Dublin 8 Residents Association v an Bord Pleanála and Others (No. 4)
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 08 August 2023 |
| Neutral Citation | [2023] IEHC 496 |
| 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
[2023] IEHC 496
[2021 No. 525 JR]
THE HIGH COURT
JUDICIAL REVIEW
Request for information – Judicial review – O. 15 r. 13 RSC – CJEU requesting further information – Whether O. 15 r. 13 RSC was capable of applying
Facts: The applicant, Dublin 8 Residents Association, challenged a decision of the first respondent, An Bord Pleanála, dated 15th April, 2021 granting planning permission. On 11th March, 2022, the High Court (Humphreys J) made an order under O. 15 r. 13 of the Rules of the Superior Courts (RSC) substituting CWTC Multi-Family ICAV as notice party in lieu of DBTR-SCR1 Fund, a Sub-Fund of the CWTC Multi-Family ICAV, such substitution to be on the basis that the ICAV was acting on behalf of the sub-fund, and decided in principle to refer the questions identified in the judgment to the Court of Justice of the European Union (CJEU): Dublin 8 Residents Association v An Bord Pleanála (No. 1) [2022] IEHC 116. On 12th August, 2022, Humphreys J gave certain procedural directions regarding the reference: Dublin 8 Residents Association v An Bord Pleanála (No. 2) [2022] IEHC 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 response to a request from the CJEU for factual clarification. He considered it appropriate to receive the evidence of Ms Clarke and Ms Rafferty. He held that the participation of the Dublin 8 Residents Association occurred on the basis of Article 6 of directive 2011/92 (likewise the participation of Ms Kerins, the proposed substitutee). He held that this was not a case where the plaintiff did not realise that some other person was a proper plaintiff; the applicant must have known that Ms Kerins had standing but thought that it also had standing. Hence he held that O. 15 r. 2 RSC had no potential application and informed the CJEU accordingly. He held that the assertion that O. 15 r. 13 did not apply to public law, was fallacious; the allegedly supportive authorities did not say or support that. He held that O. 15 r. 13 does not provide for the substitution of parties save in place of parties improperly joined when the proceedings were commenced, citing Irish Bank Resolution Corporation v Lavelle [2015] IEHC 321; that was essentially the situation in this case. He held that a person with no standing can nonetheless in principle apply to the court for the limited purposes of being removed from the case to be replaced by a person with standing; alternatively the latter person can make the application. He noted that counsel had instructions from both. He found that he did not need to decide whether the conditional application under O. 15 r. 13 should be refused on the basis of delay or time. He held that as a matter of Irish law, O. 15 r. 13 applies to the correction of the name of a party in judicial review (as opposed to the addition of a notice party), and the correction of the name of the notice party under that provision was correct. He noted that the applicant had expressly made a conditional application for substitution – conditional on it being wrong about its own standing. He formally recorded a finding of fact on the evidence that Ms Kerins was a member of the association applicant in the main proceedings, and fell as such within the scope of Article 11(1) of the EIA Directive. He held that it followed inexorably from the affidavit of Ms Clarke that Ms Kerins had consented to act as an applicant. He held that in order to apply under O. 15 r. 13, there were no formal requirements regarding consent by a certain number of members of Dublin 8 Residents Association being necessary to apply for substitution or consent to it.
Humphreys J ordered that: (i) the affidavits of Ms Clarke and Ms Rafferty be admitted; (ii) the reply set out in the appendix to the judgment be transmitted to the CJEU as the reply of the court to the request for information; and (iii) the costs associated with the reply to the request for information be reserved.
Request granted.
(No. 4)
JUDGMENT of Humphreys J. delivered on the 8th day of August, 2023
. 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 made an order under O. 15, r. 13 RSC substituting CWTC Multi-Family ICAV as notice party in lieu of DBTR-SCR1 Fund, a Sub-Fund of the CWTC Multi-Family ICAV, such substitution to be on the basis that the ICAV is acting on behalf of the sub-fund; and decided in principle to refer the questions identified in the judgment to the CJEU.
. In Dublin 8 Residents Association v. An Bord Pleanála (No. 2) [2022] IEHC 467, ( [2022] 8 JIC 1203 Unreported, High Court, 12th August, 2022) I gave certain procedural directions regarding the reference.
. In Dublin 8 Residents Association v. An Bord Pleanála (No. 3) [2022] IEHC 482, ( [2022] 8 JIC 1601 Unreported, High Court, 16th August, 2022) I made the formal order for reference.
. I am now dealing with a request from the CJEU for further information.
. 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 29th October, 2020.
. 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.
. 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).
. 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 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.
. On 21st 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 9th June, 2021.
. 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 21st and 28th June, 2021, 5th July, 2021 and 26th July, 2021.
. On 30th 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”.
. 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.
. On 22nd 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 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.
. On 8th December, 2021, the notice party issued a motion to set aside the grant of leave.
. The procedural matter before the court at present is the notice party's motion to set aside the order granting leave, in which the following reliefs are sought:
“1. An Order pursuant to the inherent jurisdiction of the High Court setting aside the grant of leave to apply for judicial review made by Order of 30 July 2021 in respect of decision of An Bord Pleanála of 15 April 2021 to grant planning permission for the construction of 492 build to rent apartments, 240 build to rent shared accommodation units, community arts and cultural and...
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