The High Court has referred four questions of EU law to the Court of Justice of the European Union in a continuing challenge to Ireland’s rules on strictly protected species, arising from planning permission for a visitor centre at Montpelier Hill.
In a judgment delivered on 14 January 2022, Mr Justice Humphreys directed that the questions be referred under Article 267 of the Treaty on the Functioning of the European Union. He adjourned the rest of the case pending the EU court’s decision. The reference does not decide the questions or finally determine the remaining challenge.
The case was brought by Hellfire Massy Residents Association against An Bord Pleanála and other respondents, with South Dublin County Council as notice party. The board granted the council permission in June 2020 for two visitor-centre buildings, a canopy walk and pedestrian bridge over the R115, woodland conversion and conservation works. The board’s decision included ecological mitigation conditions, including measures intended to support red squirrels.
In an earlier judgment in July 2021, the High Court dismissed the proceedings except for the challenge to regulations 51 and 54 of the European Communities (Birds and Natural Habitats) Regulations 2011. That live challenge concerns how the strict-protection and derogation rules operate after development consent is granted.
The four questions sent to the EU court concern whether EU law affects domestic rules on pleading legal arguments and challenging laws before environmental harm occurs; whether the derogation process should be integrated with development consent and subject to competent-authority scrutiny; and whether public participation is required if a post-consent derogation is pursued.
The association argued that the Irish system leaves decisions about seeking a derogation and the necessary surveys to developers, without sufficient independent scrutiny or public participation. The board and State respondents opposed the proposed answers, arguing, among other things, that the issues were hypothetical or that EU law did not require an integrated process or further participation. An Taisce and Save Our Bride Otters, joined as amici curiae, supported the association’s position.
Justice Humphreys set out his proposed answers to the four questions, each favourable to the association’s arguments. Those are the referring judge’s views, not a ruling by the EU court. The High Court ordered the association to contact the Principal Registrar within 28 days to lodge hard-copy pleadings for transmission. The balance of the proceedings is adjourned until the EU court rules.