Plan for 366 homes on hold after judge refers matter to EU court

Plans for a development of 366 new homes in Clane, Co Kildare, are on hold after a High Court judge referred an issue over an EU directive to the Court of Justice of the EU (CJEU).

Ardstone Homes was granted permission by An Bord Pleanála for the development at Capdoo, Clane, under strategic housing legislation.

Four local residents brought judicial review proceedings against the board over that decision. Three days into the hearing of the case, talks took place and both sides consented to the proceedings being struck out.

However, Mr Justice Garrett Simons refused to strike the case out because he first wants guidance from the CJEU relating to the interpretation of a 2011 EU environmental impact assessment (EIA) directive and how that should affect the strike out application by the parties.

The judge said the issue here was whether there are ever circumstances in which a national court may be obliged to rule upon an application to set aside planning permission notwithstanding that the party who initially invoked the court’s jurisdiction now wishes to have the proceedings struck out.

He said one of the principal grounds of the residents’ challenge involved an allegation that An Bord Pleanála failed to comply with its obligation to state the “main reasons and considerations” for granting permission and this was a breach of the EIA directive and of domestic law.

The alleged failure to state main reasons for the decision “may conceal another, perhaps more serious, breach of the public participation requirements of the EIA directive”, the judge said.

It is arguable that, on one reading of the board inspector’s report at least, improper reliance may have been placed upon the pre-application consultation between the board, Ardstone and the local council, he said. This primarily concerned the density (number of houses per acre) of the development.

It was accepted by all parties the court has a discretion under domestic law to strike out the case although it was argued that discretion is limited and should generally be exercised in favour of allowing the settlement, the judge said.

In nearly any other case, the court would have been persuaded by that argument to strike out, he said.

However, on “the peculiar facts of the present case” the precise obligations imposed upon a national court by the EIA directive are not clear enough.

A reference to the CJEU was therefore necessary to enable him to rule on the strike out application.

These were public law proceedings and if the parties were entitled to unilaterally discontinue the case this might deprive the national court of jurisdiction to provide a remedy under the EIA directive, he said.

He therefore was asking the CJEU to decide whether the High Court is obliged to rule on the substantive or procedural legality of the planning permission decision in circumstances where the court has available to it the legal and factual elements necessary to make such a ruling.

He also asked it to rule on whether there is an obligation on the national court to take all measures necessary to remedy the failure to carry out an assessment in accordance with the EIA directive extending to an obligation to rule on substantive or procedural legality of the permission.

He also wants the CJEU to rule on whether the answers to those questions depends on factors including the gravity of the alleged breach of the EIA directive, the implications of that alleged breach for effective public participation, the stage at which the parties asked for the strike out, and the ability of the national court to determine the issues on the basis of the factual materials put before it.