The High Court has referred seven questions about environmental litigation costs to the Court of Justice of the European Union (CJEU) in a judicial review challenging planning permission for 102 homes and a crèche at Rosshill, Galway.
In a judgment delivered on 14 July 2022, Mr Justice Humphreys made the reference under Article 267 of the Treaty on the Functioning of the European Union. The questions concern how the Aarhus Convention’s protection against prohibitively expensive court proceedings applies to challenges involving environmental law, and how Irish rules requiring no order as to costs should affect the court’s discretion in other cases.
The applicants are Save Roscam Peninsula CLG, Sophie Cacciaguidi-Fahy, Martin Fahy and Philip Harkin. They seek to quash An Bord Pleanála’s 28 October 2021 permission for the development. The board granted permission subject to 33 conditions. It concluded that the proposal would materially contravene Galway’s development plan on plot ratio or density, but that the departure could be justified by government policy and ministerial guidelines.
The applicants’ wider challenge raises planning, environmental assessment and other legal grounds. Some grounds had been adjourned generally, while the parties had agreed that no order as to costs would apply to certain others. The dispute that led to the reference concerns the costs treatment of remaining grounds and the scope of Aarhus protection. The developer and Galway City Council did not make submissions on the questions addressed in this judgment.
The seven questions ask, among other things, whether Aarhus costs protections apply only within EU environmental law; how those protections apply when a planning decision involved EU environmental procedures; whether challenges to departures from plans assessed under strategic environmental assessment fall within that scope; and whether conventional judicial review grounds can be covered when raised in an environmental case. The reference also asks how national no-order-as-to-costs rules relate to the EU requirement that environmental proceedings not be prohibitively expensive, and whether environmental law includes law concerning sustainable development.
The judge set out proposed answers to the CJEU. Those are the referring judge’s views, not answers from the EU court. The High Court’s order was to refer the questions. This judgment did not decide whether the planning permission should be quashed or finally determine the costs protection available to the applicants; the reference seeks the CJEU’s interpretation of EU law.