Dempsey & Ors v An Bord Pleanala (Approved)

Factual and Procedural Background

The Applicants, four local residents owning and occupying houses near a proposed large-scale residential development, instituted judicial review proceedings challenging a decision by the Planning Board to grant development consent for this project. The development, subject to the Environmental Impact Assessment Directive (2011/92/EU) (“the EIA Directive”), exceeded the domestic threshold for urban development projects and was processed under a special consent procedure requiring pre-application consultation between the Developer and competent authorities, excluding public participation at that stage.

The Planning Board issued a statutory opinion following the pre-application consultation, requesting further consideration of several matters including housing density. The Developer subsequently increased the proposed number of dwellings from 322 to 366, apparently responding to the Planning Board’s opinion.

Objections during the public participation procedure focused notably on housing density, with the Local Planning Authority and the Applicants contending the proposed density was excessive and inconsistent with local development plans. The Planning Board ultimately granted permission on 26 September 2019, concluding the residential density was acceptable.

The Applicants obtained leave to apply for judicial review, alleging principally that the Planning Board failed to state the “main reasons and considerations” for its decision, in breach of domestic law and the EIA Directive. During the hearing, counsel for the Applicants expressed concern that the issue of housing density may have been prejudged during the pre-application consultation, potentially undermining public participation rights.

On the third day of the hearing, the parties reached a settlement and jointly applied for the proceedings to be struck out. The court was asked to exercise its discretion to allow this, mindful of the public interest in settlement but also considering potential breaches of the EIA Directive.

Legal Issues Presented

1. Whether a national court is obliged to rule on the substantive or procedural legality of a development consent, pursuant to judicial review implementing Article 11 of the EIA Directive, when the applicants seek to discontinue proceedings.
2. Whether the obligation of a national court to take all necessary measures to remedy failures to carry out an environmental impact assessment extends to ruling on the legality of development consent despite discontinuance requests.
3. Whether factors such as the gravity of the alleged breach, public participation implications, stage of proceedings, and the court’s ability to decide on the pleadings affect the obligation to rule despite discontinuance.

Arguments of the Parties

Applicants' Arguments

• The Planning Board failed to state the “main reasons and considerations” for its decision, breaching Article 9 of the EIA Directive and related domestic provisions.
• The alleged failure hampers their ability to challenge the decision effectively, particularly regarding prejudgment concerns about housing density decided at the pre-application stage.
• The absence of adequate reasons may conceal a more serious breach of public participation rights under the EIA Directive.
• The public interest in settlement is acknowledged but must not override the need for effective judicial review and environmental protection.

Respondent's (Planning Board) Arguments

• The application to strike out the proceedings should be granted by consent, respecting the parties’ settlement.
• There is a strong public policy favoring settlement of litigation, including judicial review cases.
• The court’s discretion to refuse discontinuance is limited to cases involving illegality or jurisdictional excess, which do not arise here.
• The alleged breach does not require the court to depart from its passive role or to raise EU law issues ex officio.
• The Planning Board complied with its obligations under domestic law transposing the EIA Directive.

Notice Party (Developer) Arguments

• An unwilling litigant should not be compelled to continue proceedings.
• Settlement of litigation is encouraged as a matter of public policy.
• The court’s discretion to strike out proceedings is broad and can be exercised at any stage, even post-judgment.
• The proceedings do not raise a significant issue of EU law requiring a court reference.
• The dispute is defined by the parties and the court should not go beyond the pleadings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified a significant issue of EU law concerning the extent to which a national court must continue to adjudicate judicial review proceedings under Article 11 of the EIA Directive when the applicants seek to discontinue. The principal legal question is whether the court is obliged to rule on the validity of the development consent despite the Applicants’ wish to withdraw, particularly where there is a prima facie case of breach of public participation rights.

The court acknowledged the general principle that national courts adopt a passive role and that parties are dominus litis in private law disputes. However, the present judicial review proceedings are public law in nature, invoking EU environmental law obligations, which may require the court to act beyond the parties’ wishes to ensure effective judicial review and compliance with the EIA Directive.

The court reviewed relevant EU case law, including Wells and Derrybrien Wind Farm, establishing that Member States must take all necessary measures to remedy breaches of the EIA Directive, including revoking or suspending consents. The court also considered Advocate General Kokott’s opinion in Krizan, which recognized the importance of environmental protection but limited the obligation of courts to raise issues ex officio except in exceptional circumstances.

Importantly, the court distinguished the current case from Krizan, noting that the issue here—whether the Planning Board complied with its duty to state the “main reasons and considerations”—is a legal question based on the existing record and pleadings, and does not require technical or factual inquiries beyond those materials.

The court further emphasized that the duty to state reasons is critical to public participation and effective judicial review, enabling interested parties and the public to understand the basis of decisions and decide whether to challenge them.

Given that the hearing was advanced, with pleadings closed and substantial submissions made, the court found that it had the legal and factual elements necessary to rule on the issue. This raised a potential conflict between the parties’ desire to discontinue and the court’s obligations under EU law.

Because the correct interpretation of the EIA Directive in this context was not acte clair, the court determined that it must refer the question to the Court of Justice of the European Union under Article 267 TFEU for a preliminary ruling. The reference seeks guidance on whether the national court is obliged to rule on the legality of development consent notwithstanding the applicants’ wish to discontinue and how to reconcile this with the court’s normal passive role.

Holding and Implications

The court has decided to make a reference to the Court of Justice of the European Union pursuant to Article 267 of the Treaty on the Functioning of the European Union.

This reference concerns whether a national court must rule on the substantive or procedural legality of a development consent under the EIA Directive when the applicants seek to discontinue judicial review proceedings, particularly where there is a prima facie breach of public participation rights.

The main judicial review proceedings are stayed pending the Court of Justice’s ruling. Following that ruling, the parties will have an opportunity to make further submissions before the High Court decides on the application to strike out the proceedings.

The direct effect of this decision is to defer final determination of the application to strike out, ensuring compliance with EU law obligations regarding environmental impact assessments and public participation. No new precedent is established by the High Court itself at this stage; rather, it seeks authoritative guidance from the Court of Justice to resolve complex EU law questions arising from the interplay between national procedural discretion and EU environmental law.