Enniskerry Alliance v an Bord Pleanala and Protect East Meath Ltd v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 10 June 2022
• Neutral Citation: [2022] IEHC 338
• Court: High Court
• Docket Number: [2021 No. 846 JR]

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Enniskerry Alliance and Enniskerry Demesne Management Company CLG

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Cairn Homes Properties Limited

Notice Party

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Protect East Meath Limited

Applicant

and

An Bord Pleanála, Ireland and The Attorney General and Louth County Council

Respondents

and

Hallscotch Venture Limited

Notice Party

and

Clientearth Aisbl (By Order)

Amicus Curiae

[2022] IEHC 338

[2021 No. 846 JR]

[2021 No. 770 JR]

THE HIGH COURT

JUDICIAL REVIEW

Costs – Liability – Developments – Applicants challenging developments – Whether it was appropriate to make a reference to the Court of Justice of the European Union

Facts: In Protect East Meath, the construction of 275 apartments, a crèche and associated site works on lands adjacent to Scotch Hall Shopping Centre, Marsh Road, Drogheda, Co. Louth was the subject of a permission granted by the first respondent, An Bord Pleanála (the board), on 29th June, 2021. In Enniskerry Alliance, the construction of 165 residential units, a child care facility and associated works at Cookstown Road, Enniskerry, Co. Wicklow was the subject of a permission granted by the board on 13th August, 2021. Both applicants brought proceedings challenging the permissions. Both sought protective costs orders from the High Court in order to determine, in advance of costs being incurred, that they would not be liable for any such costs if unsuccessful. In Enniskerry Alliance and Enniskerry Demesne Management Company CLG v An Bord Pleanála (No. 1) [2022] IEHC 6, Humphreys J gave judgment on the protective costs applications, noting a consent order in relation to certain costs, deciding that s. 50B of the Planning and Development Act 2000 did not apply to any other grounds, and that the Environment (Miscellaneous Provisions) Act 2011 applied only to one element of the remaining case, namely core ground 6 in Enniskerry insofar as it related to prevention of future damage to hedgerows by reason of contravention of s. 9(6)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016 which prohibits material contravention of the development plan save on certain conditions. In Enniskerry Alliance and Enniskerry Demesne Management Company CLG v An Bord Pleanála (No. 2) [2022] IEHC 337, Humphreys J addressed certain procedural matters.

Held by Humphreys J that, as discussed in the No. 1 judgment, a number of questions of European law arose in the proceedings; a further question was identified in the No. 2 judgment. It seemed to Humphreys J that those questions related to the interpretation rather than application of EU law, that answers were necessary for the decision of the court, that the answers to those 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 (CJEU) under article 267 TFEU.

Humphreys J referred the seven questions to the CJEU pursuant to article 267 TFEU.

Reference to CJEU.

(No. 3)

JUDGMENT of Humphreys J. delivered on Friday the 10th day of June, 2022

Subject matter of the dispute

1 The dispute relates to liability for costs in challenges to two separate developments:

• (i). in Protect East Meath, the construction of 275 apartments, a crèche and associated site works on lands adjacent to Scotch Hall Shopping Centre, Marsh Road, Drogheda, Co. Louth which is the subject of a permission granted by the board on 29 ^th June, 2021; and

• (ii). in Enniskerry Alliance, the construction of 165 residential units, a child care facility and associated works at Cookstown Road, Enniskerry, Co. Wicklow in respect of which the board granted permission on 13 ^th August, 2021.

Facts — Enniskerry

2 A pre-application consultation occurred on 9 ^th July, 2020 at which representatives of the developer, the local authority and board were present. This resulted in an inspector's report dated 6 ^th October, 2020 that indicated that the proposed application required amendment.

3 The amended application was submitted by the notice party on 28 ^th April, 2021. The application included a material contravention statement that noted contravention of building heights set out in the county development plan, but asserted that this could be justified by reference to Ministerial Guidelines on Urban Development and Building Heights.

