Introduction

The High Court of Ireland, in its judgment delivered by Humphreys J. on June 9, 2022, addressed significant issues pertaining to cost protection in environmental judicial reviews under the Planning and Development Act 2000 and the Environment (Miscellaneous Provisions) Act 2011. The cases in focus are Save Roscam Peninsula CLG & Ors v An Bord Pleanála (2022) IEHC 328 and Abbey Park & District Residents Association Baldoyle v An Bord Pleanála (2022) IEHC 201. These cases revolve around applicants seeking relief under cost protection provisions when challenging planning decisions. Central to the proceedings is the interpretation of "damage to the environment" within the legislative context and its alignment with European directives, notably the Aarhus Convention.

Summary of the Judgment

In both cases, the applicants sought declarations entitling them to costs protection under Section 50B of the Planning and Development Act 2000 and the Environment (Miscellaneous Provisions) Act 2011. The High Court, presided over by Humphreys J., denied these declarations. However, it allowed the applicants to seek leave to appeal to the Court of Appeal under Section 50A(7) of the 2000 Act. The judge adjourned specific points concerning the Aarhus Convention's interpretative application pending a proposed reference to the Court of Justice of the European Union (CJEU). The judgment delves into the nuances of what constitutes "damage to the environment" and clarifies that not all environmental impacts automatically qualify for cost protection under the cited legislative provisions.

Analysis

Precedents Cited

The judgment references several key cases that have shaped the interpretation of cost protection and environmental damage:

• Enniskerry Alliance v. An Bord Pleanála [2022] IEHC 6: Addressed the scope of "damage to the environment" and its implications for cost protection.
• Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231: Summarized the established caselaw regarding cost protection.
• Heather Hill Management Company CLG v. An Bord Pleanála [2021] IECA 259: Influenced the interpretations related to Section 50B.

These precedents were instrumental in shaping the court's approach to interpreting the legislative provisions and understanding their alignment with EU directives.

Legal Reasoning

Humphreys J. meticulously dissected the applicants' arguments, emphasizing the necessity for clear statutory interpretations. The court upheld that for an applicant to qualify for cost protection under Section 50B, the challenge must pertain directly to the SEA process itself, rather than merely contesting documents subjected to the SEA process. Furthermore, the judge clarified that "damage to the environment" requires tangible and ecological harm, excluding scenarios where a development is deemed less environmentally desirable than hypothetical alternatives.

The legal reasoning underlined that while the term "damage to the environment" is present in the statute, its interpretation requires contextual understanding, especially in light of the Aarhus Convention. The court acknowledged the applicants' contention regarding the statutory basis but rejected the notion that the interpretation lacked legislative support, likening it to logical fallacies where absence of explicit expression does not negate existence.

Impact

This judgment has profound implications for future environmental litigation in Ireland:

• Clarification of Cost Protection: Establishes clearer boundaries for when cost protection is applicable, ensuring that only substantive challenges to the SEA process qualify.
• Interpretation of Environmental Damage: Sets a precedent for interpreting "damage to the environment" as requiring tangible and ecological harm, influencing how future cases assess environmental impacts.
• Alignment with EU Law: Highlights the interplay between national legislation and EU directives, notably the Aarhus Convention, guiding courts in harmonizing interpretations.
• Judicial Efficiency: By adjourning certain questions pending CJEU reference, the judgment emphasizes the importance of cohesive legal interpretations across jurisdictions.

Legal practitioners will need to consider these clarifications in structuring their arguments and assessing the viability of cost protection claims in environmental cases.

Complex Concepts Simplified

Conclusion

The High Court's judgment in Save Roscam Peninsula CLG & Ors v An Bord Pleanála and Abbey Park & District Residents Association Baldoyle v An Bord Pleanála provides critical insights into the interpretation of cost protection provisions in environmental judicial reviews. By delineating the scope of "damage to the environment" and aligning it with legislative intent and EU directives, the court has set a clear framework for future litigants and judiciary members. The emphasis on tangible and ecological harm ensures that cost protection remains a viable support for substantive environmental challenges, fostering a more accountable and environmentally conscious planning system in Ireland.