O’Donnell J. Clarke J. MacMenamin J. Laffoy J. Dunne J. Charleton J. O’Malley J.
In the Matter of Section 50 of the Planning and Development Act, 2000 as amended
Edel Grace and Peter Sweetman
An Bórd Pleanála
ESB Wind Development Limited, Coillte
and the Department of Arts, Heritage and the Gaeltacht
Joint Judgment of Mr. Justice Clarke and Ms. Justice O’Malley delivered the 24th February, 2017.
1.1 Not for the first time this Court is confronted with issues of environmental law in respect of which there is potentially a significant European law dimension. In these proceedings generally a challenge is brought to a permission granted by the respondent (“the Board”) to permit the development of a wind farm on lands owned by the second named notice party (“Coillte”). The wind farm is intended to be developed and operated by the first named notice party (“ESB Wind”).
1.2 As required by s.50 of the Planning and Development Act, 2000, as amended, (“the 2000 Act”), the proceedings were commenced by judicial review and were heard in the High Court. For the reasons set out in a judgment delivered on 1st October, 2015, that Court (Fullam J.) dismissed the claim (Grace & anor v. An Bórd Pleanála IEHC 593). As further required by s.50A(7) of the 2000 Act, no ordinary appeal could be pursued from that decision except with a certificate of the High Court to the effect that a point of law of exceptional public importance arose and that it was desirable in the public interest that an appeal be pursued. An application for such a certificate was made and, on the 4th December, 2015, was refused (see judgment of the High Court (Grace & anor v. An Bórd Pleanála IEHC 870)).
1.3 Of course when the 2000 Act first came into force the appeal which might have been pursued, should such a certificate have been granted, would have been an appeal to this Court. However, on foot of the 33rd Amendment to the Constitution and the Court of Appeal Act, 2014 enacted to give practical effect to that Amendment, the normal role of this Court in such matters was transferred to the Court of Appeal. On that basis, and in the light of the existing jurisprudence (to which it will be necessary briefly to refer in due course), the refusal of a certificate by Fullam J. prevented any appeal from being pursued to the Court of Appeal for that jurisprudence made clear that a refusal to certify could not itself be the subject of an appeal.
1.4 However, in the light of the new constitutional architecture which has come into place as a result of the 33rd Amendment, that was not the end of the road. An application was brought seeking leave to appeal to this Court directly from the High Court utilising the provisions of Art. 34.5.4 of the Constitution as introduced by the 33rd Amendment. Such direct appeals have come to be known as leapfrog appeals. For the reasons set out in a determination of this Court (Grace & anor v. An Bórd Pleanála  IESCDET 29), the Court granted leave to bring a leapfrog appeal from the decision of Fullam J. directly to this Court and specified three issues or grounds which met the constitutional threshold. As this Court has pointed out in McEnery v. Commissioner of An Garda Síochána IESC 26, subject to certain issues which may legitimately be raised by a respondent, the only questions which are properly addressed by this Court on appeal are the issues which can fairly be said to come within the ambit of the grounds on which leave to appeal is given. It is, therefore, necessary to turn briefly to those grounds.
2. The Grounds on which leave was given
2.1 The Court specified those grounds in its determination in the following terms:-
“(a) Whether the jurisprudence of this Court on the question of standing in environmental matters requires to be revised in the light of recent judgments of the Court of Justice and, if so, the application of any such revised jurisprudence to the facts of this case;
(b) Whether the jurisprudence of this Court concerning the absence of an entitlement to appeal against a refusal of leave to appeal by the High Court in environmental matters requires to be revised in the light of the new constitutional architecture consequent on the adoption of the 33rd Amendment and the jurisprudence of the ECJ and, if so, the application of such revised jurisprudence to the facts of this case; and
(c) Should it prove both appropriate and necessary in the light of the finding of the Court on issues (a) and (b) whether a substantive appeal against the decision of the High Court should be allowed by this Court on either or both of the grounds in respect of which the applicants sought leave to appeal before the High Court.”
