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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Murphy v An Bord Pleanala & Anor (Approved) [2025] IEHC 117 (04 March 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025_IEHC_117.html Cite as: [2025] IEHC 117 |
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THE HIGH COURT
PLANNING AND ENVIRONMENT
[2025] IEHC 117
Record No.: 2024/883 JR
IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)
Between/
NOEL MURPHY
Applicant
-and-
AN BORD PLEANÁLA AND FINGAL COUNTY COUNCIL
Respondents
-and-
KILSHANE ENERGY LIMITED
Notice Party
Judgment of Ms. Justice Emily Farrell delivered the 4th day of March 2025:
1.The Applicant seeks leave to apply for orders by way of judicial review including an order of certiorari quashing the decision of An Bord Pleanála dated 16th May 2024 to grant permission for the demolition of buildings, road improvement works and the construction of a gas turbine power generation station with associated site works. (ABP-317480-23) The site of the proposed development is at Kilshane Road, Kilshane, Finglas, Dublin and is within the functional area of Fingal County Council ('the Council'). The proposed development requires an Industrial Emissions Directive Licence in addition to planning permission.
2.The application for leave to apply for judicial review was filed on 9th July 2024, and accordingly is brought within time.
3.The Applicant lives in Straffan Co. Kildare, at a location which the court was informed is approximately 26 kms from the proposed development and 42kms from Malahide Estuary, County Dublin. The Applicant acknowledges that he did not participate in the planning process before Fingal County Council or the Board and gives no reason for not having done so. He accepts, through his counsel, that he is not directly affected by the proposed development.
4.After publication of the proposed application under Article 17 of the Planning and Development Regulations, 2001, submissions or observations were made by eight parties. The application was lodged on 13th September 2022, on which date the Fingal County Development Plan 2017 - 2023 was in effect. A request for further information was made by the Council on 7th November 2022, which was responded to on 11th January 2023. The request for further information sought additional details of the proposed development, monitoring and limitation of output capacity, a revised Appropriate Assessment Screening Report, revised EIAR, and Green Infrastructure Plan. Arising from the further information and revised plans received, Fingal County Council required publication of notices on 13th January 2023. Following this, observations were made by two members of the public and five public bodies - Irish Water/Uisce Eireann, the Department of Housing, Local Government and Heritage, the Health and Safety Authority, HSE Environmental Health Services and the Commission for the Regulation of Utilities.
5.On 22nd February 2023, the Fingal County Development Plan 2023 - 2029 was adopted and it came into force on 5th April 2023.
6.A second request for further information was made by Fingal County Council on 14th March 2023, and responded to on 24th April 2023. This request sought further responses in respect of the Appropriate Assessment Screening Report, and revisions to the EIAR, and a Green Infrastructure Plan was sought in accordance with Object GI22 of the Fingal Development Plan 2017 -2023. The Green Infrastructure Plan submitted in April 2023 also addressed the consistency of the proposed development with the Green Infrastructure and Natural Heritage Policies and Objectives in the 2023 - 2029 Development Plan.
7.Thereafter, the Council considered that that response contained significant further information or revised plans and on 26 April 2023 issued a notice to the Developer requiring another notice to be published in respect of this further information. Four submissions were made by members of the public, including one submission on behalf of Balbriggan Climate Club and another on behalf of Fingal One Future. On 21st June 2023, the Council concluded that a sufficient response to the request for further information had been received.
8.Fingal County Council issued a notification of decision to grant the permission sought subject to three conditions on 23rd June 2023.
9.Three third party appeals were submitted to An Bord Pleanála. Two observations were made in respect of the appeal including one by the Dublin Airport Authority. The developer, who is the Notice Party and the Fingal County Council also made submissions in response to the appeals.
10.On 13th February 2024 the Board's Inspector recommended that permission be granted for the proposed development, subject to 24 conditions. By Direction made the 9th May 2024, the Board directed that permission be granted subject to 24 conditions and the Board made that Order on 16th May 2024.
11.The Applicant seeks leave to challenge the Board's decision on the grounds set out in the proposed amended Statement of Grounds. The Respondents have not objected to the Applicant relying on the amended Statement of Grounds, nor have they raised any objection in relation to the timing of the service of the amended Statement. The grounds on which the Applicant seeks leave relate to consideration of the County Development Plan and the manner in which the Board considered the matter under the EIA Directive and Habitats Directive. Core Grounds 1, 2, and 3 are accepted by the Applicant to be purely domestic, whereas Core Grounds 4 and 5 raise issues of EU law.
12.Subsequent to the application for leave being opened on 7th October 2024, I directed that the application be brought on notice to the Respondents and Notice Party on 14th October 2024. The Notice Party has not taken part in the application for leave. Written submissions were filed by the Applicant and Respondents, who filed affidavits and oppose the grant of leave on the basis of lack of locus standi. The Council also argued that no relief was sought against it, and that Core Ground 1 amounts to a collateral attack on the Council's decision, which decision has been superseded by the Board's decision. The application for leave on Core Ground 3 was withdrawn at the hearing of the application for leave on 31st January 2025.
13.The onus of proof rests on the applicant in a judicial review at all times: Meadows v. Minister for Justice [2010] 2 IR 701; Dublin 8 Residents Association v. An Bord Pleanála [2022] IEHC 116. Therefore, the onus of establishing that leave should be granted, including that the Applicant has a sufficient interest, rests on him.
14.The Applicant contends that he has standing to bring these proceedings, despite acknowledging that he is not directly affected by the proposed development and that he did not take part in the planning process which led to the Board's decision to grant permission. He argues that he has standing, relying on the joint judgment of Clarke and O'Malley JJ., (with whom the other members of the court agreed) in Grace & Sweetman v. ABP [2020] 3 IR 286.
15.The Amended Statement of Grounds contends that the Applicant has a sufficient interest in the decision challenged, stating:
"73. The Applicant's challenge to the development is based on the non-compliance with the Fingal County Development Plan, and in particular, the objectives relevant to the production of energy from renewable sources, submissions and which were not sourced from any person by the Board. As such, it is necessary for the Applicant to bring the within proceedings to vindicate the environmental protections of the Development Plan.
The challenge further seeks to properly vindicate the special protection of the Malahide Estuary European sites which are affected by the proposed development. In this regard, the Applicant will rely on Grace and Sweetman v. An Bord Pleanála [2020] 3 IR 286 to the effect that the Applicant has a sufficient interest in the decision challenged."
16.The evidence supporting the Applicant's contention that he has standing is contained in the affidavit sworn by him the 9th July 2024, which affidavit also verifies the facts set out in the Statement of Grounds. Replying affidavits have been sworn on behalf of the Respondents but no material facts are in dispute. The Applicant avers:
"6. I say and believe I have standing to participate in the proceedings, in circumstances where the Applicant's challenge to the development is based on the material contravention of the Fingal County Development Plan, and in particular, the objectives relevant to the production of energy from renewable sources, submissions on which were not sought from any person by the Council. As such, it is necessary for the Applicant to bring the within proceedings to vindicate the environmental protections of the Development Plan.
7. The proceedings further seek to vindicate the special protection afforded to the Malahide Estuary European sites, which are to be affected by the Proposed Development.
