High Court refers questions to the CJEU on whether the High Court is compelled under the EIA Directive to rule on the validity of an impugned development consent in spite of the fact that the parties want the proceedings to be struck out on consent
By Cathal Lenaghan BL
In Dempsey v An Bord Pleanála  IEHC 188, the High Court has decided to refer three questions to the CJEU where an important question of EU law arose. The issue was whether there can ever be a scenario in which a national court may be compelled to deliver a ruling where the party who initially invoked the court’s jurisdiction pursuant to a judicial review procedure which gives effect to the Article 11 of the Environmental Impact Assessment Directive (2011/92/EU) (“the EIA Directive”), can apply to have the proceedings struck out.
In an interim judgement handed down by Mr. Justice Simons, the ruling was confined to the issue of whether a decision by the Court of Justice on the interpretation of the EIA Directive was necessary to enable the High Court to give judgment on the issue which has arisen in the proceedings before it. The main proceedings are currently stayed pending the determination of the reference by the Court of Justice.
The proceedings sought to challenge a decision to grant development consent for a large-scale residential development in Clane, Co.Kildare. One of the principal grounds of challenge advanced in the proceedings involved a contention that An Bord Pleanála had failed to comply with its duty to state the “main reasons and considerations” for its decision to grant permission. It was alleged this was a breach both of domestic law and of 2011/92/EU.
On the third day of the hearing, it was indicated to the Court that a settlement had been reached between the parties. The applicants applied for leave to strike out the proceedings with no further order which was supported by the Respondents and the Notice Party. The Court raised doubts in relation to whether it had jurisdiction to strike out the proceedings where it had a concern over a potential breach of the EIA Directive.
Settlement of proceedings
All parties to the proceedings advanced both written and oral submissions to the effect that there was a public interest in the settlement of legal proceedings, and that the court should not depart from its “passive” role in litigation. Mr. Justice Simons noted at para 64:
‘‘64…In nearly any other case, those submissions would have persuaded me to accede to an application to strike out the proceedings. On the peculiar facts of the present case, however, the precise obligations imposed upon a national court by the EIA Directive are not acte clair, and a reference to the Court of Justice is necessary to enable me to rule upon the application to strike out the proceedings.’’
The question of whether a national court should abandon its normal passive role in proceedings in order to raise issues of EU environmental law ex officio was considered by the Court. The issue was previously considered by Advocate General Kokott in Case C-416/10 Krizan in a different factual context.
The Opinion in Krizan was considered by Simons J and it was contended that the rationale underpinning the Opinion had been undone by two recent developments. Firstly, the distinction between (i) a complete dispensation with an environmental impact assessment, and (ii) a defective environmental impact assessment, has been rejected by the Court of Justice in Case C-72/12, Altrip. Secondly the robust approach taken in cases such as Case C-261/18, Commission v. Ireland (Derrybrien Wind Farm) was cited as a further factor. The absence of an express proviso from the EIA Directive, stating that a development consent is to be invalid in the event of defects in the environmental impact assessment, would appear to be of less relevance post-Derrybrien.
At Para 39 of the draft reference, Simons J offered the view of the High Court in referring the matter concluding that it should refuse an application to strike out the proceedings if certain conditions are met:
‘’39…Where a national court’s jurisdiction to review the substantive and procedural legality of a development consent pursuant to Article 11 of the EIA Directive has been invoked, the national court should refuse an application to strike out the proceedings if the following conditions are met (i) the pleadings in the case are closed and the hearing of proceedings has commenced; (ii) there is a prima facie case that the development consent has been granted in breach of the public participation provisions of the EIA Directive; and (iii) the national court already has available to it the legal and factual elements necessary to rule on the substantive or procedural legality of the impugned development consent and would be able to do so without going beyond the case as pleaded by the parties. In a scenario where these conditions are met, the national court should refuse to strike out the proceedings. The parties should then be offered the opportunity to complete the hearing in the ordinary way, but if they decline this offer, the court should then proceed to prepare its judgment.’’
The three questions referred for a preliminary ruling address the issue of the obligation on a national court to take all measures necessary, within the sphere of its competence, to remedy the failure to carry out an environmental impact assessment in accordance with the EIA Directive in line with the standard prescribed by the CJEU in Case C-201/02 Wells2.
Subsequent legal developments
There have been two significant legal developments since the interim judgement in this case was handed down.
Firstly, Advocate General Kokott has delivered an Opinion in Case C-254/19 Friends of the Irish Environment Limited v An Bord Pleanála, pending before the CJEU and appears to have identified a similar obligation to that identified by Simons J in Dempsey at para 60:
60. The reference to the express assertion of a specific plea suggests applying the case-law on the obligation of courts to examine certain question of their own motion. According to that case-law, while EU law does not require national courts to raise of their own motion a plea alleging infringement of provisions of EU law where examination of that plea would oblige them to go beyond the ambit of the dispute as defined by the parties, they are obliged to raise of their own motion points of law based on binding EU rules only where, under national law, they must or may do so in relation to a binding rule of national law.
The Advocate General went on to note at para 69 that:
“69. In any event, the obligation of a national court to interpret national law as far as possible in accordance with EU law does not require that the parties to the proceedings before it expressly assert that specific interpretation, if those parties allege at least an infringement of the relevant provisions of EU law.”
The mention by AG Kokott of the Court interpreting EU law of its own Motion would seem to support the contention that the High Court going forward may be compelled to assume a more investigative position or provide greater oversight than it would ordinarily have done in such circumstances. That is to say, a Court may be permitted to determine certain issues relating to breaches of EU law in circumstances where they have not been expressly pleaded by parties to the proceedings.
Secondly, the Attorney General has requested that the drawing up of the Order for the Article 267 TFEU reference in the Dempsey case be adjourned until 5 June 2020 to consider if it would be appropriate, to issue an application to the court to be joined to the proceedings as a notice party. The formal order for a reference was not to be drawn up until the issue of the Attorney General’s participation in the proceedings before the High Court has been resolved. The Attorney General was given liberty to bring a Motion to be joined to the proceedings. The Motion was to be issued before Friday 5 June 2020 with a return date of 19 June 2020. At the time of writing it was not yet apparent, what involvement if any the Attorney General was going to have in the proceedings.
These proceedings represent a novel development in that this issue had never been previously raised by a Court in the context of querying whether it was appropriate to strike out proceedings where the parties indicate that a settlement has been reached in public law proceedings.
If the reference is maintained view of the referring Court is answered in the affirmative by the CJEU, there is potential for a significant change in the conduct of planning and environmental judicial review proceedings going forward. In any such case, where a settlement might have been hoped for, such a settlement would need to be effected when the proceedings are at an earlier stage of gestation, perhaps even before the filing of opposition papers. In the interim, if a settlement is to be ruled in such proceedings, parties would need to inform the Court of the Dempsey case and the view of Mr. Justice Simons on the matter.
The judgment of the Court of Justice on the Article 267 TFEU reference will provide significant clarity on whether the public interest in judicial review proceedings concerning EU Law requires the Court to rule on the legality of a development consent in circumstances where all parties to the proceedings seek to have the matter settled.
 Judgments of 14 December 1995, van Schijndel und van Veen (C‑430/93 and C‑431/93, EU:C:1995:441, paragraphs 13, 14 and 22); of 24 October 1996, Kraaijeveld and Others (C‑72/95, EU:C:1996:404, paragraphs 57, 58 and 60); of 12 February 2008, Kempter (C‑2/06, EU:C:2008:78, paragraph 45); and of 26 April 2017, Farkas (C‑564/15, EU:C:2017:302, paragraphs 32 and 35).