Save Roscam Peninsula CLG & Ors v An Bord Pleanala & Ors (No. 4) (Approved)

Factual and Procedural Background

The applicants sought judicial review to quash the decision of the first respondent, An Bord Pleanála (the board), dated 28th October 2021, which authorised a Strategic Housing Development at Rosshill, Galway. This development involved demolition of an existing silage concrete apron and the construction of 102 residential units (35 apartments and 67 houses), a crèche, and associated site works.

The notice party developer applied for permission on 9th July 2021. An appropriate assessment and an environmental impact assessment were conducted, concluding no adverse effects on relevant European sites and that adverse effects could be mitigated, respectively. The board found the proposal did not materially contravene the Galway City Development Plan in relation to zoning but did contravene it in relation to plot ratio/density. The board justified this contravention by reference to government policy and ministerial guidelines and granted permission with 33 conditions on 28th October 2021.

The applicants challenged the decision by filing a statement of grounds on 17th December 2021 and subsequently filed an amended statement of grounds. Procedural disputes arose concerning costs protection, leading to prior related judgments addressing these issues. The present judgment makes a formal order for a reference to the Court of Justice of the European Union (CJEU).

Legal Issues Presented

1. Whether the interpretative obligation to align national procedural law with Article 9(3) and (4) of the Aarhus Convention applies only within the sphere of EU environmental law.
2. If an applicant challenges a decision subject to EU environmental law procedures, whether the challenge falls within the sphere of EU environmental law even if the grounds do not relate to EU environmental law.
3. Whether a challenge relating to alleged material contravention of an instrument subject to Strategic Environmental Assessment (SEA) Directive 2001/42/EC falls within the sphere of EU environmental law.
4. Whether challenges based on classic judicial review grounds that are not environment-specific but raised in environmental contexts fall outside the interpretative obligation under the Aarhus Convention.
5. Whether, under Article 9(3) of the Aarhus Convention, domestic legislation providing for no order as to costs must be applied consistently by courts when exercising judicial discretion.
6. Whether the concept of "national law relating to the environment" in Article 9(3) of the Aarhus Convention includes national law relating to sustainable development.
7. If the answer to question five is negative, whether Article 9(3) requires that judicial discretion regarding costs in relation to remedying past contraventions of environmental law be exercised consistently with the rule of no order as to costs for preventing future contraventions.

Arguments of the Parties

Applicants' Arguments

• The interpretative obligation under Case C-470/16 North East Pylon applies broadly to all judicial procedures challenging any act or omission related to environmental law, including purely national law, not limited to EU environmental law.
• A challenge to a decision subject to EU environmental law procedures should be considered within the EU environmental law sphere regardless of the specific grounds of challenge.
• Challenges alleging breach of instruments subject to SEA Directive fall within EU environmental law to preserve the Directive's objectives.
• Classic judicial review grounds should not exclude challenges from the Aarhus Convention protections if they aim to secure environmental objectives.
• Where domestic legislation partially implements Article 9(3) and (4) of the Aarhus Convention, judicial discretion should align with the legislative rule of no order as to costs to ensure legal certainty.
• The concept of national law relating to the environment includes national law relating to sustainable development, consistent with the Rio Declaration.
• The same principles regarding costs protection should apply to remedying past contraventions of environmental law as to preventing future contraventions.

Board's Arguments

• The interpretative obligation applies only within the sphere of EU environmental law, not to all national environmental law.
• If grounds of challenge do not relate to EU environmental law, the fact that the decision is subject to EU procedures is irrelevant.
• The fact that an underlying plan was subject to SEA does not automatically bring all challenges within EU environmental law costs protection.
• Classic judicial review grounds not derived from EU environmental law are not covered by the interpretative obligation.
• The no-prohibitively-expensive (NPE) costs rule does not mandate a blanket no order as to costs in all cases; discretion depends on factual scenarios.
• Article 9(3) of the Aarhus Convention does not include sustainable development within national law relating to the environment.
• The question regarding costs protection for remedying past contraventions is hypothetical and does not arise on the facts.

State Respondents' Arguments

• The interpretative obligation ensures effective judicial protection in fields covered by EU environmental law, but not all national environmental law falls within this scope.
• Extension of costs protection to purely national provisions unrelated to EU environmental law is arbitrary and inconsistent.
• Allowing all challenges to development consents based on plans subject to SEA to benefit from costs protection would be contrary to established case law.
• Equivalence between national and EU environmental law requires that only provisions genuinely relating to the environment are covered.
• Costs protection under Irish law grants greater protections than EU law requires but does not alter EU law itself.
• National law relating to sustainable development is distinct from national law relating to the environment and should not be conflated.
• The question on costs protection for remedying past contraventions does not properly arise on the facts.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified seven questions of European law requiring interpretation, primarily concerning the scope and application of the Aarhus Convention's Article 9(3) and (4) in relation to national procedural law and environmental judicial review. The court analysed submissions from the applicants, the board, and the State respondents, focusing on whether the interpretative obligation to align national law with the Aarhus Convention applies narrowly within EU environmental law or more broadly to national environmental law, including purely national provisions.

The court noted the importance of effective judicial protection and the need for consistency in interpretation given the Aarhus Convention's integration into EU law. It recognised the applicants' argument for a broad interpretation to avoid fragmentation and ineffectiveness in environmental protection and the board's and State respondents' arguments for a narrower interpretation limiting the scope to EU environmental law provisions.

Regarding costs protection, the court examined whether domestic legislation providing for no order as to costs must be applied strictly or whether judicial discretion may diverge, concluding that legal certainty favors applying the enacted domestic legislation by analogy rather than exercising unlegislated discretion imposing burdens on environmental litigants.

On the relationship between national law relating to the environment and sustainable development, the court acknowledged the broader concept of sustainable development but concluded that national law relating to the environment includes laws relating to environmental aspects of sustainable development, reflecting the Aarhus Convention and Rio Declaration.

Given the complexity and novelty of these interpretative questions, the court found that answers were not acte clair or acte éclairé and that a reference to the CJEU under Article 267 TFEU was appropriate to clarify these issues.

Holding and Implications

The court made a formal order to refer the seven identified questions of European law to the Court of Justice of the European Union pursuant to Article 267 TFEU.

ORDERED: The questions set out in the judgment be referred to the CJEU for preliminary ruling.

This decision means that the Irish High Court will await authoritative interpretation from the CJEU on the scope and application of the Aarhus Convention's procedural obligations, costs protection, and the relationship between national and EU environmental law in judicial review proceedings. No new precedent is established by this judgment itself; rather, it facilitates clarification of EU law to guide future domestic decision-making and litigation in environmental matters.