8. In such circumstances, I say I have a sufficient interest in the decision challenged."
17.The Applicant characterises Core Grounds 1 - 3 as domestic grounds, and Core Grounds 4 and 5 as European Grounds. Core Ground 3 has been withdrawn.
18.The submissions made by the Applicant orally on 7th October 2024, when the application for leave opened and before I directed that the application for leave be put on notice, included the following:
"unlike Grace, we are not directly affected whereas in the Grace decision she was directly affected, so that is a distinguishing feature..."
and
"I fall into the category of not having physical proximity but I say the site, and what it is, is one that is of general concern and a general amenity area and within that second category that the Supreme Court has said."
19.At the hearing of the application on notice, the case made by the Applicant is that he is not in the position of any member of the public, but that he resides "somewhat close" to the proposed development, and significantly closer to the relevant sites than the applicants in McDonagh v. An Bord Pleanála and Conway (No. 1) v. An Bord Pleanála. He also contends that it is significant that the grounds relied upon are solely environmental grounds.
20.As the Applicant was not challenged in relation to the change in position taken regarding proximity to the Malahide Estuary on 7th October 2024, I shall deal with the submission made in relation to proximity at the hearing on 27th January 2025. However, the Applicant has not sought to identify the outer distance from the European sites, or the proposed development, which would be sufficient to confer standing on a person who seeks to institute proceedings in an attempt to vindicate the protection afforded to those sites. No criteria or method has been proposed for the assessment by the court of what is sufficient proximity.
21.No other factors have been advanced by the Applicant in support of the claim that he has a sufficient interest or standing. It is acknowledged that he suffers no personal prejudice and is not directly affected by the proposed development. The Applicant has not suggested that he has a particular connection with, or interest in, the Malahide Estuary SAC, nor does he assert that it is of any particular amenity value to him which is or might arguably be impaired by the Board's decision to authorise the proposed development. He has not disclosed any personal interest or history of involvement in protection of the environment.
22.In his written submissions, the Applicant states:
"23. In other words, a person with a sufficient interest in the environmental protection of a site - which is more likely to be established in cases involving sites of European designation - is within the "public concerned" under Article 11 of the EIA Directive and enjoys a right of access to the Courts to challenge administrative decisions concerning the environment.
24. In the present circumstances, the Applicant did not participate in the process and is not personally prejudiced by the Decision. However, in circumstances where the proceedings are brought to vindicate the special protection of the Malahide Estuary sites, the requirement of "sufficient interest" is satisfied, given the necessity of interpreting this requirement broadly in environmental cases as set out in Grace, and in line with Ireland's obligations under EU law."
23. O. 84 r. 20(4) of the Rules of the Superior Courts 1986 requires that leave to seek judicial review should not be granted unless the applicant "has a sufficient interest in the matter to which the application relates".
24. Section 50A(3) and (4) of the Planning and Development Act 2000 (as amended) provide:
" (3) The Court shall not grant section 50 leave unless it is satisfied that—
(b) (i) the applicant has a sufficient interes t in the matter which is the subject of the application, or
...
(4) A sufficient interest for the purposes of subsection (3)(b)(i) is not limited to an interest in land or other financial interest."
25. Subsection 50A(3)(b)(ii) is not applicable and is not relied upon by the Applicant.
26.The previous requirement in section 50(4) of the 2000 Act, that a person participated in the planning process was removed by section 13 of the Planning and Development (Strategic Infrastructure) Act 2006. It is clear from the authorities that the failure of the Applicant to participate in the planning process is not a bar to standing, but it is a relevant factor to be taken into consideration.
27.It is appropriate to assess the Applicant's standing by reference to the national provisions. Only if he is found not to have standing under the national rules, is it appropriate to consider whether EU law requires modification of the national rules in a manner which permits the Applicant to maintain these proceedings. This is the approach taken by the Supreme Court in Grace & Sweetman (para. 49) and by Barniville J. (as he then was) in Conway (No. 1) (para. 42).
28.The assessment of standing in judicial review proceedings, in particular those relating to planning or environmental matters, has been comprehensively considered by the Supreme Court in Grace & Sweetman v. An Bord Pleanála, and by the High Court in Conway v. An Bord Pleanála (No. 1) [2019] IEHC 525, McDonagh v. An Bord Pleanála [2017] IEHC 586 and Sweetman v. An Bord Pleanála & Ors [2017] IEHC 133. It commences with consideration of Order 84 r. 20(4) RSC and, in cases governed by section 50 of the 2000 Act, section 50A(3) of that Act.
29.In Grace & Sweetman, Clarke and O'Malley JJ. found, having considered Cahill v. Sutton [1980] IR 269, that "the broad rule requires that a challenger must establish adverse effect causing or likely to cause injury or prejudice." (para. 34) The Applicant does not rely on any personal risk of adverse effect or prejudice arising from the decision to grant permission in respect of the proposed development.
30.Clarke & O'Malley JJ. held that "This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception or qualification when the justice of the case so requires." They quoted the statement of Henchy J. in Cahill v Sutton (pp. 284-5) "there will be cases where the want of the normal locus standi on the part of the person questioning the constitutionality of the statute may be overlooked if, in the circumstances of the case, there is a transcendent need to assert against the statute the constitutional provision that has been invoked." (para. 29)
31.Undoubtedly the category of litigants who have standing in cases raising environmental issues is broader that those who might be expected to suffer a direct and personal adverse effect, prejudice or injury. The Supreme Court considered Mulcreevy v. Minister for the Environment [2004] 1 IR 72; [2004] IESC 5, in which a resident of Kerry was found to have standing to challenge the National Monuments (Approval of Joint Consent) Order, 2003. That Order was made by the Minister for the Environment who consented to the building of a motorway along a route which required the removal or destruction of part of a national monument in Dublin, as that was found to be in the public interest. Keane C.J., with whom the other members of the Court agreed, held:
"It has been made clear in decisions of the High Court and this court in recent times that it is not in the public interest that decisions by statutory bodies which are of at least questionable validity should wholly escape scrutiny because the person who seeks to invoke the jurisdiction of the court by way of judicial review cannot show that he is personally affected, in some sense peculiar to him, by the decision. ...
It is at the same time essential to bear in mind that, while it is undesirable that invalid legislation or unlawful practices should escape scrutiny because of the absence of an indisputably qualified objector, it is also important to ensure that unfounded and vexatious challenges are not entertained."
32.Significantly, there had been no opportunity for the public to participate in the process which led to the making of the 2003 Order. The proceedings were brought under Order 84 RSC. Keane C.J. noted:
"This is not a case in which, as under the planning code, the legislature had provided an elaborate appeals procedure and by other legislative provisions has sought to ensure that the judicial review procedure should not be availed of as a form of further appeal. In this case, moreover, as will shortly appear, in at least one instance it most certainly cannot be said that the ground on which the applicant seeks to rely is without substance." (page 11; 79)
33.In Grace & Sweetman, the Supreme Court considered that " a reasonably liberal approach is taken to the sort of interest which must be potentially affected in order to confer standing in environmental cases. Persons clearly can have an interest by virtue of proximity to the proposed development. The degree of proximity required may well depend on the scale and nature of the development in question ." (para. 43) They contrasted the size of the catchment area where there is a potential impact of a large-scale development on persons with the much more restricted area which may be impacted by a minor domestic development. Grace & Sweetman is not authority for the proposition that a potential applicant would have standing simply by reference to a proposed development, or to a European site, being within a particular distance of their home, workplace or other amenity used or enjoyed by them. Proximity to a proposed development is not a measurement by which standing can be established, but rather depending on the circumstances, it may be indicative of a potential impact of a proposed development on an intended applicant.
