The High Court has granted leave to appeal in two judicial review cases concerning costs protection for environmental litigation. The applications followed earlier decisions refusing relief under section 50B of the Planning and Development Act 2000 and the Environment (Miscellaneous Provisions) Act 2011, while adjourning issues about the Aarhus Convention pending a proposed reference to the Court of Justice of the European Union.
In Abbey Park and District Residents Association Baldoyle v An Bord Pleanála, Humphreys J certified two questions for appeal under section 50A(7) of the 2000 Act. They ask whether section 50B’s costs protection applies only to challenges to decisions, actions or omissions under legislation giving effect to the Strategic Environmental Assessment Directive, rather than challenges concerning documents subjected to that process; and whether a development consent allowing greater housing density than a local area plan amounts to “damage to the environment” under the 2011 Act.
In Save Roscam Peninsula CLG v An Bord Pleanála, the judge certified a reworded question about whether “damage to the environment” under the 2011 Act must be tangible and relate to the existing environment, rather than a proposed development being less environmentally beneficial than a hypothetical alternative. He explained that his earlier use of “ecological” damage was not intended to exclude harm to the human or built environment. The question concerned the form and intensity of damage required by the statute.
The judge declined to certify several other proposed questions in Save Roscam. He said some did not arise from the earlier judgment or were premature because they depended on answers to the proposed CJEU reference. He also said the applications conflated issues concerning section 50B with separate questions about the Aarhus interpretative obligation. He considered that appellate courts could interpret the two statutes without first receiving answers to the proposed reference.
The order grants both applicant groups leave to appeal on the certified questions. It does not decide those questions or alter the earlier refusal of costs protection. In Abbey Park, costs of the leave application were reserved. In Save Roscam, the costs issue was adjourned to 11 July 2022 for further instructions.