf?text=&docid=82053&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1978244

(iii). Case C-348/15 Stadt Wiener Neustadt v. Niederösterreichische Landesregierung (Court of Justice of the European Union, 17 ^th November, 2016, ECLI:EU:C:2016:882).

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX: 62015...