O'Donnell & Ors v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

This judgment concerns a series of proceedings involving an application for judicial review of a planning permission and a derogation licence related to a housing development. The Applicants challenged both the planning permission granted by the relevant planning authority and a derogation licence connected to the development.

Previously, the High Court dismissed the application for certiorari of the planning permission and adjourned the challenge to the derogation licence for further submissions and clarification, especially on issues of EU law. The Court made multiple references to the Court of Justice of the European Union (CJEU) for preliminary rulings.

Following written observations by the parties and the European Commission, the Court raised queries about certain factual and legal points, which the parties addressed through submissions and a brief oral hearing. The judgment provides clarifications for the CJEU reference concerning publication dates, public participation, the legal basis for the derogation licence, and procedural time limits for challenges.

Legal Issues Presented

1. Whether the development consent application and the derogation licence were published or available to third parties as of 21 October 2020, and when the Environmental Impact Assessment (EIA) screening decision was published.
2. Whether there was compliance with the principle under the EIA Directive that the public concerned must be informed of the consent procedure and its opportunities for participation adequately and sufficiently in advance.
3. Whether the project was subject to an Environmental Impact Assessment and the applicability of Article 6(2)(d) of the EIA Directive.
4. Whether the assumption that the applicants could have been aware of the derogation licence on 21 October 2020 holds true in light of the factual circumstances.
5. The legal basis for the derogation decision, specifically whether it was based on the national provision transposing Article 16(1)(a) of the Habitats Directive.
6. Whether Irish law allows for raising severe errors of law (such as using the wrong legal basis) leading to nullity after the usual deadline for legal challenges, and the discretion of Irish courts to extend time for such challenges.
7. Whether the rules in the Irish legal order governing deadlines for challenging a derogation decision comply with the principle of effectiveness under EU law, and whether the legal framework was sufficiently clear given that the applicants challenged the development consent in time but not the derogation decision.

Arguments of the Parties

Applicants' Arguments

• The development consent application, including a report with the derogation licence as an appendix, was first published on 21 October 2020.
• The EIA screening determination was made simultaneously with the decision to grant development consent on 15 February 2021 and became publicly available three working days later.
• The public was informed of the consent procedure through site notices, newspaper notices, and weekly notices on official websites, but these did not reference the derogation licence or notify that it could only be challenged by judicial review within three months.
• The competent authority decided that an EIA was not required following the screening determination, which was challenged but remains subject to possible appeal.
• Applicants could have been partially aware of the derogation licence as it was appended to the development consent application, but were not aware of supporting documents containing mitigation measures, which were only made available later upon request.
• The legal basis for the derogation decision was correctly identified as the national provision transposing Article 16(1)(a) of the Habitats Directive.
• It is possible to bring a challenge outside the usual deadline under Irish law, subject to certain conditions, as set out in Order 84 Rules of the Superior Courts and supported by case law.
• The applicants did not plead that the legal framework was unclear or invalid concerning the time limits to challenge the derogation decision.

State's Arguments

• The development consent application documentation, including the derogation licence, was published and available to third parties as of 21 October 2020.
• The Board completed an EIA screening and decided an Environmental Impact Assessment Report was not necessary; this screening decision was published on 15 February 2021.
• The public was informed of the consent procedure and had opportunities to participate, as evidenced by the applicants' participation in the process and judicial review proceedings.
• The applicants did not plead any breach related to the EIA screening in respect of the derogation licence, and expanding the case to include such a complaint would introduce a new, impermissible point.
• There is no statutory procedure for public participation in the derogation licence process under domestic law.
• The applicants were on notice of the derogation licence on 21 October 2020, as it was included in the documentation submitted with the development consent application and made available for public consultation.
• Under Irish law, administrative decisions are subject to national time limits with applicable extension provisions regardless of the nature or severity of the alleged error of law.
• The applicants in the main proceedings did not apply for an extension of time to challenge the derogation licence.
• The legal framework, including the three-month time limit to challenge the derogation decision, was sufficiently clear and foreseeable in compliance with EU law.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court systematically addressed each issue raised by the European Commission’s Written Observations and the parties’ submissions to clarify factual and legal points for the CJEU.

On publication, the Court found that the development consent application, including the derogation licence, was published and available to third parties as of 21 October 2020, while the EIA screening decision was published with the development consent decision on 15 February 2021 and became publicly available three working days later.

Regarding public participation under the EIA Directive, the Court held that the public was adequately informed of the consent procedure and opportunities to participate, but notifications did not reference the derogation licence. However, since no ground was pleaded contesting the adequacy of such notification with respect to the derogation licence, the applicants could not raise this issue in the main proceedings. The Court also noted the absence of statutory public participation rights in the derogation licence process.

The Court determined that the project was not subject to a full Environmental Impact Assessment but was screened, with the competent authority concluding no significant environmental effects, and dismissed the applicants’ challenge to this screening decision.

The Court accepted that the applicants could have been aware of the derogation licence on 21 October 2020 and that they could have sought further documentation thereafter, which was made available upon request. The applicants’ failure to act within the three-month period for judicial review was noted.

The legal basis for the derogation decision was confirmed as the national provision transposing Article 16(1)(a) of the Habitats Directive.

On the possibility of challenging the derogation licence outside the usual deadline, the Court explained that Irish law permits extension of time subject to good and sufficient reason and circumstances beyond the applicant’s control. The severity of the alleged error of law does not affect this discretion. The applicants did not seek an extension of time.

Finally, the Court held that the separate legal nature of the derogation licence and the applicable time limits were sufficiently foreseeable and compliant with EU law’s principle of effectiveness. The applicants’ failure to challenge within time does not render the legal framework unclear, and no plea of invalidity of the time limit rules was made.

Holding and Implications

DISPOSAL OF THE MATTER: The Court ordered that the clarifications set out in the appended text be transmitted to the Court of Justice of the European Union for consideration. Costs related to the reference and associated proceedings remain reserved.

The decision clarifies factual and legal points to assist the CJEU in its preliminary ruling. It confirms the procedural and substantive framework governing challenges to planning permissions and derogation licences under domestic and EU law, emphasizing procedural time limits, public participation requirements, and legal bases for environmental decisions. No new precedent was established beyond the direct effect on the parties and the reference process.