2.2 For ease of reference we will refer to those issues as, respectively, the “standing issue”, the “appeal issue” and the “substantive issue”. For reasons which we hope will become apparent we propose addressing the appeal issue first for there was little between the parties on that question at least by the time the oral hearing had concluded. We then propose to deal with the standing issue before finally turning to the substantive issue.
2.3 However, it is also relevant to note the position of the Minister who is, in substance, the second named notice party. The Minister did not participate in the High Court. However, during the case management process in this Court, the Minister applied to be allowed participate in the appeal with particular reference to making submissions on the standing issue. The Court gave the Minister leave to participate on the basis that the standing issue gave rise to issues of significant general importance. Indeed, leave to appeal had been granted on the basis that the issue was one of general public importance. It should also be noted that the Minister indicated that he did not seek to participate on the substantive issue.
2.4 It would be fair to say that the position adopted by the Minister was broadly supportive of the case made by Ms. Grace and Mr. Sweetman on standing. The Minister, along with those parties, suggested that the view of the trial judge on the question of standing appeared to have been over-influenced by some of the earlier case law to which reference will be made in the course of this judgment. That being said we now propose to turn to the appeal issue.
3. The Appeal Issue
3.1 This issue stems from the rather complex situation which now prevails, subsequent to the coming into force of the 33rd Amendment, in those cases where legislation, which predated that Amendment, precluded an appeal to this Court in the absence of a certificate of the High Court. Such provisions are found in s.50 of the 2000 Act and similar provisions can be found in other areas such as the immigration field. It had been determined that legislation of that type validly precluded an appeal to this Court and ought to be interpreted as precluding an appeal by the back door in the shape of an appeal against the refusal of a certificate (see for example Irish Asphalt Ltd v. An Bórd Pleanála  2 I.R. 179 and Irish Hardware Association v. South Dublin County Council IESC 5).
3.2 Thus, on the coming into force of the 33rd Amendment, the Court of Appeal Act, 2014 transferred the ordinary jurisdiction of this Court to the Court of Appeal and provided that references to this Court in most legislation existing at that time were to be construed as references to the Court of Appeal (see section 74(1)). Thus the ordinary right of appeal from the High Court under the new constitutional regime became a right to appeal to the Court of Appeal but any measures governing appeals to this Court under the previous regime were carried forward and apply in the same way to appeals to the Court of Appeal under the new constitutional architecture.
3.3 It is also important to note that, as this Court has pointed out in a number of recent determinations (including the determination granting leave in this case and also that in Kelly v. University College Dublin & anor  IESCDET 30), the wording of Art. 34.5.3 of the Constitution (which governs appeals from the High Court to the Court of Appeal) refers to the possibility that such an appeal can be either “excluded” or “regulated” by appropriate legislation. In that regard the wording is the same as the previous provisions of the Constitution which governed an appeal from the High Court to this Court. Thus, prima facie, the restrictions which were imposed on an appeal to this Court under the previous regime, by the requirement for certification, apply equally to an appeal to the Court of Appeal under the new regime.
3.4 However, the wording of Art. 34.5.4 of the Constitution (which provides for a leapfrog appeal to this Court) makes clear that relevant legislation can only “regulate” but importantly cannot “exclude” an appeal to this Court. That provision must be seen in the light of the fact that, in order to obtain leave to appeal to this Court under the new regime, it is necessary that this Court be satisfied that a general issue of public importance arises or that the interests of justice require an appeal to this Court. The deliberate omission, in the constitutional amendment passed by the people, of an entitlement on the part of the Oireachtas to exclude an appeal to this Court under the new regime has to be seen in that context. Would it have been appropriate to allow the Oireachtas to prevent an appeal coming to this Court even though this Court was satisfied that the case raised an issue of general public importance or that the interests of justice required an appeal? But it seems to us to follow that any measure which prevents (rather than regulates) the exercise by this Court of its entitlement, under the 33rd Amendment, to consider whether a case meets that constitutional threshold must be considered to be an impermissible exclusion of the right of appeal to this Court. No express relevant measure has been introduced since the 33rd Amendment. Precisely what form of measure might be considered an exclusion rather than a regulation does not, therefore, fall for consideration in this case.
