Introduction

The case of Save Roscam Peninsula CLG & Ors v An Bord Pleanála & Ors (No. 4) represents a significant judicial review concerning the authorization of a strategic housing development in Rosshill, Galway. The applicants, comprising Save Roscam Peninsula CLG and associated individuals, sought to challenge the High Court's decision to refer critical legal questions to the Court of Justice of the European Union (CJEU) under Article 267 TFEU. Central to this dispute are issues surrounding the interpretation and application of the Aarhus Convention in Irish domestic law, particularly regarding the costs implications for applicants engaged in environmental litigation.

The primary relief sought by the applicants was an order of certiorari to quash the decision made by An Bord Pleanála on 28th October 2021, which granted permission for the proposed housing development despite certain contraventions of the Galway City Development Plan.

Summary of the Judgment

Justice Humphreys delivered the judgment addressing the complex interplay between national law, EU directives, and international conventions. The central focus was the interpretative obligation under the Aarhus Convention, particularly Article 9, which governs costs in environmental judicial reviews. The court identified seven pertinent questions of European law that necessitated clarification from the CJEU. These questions revolved around whether and how the Aarhus Convention's provisions on cost protections should be interpreted within the scope of EU environmental law and Irish domestic law.

Ultimately, Justice Humphreys opted to refer these questions to the CJEU, acknowledging that definitive answers were required to ensure consistent judicial outcomes and the effective protection of environmental rights as envisaged by the Aarhus Convention and reinforced by EU law.

Analysis

Precedents Cited

The judgment extensively references several key cases to frame the legal context:

• Case C-470/16 North East Pylon: This case was pivotal in determining the scope of the interpretative obligation of national courts concerning EU environmental law.
• Case C-240/09 Brown Bears 1: Addressed the application of EU directives in national judicial processes.
• Case C-12/86 Demirel; Explored the boundaries of national versus EU law in environmental matters.
• Case C-53/96 Hermès; Focused on the interplay between national legislation and EU environmental directives.
• Joined Cases C-300/98 and C-392/98 Dior and Others: Examined the extent to which national courts must align with EU interpretations in environmental litigation.

These precedents underscored the necessity for national courts to harmonize their interpretations of national environmental laws with EU directives to ensure coherent and effective environmental protection across member states.

Legal Reasoning

Justice Humphreys delved deep into the statutory provisions and international obligations influencing the case. Central to his reasoning was the Aarhus Convention's Article 9, which mandates that parties in judicial reviews bear their own costs unless exceptions apply. The applicant sought to extend protections under this article, arguing for a broader interpretation that encompasses various aspects of sustainable development directly or indirectly affecting the environment.

The court considered whether this interpretative obligation should be confined strictly within the bounds of EU environmental law or extended more broadly to include all aspects of national environmental legislation. The judgment navigated through intricate legal principles, balancing the need for legal certainty with the imperative of effective environmental protection.

Moreover, the court assessed the compatibility of national legislative provisions, such as Section 50B of the Planning and Development Act 2000 and Section 3 of the Environment (Miscellaneous Provisions) Act 2011, with EU law. This assessment was crucial in determining whether national courts could exercise discretion in costs orders in a manner that aligns with both national and EU obligations.

Impact

The referral to the CJEU signifies a pivotal moment in Irish environmental law, particularly concerning judicial review costs. Should the CJEU affirm a broad interpretation of the Aarhus Convention within EU environmental law, it could set a precedent ensuring that environmental litigants, including NGOs, are better protected from prohibitive legal costs. This would enhance the accessibility of environmental justice, encouraging more robust public participation and scrutiny of development projects.

Conversely, a narrower interpretation might limit these protections, potentially discouraging public and NGO involvement in environmental litigation due to financial risks. The decision emphasizes the delicate balance judiciary must maintain between upholding statutory obligations and fostering an environment conducive to active civic engagement in environmental matters.

Complex Concepts Simplified

Aarhus Convention

The Aarhus Convention is an international treaty that grants the public rights regarding access to information, public participation in decision-making, and access to justice in environmental matters. Specifically, Article 9 addresses the issue of legal costs in environmental litigation, aiming to make such proceedings not prohibitively expensive.

Article 267 TFEU

Article 267 of the Treaty on the Functioning of the European Union (TFEU) allows national courts to refer questions regarding the interpretation or validity of EU law to the CJEU. This mechanism ensures uniform application and interpretation of EU law across all member states.

Interpretative Obligation

The interpretative obligation refers to the duty of national courts to interpret national law in a manner consistent with EU law. This ensures that even domestic statutes align with overarching EU directives and regulations.

No-Order-as-to-Costs Rule

This rule stipulates that, in certain judicial reviews, applicants are not granted an order to recover their legal costs if they are unsuccessful. The principle aims to prevent excessive financial burdens on unsuccessful litigants, promoting access to justice.

Sustainable Development

Sustainable development refers to development that meets present needs without compromising the ability of future generations to meet their own needs. It encompasses environmental protection, economic growth, and social equity.

Conclusion

The judgment in Save Roscam Peninsula CLG v An Bord Pleanála & Ors (No. 4) underscores the evolving landscape of environmental law in Ireland, particularly in harmonizing national legislation with EU and international obligations. By referring critical questions to the CJEU, the High Court acknowledges the complexities inherent in balancing cost protections for environmental litigants with broader legislative frameworks.

The potential outcomes of this reference carry significant implications for future environmental litigation, access to justice, and the enforceability of environmental protections. A broader interpretation of the Aarhus Convention could empower NGOs and the public to engage more actively in environmental matters without the deterrent of prohibitive legal costs. Conversely, a restrictive interpretation might limit such engagements, highlighting the necessity for clear judicial guidance to foster an effective and equitable legal environment for environmental advocacy.

Ultimately, this case exemplifies the critical role of judicial review in shaping the efficacy of environmental law and the importance of coherent legal interpretations in upholding sustainable development and environmental protection principles.