Factual and Procedural Background
The Applicant seeks leave to apply for judicial review to quash the decision of An Bord Pleanála ("the Board") dated 16 May 2024 granting permission for the demolition of buildings, road improvements, and the construction of a gas turbine power generation station with associated site works at Kilshane Road, Finglas, Dublin, within the jurisdiction of Fingal County Council ("the Council"). The development requires an Industrial Emissions Directive Licence alongside planning permission.
The planning application was lodged on 13 September 2022 under the Fingal County Development Plan 2017-2023. The Council requested further information twice, leading to revised plans and additional public notices, with submissions received from members of the public and public bodies. The Fingal County Development Plan 2023-2029 came into effect on 5 April 2023 during the process.
The Council granted permission on 23 June 2023 subject to conditions. Three third-party appeals were made to the Board, which ultimately granted permission on 16 May 2024 subject to 24 conditions. The Applicant did not participate in the planning or appeal processes and resides approximately 26 km from the development site and 42 km from the Malahide Estuary European sites, which are argued to be affected by the development.
The Applicant challenges the Board's decision on grounds relating to the consideration of the County Development Plan and compliance with the Environmental Impact Assessment ("EIA") Directive and Habitats Directive, with some grounds raising EU law issues. The Respondents oppose the application primarily on the basis of lack of standing ("locus standi").
Legal Issues Presented
- Whether the Applicant has sufficient interest (standing) to bring judicial review proceedings challenging the Board's decision, despite not participating in the planning process and not being directly affected by the proposed development.
- Whether the interpretation of national standing rules under section 50A(3)(b) of the Planning and Development Act 2000 (as amended) complies with EU law requirements, particularly the Aarhus Convention and the EIA Directive's 'wide access to justice' principle.
- Whether the Board and Council erred in law by failing to consider the applicable Fingal County Development Plan 2023-2029 and by not permitting submissions on it, thereby breaching natural and constitutional justice.
Arguments of the Parties
Applicant's Arguments
- The Applicant contends he has standing to vindicate environmental protections in the Fingal County Development Plan and the special protection of the Malahide Estuary European sites, relying on the Supreme Court decision in Grace & Sweetman v. An Bord Pleanála [2020] 3 IR 286.
- He argues that despite not participating in the planning process, his relative proximity to the development and the European sites, combined with the environmental nature of his grounds, confer sufficient interest to bring the proceedings.
- The Applicant asserts that the Board and Council erred by failing to consider the correct Development Plan (2023-2029) and by not allowing public submissions on it, breaching fair procedures.
- He submits that EU environmental law requires a broad interpretation of standing to ensure wide access to justice under the Aarhus Convention and EIA Directive.
Respondents' Arguments
- The Respondents argue the Applicant lacks standing as he is not directly affected, did not participate in the planning or appeal processes, and resides at a distance insufficient to infer potential impact.
- The Council contends that no relief is sought against it and that Core Ground 1 challenging the Council's decision is a collateral attack barred by section 50(2) of the Planning and Development Act 2000.
- They emphasize that numerous other parties, including public bodies and local groups, participated and did not challenge the Board's decision, illustrating that the Applicant is not uniquely placed to bring the challenge.
- The Respondents maintain that national standing rules comply with EU law and that the Applicant's failure to participate weighs heavily against a finding of sufficient interest.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Grace & Sweetman v. An Bord Pleanála [2020] 3 IR 286 |
Broad approach to standing in environmental cases; standing may be conferred by proximity and legitimate environmental interest; national rules must provide wide access to justice. |
Used to assess Applicant’s standing; court finds Applicant does not meet criteria due to lack of participation, insufficient proximity, and absence of personal interest. |
| Mulcreevy v. Minister for the Environment [2004] 1 IR 72 |
Standing may be granted broadly where no other procedural mechanism exists and the matter is of public interest. |
Distinguished as the Applicant here had opportunities to participate and several others closer to the site did so; thus broad standing not warranted. |
| Conway (No. 1) v. An Bord Pleanála [2019] IEHC 525 |
Non-participation in planning process relevant to standing; environmental grounds alone insufficient without proximity or participation. |
Applied to weigh against Applicant's standing due to non-participation and lack of proximity or environmental activism. |
| Sweetman v. An Bord Pleanála [2017] IEHC 133 |
Standing rules to be developed incrementally; question remains if general environmental interest without proximity suffices. |
Referenced to affirm that Applicant’s general environmental interest is insufficient for standing. |
| Nawaz v. Minister for Justice [2013] 1 IR 142 |
Judicial review rules apply to substantive challenges; collateral attack on decisions barred. |
Used to reject Applicant’s attempt to challenge Council’s decision process without challenging the decision itself. |
| Directive 2011/92/EU (EIA Directive), Article 11 |
Member States must ensure wide access to justice for 'public concerned' with sufficient interest. |
Referenced to confirm national rules comply with EU law; broad but not unlimited standing required. |
| Case C-137/14 Commission v. Germany |
National procedural rules must ensure wide access to justice but may impose reasonable limitations. |
Clarified that national standing rules apply and do not require disapplication due to EU law. |
| C-575/21 WertInvest Hotelbetriebs GmbH v. Magistrat der Stadt Wien |
National rules on sufficient interest apply; public concerned must meet national criteria. |
Confirmed that standing must be assessed under national law and non-participation may be a relevant factor. |
| C-826/18 Stifting Varkans v. College van burgemeester en wethouders |
Distinguishes between public and public concerned; standing limited to public concerned with interest or likely impact. |
Supports that general public without participation or sufficient connection lacks standing. |
Court's Reasoning and Analysis
The court commenced by assessing the Applicant's standing under national law, particularly section 50A(3)(b) of the Planning and Development Act 2000 and Order 84 Rule 20(4) of the Rules of the Superior Courts. It emphasized that the onus lies on the Applicant to establish sufficient interest.
The Applicant's proximity to the development and the European sites was found insufficient to infer a potential impact or legitimate interest. The Applicant did not participate in the planning or appeal processes and provided no explanation for this failure, which weighed heavily against a finding of standing. The Applicant also lacked any demonstrated personal or environmental connection to the sites or a history of environmental activism.
The court reviewed relevant case law, especially the Supreme Court's decision in Grace & Sweetman, which requires a broad but not unlimited interpretation of standing in environmental cases. It concluded that the Applicant's circumstances do not meet the threshold for standing, as he neither suffered personal prejudice nor participated in the process.
Turning to EU law, the court acknowledged the requirement of 'wide access to justice' under the Aarhus Convention and the EIA Directive. However, it held that these do not mandate disapplication or broadening of national standing rules to include any member of the public raising environmental grounds without participation or sufficient connection. The court relied on CJEU jurisprudence confirming the compatibility of national standing rules with EU law, provided they afford wide access to justice to the 'public concerned'.
Regarding Core Ground 1, the court found that the Applicant's challenge to the Council's procedures amounted to a collateral attack on the Council's decision, which is prohibited by section 50(2) of the 2000 Act. The court rejected the Applicant's attempt to separate procedural challenge from the validity of the Council's decision.
Holding and Implications
DISMISSED
The court refused leave to apply for judicial review on the basis that the Applicant lacks sufficient interest (standing) to maintain the proceedings. The decision confirms that national standing rules under the Planning and Development Act 2000, as interpreted, comply with EU law requirements for wide access to justice in environmental matters. It reinforces that non-participation in planning processes and absence of direct or proximate impact are significant factors in denying standing. The ruling limits standing to those with a legitimate connection or who have engaged in the planning process, thereby preventing broad public challenges by persons without sufficient interest. No new precedent was set beyond applying established principles to the facts.