3.5 It follows that in this case Ms. Grace and Mr. Sweetman had an entitlement to invite this Court to consider whether the constitutional threshold is met and, having persuaded this Court that it was met, to pursue an appeal to this Court. Therefore, there now is, at least potentially, an appeal to this Court even in so-called certificate cases (i.e. cases where, as here, a certificate of the High Court would ordinarily be required) provided that the constitutional threshold is met.
3.6 In passing it is worth at least noting that the wording of the form of certificate which the High Court was required to consider giving in this case seems to place the bar somewhat higher than that which applies under the Constitution itself. In the case of a certificate under the 2000 Act, the High Court judge is required to be satisfied that a point of law of exceptional public importance arises and that it is desirable in the public interest that an appeal be pursued. In order that the constitutional threshold be met it is necessary that an issue of general public importance arise or that it is in the interest of justice that an appeal be pursued to this Court. It is possible, therefore, to envisage that there might be a case where the High Court quite correctly refused a certificate but this Court, without in any way disagreeing with the High Court, found that the constitutional threshold had been met. The thresholds are not the same and the certificate threshold is undoubtedly somewhat higher.
3.7 That being said it remains the case that the new constitutional architecture suggests that the normal and ordinary appellate process following on from a decision of the High Court should be an appeal to the Court of Appeal. However, that route remains subject to a valid restriction imposed by the certification process.
3.8 In that regard we would consider that it would be appropriate for any party who wishes to apply to this Court for leave to bring a leapfrog appeal in a case such as this to first seek a certificate of the High Court so as to enable an appeal to be brought to the Court of Appeal. This should be done in all cases unless there truly are grounds for suggesting that there should be a direct appeal to this Court in any event. Unless it is a case which would meet the criteria for leapfrog leave, even if an appeal to the Court of Appeal were available, then the possibility of an appeal to the Court of Appeal should first be explored. Furthermore, it seems to us that this Court would benefit, in considering whether to grant leapfrog leave, from the views of the High Court judge who heard the case as to whether important issues are raised. While it will always remain the situation that this Court must reach its own independent view on whether the constitutional threshold is met, nonetheless the analysis of a trial judge on the importance of the issues which were raised in the proceedings would be of assistance.
3.9 In any event the restriction on appeals without a certificate does not prevent a party, who can persuade this Court that the constitutional threshold is met, from pursuing an appeal. Against that background we do not see any need to revisit the appellate jurisprudence applying in certificate cases. If a party contends that they did meet the certificate threshold and that the High Court has incorrectly declined a certificate then such a party can attempt to persuade this Court that the constitutional threshold has been met. Given that the constitutional threshold is somewhat lower, such a party is no way prejudiced by being required to go down that route. We would merely add that we consider that it would be appropriate for High Court judges, in considering whether to grant a certificate, to at least have regard to the new constitutional architecture, to the fact that an appeal to this Court under the leapfrog provisions of Art. 34.5.4. is open but also to the fact that an appeal to the Court of Appeal should remain the more normal route for appeals from the High Court.
4.1 For reasons which we hope to address shortly it is clear that the question of standing to bring challenges to environmental decisions which are subject to European law is itself a question which raises issues both of national law on standing and European law. The reason for this stems from the provisions of Article 11 of the Codified Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment with EEA relevance (“Article 11”). It is, of course, that Article which confers, as a matter of European law, and in conformity with the provisions of the Aarhus Convention (The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters), an entitlement on persons to question the procedural or substantive validity of certain decisions made in the environmental field. There is no dispute but that the decision to grant permission in respect of the wind farm which is subject to challenge in these proceedings comes within the ambit of the type of decision which is subject to the provisions of Article 11.
4.2 So far as standing is concerned what Article 11.1 itself provides is the following:-
“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 of this Directive.”
4.3 As will shortly be analysed there has never been a requirement in Irish judicial review law on standing that there be an “impairment of right” as such in order that a person might be entitled to challenge a relevant measure. It is the case that such a requirement applies in the administrative law of some other member states of the European Union such as Germany. However, so far as Ireland is concerned, Article 11 therefore requires that a person, in order to have the right to bring a challenge conferred by that Article, have a “sufficient interest” in the matter “in accordance with the law of the member state concerned” but also that the relevant standing requirement needs to be interpreted and applied on the basis of a “wide access to justice”.