34. In Conway (No. 1) Barniville J. had regard to the fact that, in Grace & Sweetman, the Supreme Court considered that where it was unlikely that any person could demonstrate that the proposed development would have any "direct effect on their own affairs including their enjoyment of an amenity", the requirement of "sufficient interest" would need to be interpreted in a way which protected the site against adverse effects. This is consistent with the approach taken in Mulcreevy. Barniville J. found that that was not the case in Conway (No. 1) as the party most directly affected by the decision to refuse approval for the proposed development was the Council, and he noted that the Council had not sought to challenge the Board's decision.
35.Additional factors to which the Supreme Court had regard included the nature and general importance of the site or amenities sought to be protected. Developments which have the potential to have a material and significant effect on the environment generally or which raise questions of particular national or international importance may confer standing on a much wider range of persons. The nature of the measure under challenge is also a relevant consideration. Mulcreevy was considered to have suggested that the nature of the measure under challenge may potentially be "such as to confer a right to challenge on a very wide range of persons (and possibly, in some cases, on all persons not motivated by bad faith or the like)."
36.The Supreme Court concluded, in relation to national rules, that:
"standing in environmental cases involves a broad assessment of whether the legitimate and established amenity or other interests of the challenger can be said to be subject to potential interference or prejudice having regard to the scale and nature of the proposed development and the proximity or contact of the challenger to or with the area potentially impacted by the development in question. Furthermore, that broad assessment should have regard, in an appropriate case, to the legitimate interest of persons in seeking to ensure appropriate protection of important aspects of the environment or amenity generally." (para. 45)
37.It was argued by the Board, by reference to Sweetman v. An Bord Pleanála [2017] IEHC 133, that the only category of people which was left open by the Supreme Court in Grace & Sweetman were people who have a general interest in environmental matters but are insufficiently proximate or connected with the specific site. In Sweetman v. An Bord Pleanála [2017] IEHC 133 Haughton J. stated that, following Grace and Sweetman, the question of what may constitute "the legitimate and established amenity or other interests of the challenger" will now need to be developed incrementally in future decisions of the Superior Courts. He held that the Supreme Court had left open the question "whether a person with the general interest in environmental matters, but insufficient proximity connection to/or specific interest in the amenity value of the site of the proposed development, may have locus standi under Irish law as an exceptional case."
38.The national rules must be interpreted in light of the concept of 'wide access to justice' in Directive 92/2011: Grace & Sweetman (para. 46) and Conway (No. 1) (para. 22).
39.As the Aarhus Convention and Public Participation Directive, Directive 2003/35/EC, and indeed the consolidated EIA Directive, recognise the entitlement of the Member States to apply their national rules relating to standing, it follows that European law recognises that the Member States may impose limits on those who have standing.
40.The Supreme Court made clear in Grace and Sweetman that the starting point in determining the question of standing must be a consideration of Irish standing rules although, the court noted, "it may ultimately be necessary to consider whether those rules are consistent with the 'wide access to justice' requirement imposed by European law" but that this should only be considered if the proceedings would fail for lack of standing under the national rules (paras. 24 and 49).
41.As Ms. Grace was found to have standing under the national rules and the case could therefore proceed, the Supreme Court did not consider it necessary to decide whether Mr. Sweetman had standing, nor to consider whether national rules were required to be altered or disapplied in light of EU law.
42.As noted by the Supreme Court, Mr. Sweetman undoubtedly had an interest in environmental matters generally. They stated "If someone had a broad interest in a particular amenity value which they asserted was sufficient to give them standing, it might be expected that their general interest in the issue would have led them to participate or, at a minimum, that there would be some reasonable explanation for non-participation." (para. 59) No explanation has been offered for the failure of the Applicant to participate in the planning process, nor has he demonstrated a particular interest in the particular sites or the protection of the environment generally.
43.The following factors were identified as significant in the assessment of locus standi:
- The proposed development was intended to be carried out within a European site, which is a factor which must carry significant weight (para. 51);
- Whether, in the normal course of events, the nature of the protected site which it is asserted would adversely affected is unlikely to cause personal prejudice or injury to the interests of individual objectors (para. 52);
- Whether the applicant had participated in the process which led to the decision sought to be impugned, and if not, the explanation offered for failing to do so (paras. 54 - 55);
- "a person who has a sufficient proximity, having regard to the nature of the development and any amenity in the location of the development (which might potentially be impaired), will have standing even without participation. Those who do not have such proximity may reasonably be required to show that they have some interest which is potentially affected and one very clear way of doing that is by demonstrating that interest by participation in the permission process. That is not, however, the only way in which such an interest can be demonstrated ." (para. 56)
- The more general the nature and more important the amenity which may be at stake, the wider the range of persons who may have a sufficient interest (para. 57);
- The nature of the legal challenge intended to be mounted - "a challenger who has not previously participated and cannot show any direct personal prejudice must satisfy the leave judge that the point being made is one directed solely to the purpose of the special protection of the site." (para. 57).
44.There were many factors which led to the conclusion that Ms. Grace had standing to challenge the proposed development. Unlike in Grace & Sweetman, the site of the proposed development is not within a European site, but it is approximately 9.5 kms from the Malahide Estuary which includes two European sites. These sites are close to built-up areas, with a relatively large population. The Applicant did not advance an argument that it would be unlikely that any person could demonstrate that the proposed development would have any direct effect on their own affairs including enjoyment of amenity, nor was it submitted that he is in as good a position as any other to challenge the decision to permit the proposed development. Unlike the site in Grace, which included the habitat of the hen harrier - a bird of prey which does not frequent areas of built-up human habitation or intensive farming - it is clear that both the site of the proposed development and Malahide Estuary are areas where it could not be said that developments which may have an adverse effect are "unlikely, in the normal course of events, to cause any personal prejudice or injury to the interests of individual objectors." Therefore, the concern expressed at para. 52 that the protection of a European site could be gravely weakened if standing was confined to persons who could demonstrate a direct effect on their own affairs, including loss of enjoyment of an amenity, does not arise in this case.
45.Five public bodies and twelve private individuals or groups made submissions or observations during the planning process; three of the latter appealed the decision of the Council to grant permission to the Board. The Applicant did not participate in the process, either before the Council or the Board. No explanation has been proffered for failing to do so.
46.There is no basis for contending that the legal protection of the sites in the Malahide Estuary would be gravely weakened if 'sufficient interest' is not interpreted in such a broad fashion as to include any person who seeks to vindicate the protection of those European sites simply by raising environmental issues in judicial review proceedings. The Applicant relies on para. 57 of the judgment of Clarke & O'Malley JJ.:
"The more general and more important the amenity which may be at stake, then the wider range of persons who may well be able to show that they have an interest in the amenity of the area which is the subject of the proposed development. The nature of the legal challenge intended to be mounted will be relevant also. For example, a person who cannot show proximity to a proposed wind farm and did not participate in the process is unlikely to have standing to make an argument more properly raised by a person more directly affected. In our view a challenger who has not previously participated and cannot show any direct personal prejudice must satisfy the leave judge that the point being made is one directed solely to the purpose of the special protection of the site."
