The High Court has admitted two affidavits and directed that its reply to a request for information from the Court of Justice of the European Union be sent to that court in a challenge to planning permission for a major development in Dublin 8. The High Court reserved the costs of preparing the reply and related submissions.
The judicial review was brought by Dublin 8 Residents Association against An Bord Pleanála, Ireland and the Attorney General. The permission, granted on 15 April 2021, covers 492 build-to-rent apartments, 240 shared accommodation units and other uses at the former Player Wills factory site on South Circular Road. The developer, CWTC Multi-Family ICAV, is a notice party.
The case is at a preliminary stage concerning whether the residents’ association has standing and capacity to bring the proceedings. The notice party had sought to set aside the leave granted for the judicial review. In an earlier judgment, the High Court found that the association had not established, on a satisfactory prima facie basis, 12 months’ continuous pursuit of relevant objectives. It also found that the association existed as an environmental NGO, had a functioning committee and had a sufficient interest in the development. The court referred questions of EU law to the CJEU; the underlying challenge to the planning decision has not been decided.
The CJEU later asked for clarification, including whether the association’s participation in the planning process was based on Article 6 of the Environmental Impact Assessment Directive and what domestic rules could allow an individual member to replace the association as applicant. The High Court’s reply says the association’s participation in the administrative process occurred as a matter of legal right under Irish practice and was based on Article 6 and national law giving effect to it. That is the referring court’s explanation to the CJEU, not a ruling by the CJEU on the questions referred.
The High Court said Order 15, rule 2 of the Rules of the Superior Courts did not apply because the association had deliberately been named as applicant on legal advice, rather than through the kind of mistake covered by that rule. It said Order 15, rule 13 could apply in judicial review to correct the name of a party, and that the association had made a conditional application to substitute member Sinead Kerins if its own standing failed. The court recorded that she had made a submission during the planning process and had consented to act as applicant. It did not decide whether substitution should ultimately be granted or whether delay would defeat such an application; it described the domestic law on those time issues as unclear.
The order made in this judgment admits affidavits from Orla Clarke and Laura Rafferty, directs transmission of the reply to the CJEU, and reserves costs associated with that reply. It does not determine the judicial review or the CJEU’s answers to the referred questions.