The High Court refused applicants Edel Grace and Peter Sweetman certificates to appeal two legal questions arising from an earlier planning judicial review, and declined their request to refer a question to the Court of Justice of the European Union (CJEU).
Mr Justice Fullam delivered the ruling on 4 December 2015. The application concerned the statutory test for certifying an appeal under the Planning and Development Act 2000. The court said a proposed question must involve a point of law of exceptional public importance, with legal uncertainty and a public interest in an appeal. Those requirements are cumulative.
The first proposed question concerned the criteria for deciding whether a person has “sufficient interest” to challenge a decision covered by the Environmental Impact Assessment Directive. It asked whether prior participation in planning procedures was relevant and whether an applicant had to explain non-participation.
The judge said Irish law leaves standing thresholds to individual member states, and that natural persons do not have the same automatic access to justice as environmental non-governmental organisations. He found that participation or non-participation could be considered when deciding whether an individual had sufficient interest. The applicants had not shown that the law was uncertain, so the question did not warrant certification.
The second proposed question concerned assessment under the Habitats Directive of whether a project would adversely affect a Special Protection Area (SPA), including whether alternative foraging habitat should count as mitigation or compensation. The judge said the relevant legal criteria had already been addressed in decisions including the CJEU’s Sweetman and Briels rulings and a High Court decision in Kelly v An Bord Pleanála. He found no need for clarification and said the proposed question was not of exceptional public importance.
The applicants also sought a preliminary reference to the CJEU. The judge said the High Court could make such a reference only during proceedings and before judgment, relying on the Supreme Court’s decision in McNamara v An Bord Pleanála. As the court had already delivered judgment, it no longer had jurisdiction to refer a question. He also cited CILFIT principles and the existing Sweetman and Briels decisions in declining the request.
The court refused certification of both proposed appeal questions and declined to make a CJEU reference. This ruling addressed the appeal-certificate and reference requests; it did not determine the underlying planning judicial review anew.