47.I do not consider that this dictum is authority for the proposition that once the grounds sought to be advanced in judicial review proceedings are directed solely to the purpose of the special protection of a European site, it follows that any person has a sufficient interest. At para. 45, it was held that "standing in environmental cases involves a broad assessment of whether the legitimate and established amenity or other interests of the challenger can be said to be subject to potential interference or prejudice having regard to the scale and nature of the proposed development and the proximity or contact of the challenger to or with the area potentially impacted by the development in question. Furthermore, that broad assessment should have regard, in an appropriate case, to the legitimate interest of persons in seeking to ensure appropriate protection of important aspects of the environment or amenity generally."
48.The Applicant relies jointly on his 'relative proximity' to the proposed development and European sites and the nature of the claim to demonstrate that he has locus standi. As appears from the judgment in Grace and Sweetman, the relevance of proximity is linked to the potential impact of a development on an intended applicant - whilst it is true that the Applicant lives significantly less far from the protected sites, and proposed development than the applicants in McDonagh and Conway (No.1), it cannot reasonably be said that he lives close to either site. He does not point to any contact with the sites in question and concedes that there is no potential adverse impact on him or his interests.
49.Having considered Grace in McDonagh, McDermott J. held that:
"If a person does not have a reasonably close proximity to the development in question or an established connection with a particular amenity value which may arguably be impaired by the proposed development and fails to participate in the planning or appeal process, a doubt may be cast upon the standing of such persons to bring a challenge of this kind. Further doubt may arise from an absence of any significant explanation as to why they did not participate..." (para. 11)
50.The Board contends (and the Council agrees) that, in this case, there are approximately 290,000 residents of Fingal County Council who are better placed than the Applicant to challenge the alleged failure of the Board to appropriately apply the Development Plan, and many tens, if not hundreds of thousands, who are closer to the European sites which the Applicant asserts may be adversely affected by the proposed development. While submissions were not expressly invited on the new CDP, it came into force before Fingal County Council decided the application, and before the decision was appealed to the Board. Undoubtedly the sites sought to be protected are important sites. However, this is not a case where there would be few, if any, persons with standing, if the requirement that an applicant have 'sufficient interest' is not interpreted in the very broad fashion advanced by the Applicant. The European sites sought to be protected are not remote. It must also be noted that others had exercised the right to participate, including members of the public, statutory bodies and local environmental interest groups, none of whom have sought to challenge the Board's decision.
51.I find that the Applicant does not have sufficient proximity to the European sites for that to be a factor which supports his claim to have a sufficient interest.
52.Had the Applicant participated in the process before the Board, he would have standing. His failure to participate coupled with the lack of any explanation is a factor which weighs heavily against a finding that he has a sufficient interest, in the circumstances of this case. He was entitled to participate in the process which led to the decision he seeks to challenge; he does not assert that he was prevented or impeded from exercising that right for any reason. Whilst it does not follow automatically that he does not have standing, the Applicant would need to demonstrate a legitimate interest in relation to the protection of the environment or amenity generally in order to overcome the fact that he passed up an opportunity to participate. The Applicant cannot distinguish himself from any other member of the public who had not participated in the process and was not sufficiently proximate to the relevant sites to give rise to the inference that his interests may be affected thereby. Unlike Mr. Sweetman, or Mr. Conway, he does not even assert a general interest in environmental matters nor that he has a history of involvement in the protection of the environment.
53.I am satisfied that 'sufficient interest' in section 50A(3)(b) is not required to be interpreted so broadly as to apply to any person who seeks to advance environmental grounds in judicial review proceedings, simply because they relate to a European site. Having rejected the contention that the Applicant has sufficient proximity to the relevant sites to be a relevant factor, the effect of the remainder of Applicant's argument that he has standing is that any person who seeks to rely on the grounds advanced by him would have standing. There may well be cases in which it will be necessary to assess standing so broadly as to encompass any person in the Applicant's position, having regard to need to protect specific important sites or the nature of issues sought to be litigated. This is not such a case.
54.Mr. Mulcreevy was in no less strong a position to bring the proceedings to seek to protect a designated National Monument than any other members of the public; the only means by which he could have opposed or challenged the making of the Order was by the institution of judicial review proceedings. In contrast, multiple persons and statutory bodies participated in the process which led to the grant of permission for the proposed development. The sites sought to be protected are not so remote that there are not persons who live sufficiently proximate thereto to be potentially impacted by the proposed development. The Applicant has put no evidence before the Court of any previous interest in, or history of striving to protect, the environment generally, or the European sites.
55.It is clear that the grounds relied upon by the Applicant do relate to the protection of the environment and include EU environmental law grounds. The Applicant has withdrawn Core Ground 3. It is submitted by the Applicant that the Board's decision is invalid by reason of the alleged failure of the Board to comply with the Development Plan, failure to consider project splitting, and manner in which the Appropriate Assessment screening was carried out, and that these "ultimately affect the said European sites" and that the "proceedings are brought to vindicate the special protection of the Malahide Estuary sites." The grounds advanced rely solely on the material which was before the Board and the contents of the Board's Decision and Order, and the Inspector's Report. Each of these grounds have an environmental protection dimension.
56.The Applicant asserts at para. 74 of the Amended Statement of Grounds that the special protection of the Malahide Estuary European sites is affected by the proposed development. At para. 44 of his affidavit sworn the 9th July 2024, the Applicant states:
"I say that I intend to commission expert reports and certain technical matters which arise in these proceedings but that this evidence is not yet available due to the short limitation period. Therefore I reserve my right to file further affidavits once that evidence is ready."
The Applicant neither filed, nor sought liberty to file, a supplemental affidavit.
57.The Applicant seeks to distinguish both McDonagh and Conway (No.1). As in each of those cases, the failure of the Applicant to participate is not the only basis on which the Respondents contend he lacks standing.
58.The Applicant sought to distinguish McDonagh by submitting that Mr. McDonagh had not relied on environmental grounds. However, as appears from paras. 25 - 33 of the judgment environmental grounds, particularly regarding the EIA and evaluation of climate change effects under the EIA Directive, were relied upon.
59.The basis on which McDermott J. found that Mr. McDonagh did not have standing are set out at paragraphs 13 - 14. No finding has already been made on the Applicant's application for leave to apply. Despite the initial concession that the Applicant was not sufficiently proximate and subsequent reliance on 'relative proximity', no issue of lack of bona fides is raised or evident.
60.The following factors, which were taken into account in McDonagh, arise in the following way in the instant case:
- Although the applicant lives closer to the site than Mr. McDonagh, he does not live in physical proximity to the sites in issue. He lives in Straffan, Co Kildare;
- He did not participate in the planning process before Fingal County Council or the Board;
- No evidence is provided to demonstrate when the Applicant became aware of the application nor is any explanation proffered as to why he did not participate in the process.
- There is no evidence to indicate that he had any local and conservation interest in the European sites at Malahide Estuary, nor evidence of any wider interest in the area based on its designation as an SPA as in Ms. Grace's case.
