Save Roscam Peninsula CLG v an Bord Pleanála (No. 3)

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 14 July 2022
• Neutral Citation: [2022] IEHC 425
• Court: High Court
• Docket Number: [2021 No. 1110 JR]

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between

Save Roscam Peninsula CLG, Sophie Cacciaguidi-Fahy, Martin Fahy and Philip Harkin

Applicants

and

An Bord Pleanála, Galway City Council, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Alber Developments Limited

Notice Party

[2022] IEHC 425

[2021 No. 1110 JR]

THE HIGH COURT

JUDICIAL REVIEW

Order for reference – Procedural matters – Documents – High Court dealing with procedural matters prior to formal order for reference – High Court setting out directions in order to ensure that papers are prepared appropriately

Facts: The High Court (Humphreys J), in Save Roscam Peninsula CLG v An Bord Pleanála (No. 1) [2022] IEHC 202, refused a declaration that the applicants, Save Roscam Peninsula CLG, Ms Cacciaguidi-Fahy, Mr Fahy and Mr Harkin, were entitled to costs protection under s. 50B of the Planning and Development Act 2000 or the Environment (Miscellaneous Provisions) Act 2011, and adjourned the applicants' points relating to the interpretative application under the Aarhus Convention pending a proposed reference to the CJEU. In Save Roscam Peninsula CLG v An Bord Pleanála (No. 2) [2022] IEHC 328, Humphreys J granted leave to appeal under s. 50A(7) of the 2000 Act in relation to the issues under the 2011 Act on the question set out in the judgment. Humphreys J dealt with certain procedural matters prior to the formal order for reference.

Humphreys J, in order to assist the CJEU and having received submissions from the parties, set out a full list of the relevant EU, international and domestic legal material in the appendix to the judgment together with web links. Humphreys J held that the order for reference would be dealt with in a separate judgment. Humphreys J set out directions in order to ensure that papers were prepared appropriately.

Humphreys J directed that the applicants lodge the following documents with the List Registrar in an electronic form having agreed the contents with the other parties, by 22nd July, 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. Humphreys J held that if that PDF exceeded 30MB, it was to be split into separate PDFs each of which should not individually exceed 30MB. Humphreys J held that the PDF(s) should include among other pleadings and papers: (a) a scanned copy of the signed approved version of all judgments, however the version to be included of the 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 (b) a scanned version of the order for reference. Humphreys J adjourned the hearing of the balance of the matter pending the decision of the CJEU. Humphreys J listed the matter for mention on 25th July, 2022 to confirm compliance with the foregoing.

Matter adjourned.

(No. 3)

JUDGMENT of Humphreys J. delivered on Thursday the 14th day of July, 2022

1 In Save Roscam Peninsula CLG v. An Bord Pleanála (No. 1) [2022] IEHC 202, ( [2022] 4 JIC 0809 Unreported, High Court, 8th April, 2022), I refused a declaration that the applicants were entitled to costs protection under s. 50B of the Planning and Development Act 2000 or the Environment (Miscellaneous Provisions) Act 2011, and adjourned the applicants' points relating to the interpretative application under the Aarhus Convention pending a proposed reference to the CJEU.

2 In Save Roscam Peninsula CLG v. An Bord Pleanála (No. 2) [2022] IEHC 328, ( [2022] 6 JIC 0903 Unreported, High Court, 9th June, 2022), I granted leave to appeal under s. 50A(7) of the 2000 Act in relation to the issues under the 2011 Act on the question set out in the judgment. That does not affect the proposed reference, as matters stand.

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

Consideration of amici curiae

4 Following 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 the parties did not propose the addition of any such amici curiae to the proceedings.

Relevant legal materials

5 In order to assist the CJEU and having received submissions from the parties, I set out a full list of the relevant EU, international and domestic legal material in the appendix to the judgment together with web links.

Order for reference

6 With those matters addressed, the order for reference will be dealt with in a separate judgment, but I need to set out directions now in order to ensure that papers are prepared appropriately.

Order

7. 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, by Friday 22 ^nd July, 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. 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:

    • A. a scanned copy of the signed approved version of all judgments; 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

    • B. 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 25 ^th July, 2022 to confirm compliance with the foregoing.

APPENDIX – RELEVANT LEGAL MATERIALS

European law

(i). Article 3(3) Consolidated version of the Treaty on European Union.

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008M003

(ii). Article 19 Consolidated version of the Treaty on European Union.

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016M019&from=EN

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

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX: 31992L0043&from=EN

(iv). 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.

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX: 32001L0042&from=EN

(v). 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.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX: 32005D0370

(vi). Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX: 32006R1367

(vii). 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

European Caselaw

(i). Case C-53/96 Hermès International v. FHT Marketing Choice BV (European Court of Justice, 16 ^th June, 1998, ECLI:EU:C:1998:292).

https://curia.europa.eu/juris/showPdf.jsf?text=&docid=43933&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=799338.

(ii). Joined Cases C-300/98 and C-392/98 Dior SA v. TUK Consultancy BV and Assco Gerüste GmbH v. Wilhelm Layher GmbH & Co. KG (European Court of Justice, 14 ^th December, 2000, ECLI:EU:C:2000:688).

https://curia.europa.eu/juris/showPdf.jsf?text=&docid=45447&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=799338

(iii). Case C-239/03 Commission of the European Communities v. French Republic (European Court of Justice, 7 ^th October, 2004, ECLI:EU:C:2004:598).

https://curia.europa.eu/juris/document/document.jsf?text=&docid=49170&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3550347

(iv). Case C-212/04 Konstantinos Adeneler v. Ellinikos Organismos Galaktos (European Court of Justice, 4 ^th July, 2006, ECLI:EU:C:2006:443).

https://curia.europa.eu/juris/document/document.jsf?text=&docid=56282&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3550347

(v). Case C-431/05 Merck Genéricos — Produtos Farmacêuticos Lda v Merck & Co. Inc. (European Court of Justice, 11 ^th September, 2007, ECLI:EU:C:2007:496).

https://curia.europa.eu/juris/document/document.jsf?text=&docid=62603&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3506122

(vi). Case C-427/07 Commission of the European Communities v. Ireland (European Court of Justice, 16 ^th July, 2009, ECLI:EU:C:2009:457).

https://curia.europa.eu/juris/document/document.jsf?text=&docid=72488&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=376792

(vii). Case C-240/09 Lesoochranárske zoskupenie VLK v. Ministerstvo životného prostredia Slovenskej republiky (Court of Justice of the European Union, 8 ^th March, 2011, ECLI:EU:C:2011:125).

https://curia.europa.eu/juris/document/document.jsf?text=&docid=80235&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=376792

(viii). Case C-260/11 Edwards v. Environment...