Dempsey & ors v An Bord Pleanala

Factual and Procedural Background

The Applicants initiated judicial review proceedings challenging a planning permission granted by a national planning authority. The High Court initially considered making a preliminary reference to the Court of Justice of the European Union (CJEU) under Article 267 TFEU, seeking guidance on the court’s obligations under the Environmental Impact Assessment Directive (2011/92/EU) (“the EIA Directive”). The reference was to address whether the High Court was obliged to rule on the validity of the planning permission despite the Applicants’ wish to withdraw their proceedings.

A draft reference was appended to the initial judgment delivered electronically on 24 April 2020. The parties were invited to comment on this draft before the formal order was drawn up. Subsequently, the Attorney General requested an adjournment to consider counsel’s advice and potentially join the proceedings as a notice party. The court granted this request and allowed the Attorney General to join the proceedings with the consent of all parties on 19 June 2020.

Written submissions were exchanged, concluding with submissions from the Developer on 23 July 2020. The Developer requested an urgent decision on whether the preliminary reference would proceed. On 18 August 2020, the court informed the parties that no preliminary reference would be made, concluding it lacked jurisdiction under domestic constitutional law to make such a reference in the absence of a live controversy. Consequently, the court granted leave for the Applicants to withdraw their proceedings and ordered the proceedings to be struck out without any order as to costs. The formal order was perfected on 25 August 2020.

Legal Issues Presented

1. Whether the High Court has jurisdiction under domestic constitutional law to determine judicial review proceedings where all parties consent to withdrawal and seek to strike out the proceedings without any order.
2. Whether the High Court is obliged to make a preliminary reference to the Court of Justice of the European Union under Article 267 TFEU in circumstances where the proceedings are to be withdrawn and no live controversy remains.
3. The role and entitlement of the Attorney General to intervene or be joined in judicial review proceedings raising issues of public interest and compliance with EU law.

Arguments of the Parties

Applicants' and Developer's Arguments

• Accepted that the court has a limited discretion to allow withdrawal of proceedings and submitted that this discretion should be exercised in favour of allowing the compromise and withdrawal.
• The Developer urged the court to decide urgently on whether the preliminary reference to the CJEU should proceed given the matter’s urgency.

Attorney General's Arguments

• Submitted that, as a matter of domestic constitutional law, the court lacks jurisdiction to determine proceedings where no live controversy exists, even if it was originally seised of a dispute.
• Argued that EU law does not confer jurisdiction on national courts beyond their constitutional limits and does not require courts to exceed their competence to achieve the EIA Directive’s objectives.
• Contended that the court could not make a preliminary reference to the CJEU when the parties consent to striking out the proceedings, as no live issue remains.
• Advanced the constitutional principle that courts may only decide cases with a live controversy and legitimate interest of the parties, citing relevant case law emphasizing the administration of justice and mootness doctrines.
• Asserted the Attorney General’s role as guardian of the public interest justifies participation in proceedings involving public law and EU law compliance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by clarifying that its initial judgment had erred by treating the withdrawal of proceedings as a matter of discretion rather than jurisdiction. Upon reconsideration, it was determined that the court’s jurisdiction is limited to regulating the terms of withdrawal (such as costs) when all parties consent. The court cannot determine issues absent a live controversy, except in narrowly defined circumstances such as fraud or collusion, which were not present here.

The Attorney General’s submissions emphasized the constitutional principle that courts only exercise judicial power when a genuine dispute exists between parties with a legitimate interest. EU law does not extend the court’s jurisdiction beyond these constitutional limits. The court found this reasoning persuasive and concluded that the absence of a live controversy meant it lacked jurisdiction to proceed with the preliminary reference to the CJEU.

The court noted that if parties had disagreed on withdrawal or terms, the court would retain jurisdiction and discretion to impose orders, including on costs. However, in this case, full agreement to withdraw meant no issue remained for adjudication.

Accordingly, the court decided not to make the preliminary reference and granted leave to withdraw the proceedings, striking them out with no order as to costs.

Holding and Implications

The court’s final ruling was to strike out the proceedings in their entirety with no order as to costs and to decline to make a preliminary reference to the Court of Justice of the European Union.

This decision ended the litigation between the parties and confirmed the constitutional principle that courts lack jurisdiction to decide matters without a live controversy. The ruling does not establish new precedent but reaffirms existing principles regarding judicial power and the limits of court jurisdiction in the context of withdrawing proceedings.