- The proposed development is not within a special area of conservation or special protection area and is over 9kms from the European sites in Malahide Estuary.
61.The Applicant relies on the fact that he lives closer to the proposed development or European sites than the applicants in McDonagh and Conway (No, 1). That fact is not a point of distinction between the judgments and this case. Whilst it has been submitted that the Applicant is 'just inside the line' which should be drawn to distinguish between persons who have standing to challenge the proposed development and those who do not, the Applicant has not advanced any means of assessing where to the line should be drawn. The Applicant accepts he is not potentially affected by the proposed development. I have found that proximity is relevant to the potential impact of a proposed development, including by reference to loss of amenity. It is accepted that there is no prejudice to the Applicant nor any adverse impact. The fact that he lives less than half the distance away from the relevant sites than the applicants in those cases does not assist the Applicant in demonstrating that he has a sufficient interest.
62.It is accepted by the Applicant that the fact that the applicant in Conway (No. 1) was described as an environmental activist was a factor which was not present in the instant case, and one which tended to support the contention that he had standing. Notwithstanding that, Mr. Conway was found not to have a sufficient interest. Undoubtedly the fact that the application for permission had been refused in Conway was relevant. In rejecting the explanation given for not participating in the planning process (that Mr. Conway expected the Board would have made a different decision), Barniville J. noted that such an explanation could potentially be offered by any person who failed to participate but subsequently sought to bring judicial review proceedings. (para. 45)
63.In granting a certificate to enable the applicant bring a freestanding challenge to the validity of section 5 of the 2000 Act (as amended) under EU law in Sweetman v. An Bord Pleanála, Haughton J. considered the following background facts were factors which an appellate court might consider relevant: the proposed wind farm and grid connections were within or adjacent to European sites; they were within the habitat of protected species which might be threatened thereby; an area of the proposed development might be remote with few, if any, residents who could directly point to injury, adverse effect or proximity; the applicant had attempted to appeal the relevant section 5 declarations and was not aware of them within the required period for seeking judicial review; and the fact that the applicant made certain observations to the Board in the context of a related application. None of these factors are present in this case.
64.As stated, at para.57 of Grace & Sweetman, a person who has not participated in the process and cannot show any direct personal prejudice must satisfy the leave judge that the point being made is one directly solely to the purpose of the special protection of the site. However, as was noted in Grace:
"41...a mere interest in ensuring that the law is upheld is not, in itself, sufficient to confer standing (for if it were then there would, in all cases, be the potential for a so-called actio popularis and standing rules might be of very little relevance save for excluding abuse of process and the like)."
65.The Applicant maintains that it is necessary for him to bring the proceedings to vindicate the environmental protections in the Development Plan, stating that his proceedings are "based on non-compliance with the Fingal County Development Plan". He also states that the proceedings seek to properly vindicate the special protection of the Malahide Estuary European sites. He has not stated that no other motivating factors led to the institution of these proceedings. As Clarke and O'Malley JJ. stated in Grace & Sweetman, if the Applicant had sufficient interest in seeking to protect the European sites and/or ensure that the policies of the Development Plan relied upon were complied with, one would have expected him to have participated in the planning process, or to have given a reasonable explanation for his non-participation. As was argued by the Council, the Board was not required to comply with the objectives of the Development Plan in any event. This is not a case to which section 37(2)(b) of the 2000 Act applied.
66. That said, in some environmental cases, for example in Mulcreevy v. Minister for Environment, standing may be conferred on a very wide range of persons. As Clarke and O'Malley JJ. stated in Grace & Sweetman:
"Developments which have the potential to have a material and significant effect on the environment generally or raise questions of particular national or international importance (such as the national monument) may confer standing on a much wider range of persons."
67. As noted in Mulcreevy, the legislature had not provided an elaborate appeals procedure or otherwise provided a mechanism to enable a member of the public oppose or challenge the Order. The institution of judicial review proceedings was the only potential means of influencing or challenging the opinion of the Minister. Unlike the Applicant, Mr. Mulcreevy was in no weaker a position than any other member of the public who sought to protect the National Monument and he had not passed up an opportunity (or multiple opportunities) to be heard before the Order was made by the Minister. While others may have lived closer to the monument than Mr. Mulcreevy, it had been designated a National Monument under the National Monuments Act, 1930 as amended.
68.The sites which the Applicant seeks to protect are European sites and accordingly they are important sites. The site of proposed development is neither within nor adjacent to the European sites. The Oireachtas has provided for a system by which views expressed by members of the public are required to be taken into consideration in the planning process. The protection of these European sites is not dependent on sufficient interest being given so broad interpretation as to confer standing on any person who might wish to challenge a grant of permission on environmental grounds. This is the essence of the Applicant's submission. Save insofar as the Applicant seeks to rely on 'relative proximity' to the sites, which I have found in insufficient to give him standing, the Applicant cannot distinguish himself from any member of the public who had not participated in the process. There are many thousands of people who live closer to the sites, and/or within the functional area of Fingal County Council.
69.I do not consider that it is necessary to interpret the requirement to have a sufficient interest so broadly as to confer standing on any person who seeks to bring judicial review proceedings to challenge a grant of permission on environmental grounds. The requirement of standing was amended to reflect the Aarhus Convention by replacing the requirement to have a 'substantial interest' with a 'sufficient interest' and by removing the bar on a person who had not participated in the process from instituting proceedings. Had the Oireachtas intended that any person who wishes to advance grounds raising issues EU environmental law, or protection of the environment generally, would be permitted to instate judicial review proceedings, that could have been provided. The State was entitled, as a matter of EU law, to impose a requirement of standing, or sufficient interest, once that provides a wide access to justice. I am satisfied that an interpretation of section 50A(3) which confers a 'sufficient interest' on any person once environmental grounds are raised in judicial review proceedings would be to effectively remove that requirement and would be inconsistent with the intention of the Oireachtas.
70. The following factors are relevant to the question whether the Applicant has a sufficient interest in section 50A(3)(b)(i):
(a) The sites which the Applicant seeks to protect are European sites. He also seeks to rely on environmental objectives in the Fingal County Development Plan 2023 -2029 which he contends were not complied with.
(b) The Applicant has no stated link with the site the subject of the development or the European sites which he contends may be adversely affected by the development - the habitat of the hen harrier in Grace & Sweetman is materially different to the European sites in this case - the sites at Malahide Estuary are not so remote that it is necessary to for sufficient interest to be interpreted as widely as the applicant contends to ensure that there are people with standing.
(c) It cannot be said that the legal protection of the sites in question would be weakened, must less gravely weakened, if the requirement that an applicant has a sufficient interest is interpreted in accordance with the authorities. Despite the nature of the proposed development and the fact that European sites are involved, this case is not comparable to Mulcreevy, and the decision was been made without public participation.
(d) The process which led to the decision of the Board entailed publication relating to the application on four occasions. The requests for further information which led to the second and third public notice following receipt of further information including an amended EIAR and an updated AA screening report. There were two opportunities to make observations after the 2023-2029 CDP came into force including by making observations on the appeal to the Board. Observations were not specifically sought in relation to the new Plan. The Applicant did not participate in the planning process.
