The High Court has referred questions to the Court of Justice of the European Union about whether it must continue a planning challenge after the applicants and other parties reached a settlement and asked to end the case.
Mr Justice Garrett Simons said the reference was needed before he could decide whether to grant the request to strike out the judicial review. The reference concerns the court’s obligations under the Environmental Impact Assessment (EIA) Directive when applicants seek to withdraw proceedings challenging development consent. The High Court’s judgment is an interim ruling: it does not decide the strike-out application or the legality of the planning permission.
Four local residents brought the challenge against An Bord Pleanála’s September 2019 approval of a 366-home development. Their principal pleaded ground was that the Board had failed to state the main reasons and considerations for granting consent, as required by domestic law and the EIA Directive.
The judgment describes a dispute about housing density. Before the application was made, the Board’s opinion had called for further consideration of density and said a sufficiently high density should be considered in light of the site’s proximity to Clane town centre. The developer’s proposal later increased from 322 to 366 homes. During the public participation process, the local planning authority and one applicant objected to the proposed density. The authority recommended refusal; the Board granted permission, finding the density acceptable.
During the hearing, the applicants’ counsel raised concern that the Board might have settled the density issue before public participation. The judge stressed that prejudgment was not pleaded and that he made no finding on it. He also said any later ruling in the existing case would be confined to the pleaded question of whether the Board had adequately stated its reasons.
On the third day of the hearing, the applicants sought to strike out the proceedings after a settlement with the Board and developer. The settlement terms were not put before the court. All parties supported the request, and accepted that a court order was required and that the court had discretion over whether to grant it.
The judge considered that the proceedings raised an unresolved EU law question: whether a court may have to rule on a development consent’s legality despite the applicants’ wish to withdraw, particularly where the case is advanced and the material needed to decide the pleaded issue is before the court. He noted the public interest in settlements but said it could not necessarily determine the matter where environmental participation rights may be involved.
The High Court attached a draft reference setting out three questions for the EU court. The formal reference order was not to be drawn up for 21 days, allowing the parties to identify errors in the draft. The strike-out request remains undecided; the parties are to have a further opportunity to make submissions after the EU court responds.