Stapleton v an Bord Pleanála No. 3

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 26 July 2022
• Neutral Citation: [2022] IEHC 456
• 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 456

[2022 No. 157 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Strategic housing development – Aarhus Convention – Applicant challenging the validity of a decision authorising a strategic housing development – Whether the Aarhus Convention interpretative obligation applied

Facts: The applicant, Mr Stapleton, challenged the validity of a decision by the first respondent, An Bord Pleanála (the board), on 23rd December, 2021, authorising a strategic housing development in Redcourt, Seafield Road, Clontarf, Dublin 3, consisting of 131 build-to-rent apartment units. The applicant was an owner and resident of property neighbouring the proposed development. The challenge consisted of both a legal and administrative law objection to the decision itself, and a challenge to the ministerial guidelines and the legislation under which they were made (s. 28(1C) of the Planning and Development Act 2000). In Stapleton v An Bord Pleanála (No. 1) [2022] IEHC 372, the High Court (Humphreys J) refused to order declarations under s. 50B of the 2000 Act, s. 3 of the Environment (Miscellaneous Provisions) Act 2011 and the Aarhus Convention (in respect of the challenge to the statute) and decided in principle to refer a question identified in the judgment to the CJEU in respect of the challenge to ministerial guidelines. In Stapleton v An Bord Pleanála (No. 2) [2022] IEHC 455, Humphreys J addressed certain procedural matters.

Held by Humphreys J that he would make the formal order for reference. The question was: Is a challenge to be considered as falling outside the interpretative obligation whereby in proceedings where the application of national environmental law is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, so that judicial procedures are not prohibitively expensive, either as not being one where the application of national environmental law is in issue or as not within the sphere of EU environmental law, merely because it involves a challenge to the validity of an instrument adopted under a statutory provision based on domestic public law or constitutional law (for example, a challenge on the basis of national administrative law principles and constitutional provisions regarding the exercise of the legislative function in accordance with the separation of powers as between the legislature and the executive) in a context relating to the environment or by way of a challenge to the procedure by which guidelines with environmental relevance (assessed under directive 2001/42) were adopted.

Humphreys J held that the question would be referred to the CJEU pursuant to article 267 TFEU.

Reference to CJEU.

(No. 3)

JUDGMENT of Humphreys J. delivered on Tuesday the 26th day of July, 2022

Subject matter of the dispute

1 This matter arises from a challenge to the validity of a decision by An Bord Pleanála (the board) on 23rd December, 2021 (file reference 311333) authorising a strategic housing development in Redcourt, Seafield Road, Clontarf, Dublin 3, consisting of 131 build-to-rent apartment units.

2 The applicant is an owner and resident of property neighbouring the proposed development.

Facts

3 The Dublin City Development Plan 2016–2022 setting out inter alia building heights for Dublin City was adopted in 2016 and was assessed under directive 2001/42.

4 Ministerial guidelines, the Urban Development and Building Heights Guidelines, were adopted in 2018 under section 28(1C) of the Planning and Development Act 2000. These guidelines were also assessed under directive 2001/42/EC. They contain mandatory Specific Planning Policy Requirements (SPPRs) particularly SPPR3 that allows the board to override building heights provisions of the Development Plan.

5 Savona Ltd., the first named notice party, applied to the board for planning permission for the development concerned on 8th September, 2021.

6 The application included documentation for the purposes of appropriate assessment (AA) and a Natura Impact Statement (NIS) for the purposes of the habitats directive 92/43/EEC.

7 It also included an Environmental Impact Assessment (EIA) screening statement dated August 2021 for the purposes of the EIA directive 2011/92/EU as amended.

8 A total of 377 submissions were received on the application.

9 The board's inspector prepared a report recommending grant of permission with conditions.

10 At a meeting on 21st December, 2021 the board made a direction to grant permission generally in accordance with the inspector's report.

11 As noted above, the formal decision granting permission with conditions was made on 23rd December, 2021. The board noted that the grant of permission would materially contravene section 16.7.2 of the Dublin City Development Plan 2016–2022 in relation to building heights. The board considered that this could be justified by reference to, among other things, ministerial guidelines entitled the Urban Development and Building Heights Guidelines adopted in 2018.

12 The statement of grounds was filed on 25th February, 2022 and amended statements were filed on 16th and 23rd March, 2022.

13 The challenge consists of both a legal and administrative law objection to the decision itself, and a challenge to the ministerial guidelines and the legislation under which they were made (section 28(1C) of the Planning and Development Act 2000).

14 Preliminary issues arose as to the applicant's liability for costs in the event of not being successful. On 20th May, 2022 the applicant filed a motion seeking protective costs orders, including declarations that he would not be liable for costs in that event. The issue of a protective costs order against the board was postponed. However, at the request of the State, the question of whether the applicant enjoyed costs protection in the statutory challenge was heard.

15 In Stapleton v. An Bord Pleanála (No. 1) [2022] IEHC 372, ( [2022] 6 JIC 2201 Unreported, High Court, 22nd June, 2022), I refused to order declarations under s. 50B of the Planning and Development Act 2000, s. 3 of the Environment (Miscellaneous Provisions) Act 2011 and the Aarhus Convention (in respect of the challenge to the statute) and decided in principle to refer a question identified in the judgment to the CJEU in respect of the challenge to ministerial guidelines.

16 In ( [2022] IEHC 455 Stapleton v. An Bord Pleanála (No. 2) Unreported, High Court, 26th July, 2022) I addressed certain procedural matters.

17 I now make the formal order for reference.

The relevant grounds of challenge

18 The core grounds of challenge which relate to the case against the State (with which the present matter is concerned) are as follows:

Validity of Guidelines

7. … the impugned decision is invalid because it is based on invalid Guidelines which exceed the powers conferred on the Minister by S28(1C) of the 2000 Act.

8. In...