(e) No explanation has been given for the Applicant's lack of participation in the process - it was not contended that he was unaware of the application, nor that there is any other reasonable explanation for failing to avail of the opportunity to participate. He did not state that he was unaware of the coming into force of the 2023-2029 CDP.
(f) As the Supreme Court noted in Grace & Sweetman, if a person has a broad interest in the amenity value of the European sites in question, it might be expected that their general interest in the issue would have led them to participate, or at a minimum to explain why they did not do so. Similarly, it might be expected that a person who had a keen interest in ensuring compliance with environmental objectives in a development plan would also make submissions.
(g) The Applicant accepts that he is not affected by the proposed development and relies on no adverse effect causing or likely to cause injury or prejudice .
(h) The Applicant resides in Straffan, Co. Kildare and has given no evidence of any specific interest in or link with the sites at Malahide Estuary to which the proceedings relate, or environmental interests generally.
(i) The arguments sought to be relied upon by the Applicant are arguments which could be raised by any person within the State - they could, and should more properly, be advanced by a person more directly affected. In this regard, it is clear from the Inspector's report, and the Statement of Grounds that submissions and observations were made members of the public on four separate occasion during the planning process. The submissions and observations were made by persons or bodies including by individuals who lived closer to the proposed development and public bodies. None of those individuals or bodies have sought to challenge the Board's decision.
71.The Applicant does not have a sufficient interest in maintaining these proceedings as required by section 50A(3)(b)(i). I have found that the fact the Applicant lives closer to the European sites than the applicants in McDonagh and Conway, is not material. The significance of proximity is linked to potential impact of a proposed development. It is accepted that there are no potential impacts on the Applicant. The failure of the Applicant to participate in the process coupled with the complete absence of any explanation therefor is a significant factor which weighs heavily against the Applicant having standing. I do not consider that the fact that he seeks to rely on environmental grounds to vindicate the European protection afforded to the sites at Malahide Estuary, or to rely on environmental objectives in the CPD is sufficient to give him standing.
72.As I have found that the Applicant does not have a sufficient interest applying the national rules, a question arises as to whether it is necessary to disapply or alter the application of the test of 'sufficient interest' by reference to EU Law.
73.EU law allows national courts impose their own rules regarding standing, once the rules are compliant with EU Law - the rules must be applied in a manner which satisfies the "wide access to justice" requirement of the Aarhus Convention.
74.At the outset, it must be noted that the Applicant has accepted that the national rules are compatible with the Aarhus Convention, and do not offend against the principles of effectiveness or equivalence in EU law.
75.As Clarke and O'Malley JJ. held in Grace & Sweetman:
"It follows that each member state has a material margin of appreciation in determining the precise standing rules which are to apply in respect of challenges covered by article 11 but that that margin of appreciation is circumscribed by the overriding obligation, to be found in the article, that standing rules must nonetheless confer wide access to justice."
76.This also evident from Article 11 of the codified EIA Directive, Directive 2011/92/EU ("Directive 2011/92") which provides:
"1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
|
(a) |
having a sufficient interest, or alternatively; |
|
(b) |
maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition; |
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
...
3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. ..."
75. The 'public concerned' is defined by Article 1(e) as "the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2). For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest". Section 50A(3)(b)(ii) of the 2000 Act sets out the circumstances in which bodies or organisation with aims or objectives relating to the promotion of environmental protection are not required to demonstrate a sufficient interest. The fact that the participation rights conferred on the public concerned are greater than those conferred on the public at large is inconsistent with the argument that any person who seeks to raise environmental grounds, particularly in relation to European sites, in judicial review proceedings has a sufficient interest.
78. Humphreys J. stated, at para. 83 of Toole v. Minister for Housing & Ors [2023] IEHC 378, that "The locus standi issue looks somewhat different when viewed from a European perspective" referring to Case C-137/14 Commission v. Germany (Court of Justice of the European Union, 15th October 2015, ECLI:EU:C:2015:683)." However, the issue in Commission v. Germany and Toole, was whether a litigant was confined to raising points in judicial review proceedings which had been raised by them in the planning process. Neither judgment involved a consideration of how broad the category of potential applicants was; the question whether someone who had not taken part in the process would have standing was not considered by either court.
79.The Applicant relies in particular on para. 80 - 81 of the judgment in Commission v. Germany where it was stated that " ... the very objective pursued by Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 is not only to ensure that the litigant has the broadest possible access to review by the courts but also to ensure that that review covers both the substantive and procedural legality of the contested decision in its entirety", but that the national legislature may lay down specific procedural rules to guard against proceedings being issued abusively or in bad faith. However, it must be recalled that the objective in Article 11 considered by the Court of Justice applies only to members of the public concerned. Therefore, in referring to the litigant having the broadest possible access to review by the courts, the Court of Justice referred to the public concerned, and not the public at large. The Applicant is a member of the public at large and not the public concerned.
80.At para. 76 of the judgment, the Court of Justice held:
"neither Article 11(4) of Directive 2011/92 nor Article 25(4) of Directive 2010/75 excludes an action before an administrative authority preceding the legal proceedings and does not prevent national law from requiring the applicant to exhaust all administrative review procedures before being authorised to bring legal proceedings, those provisions of EU law do not, however, allow restrictions on the pleas in law which may be raised in support of legal proceedings."
81.The Court of Justice referred to its earlier decision in Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen, C-115/09, EU:C:2011:289, para. 37, in which it held that Article 11(1) of Directive 2011/92 lays down no restrictions whatsoever on the pleas which may be relied upon in support of a review procedure before a court or other independent and impartial body. (para. 77)
82. The Court of Justice referred to and applied para. 77 of the judgment of the Commission v. Germany in C-575/21 WertInvest Hotelbetriebs GmbH v. Magistrat der Stadt Wien (25th May 2023). However, at para. 71, the Court concluded that:
"... the answer to the fifth question is that Article 11 of Directive 2011/92 must be interpreted as not precluding the case-by-case examination provided for in Article 4(2)(a) of that directive from being carried out for the first time by a court with jurisdiction to grant development consent, as provided for in Article 1(2)(c) of that directive. However, an individual who is part of the 'public concerned', within the meaning of Article 1(2)(e) of Directive 2011/92, and who satisfies the criteria laid down by national law as to 'sufficient interest' or, as appropriate, 'impairment of a right', referred to in Article 11 of that directive, must have the possibility of challenging, before another court of law or, depending on the case, another independent and impartial body established by law, the substantive or procedural legality of any decision taken by such a court with jurisdiction finding that there is no need for an environmental impact assessment." (emphasis added)
83.In Reid (No. 1) v. An Bord Pleanála [2021] IEHC 230 (para. 25), which was referred to in Toole, Humphreys J. accepted, at least for the purposes of an interlocutory application, that the effect of access to justice provisions in EU environmental law was that judicial review proceedings relying on EU environmental law were not confined to legal grounds raised before the decision. The issue of whether the applicant had standing was not in issue.
84. Neither Commission v. Germany nor WertInvest Hotelbetriebs are authority for the proposition that EU law requires the disapplication of national rules regarding standing or prevents a national court from relying on the non-participation of a person in the administrative process. On the contrary, it is clear from para. 71 of WertInvest Hotelbetriebs that national rules as to 'sufficient interest' do apply.
