The High Court has referred questions to the Court of Justice of the European Union about whether an unincorporated environmental association can bring a planning judicial review, after finding that Dublin 8 Residents Association had not shown it met a statutory 12-month continuity requirement.
Mr Justice Humphreys made the decision on 11 March 2022 in a motion by the notice party to set aside leave for the judicial review. The challenge concerns An Bord Pleanála’s 15 April 2021 permission for development at the former Player Wills factory site on South Circular Road, Dublin 8. The approved scheme includes 492 build-to-rent apartments, 240 shared accommodation units and community, retail, café and office spaces.
The judge said the association had not provided sufficiently specific evidence to show that it had existed as a distinct environmental NGO for the 12 months before proceedings began. The statement of grounds was filed on 9 June 2021, so the relevant period ran from 8 June 2020 to 9 June 2021. The association’s case was that Players Please had changed its name to Dublin 8 Residents Association while keeping the earlier name as a controlled brand. The judge said the evidence left unanswered questions about when and how that change occurred and whether it followed any rules or constitution.
The judge accepted on a prima facie basis that Dublin 8 Residents Association existed as an environmental NGO, had a functioning committee and had a legitimate and sufficient interest in the development. He was not satisfied that the 12-month period had been demonstrated. He did not decide the substantive planning challenge or finally resolve whether the association could proceed: that depended on whether sufficient interest under domestic law also gave an unincorporated body legal capacity to sue, an issue he referred to the EU court.
The High Court also ordered CWTC Multi-Family ICAV to replace DBTR-SCR1 Fund, a sub-fund of that ICAV, as notice party, on the basis that the ICAV was acting on the sub-fund’s behalf. The judge said the sub-fund was not itself a legal entity for litigation purposes.
The court said it would in principle refer the identified questions on EU law to the CJEU and directed the parties to prepare the required documents. The matter was adjourned for mention on 21 March 2022 to confirm a timetable. The judgment does not record the eventual outcome of the reference or the judicial review.