4.4 It is clear, therefore, that standing, for the purposes of Article 11, does not involve an autonomous European law concept as such but rather involves the application of national standing rules subject to the important caveat that those rules must be consistent with the “wide access to justice” requirement found in the text of the Article itself. 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.
4.5 In that context the CJEU pointed out in Case-570/13 Gruber that:-
“… Member States have a significant discretion to determine what constitutes ‘sufficient interest’ or ‘impairment of a right’…
However, it is apparent from the wording of Article 11(3) of Directive 2011/92 and the second paragraph of Article 9(2) of the Aarhus Convention, that that discretion is limited by the need to respect the objective of ensuring wide access to justice for the public concerned”.
4.6 The starting point has, therefore, to be a consideration of Irish standing rules although it may ultimately be necessary to consider whether those rules are consistent with the “wide access to justice” requirement imposed by European law.
4.7 However, it may well be appropriate to consider Irish judicial review standing rules in environmental cases on a two-step basis. The reason for a second step is that the general principles behind the standing rules which are applied in relation to judicial review challenges in Ireland may, at least on one view, have a particular application in the context of environmental challenges. That is not to say that the overall rules do not apply across the board. Rather it is to say that, as can often be the case, the application of general rules may differ in particular circumstances. Environmental law is a case in point. From a very early stage (and indeed predating Ireland’s membership of the then European Economic Community) members of the public generally enjoyed a broad entitlement to participate in environmental decision-making. For example, since the requirement for planning permission was first introduced in Ireland under the Local Government (Planning and Development) Act, 1963, it has always been the case that persons could object to a planning permission. To facilitate public participation a person seeking such a permission was required to publish a public notice of their intention both in the print media and by affixing a notice to the location in respect of which the permission was sought. Furthermore, when the Board was established by virtue of the provisions of the Local Government (Planning and Development) Act, 1976, it was given the role of considering appeals from planning decisions made by local authorities in their capacity as planning authorities. The Board also entertained observations from the public generally and the practice was to conduct oral hearings in respect of the more important appeals in which hearings members of the public were entitled to participate. In addition, it is obvious that, depending on the location, scale and potential consequences of any development project, a greater or lesser number of persons may have legitimate concerns about its impact.
4.8 Many of the administrative decisions which are the subject of judicial review involve only the decision-maker and one or a very small number of persons directly affected by the decision in question. A challenge to a decision by, for example, a social welfare tribunal or appeals body to refuse a benefit to an individual will rarely directly involve anyone other than that individual and the decision-making body. Similar considerations are likely to apply in the case of many regulatory bodies. Furthermore, adjudicatory bodies outside of the court system, such as those charged with making decisions in fields such as employment, make many decisions which have no direct effect except on the parties to the adjudicative process giving rise to the decision sought to be challenged. For those reasons it follows that, in very many cases, the position on standing will be clear. The only persons with any real or “sufficient” interest in the matter sought to be challenged will be clearly defined and significantly confined in number. However, it is at least arguable that the application of general principles to the question of standing in the environmental field may give rise to a situation where a significantly wider number of persons have standing but may also give rise to questions of greater difficulty in relation to defining the boundary between those who have standing and those who do not. This is not because there are different rules on standing to be applied in environmental cases but rather that the definition of those who may have a sufficient interest, in accordance with Irish law, in an environmental challenge may, because of the very nature of the environmental challenge itself, encompass a wider (and potentially significantly wider) group of persons or bodies and may give rise to greater questions of difficulty in determining where the limits of standing may lie.
4.9 Against that background it seems to us that the question of standing in this case logically involves considering, in sequence, potentially three separate questions. These are:-
(a) The issue of the limits of standing in judicial review challenges generally;
(b) The application of the general principles identified in (a) in the case of environmental challenges; and
(c) Whether the position in national law identified as a result of (a) and (b) requires to be modified in the light of the “wide access to justice” requirement specified in Article 11.
It is proposed to deal with each of those issues in turn.