85.EU law requires that there is 'wide access to justice' in cases involving issues of EU environmental law, but this does not amount to unlimited access to justice. This is evident from the judgment of the Court of Justice in C-826/18 LB, Stifting Varkans in Noord & Ors v. College van burgemeester en wethouders van de gemeente Echt-Susteren, (14th January 2021) ('Stifting Varkans') . The Applicant and the Board have relied on the Opinion of Advocate General Bobek and the judgment of the Court of Justice in this case.
86. Distinguishing between 'the public' and 'the public concerned', Advocate General Bobek stated that "the Aarhus Convention cannot be construed as giving a right to public participation in the environmental decision-making procedure under Article 6 to everyone." (para. 75). He noted that only the public concerned have a right to actively participate and he reiterated that the public concerned are "the public actually affected or likely to be affected or having an interest, who has the right to actively participate in the procedure." (para. 79). He concluded that EU legislation was consistent with the Aarhus Convention in that regard.
87.Advocate General Bobek acknowledged that Article 9(2) of the Aarhus Convention left a significant discretion to the Contracting Parties in defining what constitutes a sufficient interest or the impairment of a right for 'the public concerned' other than NGOs. He stated that if Article 9(2) essentially applied to everyone, it would amount to an actio popularis, which was "an outcome the drafters of the Aarhus Convention expressly rejected."
88. Under the Netherlands' national law, only the public concerned had access to the courts, although any member of the public was permitted to participate in the administrative process. Notwithstanding that, as the first applicant had no participation rights as a member of the public concerned, the State was not obliged to give her a right of access to the courts under Article 9(2). Advocate General found that this did not convert members of the public into the public concerned. He concluded that "The rights of 'the public' at large who do not fall within 'the public concerned' within the meaning of Article 9(2) are a matter for national law. Thus, EU law is not opposed to the condition of prior participation made applicable by national law only to 'the public'." (para. 152)
89. The Court of Justice emphasised that the right conferred by Article 9(2) of the Aarhus Convention did not extend to the public in general and that to read Article 6 as applying to the general public, rather than only to the public concerned, would be to render ineffective the distinction between the systems of access to justice laid down respectively in Article 9(2) and (3). (para. 36 - 44). The Court of Justice ruled that Article 9(3) of the Aarhus Convention did not preclude the admissibility of judicial proceedings being made subject to participation of the applicant (who is part of the general public) in the procedure which led to the impugned decision, unless the applicant could not reasonably be criticised for not having intervened in the procedure or if the applicant is a member of 'the public concerned'. (Para. 69 and ruling 2.)
90.It follows from Stichting Varkens that the national locus standi rules may provide that a member of the public who is not a member of the 'public concerned' who had the opportunity to participate in the planning process under national law, lacks standing unless they availed of that opportunity or cannot reasonably be criticised for failing to participate. While the Applicant submits that the CJEU envisaged that Member States "may take an expansive approach to standing" in Stichting Varkans, the judgment does not support the contention that the requirement to have a sufficient interest must be read so expansively as to include the Applicant. The Aarhus Convention does not require national standing rules to be interpreted as conferring standing on a person in the position of the Applicant who has provided no explanation for not having participated in the process which led to the Board's decision and who does not live in the vicinity of the proposed development or European site such that he is likely to be affected by the proposed development.
91. Neither Commission v. Germany nor Stichting Varkens are authority for the proposition that any member of the public has locus standi once an issue of EU law is involved or that EU law requires the State to regard the requirement in section 50A(3)(b) that an applicant have "a sufficient interest" as being satisfied by reason of a person raising issues of EU environmental law in relation to a site with which they have no particular connection and where they did not take part in the planning process despite opportunities to do so. Nor do the authorities support the contention that a person within a particular (undefined) geographic area relative to a proposed development or a European site which might be affected by that proposed development, has standing to raise a point related to protection of the environment, or EU environmental law generally.
92. This is in essence the case made by the Applicant who submits that he is 'just within the line' for standing. A limit was not identified by the Applicant, but the submissions made on his behalf lead to the conclusion that it is a distance greater than 1km (by reference to Grace & Sweetman), or immediate vicinity as in Chambers v. An Bord Pleanála [1992] 1 IR 134, but less than 85 kms (McDonagh). As noted above, the Supreme Court clearly linked proximity with potential impact - the Applicant has not asserted any potential impact of the proposed development on him. He concedes that he is not personally prejudiced by the decision of the Board. Ms. LB, an applicant in Stifting Varkans lived 20 kms from the site of the proposed pig farm building with capacity for 855 sows. It was noted by Advocate General Bobek that "... she lives some distance away from the proposed pigpen and therefore does not experience any spatial or environmental consequences as a result thereof." (para. 26)
93.The Applicant's submission that the purpose of EU environmental law, is "to create as broad as an ability to challenge administrative decisions as possible" and that this was recognised by Humphreys J. in Toole v. Minister for Housing [2023] IEHC 378 is an overstatement. A person with the necessary standing is not limited to arguments raised earlier in the process, but this is not to say that any person, or one within a particular geographic area, acquires standing once they seek to rely on grounds relating to protection of the environment despite not having taken the opportunity to participate in the planning process. It is appropriate to interpret 'a sufficient interest' broadly, but EU law does not require it to be interpreted "as broadly as possible" as the Applicant has submitted. In Grace & Sweetman, it was held that it is open to the Irish legislature to provide for any standing rules considered appropriate provided that those rules, meet the "wide access to justice" requirement of EU law. (para. 36)
94.I am satisfied that the Irish rules do ensure that there is a wide access to justice. Any person who makes submissions to the Board would have a sufficient interest in proceedings brought to challenge its decision. Similarly, a person whose interests are adversely impacted by the proposed development would have standing. Proximity to the European site sought to be protected, or the proposed development, is relevant to an inference which may be drawn as to potential impact. The nature of the development proposed and of the site to be protected and grounds relied upon are relevant to the area which is considered to be sufficiently proximate to give rise to a sufficient interest, particularly having regard to the existence of other potential applicants who have a sufficient interest in seeking to protect the European site.
95. Barniville J. concluded in Conway (No. 1) that nothing in the codified EIA Directive or the caselaw of the CJEU precludes a national court from applying national standing rules or from treating non-participation in the planning process as a factor to be taken into account in assessing whether an applicant has standing. He held that to take that factor into account would not breach the requirement to provide for 'wide access to justice' to the 'public concerned' under Article 11(3) of the codified EIA Directive. I am satisfied, as Barniville J. was in Conway (No. 1), that it is not necessary to suspend or disapply national rules to give effect to Article 11 of Directive 2011/92, nor is the court required to disregard the non-participation of the Applicant in the planning process.
96. The interpretation of section 50A(3)(b) which the applicant urges on the Court effectively amounts to the disapplication of the requirement to have a sufficient interest in any case where the application for leave involves issues relating to the protection of the environment, or the protection of European sites, in particular. I do not consider that Article 11 of Directive 2011/92 or any other provision of EU law requires the court to interpret sufficient interest in Section 50A(3)(b) as applying to any person who seeks to bring proceedings to protect a European site despite not having available of the opportunity to participate in the administrative process. I also note that the Applicant has not sought to challenge the validity of the requirement that an applicant demonstrate that they have standing, or "a sufficient interest in the matter which is the subject of the application" in section 50A(3)(b)(i).
