Stapleton v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 22 June 2022
• Neutral Citation: [2022] IEHC 372
• Court: High Court
• Docket Number: [2022 No. 157 JR]

Between

Martin Stapleton

Applicant

and

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

Respondents

and

Savona Limited and Dublin City Council

Notice Parties

[2022] IEHC 372

[2022 No. 157 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Strategic housing development – Permission – Applicant seeking a protective costs order – Whether the Aarhus Convention interpretative obligation applied

Facts: The applicant, Mr Stapleton, sought an order of certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986 as amended and s. 50 of the Planning and Development Act 2000 as amended quashing the decision of the first respondent, An Bord Pleanála (the Board), dated 23rd December 2021, file reference 311333, authorising a proposed strategic housing development of 131 build-to-rent apartment units at Redcourt, Seafield Road, Clontarf, Dublin. The applicant brought a motion filed on 27th May, 2022 for a protective costs order, specifically a declaration that s. 50B of the 2000 Act or s. 3 of the Environment (Miscellaneous Provisions) Act 2011 applied, or alternatively a declaration in effect that the Convention on Access to Information, Public Participation In Decision-Making and Access to Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (the Aarhus Convention) interpretative obligation applied. There was also a fall-back claim for relief in the event that the State had not properly transposed EU law. On 2nd June, 2022, the issue in relation to the Board was adjourned to 25th July, 2022 on the basis that the Board would take a pragmatic approach to the filing of pleadings and that the High Court would review the costs position regarding subsequent steps once pleadings were complete. The motion, therefore, related only to relief against the State. It was given a hearing date of 15th June, 2022. The applicant proposed a number of questions for reference to the Court of Justice of the European Union (CJEU) in relation to the Aarhus interpretative obligation. At the completion of the hearing, Humphreys J indicated the order being made in respect of s. 50B of the 2000 Act and the 2011 Act and indicated that a formal judgment would be given later giving reasons and dealing with the Aarhus Convention issues.

Held by Humphreys J that there was no basis whatsoever for a declaration that s. 50B applied; a claim that ministerial guidelines under s. 28 of the 2000 Act are ultra vires or that s. 28 is invalid is not a proceeding under the habitats directive or any EU directive on public participation or under a national law giving effect to such a directive. Humphreys J held that the 2011 Act only applies, by virtue of s. 4(1)(a), where the proceedings are “for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement” or in other related circumstances. Humphreys J held that an action seeking to invalidate a statutory requirement is not an action to ensure compliance with or enforcement of a statutory requirement. Humphreys J held that a referable question of EU law arose, that this related to the interpretation rather than application of EU law, that an answer was necessary for the decision of the High Court, that the answer was not acte clair or acte éclairé, and that it was appropriate in all circumstances to make a reference to the CJEU under article 267 of the Treaty on the Functioning of the European Union.

Humphreys J held that: (i) the declaration under s. 50B of the 2000 Act was refused; (ii) the declaration under the 2011 Act was refused; (iii) the declaration that the challenge to the validity of primary legislation is covered by the Aarhus obligation was refused; (iv) the claim for relief by reference to any alleged non-transposition of Aarhus in respect of the challenge to the validity of primary legislation was refused; (v) as regards the challenge to the guidelines made under primary legislation, he would in principle refer the question identified to the CJEU; (vi) in that regard he would require the parties to make submissions in the Eco Advocacy CLG v An Bord Pleanála (No. 1) [2021] IEHC 265 format within the two weeks following the date of the judgment; (vii) in order to accelerate that process, he would direct that the submissions be simultaneous rather than sequential; and (viii) he would list the matter for mention on 11th July, 2022 to confirm that the submissions had been delivered.

Reference to CJEU.

JUDGMENT of Humphreys J. delivered on Wednesday the 22nd day of June, 2022

1 This matter arises from a decision by the board on 23 ^rd December, 2021 to grant permission for a strategic housing development in Clontarf, Dublin 3.

2 The statement of grounds was filed on 25 ^th February, 2022 and amended statements filed on 16 ^th and 23 ^rd March, 2022. The relief sought is as follows:

• “1. An Order of Certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986 as amended and Section 50 of the Planning and Development Act 2000 as amended quashing the decision of the First Respondent, An Bord Pleanála (the Board), dated 23 December 2021, file reference 311333, authorising a proposed strategic housing development of 131 build-to-rent apartment units at Redcourt, Seafield Road, Clontarf, Dublin.

