The High Court has directed the parties in a challenge to a wildlife derogation licence for a proposed housing development in Delgany, Co Wicklow, to make further submissions on whether questions should be referred to the Court of Justice of the European Union, and on how those questions should be answered.
In a judgment delivered on 1 November 2023, Mr Justice Humphreys set out four possible questions about the timing of challenges to such licences and the legal tests for granting them. He did not decide whether to make a reference, even in principle, and did not decide the licence challenge on its merits.
The applicants are ten named individuals. The respondents are An Bord Pleanála, the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General. Drumakilla Limited is the notice party. The dispute concerns a licence authorising activities connected with a proposed strategic housing development at Delgany.
The case is a continuation of earlier judicial review proceedings. In a July 2023 judgment, the court dismissed an application to quash the planning permission and adjourned the challenge to the derogation licence for further submissions. The court noted that the applicants had not pleaded a challenge to the planning permission based on the licence.
The licence was granted on 4 March 2020 and amended on 21 July 2020. The applicants knew or could reasonably have been aware of it by 21 October 2020, and brought proceedings challenging it on 25 March 2021. The judgment says domestic rules generally impose a three-month limit, subject to possible extension. The applicants had not applied for an extension. The court concluded that, under domestic law and leaving aside any EU-law conforming interpretation, the licence was a separate decision from the planning permission and the challenge was out of time.
The judge identified a possible question about whether EU law requires time to challenge a related derogation licence to run from the later planning consent in certain circumstances. Further proposed questions concern whether the licensing authority must actually consider alternatives to the derogation, and whether the stated purpose of protecting wildlife can be met by mitigation measures that reduce or compensate for harm.
These are questions for further submissions, not findings that the licence was unlawful or that the applicants’ arguments have been accepted. The parties were ordered to file simultaneous submissions within two weeks addressing whether the questions arise, whether further questions should be added, and whether the High Court should answer them or refer them. The court will then make a further order on the papers, while reserving the possibility of another hearing.