97.I also reject the submission that limiting the category of potential applicants by drawing the line at a radius from the Malahide Estuary just wide enough to include the Applicant sites, is necessary to give effect to EU law.
Conclusion on Standing
98. Despite the proceedings involving European sites at Malahide Estuary, and the fact that the grounds advanced by the Applicant involve the application of environmental objectives in the 2023 Fingal County Development Plan 2023 -2029 and protection of the European sites, I find that the Applicant does not have a sufficient interest in the proceedings.
99. The Applicant did not participate in the planning process which led to the Board's decision, despite there being four occasions on which public participation was invited to do so. No explanation has been offered for failing to participate. As the Supreme Court noted in Grace & Sweetman, if a person has a broad interest in the amenity value of the European sites in question, it might be expected that their general interest in the issue would have led them to participate, or at a minimum to explain why they did not do so. Similarly, it might be expected that a person who had a keen interest in ensuring compliance with environmental objectives in a development plan would make submissions.
100. The Applicant accepts that he is not affected by the proposed development and relies on no adverse effect causing or likely to cause injury or prejudice .
101. There is no evidence of the Applicant having any link with or interest in the amenity of the European sites which he contends may be adversely affected by the proposed development, which is neither within nor adjacent to the European sites. The nature and location of the European sites is not such that the legal protection of the sites would be weakened if 'sufficient interest' is not interpreted very broadly - in effect sufficiently widely to include any person who seeks to raise environmental grounds. It is not necessary for sufficient interest to be interpreted as widely as the Applicant contends to ensure that there are people with standing.
102. The arguments sought to be relied upon by the Applicant do relate to the protection of the environment, and the European sites in particular, but they are arguments which could be raised by any person within the State - they could, and should more properly, be advanced by a person more directly affected.
103.The fact the Applicant lives closer to the European sites than the applicants in McDonagh and Conway, is not material. The significance of proximity is linked to potential impact of a proposed development; it is accepted that there is potential impact on the Applicant.
104.The Applicant does not have a sufficient interest in maintaining these proceedings as required by section 50A(3)(b)(i). I am satisfied that interpreting the requirement to have a sufficient interest as applying to any individual who seeks to challenge a decision under the Planning and Development Act, 2000 on environmental grounds is not consistent with the intention of the Oireachtas.
105.Section 50A(3)(b)(i) has not been challenged by the Applicant. He accepts that the national rules are compliant with the Aarhus Convention and do not offend against the principles of effectiveness and equivalence.
106.EU law recognises the right of the Member States to adopt rules relating to standing, if those rules are consistent with a 'wide access to justice'. I am satisfied that it is not necessary to disapply or modify the national rules on standing, to ensure that the wide access to justice required by EU law is provided.
107.Accordingly, I find that the Applicant does not have standing and the application for leave must be refused.
Core Ground 1
108. Although it is not necessary to determine whether the grounds advanced by the Applicant reach the required threshold for the grant of leave in light of the finding that the Applicant does not have standing to institute these proceedings, I wish to address Core Ground 1.
109.The Applicant does not seek an order of certiorari of the decision of Fingal County Council but he seeks a declaration that the procedures followed by it breached the rules of natural and constitutional justice. Core Ground 1 also appears to be relied upon to challenge the validity of the decision of the Board.
110.Core Ground 1 provides:
"Core Ground 1: The Board Decision is invalid because Fingal County Council breached the rules of natural and constitutional justice in failing to give the Applicant an opportunity to make submissions in relation to the changes effected by the coming into force of Policies and Objectives of the Fingal County Development Plan 2023-2029, and erred in law or acted ultra vires in considering the Fingal County Development Plan 2017-2023 to be applicable to the decision, and the Board was accordingly obliged to quash the Council decision in the within circumstances.
6. After the application was submitted and before the Report was finished or the Board Decision made, the Fingal County Development Plan 2023-2029 came into effect on 5 April 2023.
7. At para. 6.5.1 of her Report, the Inspector acknowledged that the 2023 Development Plan was the relevant Development Plan for the application:
"At the time of the original application submission to Fingal County Council the applicable policies were within the Fingal County Development Plan 2017-2023. Subsequent to the request for further information and clarification, the Fingal County Development Plan 2023-2029 was adopted on 22nd February 2023 and came into effect on 5th April 2023".
8. Notwithstanding this, the Council had failed to permit public submissions on aspects of the 2023 Development Plan relevant to the within application.
9. The Council erred in law or acted ultra vires or in breach of fair procedures in failing to permit submissions on the consequences of the Development Plan for the application following it coming into effect.
10. At pp. 8-11 of its Decision granting permission dated 23 June 2023, the Council considered the Fingal County Development Plan 2017-2023 to be the applicable Development Plan when granting permission.
11. The Council erred in law or acted ultra vires in so considering the Fingal County Development Plan 2017-2023 to be the applicable Development Plan when granting permission, and the Board erred in law in refusing to quash the grant of permission in the circumstances.
12. Accordingly, the Board was obliged to quash the Council decision as a result of the breaches of fair procedures and consideration of the inapplicable Development Plan. The Board erred in law in refusing to quash the grant of permission in the circumstances."
111.The Applicant contends that a declaration that Fingal County Council failed to comply with fair procedures does not amount to a collateral attack on the decision of Fingal County Council and is not covered by section 50(2) of the 2000 Act. I disagree.
112.Section 50(2)(a) of the 2000 Act provides:
"(2) A person shall not question the validity of any decision made or other act done by—
(a) a planning authority, a local authority or the Board in the performance or purported ...
otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (the "Order")."
113.Section 50(2) is not limited to orders quashing a decision of a planning authority but applies to the "question[ing] of the validity of any decision". A declaration that the process which led to a decision failed to comply with the requirements of natural and constitutional justice is a challenge to the validity of the decision taken at the conclusion of that process. Where a process has concluded, a challenge to that process without challenging the decision made at the conclusion thereof, amounts to a collateral attack on the decision. It is not possible to separate a challenge to the process invoked by Fingal County Council from the validity of its decision of 23rd June 2023 in the manner proposed by the Applicant herein.
114.In Nawaz v. Minister for Justice [2013] 1 IR 142; [2012] IESC 58, the Supreme Court endorsed the approach of Kelly J. in Goonery v. Meath County Council [1999] IEHC 15 and held that the question whether the statutorily modified judicial review rules (in this case in section 50 and 50A of the 2000 Act) are applicable is to be looked at as a matter of substance rather than form. (per Clarke J. at para. 44) In Goonery, Kelly J. held that the declaratory relief sought in that case "would undoubtedly mean in practical terms that the decision of Meath County Council was invalid." He continued by stating "The mere fact that an Order was not sought quashing the permission in question does not mean that the validity of the permission was not being questioned. It was, and so the provisions of the section applied and were not complied with...".
115.The Applicant is incorrect in his contention that the proceedings challenge the process which led to the Council's decision of 23rd June 2023 but are not caught by section 50(2) as they do not question the validity of that decision.
Order
116. Leave to apply for judicial review is refused.
Emily Farrell