The High Court has referred a question to the Court of Justice of the European Union (CJEU) about whether environmental costs protections may apply to a challenge involving ministerial planning guidelines.
The reference arises from Martin Stapleton’s judicial review challenge to An Bord Pleanála’s decision to grant permission for 131 build-to-rent apartments at Redcourt, Seafield Road, Clontarf. Stapleton is described in the judgment as an owner and resident of neighbouring property. Savona Limited applied for permission, which the board granted on 23 December 2021 despite recording that the development materially contravened the Dublin City Development Plan’s building-height provisions.
The challenge includes claims that the board’s decision relied on invalid 2018 Urban Development and Building Heights Guidelines, and that the statutory provision under which they were adopted is unconstitutional. Those are grounds advanced in the proceedings, not findings made in this judgment.
The immediate issue was whether the applicant’s challenge to the guidelines falls within the interpretative obligation associated with Article 9(3) and (4) of the Aarhus Convention, which concerns access to justice in environmental matters and procedures that are not prohibitively expensive. The applicant argued that environmental costs protection can cover all relevant grounds aimed at an environmental objective, even where a ground alleges that the underlying guidelines or enabling law is invalid. The State argued that the challenge rests on administrative or constitutional principles concerning separation of powers, which it said do not relate to environmental law.
Humphreys J. set out his proposed answer as “No” to the question whether such a challenge should be treated as outside the interpretative obligation merely because it contests an instrument adopted under domestic public or constitutional law, or the process by which environmentally relevant guidelines were adopted. He reasoned that the challenge’s legal characterisation under national law did not determine whether it concerned environmental law, particularly given that the guidelines and development plan had undergone environmental assessment.
The judge said the CJEU’s answer would affect whether the applicant’s challenge against the State benefits from costs protection. The court’s order was to refer the question to the CJEU under Article 267 of the Treaty on the Functioning of the European Union. It did not decide the underlying challenge to the planning permission or guidelines, nor determine the applicant’s final entitlement to costs protection.