5. Standing in Irish Judicial Review
5.1 As the authors of Hogan and Morgan - Administrative Law in Ireland (4th Ed) point out (see paras. 16-195 et seq), the law on standing in judicial review proceedings has undergone, and may still be undergoing, what might at a minimum be described as an evolution in recent years. The starting point for present purposes has to be the introduction, in 1986, of new rules of court concerning judicial review which provide, in O.84, r.20(4), 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”. It follows, therefore, that the rather generalised term “sufficient interest” now defines the limits of standing to bring a judicial review challenge irrespective of the form of order sought. It should also be noted, as the authors of Hogan and Morgan also point out, that the courts in this jurisdiction have traditionally applied the same approach to standing, which was identified in respect of constitutional cases in Cahill v. Sutton  I.R. 269, in relation to judicial review proceedings which do not involve a constitutional element.
5.2 That overall approach is fairly described as being reasonably flexible as was pointed out by Henchy J. in Cahill when he stated:-
“(The relevant person) must show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.
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. Since the paramount consideration in the exercise of the jurisdiction of the Courts to review legislation in the light of the Constitution is to ensure that persons entitled to the benefit of a constitutional right will not be prejudiced through being wrongfully deprived of it, 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. For example, while the challenger may lack the personal standing normally required, those prejudicially affected by the impugned statute may not be in a position to assert adequately, or in time, their constitutional rights.”
5.3 While the language used by Henchy J. was specific to the challenge to a statute which was under consideration in that case, the general principle seems to be applicable, and to have been regularly applied, across the board in judicial review cases.
5.4 Therefore, the starting point is that the decision or measure under challenge must be said to give rise to an actual or imminent “injury or prejudice” to the challenger or that the challenger has been or is in danger of being “adversely affected”. That can be described as the broad general principle. In order for a person to have standing to bring a judicial review challenge, ordinarily the person concerned will need to be in a position to demonstrate that the decision or measure which they wish to challenge either has or is imminently in danger of having adversely affecting their interests so as to cause or potentially cause injury or prejudice.
5.5 The intent behind the limitation inherent in that principle is to prevent a party from, in the words of Henchy J. in Cahill, being “allowed to conjure up, invoke and champion the putative constitutional rights of a hypothetical third party…”. There is, of course, a particular aspect of constitutional challenges which might well be said to have informed that analysis. A successful constitutional challenge, under Irish constitutional law, renders the statute in question (or an appropriate part of it) invalid. Thus the impugned statutory provision will no longer be of any effect on any persons and not just on those whose specific rights may have been impermissibly interfered with by the statute in question. Thus, pending the enactment of replacement and constitutionally conforming legislation, all persons, and not only those whose rights may have been impermissibly affected by the statute in question, will be relieved of complying with whatever regime the statute concerned put in place. That fact provides an important rationale for caution in allowing parties to, as it were, piggyback a challenge to a measure of general application on the basis of asserting a breach of rights which applies only to others.
5.6 Like considerations may apply in respect of some non-constitutional judicial review proceedings but many such cases, even where successful, do not involve interference with a decision or measure which has any implications beyond those specific to the parties.
5.7 Be that as it may, and subject to the sort of general extension of standing in particular exceptional cases identified in Cahill, where the interests of justice may require it, the broad rule requires that a challenger must establish adverse effect causing or likely to cause injury or prejudice. As noted earlier the application of that broad rule in respect of many types of challenge may not give rise to any great difficulty. The range of persons affected by a decision or measure to a sufficient extent that they can be described as having been adversely affected by injury or prejudice may be clear, obvious and limited. However, as is often the case, there may be categories of challenge where the application of that general principle may give rise to much greater difficulty. Against that background it is necessary to turn to the application of the general principle in environmental cases.
6. Application of General Principle in Environmental Cases
6.1 Before looking at the jurisprudence concerning the manner in which the general principle has been applied in environmental cases it is important to note certain statutory measures which had the effect of altering standing rules in such proceedings. Section 50(4) of the 2000 Act introduced a new test for standing of “substantial interest”. However, the Environment (Miscellaneous Provisions) Act, 2011 (s. 20) amended that provision and brought about a reversion to the traditional “sufficient interest” test. It may well have been that there was concern that the “substantial interest” test might have failed to meet the requirement of broad access to justice required by Article 11.
