Introduction

The case Friends of Irish Environment & Ors v. An Bord Pleanala (Substitute Consent) ([2021] IEHC 234) addresses the legality of retrospective development consent applications in light of the Environmental Impact Assessment Directive (Directive 2011/92/EU). The applicants, including Friends of the Irish Environment and An Taisce, challenged the High Court's decision to allow retrospective applications based on "exceptional circumstances." The respondents, An Bord Pleanála and the Attorney General, contested the form of relief to be granted, specifically whether to set aside the impugned decisions or declare them to have no legal effect.

Summary of the Judgment

Justice Garrett Simons delivered an ex tempore judgment addressing eleven judicial review applications concerning stage-one decisions by An Bord Pleanála. These decisions permitted developers to retrospectively apply for development consent, asserting "exceptional circumstances" to regularize their projects. The Supreme Court had previously invalidated the relevant planning legislation for non-compliance with the EIA Directive, particularly regarding public participation in assessing exceptional circumstances.

With the enactment of amended planning legislation on 19 December 2020, the two-stage process for retrospective development consent remained, but now allowed reconsideration of "exceptional circumstances" at stage-two. However, the impugned decisions were made under the outdated legislative framework. Given that most developers no longer pursued their applications post-legislation amendment, the court found the impugned stage-one decisions invalid as they breached both EU and domestic law.

Ultimately, the court granted an order of certiorari to set aside the impugned decisions, reinforcing the necessity of compliance with the EIA Directive, particularly concerning public participation.

Analysis

Precedents Cited

The judgment extensively references key legal precedents that shaped the court's reasoning:

• An Taisce v. An Bord Pleanála [2020] IESC 39: The Supreme Court's ruling that the planning legislation was incompatible with the EIA Directive due to inadequate public participation in determining "exceptional circumstances."
• Case C‑196/16, Comune di Corridonia: Emphasized that regularization of development projects must not allow circumvention of EU law, highlighting the necessity for "exceptional circumstances" to remain an exception.
• Case C-201/01, Wells: Established the obligation of national courts to nullify unlawful effects and remedy harm resulting from breaches of EU environmental law.
• Case C-64/20, An tAire Talmhaíochta, Bia agus Mara: Reiterated the obligations of national courts to uphold EU directives correctly.

Legal Reasoning

The court's legal reasoning hinged on the following principles:

• Compliance with EIA Directive: National legislation must align with EU directives. The original planning legislation failed to ensure effective public participation in assessing “exceptional circumstances,” a requirement under the EIA Directive.
• Public Participation: Effective public participation is crucial for informed decision-making in environmental matters. The lack of participation in stage-one decisions deprived the public and stakeholders of their rights under the Directive.
• Certiorari as Appropriate Remedy: Given the clear breach of EU law, the appropriate remedial action was to set aside the impugned decisions via certiorari, ensuring the illegality is nullified.
• Impact of Amended Legislation: While the legislation was amended to address prior deficiencies, the impugned decisions occurred under the old regime and thus remained invalid.

Impact

This judgment has significant implications for future planning and development consent processes:

• Strengthening Public Participation: Reinforces the necessity of early and meaningful public involvement in environmental decision-making processes.
• Judicial Oversight: Affirms the courts' role in ensuring national legislation complies with EU directives, particularly in environmental law.
• Legislative Compliance: Encourages legislative bodies to meticulously transpose EU directives to avoid legal inconsistencies and uphold environmental standards.
• Precedent for Future Cases: Establishes a clear precedent that retrospective development consent decisions lacking proper public participation are invalid.

Complex Concepts Simplified

Conclusion

The High Court's judgment in Friends of Irish Environment & Ors v. An Bord Pleanála underscores the paramount importance of aligning national planning legislation with EU environmental directives. By setting aside the impugned retrospective development consent decisions, the court reinforced the necessity of early and effective public participation in environmental decision-making. This decision not only rectifies past legislative inadequacies but also sets a robust precedent ensuring that future developmentConsent processes adhere strictly to both domestic and EU legal standards. The judgment serves as a pivotal reminder of the judiciary's role in upholding environmental integrity and public involvement in shaping sustainable development policies.