• 2. Such declaration(s) of the legal rights and/or legal position of the applicant and (if and insofar as legally permissible and appropriate) persons similarly situated and/or of the legal duties and/or legal position of the Respondents as the court considers appropriate.

• 3. A declaration that the Urban Development and Building Heights Guidelines for Planning Authorities 2018 (and / or 2020) are invalid, ultra vires and / or unconstitutional and should be set aside.

• 4. A stay pursuant to Order 84 Rule 20(8)(b) of the Rules of the Superior Courts on the operation of the above Board Decision of 23 December 2021, file reference 311333, pending conclusion of the present proceedings.

• 5. A Declaratory Order pursuant to Section 7 of the Environment (Miscellaneous Provisions) Act 2011 as amended, Order 99 of the Rules of the Superior Courts as amended, the inherent jurisdiction of the Court, Article 47 of the Charter on Fundamental Rights of the European Union, Articles 4(3) and 19(1) of the Treaty on European Union, and / or Article 9 of the Convention on Access to Information, Public Participation In Decision-Making and Access to Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (the Aarhus Convention), confirming that Section 50B of the Planning and Development Act 2000 as amended and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 apply to the Grounds set out at Part E hereof.

• 6. A Declaratory Order pursuant to Section 7 of the Environment (Miscellaneous Provisions) Act 2011 as amended, Order 99 of the Rules of the Superior Courts as amended, and/or pursuant to the inherent jurisdiction of the Court, that, if and insofar as the Applicants may not be entitled to an Order in the terms of the preceding paragraph, or an Order to equivalent effect, the State has failed adequately to guarantee and defend the Applicants' right to bring proceedings at a cost that is not prohibitively expensive, has failed to ensure the Applicants' right to effective judicial protection, and / or has failed to ensure reasonable predictability in relation to the costs of proceedings, and has accordingly failed to comply with the requirements of Article 47 of the Charter on Fundamental Rights of the European Union, Articles 4(3) and 19(1) of the Treaty on European Union, and / or Article 9 of the Aarhus Convention.

• 7. A Declaratory Order pursuant to Order 84 Rule 18(2) of the rules of the Superior Courts as amended and Article 4(3) of the Treaty on European Union, that the Minister, Ireland and the Attorney General, and / or the Board, are required by law to pay to the Applicants on the conclusion of the present proceedings, the amount of any costs which the Applicants may be ordered to pay to the other Respondents or Notice Parties, or so much of such sum as may be necessary to ensure that the costs borne by the Applicants in the proceedings are not prohibitively expensive for it.

• 8. An order referring a question or questions of law for determination by the Court of Justice of the European Union.

• 9. If necessary, an extension of time to apply for leave to seek judicial review of the decision of the Board, pursuant to Section 50(8) of the 2000 Act.

• 10. Further or other relief.

• 11. Costs.”

3 The core grounds pleaded are as follows:

“ Grounds Relating to Compliance with National Law

1. The impugned decision is invalid because the Board erred in its interpretation of the term ‘structure’ for the purposes of S2 of the 2000 Act, failing to recognise that the overall roof would be part of the structure and that the space beneath it would not constitute open space or communal open space for the purposes of para 16.10 of the Development Plan, resulting in an unidentified material contravention of the Development Plan contrary to S9(6) of the 2016 Act and S37(2)(b) of the 2000 Act.

2. The impugned decision is invalid because the Board erred in its interpretation and application of SPPR3 and part 3.2 of the Height Guidelines, and S9(6) of the 2016 Act, failing to have appropriate and reasonable regard to the BRE Trust's Site Layout Planning for Daylight and Sunlight, in particular the recommended average daylight factor (ADF) of 5% for a well daylit space, or to identify a rationale for alternative compensatory design solutions.

3. The impugned decision is invalid because the Board erred in its interpretation and application of S9(1)(a)(iii), S9(2) and S18 of the 2016 Act, and S143 of the 2000 Act, National Strategic Outcomes of the National Planning Framework, or failed to apply those...