The High Court has refused An Bord Pleanála’s request to put a planned reference to the Court of Justice of the European Union on hold while related appeals were considered by the Supreme Court.
In a judgment delivered on 10 June 2022, Humphreys J. said he did not consider an adjournment appropriate, desirable or necessary. He said the questions for the EU court concerned contested issues of EU law, and the Supreme Court appeals could produce outcomes that made the reference unnecessary, narrowed its scope or left it with additional value.
The proceedings concern protective costs orders sought in judicial review cases brought by Enniskerry Alliance and Enniskerry Demesne Management Company CLG, and by Protect East Meath Limited. The applicants challenged planning decisions and sought protection against potentially prohibitive legal costs. In an earlier judgment, the High Court had ruled that section 50B of the Planning and Development Act 2000 did not apply to the other grounds under consideration and that the Environment (Miscellaneous Provisions) Act 2011 applied to only one element of the Enniskerry case. It had decided in principle to refer questions to the CJEU.
The board argued that a Supreme Court appeal in another planning case could clarify the domestic costs rules before the reference proceeded. The applicants opposed delay, submitting that the CJEU was needed to resolve the EU law questions. The judge described their arguments against adjournment as compelling. He also addressed a separate concern raised in another case that making the reference might conflict with binding domestic precedent. He said a national judge could refer a question if she considered the EU law point was not clear, and that domestic precedent could not remove that freedom.
The judgment did not answer the proposed questions for the CJEU or decide the underlying planning challenges. A separate judgment was to set out the formal reference. The court joined environmental organisation ClientEarth as an amicus curiae in the Protect East Meath case, allowing it to assist the court; this did not make it a party to the underlying challenge.
The High Court ordered the applicants to lodge specified pleadings and judgments for transmission to the CJEU within 28 days of the judgment on the order for reference. It adjourned the balance of the matter pending the CJEU’s decision and listed the cases for mention on 25 July 2022.