Ireland / The High Court / [2022] IEHC 482

DUBLIN 8 RESIDENTS ASSOCIATION AND AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL
Policy area
Justice, freedom and security
Deciding body type
National Court/Tribunal
Deciding body
The High Court
Type
Decision
Decision date
16/08/2022
  • Ireland / The High Court / [2022] IEHC 482

    Key facts of the case:

    A group of residents in a particular area of Dublin (Dublin 8) sought to challenge a large residential and community building which had been granted planning permission in the area.  

    Under domestic law, in order to challenge a planning decision, an organisation must show that is has been in continuous pursuit of its objectives for the past 12 months. In a decision in March 2022, the High Court judge ruled that the group could not show this was the case, but that the applicant (the group of residents, identified as the Dublin 8 Residents’ Association) does exist as an environmental NGO with a functioning committee and a legitimate interest in the matter. The judge further pointed out that, as planning decisions must be made within 16 weeks, any group which formed specifically in order to challenge a particular decision would not be able to fulfil the 12 month obligation.

    The question then arose as to whether the NGO had sufficient standing under Article 47 of the Charter, to seek a judicial remedy. For this purpose, the judge has referred the case to the CJEU for comment.

    Key legal question raised by the Court:

    The High Court referred seven questions to the CJEU for comment. Essentially, these are all aimed at discovering whether, notwithstanding the Dublin 8 Residents Association’s current lack of legal capacity to challenge the planning decision under domestic law, the Charter for Fundamental Rights provides for this group to challenge the decision and therefore overrides national law.

    Outcome of the case:

    The Court has referred the questions to the CJEU. If CJEU answers the questions in line with the judge’s reasoning (essentially, that the group of residents have standing), then the group will be allowed to proceed with their appeal, and the domestic legislation will presumably have to change.

  • Paragraphs referring to EU Charter

    19. The most pertinent provisions of EU law are as follows: (i). Article 47 of the Charter of Fundamental Rights, which provides as follows: “Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”… 

    ...

    26. The first question is: Does art. 11(1)(a) of directive 2011/92/EU read in conjunction with Article 47 of the Charter of Fundamental Rights and/or art. 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC have the effect that where an environmental NGO meets the test for standing set out in that provision, the NGO concerned is to be regarded as having sufficient capacity to seek a judicial remedy notwithstanding a general rule in the domestic law of a member state which precludes unincorporated associations from bringing legal proceedings?... 

    ...

    30. My proposed answer to the question is “Yes”. Article 11(1)(a) of directive 2011/92/EU read in conjunction with Article 47 of the Charter of Fundamental Rights and/or art. 9(2) to (4) of the Aarhus Convention does not draw a distinction between standing and capacity, and the clear intention is that a body that meets the test arising from the directive should be entitled to bring proceedings. Whether the domestic law of a particular member state categorises that entitlement as a question of standing or capacity or both is irrelevant. Allowing a member state to erect obstacles in national law to the bringing of proceedings by a body that otherwise qualifies under article 11(1)(a) of directive 2011/92 would undermine the effective and uniform application of the directive. 

    ...

    32. The second question is: If art. 11(1)(a) of directive 2011/92/EU read in conjunction with Article 47 of the Charter of Fundamental Rights and/or art. 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect set out in the first question in general circumstances, does it have that effect in circumstances where the domestic law of the member state concerned provides that an NGO that meets the test for standing conferred by art. 1(2)(e) of the directive is thereby conferred with capacity to seek a judicial remedy?... 

    ...

    38. The third question is: If art. 11(1)(a) of directive 2011/92/EU read in conjunction with Article 47 of the Charter of Fundamental Rights and/or art. 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect set out in the first question in general circumstances, does it have that effect in circumstances where the domestic law of the member state concerned and/or procedures adopted by the competent authority of the member state concerned have enabled an environmental NGO which would not otherwise 10 have legal capacity in domestic law to nonetheless participate in the administrative phase of the development consent process?... 

    ...

    44. The fourth question is: If art. 11(1)(a) of EIA directive 2011/92/EU read in conjunction with Article 47 of the Charter of Fundamental Rights and/or art. 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect set out in the first question in general circumstances, does it have that effect where the conditions set by the law of the member state concerned in order to enable an NGO to qualify for the purpose of art. 1(2)(e) are such that it the required period of existence of an NGO in order to so qualify is longer than the statutory period for determination of an application for development consent, thus having the consequence that an unincorporated NGO formed in response to a particular planning application would normally never qualify for the purposes of the legislation implementing art. 1(2)(e). 

    ...

    50. The fifth question is: Does art. 11(1)(a) of EIA directive 2011/92/EU read in the light of the principles of legal certainty and/or effectiveness and/or in conjunction with Article 47 of the Charter of Fundamental Rights and/or art. 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC have the effect that a discretion created by a provision of national procedural law of a member state to allow the substitution of an individual applicant or applicants who are members of an unincorporated association in lieu of the unincorporated association itself must be exercised in such a way as to give full effect to the right of access to an effective judicial remedy such that that substitution could not be precluded by reason only of a rule of domestic law regarding limitation of time for the bringing of the action concerned. 

    ...

    56. The sixth question is: If art. 11(1)(a) of EIA directive 2011/92/EU read in the light of the principles of legal certainty and/or effectiveness and/or in conjunction with Article 47 of the Charter of Fundamental Rights and/or art. 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect referred to in the fifth question in general circumstances, does it have that effect particularly in the light of the principle of effectiveness in circumstances where the action was brought by the original applicant within the time fixed by domestic law and where the grounds of challenge on which the right of access to a judicial remedy was sought by the substituted applicant remained unchanged. 

    ...

    62. The seventh question is: If art. 11(1)(a) of EIA directive 2011/92/EU read in the light of the principles of legal certainty and/or effectiveness and/or in conjunction with Article 47 of the Charter of Fundamental Rights and/or art. 9(2) to (4) of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC does not have the effect referred to in the fifth question in general circumstances, does it have that effect if the domestic law of the member state concerned regarding the application of limitation periods in such situations is unclear and/or 15 contradictory such that an applicant does not enjoy legal certainty prior to bringing proceedings as to whether such substitution is permissible. 

  • Paragraphs referring to EU Charter (original language)