6.2 It should also be noted, in passing, that some confusion may have been caused by the fact that the phrase “sufficient interest” formed the traditional basis for standing in Ireland and the fact that Article 11 also uses the language of “sufficient interest”. The text of Article 11 requires that the challenger have a sufficient interest “in accordance with national law”. Thus, as already noted, the starting point of any analysis has to be to determine what national law says about standing. There is no reason in principle why the language of Irish environmental judicial review standing law has to use the term “sufficient interest” for it to be compatible with EU law. It is open to the Irish legislature to provide for any standing rules considered appropriate provided that those rules, in whatever terms they are defined, meet the “broad access to justice” requirement. There may well have been confusion which stemmed from the fact that the traditional test for standing in Ireland used the same phrase as appears in the English version of Article 11.
6.3 Be that as it may, it is important in analysing the recent case law on standing in environmental cases to pay particular regard to whether the case in question was decided at a time during which the “substantial interest” test had been imposed. On the other hand, it may well be that some assistance can still be obtained from cases determined during that period for it can hardly be doubted but that the “substantial interest” test was stricter than the “sufficient interest” requirement so that it may readily be inferred that circumstances which met the “substantial interest” test would also clearly have met a “sufficient interest” requirement had it been in place at the time in question.
6.4 The particular focus of the standing issue in this case concerns persons who did not participate in the substantive planning process before the Board. That aspect of the standing rules in environmental cases has also been the subject of specific statutory intervention initially in the form of s.50(4) of the 2000 Act which required that an applicant for judicial review must have participated before the relevant planning authority and/or the Board or could show that there were “good and sufficient reasons” for not so participating. However s.13 of the Planning and Development (Strategic Infrastructure) Act, 2006 reversed that requirement with effect from 17th October, 2006. Thus the earlier of those measures introduced, with effect from 2000, a requirement of prior participation but the latter reverted the law to the previous position that a failure to participate does not operate necessarily in all circumstances as a barrier to standing. Indeed, some of the case law which predated those legislative changes suggests that the traditional position was one where a failure to participate did not necessarily, and in all circumstances, prevent a relevant person from having standing. Chambers v. An Bórd Pleanála  1 I.R. 134 is a case in point. The challengers in that case lived near the site of a proposed pharmaceutical manufacturing facility. They were members of an environmental pressure group which opposed the granting of permission but did not, personally, put in observations or objections or actually participate at an oral hearing before the Board. While the High Court (Lavan J.) held the persons concerned to lack standing this Court took a different view.
6.5 It seems to follow, therefore, that, in the absence of a specific statutory measure introduced in respect of environmental cases, the general principle permitted, at least in some circumstances, persons to be held to have standing even though they did not participate in the process. However, it must be said that the challengers in Chambers would clearly have met the general test identified in Cahill for their interests, as persons living in the immediate vicinity of the proposed development, were clearly subject to being potentially adversely affected or prejudiced by the development in question. In other words unless the failure to participate in the planning process was to be regarded as a disqualifying matter so far as standing was concerned then the persons in question would undoubtedly have met the Cahill standard.
6.6 It is also of some relevance to note Mulcreevy v. Min. for the Environment 1 IR 72, where the applicant in question was found to have standing to challenge the validity of a statutory instrument permitting works to be carried out on a national monument even though the monument concerned was located in Dublin but the applicant lived in Kerry.
6.7 While it has been noted from time to time that 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), nonetheless Mulcreevy seems to suggest that the nature of the measure under challenge may 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).
6.8 On the other hand some interpretations placed on Lancefort Ltd v. An Bórd Pleanála (No. 2)  2 IR 270, might suggest a different view which would have supported the proposition that prior participation (or an appropriate explanation for non-participation) was a prerequisite for standing. Certainly the trial judge in this case placed considerable reliance on that judgment. However, it is arguable that Lancefort does not stand as authority for a general principle that prior participation is in all cases a prerequisite to standing. Lancefort certainly does suggest that it may, however, be a factor. But even if Lancefort might have been regarded as authority for the wider proposition it must, of course, now be read in the light of the introduction, in 2000, of an express statutory requirement for prior participation followed by the express repeal of that provision in 2006. On that basis it can no longer be held that Lancefort provides authority for any general preclusion of standing in the absence of prior participation or an appropriate explanation for the lack of it.
