Court discretion in striking out settled cases concerning European Union Law – Dempsey -v- An Bord Pleanála [2019] 825 JR

Background

On 26 September 2019, An Bord Pleanála granted development consent to Ardstone Homes Limited ("the Developer") permitting the construction of 366 dwellings in Clane, County Kildare. This decision was challenged by the Applicants, who own and occupy houses within the vicinity of the proposed development project.

The permission was granted under the Strategic Housing Development system, whereby an application is made directly to An Bord Pleanála for consent following a pre-application consultation procedure. This pre-application consultation does not involve public participation. Public participation is provided for once the main application is made to the Board.

Judicial review proceedings

The Applicants obtained leave to apply for judicial review in respect of the decision to grant development consent. The principal ground of challenge advanced was that An Bord Pleanála had failed to provide a proper statement of the “main reasons and considerations” for its decision to grant the development consent. The Applicants alleged that consequently, the decision was contrary to Article 11 of the EIA Directive, Section 10(3) of Planning and Development (Housing) and Residential Tenancies Act 2016, fair procedures, natural and constitutional justice, and national law on the environment.

The Applicants additionally expressed concern that the issue of density may have been determined by An Bord Pleanála during the pre-application consultation, prior to the public participation stage of the process. There is a statutory prohibition on the Board from relying on the pre-application stage during its consideration of the main application. The Applicants emphasised that in the absence of an adequate statement of the “main reasons and considerations” for the decision to grant development consent, the Applicants were not in a position to formulate a challenge on this point.

Exercise of Discretion to Strike out Proceedings at the Invitation of the Parties

At the start of the third day of the hearing, the Applicants applied to have the proceedings struck out. This was due to the fact that a settlement had been agreed between the parties. The details of the settlement was not revealed to the Court. The Court queried whether, in the particular circumstances of the case, the Court could exercise its discretion in this regard.

It was agreed by all parties that Judicial Review proceedings cannot be discontinued unilaterally, that an Order of the Court is required and that the Court has discretion. The Applicants argued however that this discretion is limited, and should, generally, be exercised in favour of allowing the settlement of proceedings. Both An Bord Pleanála and the Developer agreed with this.

In addition, the parties argued that there is a strong public interest in the settlement of litigation, and that it would undermine this public interest were a court to deliver a judgment in circumstances where the parties all now wish the proceedings to be discontinued. In particular, the Applicant argued that they should retain control of proceedings that they had instituted.

Arguments on the Necessity for a Reference

The Court invited the parties to address the issue as to whether a reference to Europe was required in order to rule on the application for a strike out.

The following arguments were raised by the parties as to why a reference to Europe is not required and why the application can be determined by the High Court, pursuant to the general discretion vested in it to strike out proceedings:

1. The proceedings do not present any issue of EU environmental law.
2. In the absence of a plea of prejudgment, the court is not entitled to consider whether the issue of the density had been settled upon prior to the public participation process.
3. The making of a reference to the Court of Justice is not necessary to enable this court to give judgment. If the court accedes to the application to strike out the proceedings, no judgment will be required from it at all.

Decision of the Court

In determining that a reference to the European Courts of Justice was necessary to determine the application to strike out the proceedings, the Court noted the following:

• If An Bord Pleanála had pre-judged the issue of density at the pre-application stage, this would have undermined the effectiveness of subsequent public-participation. The alleged failure to state the “main reasons and   considerations” may conceal another, perhaps more serious, breach of the EIA Directive.
• The EIA Directive obliges Member States to provide a “review procedure” whereby the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive may be challenged. Irish law provides this “review procedure” by way of judicial review, which the Applicants have invoked.
• In principle, judicial review proceedings pursuant to Article 11 of the EIA Directive may have reached a stage after which it becomes too late for an applicant to seek to withdraw those proceedings. If, for example, the court is satisfied that there is a prima facie case that the planning permission has been granted in breach of the public participation provisions of the EIA Directive, then it may have to rule on the application for judicial review.
• This is contingent on the court having available to it all of the legal and factual elements necessary for making a determination within the pleadings.
• The identification of the nature and extent of the national court’s obligations in this regard gives rise to very difficult issues of EU law, and requires consideration of the obligations of the court, the rights of the parties, and the public interest in ensuring that the public participation rights under the EIA Directive are vindicated.
• The fact that there is, generally, a public interest in facilitating the settlement of proceedings cannot necessarily be decisive in this context. Otherwise there might be a risk that an objector, who has grounds for invalidating a planning permission, might be “bought off”.

Questions referred for Preliminary Ruling:

 

1. Is a national court whose jurisdiction has been invoked pursuant to a judicial review procedure which gives effect to Article 11 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (“the EIA Directive”) obliged to rule on the substantive or procedural legality of the impugned development consent, in circumstances where it has available to it the legal and factual elements necessary for that task, notwithstanding that the applicants for judicial review now wish to discontinue their proceedings.
2. Does the obligation upon a national court to take all measures necessary, within the sphere of its competence, to remedy the failure to carry out an environmental impact assessment in accordance with the EIA Directive (Wells, C‑201/02, EU:C:2004:12), extend to an obligation to rule on the substantive or procedural legality of a development consent which has been challenged in judicial review proceedings, notwithstanding that the applicants for judicial review now wish to discontinue their proceedings.
3. Does the answer to Questions 1 and 2 above depend on factors such as (i) the gravity of the breach of the EIA Directive alleged in the proceedings; (ii) the implications of the alleged breach for effective public participation; (iii) the stage of the proceedings at which the applicants first indicate that they wish to discontinue the proceedings; and (iv) the ability of the national court to determine the issues on the basis of the factual materials put before it by the parties and on the basis of the dispute as defined by the parties in their pleadings.

The main proceedings were stayed pending determination of the reference by the Court of Justice.