The High Court has referred seven questions of EU law to the Court of Justice of the European Union in a judicial review concerning permission for a major development on South Circular Road, Dublin 8. The questions concern whether Dublin 8 Residents Association, an unincorporated environmental group, has capacity to bring the case.
The referral does not decide the group’s capacity or the legality of the planning permission. The court said the CJEU’s answers could determine a preliminary objection brought by the development’s notice party, CWTC Multi-Family ICAV. The underlying challenge to An Bord Pleanála’s decision has not been resolved in this judgment.
The board granted permission on 15 April 2021 for 492 build-to-rent apartments, 240 shared accommodation units, community arts and exhibition space, retail, café and office spaces, a crèche and associated works. The permission also allows demolition of buildings on the site, except for the original fabric of the former Player Wills factory.
The current phase concerns whether the residents association can sue as an unincorporated body. In an earlier judgment, the High Court found that the association had not shown, on a satisfactory prima facie basis, that it had pursued its environmental objectives continuously for the 12 months before proceedings. The court also found that it existed as an environmental NGO, had a functioning committee and had a legitimate and sufficient interest in the development. The outstanding issue was its capacity to bring proceedings.
The association’s account of its origins involved an earlier unincorporated organisation called Players Please. The judgment records that Players Please was founded in late 2018 or early 2019, and that the Dublin 8 Residents Association name began to be used around October 2020. The association later said Players Please had changed its name while retaining the old name as a brand it controlled. The notice party had challenged the association’s standing and capacity.
The seven questions address whether EU environmental law requires an NGO meeting the relevant standing test to have capacity to sue; whether participation in the planning process or uncertainty over domestic rules affects that capacity; and whether individual members could be substituted as applicants despite time limits. The parties advanced different positions on these issues. The judge set out proposed answers, but those proposals are not a ruling by the CJEU.
The judgment, delivered by Humphreys J on 16 August 2022, orders that the questions be referred under Article 267 of the Treaty on the Functioning of the European Union. It makes no final determination of the notice party’s objection or of the planning challenge.