The High Court has ordered clarifications in a planning challenge to be sent to the Court of Justice of the European Union (CJEU), following questions raised in written observations by the European Commission. The order does not resolve the CJEU reference; it provides the referring court’s clarifications for that court’s consideration.
The case concerns a challenge by 10 applicants to a derogation licence connected with a housing development. Mr Justice Humphreys had dismissed their application to quash the planning permission in July 2023, while adjourning the challenge to the licence for further submissions. He referred questions to the CJEU in December 2023. This judgment, delivered on 8 November 2024, addresses proposed clarifications to that reference after a brief hearing on 4 November.
The judge clarified that the development consent application and derogation licence were available to third parties from 21 October 2020. The environmental impact assessment screening decision was published with the development consent decision on 15 February 2021 and became publicly available three working days later. The project was not subject to a full environmental impact assessment, and the applicants’ challenge to the screening decision had been dismissed.
The court said the public had been adequately informed in advance about the consent procedure and opportunities to participate. The notices did not mention the derogation licence. However, the applicants had not pleaded that this omission made the notices defective, so they could not advance that ground in the main proceedings. The judge also said there was no statutory public participation process for the licence, and the applicants had not pleaded a challenge to the validity of the legislation governing it.
On timing, the judge said the applicants could have been aware of the licence from 21 October 2020 and could then have sought further background documents. The judgment notes that an NGO, Right to Know, obtained additional documents on 7 December 2020 after making an information request. The applicants had not instructed solicitors within the three-month period, the judge said, although they could have done so.
The court clarified that Irish law allows time extensions for judicial review where there is good and sufficient reason and the failure to act in time was outside the applicant’s control; the seriousness of an alleged legal error does not itself determine that question. The applicants had not applied for an extension. It also said the licence was a separate legal decision requiring a separate challenge, and that this approach was objectively foreseeable.
The Principal Registrar was directed to transmit the clarification to the CJEU. Costs associated with the reference that had not already been reserved, including the costs of the proposed clarifications and the November hearing, were reserved.