The High Court has referred seven questions of EU law to the Court of Justice of the European Union in a dispute over costs arising from a challenge to the planning process for the North-South electricity interconnector.
In a judgment delivered on 29 July 2016, Mr Justice Richard Humphreys said he would request an expedited preliminary ruling. The questions concern when environmental proceedings may be brought, which parts of a challenge qualify for protection against prohibitive costs, and how Irish law should be read alongside EU environmental rules and the Aarhus Convention.
The applicants, North East Pylon Pressure Campaign Limited and Maura Sheehy, had previously been refused leave to seek judicial review by way of prohibition of a planning inquiry. In the earlier judgment, the court found the challenge premature. That substantive challenge did not proceed beyond the question of timing.
After that decision, the parties made competing applications for costs: the successful parties sought costs against the applicants, while the applicants sought costs against the other parties. The court did not decide those applications in this judgment.
Instead, it identified questions about the Environmental Impact Assessment Directive, the Aarhus Convention, sections 50B of the Planning and Development Act 2000 and 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011. Among the issues referred was whether the EU rule requiring environmental procedures to be “not prohibitively expensive” applies to a court process that determines whether a challenge was brought at the correct stage.
The judge also asked whether EU law permits exceptions to the usual protection from prohibitive costs, and whether Irish legislation may require a link between an alleged unlawful act and environmental damage for that protection to apply. The court noted that a prior interpretation of the Irish legislation would generally require a final development-consent decision before that link could be established.
The judgment does not resolve the referred questions or the parties’ costs claims. The court adjourned the applications to a date to be fixed, for final determination after the Court of Justice’s ruling is available.