Stapleton v an Bord Pleanála No.2

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 26 July 2022
• Neutral Citation: [2022] IEHC 455
• 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 455

[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 High Court (Humphreys J), in Stapleton v An Bord Pleanála (No. 1) [2022] IEHC 372, refused declarations under s. 50B of the Planning and Development Act 2000, s. 3 of the Environment (Miscellaneous Provisions) Act 2011 and (in respect of statutory invalidity) the Aarhus Convention, and decided in principle to refer a question identified in the judgment to the CJEU. In the No. 1 judgment Humphreys J 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. No such amici were proposed. It was then necessary to give directions for the purpose of ensuring the timely submission of the reference to the CJEU.

Held by Humphreys J that he would direct that the applicant, Mr Stapleton, lodge the following documents with the List Registrar in an electronic form having agreed the contents with the other parties, as soon as practicable and in any event not later than 9th September, 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 that PDF exceeded 30MB, Humphreys J held that 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: (1) 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 (2) a scanned version of the order for reference. Humphreys J held that he would adjourn the hearing of the balance of the matter pending the decision of the CJEU. Humphreys J held that the matter would be listed for mention only on 3rd October, 2022 at 2 p.m. Humphreys J noted that, in order to assist the CJEU, a full list of the relevant EU, international and domestic legal material was set out in the appendix to the judgment together with web links.

Humphreys J held that, with those matters addressed, the order for reference would be dealt with in a separate judgment.

Procedural matters addressed.

(No. 2)

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

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

2 In 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. No such amici were proposed.

3 In order to assist the CJEU, a full list of the relevant EU, international and domestic legal material is set out in the appendix to the judgment together with web links.

4 It is now necessary to give directions for the purpose of ensuring the timely submission of the reference to the CJEU.

5 With those matters addressed, the order for reference will be dealt with in a separate judgment.

6 Accordingly, 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, as soon as practicable and in any event not later than 9th September, 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:

    • 1. 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

    • 2. 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 only on Monday 3rd October, 2022 at 2 p.m.

APPENDIX – RELEVANT LEGAL MATERIALS

European law

(i). Article 4 Consolidated version of the Treaty on European Union.

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012M004&from=EN

(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). Article 47 of the Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012.

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012P/TXT&from=EN

(iv). Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. OJ L 175, 5.7. 1985, p. 40–48.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31985L0337

(v). Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31992L0043

(vi). Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy. OJ L 327, 22.12. 2000, p. 1–73.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32000L0060

(vii). Directive 2001/42/EC of the European Parliament and of the Council of 27th 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

(viii). 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. OJ L 124, 17. 5.2005, p. 1–3.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32005D0370

(ix). 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. OJ L 264 25.9.2006.

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

(x). Directive 2011/92/EU of the European Parliament and of the Council of 13th 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) OJ L 26, 28.1.2012.

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX: 32011L0092&from=EN

(xi). Directive 2014/52/EU of the European Parliament and of the Council of 16th April, 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (OJ L 124, 25. 4.2014, p. 1–18).

https://eur-lex.europa.eu/eli/ dir/2014/52/oj

European Caselaw

(i). Case C-239/03 Commission of the European Communities v. French Republic (European Court of Justice, 7th 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

(ii). Case C-212/04 Konstantinos Adeneler v. Ellinikos Organismos Galaktos (European Court of Justice, 4th 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

(iii). Case C-427/07 Commission of the European Communities v. Ireland (European Court of Justice, 16th 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

(iv). Joined Cases C-128/09 – C-131/09 Boxus & Ors v. Région wallonne (Court of Justice of the European Union, 18th October, 2011, ECLI:EU:C:2011:667).

https://curia.europa.eu/juris/document/document.jsf?text=&docid=111403&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1876838

(v). C-204/09 Flachglas Torgau GmbH v. Bundesrepublik Deutschland (Court of Justice of the European Union, 14th February, 2012, ECLI:EU:C:2012:71).

https://curia.europa.eu/juris/document/document.jsf?text=&docid=119426&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1876838

(vi). Case C-240/09 Lesoochranárske zoskupenie VLK v. Ministerstvo životného prostredia Slovenskej republiky (Court of Justice of the European Union, 8th 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

(vii). Case C-260/11 Edwards v. Environment Agency (Court of Justice of the European Union, 11th April, 2013, ECLI:EU:C:2013:221).

https://curia.europa.eu/ju...