Introduction

The case of O'Donnell & Ors v An Bord Pleanála & Ors (Approved) ([2023] IEHC 715) presented before the High Court of Ireland addresses significant questions regarding the interpretation of European Union (EU) environmental directives, specifically Directive 92/43/EEC on the conservation of natural habitats and Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. The applicants, a group of individuals and entities, challenged the legality of a derogation licence granted to Drumakilla Limited for the proposed construction of residential units at the former Carmelite monastery in Delgany, County Wicklow.

The core issues revolve around the procedural and substantive aspects of derogation licences, the application of judicial review time limits, and the interplay between national and EU law in environmental decision-making processes.

Summary of the Judgment

Justice Humphreys delivered the judgment on December 21, 2023, addressing four pivotal questions referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling. The High Court concluded that the challenge to the derogation licence was filed beyond the permissible time frame and referred specific legal questions regarding the interpretation of Directive 2011/92 and its alignment with the Aarhus Convention.

The court determined that in domestic law, derogation licences are separate substantive decisions and must be challenged within the stipulated domestic judicial review periods, independent of the primary development consent. Consequently, the application was deemed out of time under Irish law, prompting the referral of questions to the CJEU to ascertain conformity with EU law principles.

Analysis

Precedents Cited

The judgment references a substantial body of EU case law to contextualize the interpretation of derogation licences. Notably, Namur-Est Environnement was central to the argument, focusing on whether a derogation licence should be integrated into the development consent procedure beyond the scope of environmental impact assessments. Other significant cases include:

• Pupino (C-105/03): Addressed the integration of environmental considerations in national procedures.
• Gruber (C-570/13): Discussed procedural rights in environmental decision-making.
• Flausch and Others (C-280/18): Explored public participation in environmental procedures.
• Hellfire Massy Residents Association (C-166/22): Clarified the relationship between derogation procedures and development consent.
• Eco Advocacy (C-721/21): Recent judgment influencing the current case's questions.

These precedents illustrate the CJEU's approach to balancing environmental protection with developmental needs, emphasizing procedural fairness and the rights of the public to participate and challenge decisions.

Legal Reasoning

The High Court's legal reasoning centers on the interpretation of Articles 16(1) of Directive 92/43 and 11 of Directive 2011/92, within the framework of the Aarhus Convention's principle of access to justice. The court examined whether derogation licences should be treated as part of the development consent procedure beyond their environmental impact assessment role, particularly concerning limitation periods for judicial challenges.

Key points of reasoning include:

• Separate Substantive Decisions: The court identified that, under domestic law, derogation licences are distinct substantive decisions and not interim ones, thereby initiating their own limitation periods for challenges.
• Foreseeability of Time Limits: Emphasized that domestic limitation periods are sufficiently foreseeable, aligning with the principle of legal certainty.
• Non-Integration Beyond Scope: Concluded that Namur-Est's implications are confined to the scope of environmental assessments and do not extend to procedural time frames.
• Public Participation and Access to Justice: Affirmed that requiring separate challenges ensures manageable judicial processes without undermining public participation rights.

The Court deferred the final interpretation to the CJEU, seeking clarity on whether EU directives necessitate a different approach to limitation periods and the integration of derogation licences within development consent procedures.

Impact

The judgment holds significant implications for future environmental law cases in Ireland and potentially across the EU. It clarifies the procedural boundaries for challenging derogation licences, reinforcing the principle that such licences are separate from primary development consents in the context of judicial review time limits.

Should the CJEU uphold the High Court's interpretation, it will affirm the autonomy of national procedural rules regarding limitation periods, provided they meet the EU principles of equivalence and effectiveness. This outcome would streamline judicial processes, preventing procedural chaos in multi-stage consent procedures and ensuring that challenges are made within clear, predefined time frames.

Conversely, if the CJEU finds that EU directives require a different approach, it could mandate alterations to national laws, impacting how derogation licences are challenged and integrated within broader development consent frameworks.

Complex Concepts Simplified

Derogation Licence

A derogation licence under Article 16(1) of Directive 92/43 allows for exceptions to certain species protection measures if specific conditions are met, such as the absence of satisfactory alternatives and the derogation not being detrimental to species populations.

Development Consent Procedure

This refers to the process by which authorities grant permission for development projects, incorporating environmental impact assessments to evaluate potential effects on the environment.

Judicial Review Time Limits

These are legally defined periods within which a party must challenge a decision in court. Missing this window typically results in the challenge being dismissed as untimely.

Aarhus Convention

An international treaty granting the public rights regarding access to information, public participation, and access to justice in environmental matters.

Conclusion

The High Court's judgment in O'Donnell & Ors v An Bord Pleanála & Ors (2023) underscores the nuanced interplay between EU environmental directives and national procedural laws. By treating derogation licences as separate substantive decisions, the court upholds the principles of legal certainty and manageable judicial processes while respecting the autonomy of national legal frameworks.

The referral to the CJEU seeks to ensure that Irish law aligns with overarching EU principles, particularly regarding access to justice and public participation in environmental decision-making. The outcome of this case will set a critical precedent for how derogation licences are challenged in the future, balancing environmental protection with developmental pragmatism.

Ultimately, the judgment highlights the importance of clear procedural rules and the effective implementation of EU directives within national legal systems to safeguard both environmental integrity and the rights of the public to engage in and challenge environmental governance.