The High Court has referred five questions to the Court of Justice of the European Union (CJEU) in a challenge to a bat derogation licence for a proposed housing development at the former Carmelite monastery in Delgany, Co Wicklow.
In a judgment delivered on 21 December 2023, Mr Justice Humphreys said the challenge appeared to have been brought outside the applicable time limit. The applicants had not asked the court to extend time. He said the position under EU law was not completely beyond doubt, so the court would refer the questions before deciding the challenge.
The licence was issued in March 2020 and amended in July 2020 to include the brown long-eared bat. The planning application, submitted in October 2020, included the amended licence. The applicants began judicial review proceedings in March 2021, challenging both An Bord Pleanála’s planning decision and the licence.
The court had already dismissed the challenge to the planning permission in July 2023. The judgment says the applicants had not pleaded that the planning permission was invalid because of the alleged defects in the derogation licence. The licence challenge remained outstanding.
The referred questions ask whether EU law treats an earlier species-protection derogation as part of the development-consent process for purposes such as the time limit to challenge it; whether time can begin before the planning decision; and what notice the law must give the public about applicable challenge deadlines. Two further questions concern whether a licensing authority must actually consider alternatives, including refusing a derogation, and whether a derogation granted in the name of protecting wildlife must itself provide protection rather than relying on mitigation measures.
These are questions for the CJEU, not findings on the licence’s validity. The judgment records the applicants’ arguments that alternatives had not been considered and that the licence’s stated wildlife-protection purpose was not supported by protection created by the derogation itself. The judge’s stated view was that the challenge was out of time, subject to EU law; he considered the alternatives and protection questions did not arise unless the threshold timing issue was resolved in the applicants’ favour.
The High Court ordered the substantive determination adjourned pending the CJEU’s ruling. It also continued the existing stay on the planning permission for the time being, while leaving open appropriate procedural or interim issues. Costs relating to the licence challenge and EU reference were reserved.