Introduction

The High Court of Ireland delivered a significant judgment on January 14, 2022, in the case "Enniskerry Alliance Anor v An Bord Pleanála & Ors (Approved) (Rev1) ([2022] IEHC 6)". This case involves two primary challenges against planning permissions granted by An Bord Pleanála (the Planning Board) for developments in Enniskerry, Co. Wicklow, and Protect East Meath, Co. Louth. The applicants, Enniskerry Alliance and Protect East Meath Limited, sought judicial review of these planning decisions, bringing to the fore critical issues concerning the application of special costs rules under sections 50B of the Planning and Development Act 2000 and section 3 of the Environment (Miscellaneous Provisions) Act 2011. The judgment addresses the complexities of cost allocations in environmental judicial reviews, the interplay with EU law obligations under the Aarhus Convention, and sets the stage for potential referrals to the Court of Justice of the European Union (CJEU) for unresolved questions of European law.

Summary of the Judgment

Justice Humphreys presided over the judicial review, focusing primarily on the entitlement of the applicants to bring proceedings without fear of adverse costs orders becoming prohibitively expensive. The case juxtaposes two separate challenges: one concerning the construction of residential units and child care facilities in Enniskerry, and the other regarding the development of apartments and a crèche in Protect East Meath. The applicants contended that the planning permissions granted were invalid due to material contraventions of local development plans and environmental regulations.

The crux of the judgment revolves around the interpretation and application of special costs rules, particularly the provisions that aim to prevent litigation from becoming financially burdensome. The court examined whether these rules should apply to the current proceedings and under what circumstances. Justice Humphreys identified several core grounds in each case, assessing their eligibility for special costs rules under domestic law and considering their alignment with EU law obligations.

A pivotal aspect of the judgment is the consideration of whether unresolved questions of EU law necessitate a referral to the CJEU. The judgment concludes by refusing certain declarations, granting others, and deciding to refer specific European law questions to the CJEU for authoritative interpretation.

Analysis

Precedents Cited

The judgment extensively references precedents both from Irish and European jurisprudence. Notable among them are:

• O'Connor v. Offaly County Council [2020] IECA 72 – Addressing the application of section 50B and costs in judicial reviews.
• Heather Hill Management Company CLG v. An Bord Pleanála [2021] IECA 259 – Discussing costs liability in environmental judicial reviews.
• North East Pylon Pressure Campaign Limited v. An Bord Pleanála (Case C-470/16) – Emphasizing the interpretative obligation under the Aarhus Convention.
• Redmond v. An Bord Pleanála [2020] IEHC 322 – Examining public notice requirements in planning decisions.
• Case C-260/11 Edwards v. Environment Agency – Discussing Member States' obligations to protect EU law rights effectively.
• Conway v. Ireland [2017] IESC 13 – Addressing the integration of Aarhus Convention obligations into national law.

These precedents collectively influence the court’s approach to interpreting costs rules in environmental judicial reviews, particularly in light of EU directives and international agreements such as the Aarhus Convention.

Legal Reasoning

Justice Humphreys meticulously disentangled the applicability of sections 50B of the Planning and Development Act 2000 and section 3 of the Environment (Miscellaneous Provisions) Act 2011. The decision hinged on whether the proceedings in question fell within the scope of these sections, which aim to prevent applicants from being deterred by high legal costs when challenging environmental and planning decisions.

The court recognized that for section 50B to apply, the challenge must specifically invoke provisions of EU directives related to environmental impact assessment and public participation. In the Enniskerry case, full Environmental Impact Assessment (EIA) was conducted, but the contested grounds did not align precisely with the public participation provisions under the directive, leading to the refusal of a declaration under section 50B for most grounds.

However, for core ground 6 in the Enniskerry case, related to the protection of hedgerows, the court found that section 3 of the Environment (Miscellaneous Provisions) Act 2011 could apply, as it pertains to enforcing compliance with statutory requirements that, if breached, could result in specific ecological harm. This nuanced application underscores the court's adherence to both domestic and EU legal frameworks.

Additionally, the judgment delved into the interpretative obligations under the Aarhus Convention, emphasizing that national courts must interpret procedural laws in a manner consistent with the Convention’s objectives to ensure access to justice remains not prohibitively expensive. This led to the identification of unresolved European law questions, prompting the court to refer these to the CJEU for clarification.

Impact

This judgment has far-reaching implications for environmental judicial reviews in Ireland. By clarifying the boundaries of special costs rules under domestic legislation and aligning them with EU obligations, the court sets a precedent for future cases where applicants challenge planning decisions on environmental grounds.

The decision to refer specific questions to the CJEU highlights the interconnectedness of national and European law, particularly in environmental matters. This referral ensures that interpretations of EU directives are consistent across member states, fostering legal certainty and uniformity within the EU legal order.

Furthermore, the judgment underscores the importance of detailed statutory provisions to govern costs in judicial reviews. The absence of clear definitions regarding what constitutes "not prohibitively expensive" costs may lead to continued uncertainty and disparate applications in future cases, potentially discouraging valid environmental challenges.

Complex Concepts Simplified

Special Costs Rules

Special costs rules are legal provisions that determine whether and how legal costs (expenses incurred during litigation) are awarded to the parties involved in a case. In environmental judicial reviews, these rules are crucial because they can prevent applicants from being financially burdened when challenging planning decisions.

Aarhus Convention

The Aarhus Convention is an international agreement that grants the public rights regarding access to information, public participation, and access to justice in environmental matters. For EU member states, including Ireland, this convention influences how national laws are interpreted and applied to ensure effective environmental governance.

Section 50B of the Planning and Development Act 2000

This section generally stipulates that applicants in certain judicial review proceedings are not liable for costs if they lose the case. It is intended to encourage participation in environmental decision-making by alleviating the fear of incurring significant legal expenses.

Section 3 of the Environment (Miscellaneous Provisions) Act 2011

Similar to section 50B, this section provides for the absence of a costs order for applicants who fail in specific environmental enforcement proceedings. It aims to ensure that individuals and organizations can challenge environmental decisions without facing prohibitive legal fees.

Judicial Review

Judicial review is a process by which courts examine the legality of decisions or actions taken by public bodies. In the context of this case, the applicants sought to overturn planning permissions granted by the Planning Board on various grounds related to zoning, environmental impact, and compliance with development plans.

Conclusion

The High Court's judgment in "Enniskerry Alliance Anor v An Bord Pleanála & Ors (Approved) (Rev1) ([2022] IEHC 6)" marks a pivotal moment in the landscape of environmental judicial reviews in Ireland. By meticulously dissecting the applicability of special costs rules and integrating EU law obligations, the court has provided a clearer framework for future challenges against planning decisions.

The decision emphasizes the necessity for detailed domestic legislative provisions to harmonize with international obligations, ensuring that access to justice in environmental matters remains both effective and financially viable for applicants. The planned referral to the CJEU underscores the ongoing evolution of environmental law within the EU context and the critical role of higher courts in shaping this progression.

Legal practitioners and environmental advocates must heed this judgment as it delineates the contours of cost liability and procedural obligations, potentially influencing how future cases are approached and argued. As environmental concerns continue to gain prominence, such judicial insights are invaluable in balancing developmental aspirations with ecological preservation and public participation.