The High Court has referred seven questions about environmental litigation costs and the scope of EU law to the Court of Justice of the European Union (CJEU), in proceedings challenging planning permissions for developments in Enniskerry and Drogheda.
In a judgment delivered on 10 June 2022, Mr Justice Humphreys ordered the reference under Article 267 of the Treaty on the Functioning of the European Union. The court did not decide the underlying challenges to either planning permission or determine the applicants’ final costs liabilities in this judgment.
The Enniskerry proceedings were brought by Enniskerry Alliance and Enniskerry Demesne Management Company CLG. They concern permission for 165 homes, a childcare facility and associated works at Cookstown Road, granted by An Bord Pleanála on 13 August 2021. The separate Protect East Meath case concerns permission for 275 apartments, a crèche and associated works beside Scotch Hall Shopping Centre in Drogheda, granted on 29 June 2021. Both applicants had sought protective costs orders in advance, asking the court to determine whether they could be liable for costs if their challenges failed.
The questions address whether the obligation to interpret national procedural law consistently with the Aarhus Convention’s aim of avoiding prohibitively expensive proceedings extends beyond EU environmental law; whether it covers challenges to decisions subject to EU environmental procedures, including arguments about development plans assessed under the strategic environmental assessment directive; and whether ordinary judicial review grounds raised in environmental cases fall within that protection.
The remaining questions concern whether EU law requires sufficiently clear advance rules on the scope and maximum level of costs exposure; whether uncertainty requires a court to disapply rules that could impose costs on unsuccessful applicants; and whether a national court may refer questions to the CJEU, and propose answers, despite potentially conflicting decisions of a higher domestic court.
The judge proposed answers to the questions, including that the Aarhus-related interpretation should not be confined to EU-law grounds, that legal certainty requires reasonable advance predictability of costs, and that courts retain freedom to refer questions to the CJEU. Those were the referring judge’s proposed answers, not a ruling by the CJEU. The judgment’s operative order was to refer the questions; the CJEU’s answers and the further outcome of the proceedings are not stated in this source.