4 Environmental Impact Assessment (EIA) was required in the Enniskerry case. Appropriate assessment (AA) was not required.

5 The inspector recommended that planning permission be granted subject to 20 conditions on 30 ^th July, 2021.

6 The board granted permission on 13 ^th August, 2021.

Facts — Protect East Meath

7 In Protect East Meath, a pre-application consultation occurred on 23 ^rd August, 2019 following which the inspector reported that the application required amendment. The amended application was submitted on 11 ^th March, 2021.

8 EIA was screened out in Protect East Meath. AA was also not required.

9 On 23 ^rd June, 2021 the inspector recommended that planning permission be granted subject to 31 conditions.

10 The board granted permission on 29 ^th June, 2021.

Procedural history

11 Both applicants brought proceedings challenging the permissions concerned. Both sought protective costs orders from the court in order to determine, in advance of costs being incurred, that they would not be liable for any such costs if unsuccessful.

12 In Enniskerry Alliance and Enniskerry Demesne Management Company CLG v. An Bord Pleanála (No. 1) [2022] IEHC 6, ( [2022] 1 JIC 1410 Unreported, High Court, 14th January, 2022), I gave judgment on the protective costs applications, noting a consent order in relation to certain costs, deciding that s. 50B of the Planning and Development Act 2000 did not apply to any other grounds, and that the Environment (Miscellaneous Provisions) Act 2011 applied only to one element of the remaining case, namely core ground 6 in Enniskerry insofar as it relates to prevention of future damage to hedgerows by reason of contravention of s. 9(6)(b) of the 2016 Act which prohibits material contravention of the development plan save on certain conditions.

13 In ( [2022] IEHC 337 Enniskerry Alliance and Enniskerry Demesne Management Company CLG v. An Bord Pleanála (No. 2) Unreported, High Court, 10th June, 2022), I addressed certain procedural matters.

14 I now make the formal order for reference.

Relevant provisions of EU law

15 The most pertinent provisions of EU law are as follows:

• (i). Directive 92/43/EEC of 21 ^st May, 1992 on the conservation of natural habitats and of wild fauna and flora.

• (ii). Directive 2001/42/EC of the European Parliament and of the Council of 27 ^th June, 2001 on the assessment of the effects of certain plans and programmes on the environment.

• (iii). 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

• (iv). 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).

• (v). The UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, signed in Aarhus (Denmark) on 25 ^th June, 1998 (“the Aarhus Convention”) which is an integral part of EU law.

Relevant provisions of domestic law

16 The most pertinent provisions of domestic law are as follows:

• (i). Section 50B of the Planning and Development Act 2000, sub-section (2) of which provides a general rule that parties in judicial reviews of decisions under enactments giving effect to EU law public participation rules, or article 6(3) and (4) of the habitats directive, shall bear their own costs. The section provides for limited exceptions as well as for provision in sub-section (2A) for the applicant to obtain costs to the extent she is successful.

• (ii). Section 3 of the Environment (Miscellaneous Provisions) Act 2011 Act, which provides a similar rule for proceedings to which that section applies, and section 4 of the Act, which applies the section to actions for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or to certain other planning requirements, where the failure to ensure such compliance with, or enforcement of, such requirement has caused, is causing, or is likely to cause, damage to the environment.

• (iii). Section 9(6)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016, which provides that the board cannot grant permission to a proposed development which contravenes materially the development plan or local area plan relating to the area concerned, in relation to the zoning of the land.

• (iv). Section 9(6)(c) of the Planning and Development (Housing) and Residential Tenancies Act 2016, which provides that where a proposed strategic housing development would materially contravene the development or local area plan, other than in relation to the zoning of the land, then the board may only grant permission where it considers that, if section 37(2)(b) of the Act of 2000 were to apply, it would grant permission for the proposed development.

• (v). Section 37(2)(b) of the Planning and Development Act 2000 as applied by section 9 of the Planning and Development (Housing) and ...