Derogation Licences – A Question for the Court of Justice of the European Union

The judicial review proceedings were brought by the Hellfire Massy Residents’ Association (the Residents’ Association) related to the proposed Dublin Mountains Visitor Centre, in the vicinity of the Hellfire Club at Montpelier Hill where planning permission was granted in June 2020 (the Planning Permission).

The Residents’ Association issued proceedings on a number of grounds including an Order seeking to quash the Planning Permission. They also sought a declaration that the requirements for an Environmental Impact Assessment under Section 175 of the Planning and Development Act 2000 as amended (PDA) for a development carried out by or on behalf of local authorities, was invalid. This was on the basis that the process did not adequately provide for public participation.

Mr Justice Humphreys delivered the judgment on 2 July 2021 where he refused most of the reliefs and held that there was no error of domestic or European law that would support an order to quash the planning permission. He also held that the Residents’ Association did not have legal standing to claim that there had been inadequate public participation under Section 175 of the PDA as the Residents’ Association had been able to offer submissions on the planning application. If there had been some deficiency in law, it had not interfered with the Residents’ Association legal rights.

The Residents’ Association also sought a declaration that Regulations 51 and 54 of the European Communities (Birds and Natural Habitats) Regulations 2011 (the 2011 Regulations) were incompatible with EU law relating to the derogation licence process. This resulted in four questions being referred to the Court of Justice of the European Union (CJEU) for determination.

Derogation licences

The Residents’ Association argued the following:

1. The reliance on post-grant derogation licences was incompatible with the requirements of strict protection for the purposes of the Habitats Directive
2. There is no system of strict protection for the protection of, among other things, bat fauna
3. The 2011 Regulations do not respect the Aarhus Convention or the Treaty on European Union because they do not provide for a system of public consultation for the grant of a derogation licence, and
4. Articles 51 and 54 of the 2011 Regulations fail to adequately implement aspects of the Habitat Directive.

Where a proposed development will affect a site known to be used by bats, consideration needs to be given to the likely impact on the bat population. Even when planning permission is granted, or the activity does not require permission, bats and their breeding and resting places are still protected. However, under the 2011 Regulations, the relevant Minister may however issue a derogation licence permitting certain activities “where there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species to which the Habitats Directive relates at a favourable conservation status in their natural range.”

The issue of contention with derogation licences is that they may be issued post consent. This is due to the fact that in some instances a developer may not be in a position to ascertain whether a development would fall within the strict protection rules under the 2011 Regulations until after the grant of planning permission.

Mr Justice Humphreys held that, as the challenge to the 2011 Regulations related to post-consent matters, it did not form the basis to quash the planning permission. This is because An Bord Pleanála did not rely on the prospect of a grant of a derogation licence for anything that was being specifically authorised at the time of the grant of the Planning Permission. He, however, identified questions arising from these grounds to refer to the CJEU for determination, to the extent that they are relevant to the post-consent situation.

Question referred to the CJEU

1. Whether the general principles of supremacy of EU law have the effect that a rule of domestic procedure should be read in conjunction with the Aarhus Convention as an integral part of the EU legal order
2. Whether domestic procedural rules against “hypothetical” challenges are valid in the context of challenges based on EU law where there is a reasonable possibility of future damage
3. Whether the derogation licence system provided for in domestic law should be integrated within the planning process and whether a derogation licence should be applied for following the grant of development consent, and
4. Whether public participation should be provided for in the derogation licence process.

Conclusion

The issue that seems to be at the heart of the referral to the CJEU is the alleged inadequacy of the procedure if a derogation licence turns out to beneeded as a result of a post-consent survey. In this instance, the High Court concluded that the validity of the Planning Permission could be upheld, in spite of the fact the Court referred a question to the CJEU on an issue that is integral to that permission. On this basis, where it appears that a derogation licence may be required post consent, and a legal challenge is brought against the validity of this practice, it is unlikely to result in a planning permission being quashed. The CJEU referral should clarify the lawfulness or otherwise of this post consent procedure provided for under the 2011 Regulations.1

1. On 13 October 2021, Justice Humphreys dismissed the applicant’s application to appeal his decision to the Court of Appeal. The order for the reference to the CJEU was to be finalised [2021] IEHC 636