6.9 The case law to date would seem to suggest, therefore, 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. For example, a large scale development having the potential to impact on the amenity of persons within a wide catchment area might well be said to have the potential to have an adverse impact on the legitimate interests of persons living, or perhaps working or otherwise having regular contact with, a significant geographical area. A minor domestic development might well only have an impact on a much more restricted area.
6.10 In addition, regard can be had to 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 raise questions of particular national or international importance (such as the national monument involved in Mulcreevy) may confer standing on a much wider range of persons.
6.11 On the current state of the jurisprudence in Ireland, and without, for the moment, having regard to the requirements of European law, it seems 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. The next question concerns the European dimension.
7. The European Dimension
7.1 Two specific aspects of European law are potentially relevant to the standing issue which arises in this case. The first, as already noted, is the requirement that national standing rules must be consistent with broad access to justice. It follows that, in interpreting national standing rules, the courts of a member state are required to ensure that those rules meet the “wide access to justice” standard. To the extent that national rules might breach that imperative a national court will be required, either by disapplication or appropriate interpretation, to ensure that the standing rules actually applied in those cases to which Article 11 applies, meet the standard required. As Irish standing rules are, for the reasons already analysed, expressed in broad terms capable of appropriate interpretation it does not seem that any question of disapplication truly arises. However, it remains necessary for this Court, in interpreting the “sufficient interest” requirement for standing contained in national law, to ensure that the interpretation conforms with the requirements of Article 11.
7.2 Second, it is potentially of some relevance to note the provisions of European law concerning the standing of environmental non governmental organisations (“NGOs”) and the measures adopted in Ireland to ensure compliance with those provisions. Both sides of the argument in this case seek to place some reliance on the broad standing now given to environmental NGOs in Irish law. On the one side it is argued that the very fact that environment NGOs have such a broad standing, and thus can maintain judicial review proceedings in respect of developments where few persons might be said to have a direct individual interest in the development concerned, removes the need for a broad interpretation of what might be called the Cahill exception. As already noted it was made clear in Cahill that there may be exceptional cases which require a widening of what might otherwise be the appropriate approach to standing. A particular example is to be found in cases where there might a significant breach of legal or constitutional obligations but where there would be few, if any, persons in a practical position to maintain appropriate proceedings. On that basis it might be said that there could well be categories of environmental cases which would require allowing a wide range of persons standing because any narrower view on the standing question might make it unlikely that an effective challenge could be brought even though there was a breach of legal or constitutional requirements. Against that it is suggested that the very fact that environmental NGOs have an almost unlimited access to environmental litigation removes the necessity for invoking a Cahill type exception in environmental cases.
7.3 On the other side it is suggested that that it would be a strange result if the proper interpretation of standing rules led to the conclusion that a small group of persons, by forming themselves into an organisation, could bring a challenge which those same persons, acting individually, could not bring. The fact that Ireland has not imposed any significant conditions which would restrict the type of NGO which might have standing is said to create a situation where there would be an anomalous result occasioned by excluding standing to individuals but conferring standing on those same individuals should they form a very small organisation.
7.4 However, before considering the impact of Union law, it would appear to be appropriate to consider whether, applying the traditional Irish approach to standing, either Ms. Grace and Mr. Sweetman would have standing in this case. It is only if, on the proper application of domestic standing rules, these proceedings would fail for lack of standing that the question of whether that traditional approach to standing needs to be modified in the light of EU law would arise. Also, in such circumstances, it would be necessary to consider whether the impact of European Union law on the standing issues which are necessary to determine standing in this case are clear so as to determine whether a reference to the Court of Justice of the European Union might be mandated. It is, therefore, necessary to consider first whether there is standing under the traditional principles of Irish standing law noted earlier.
8. Application of Traditional Irish Standing Rules
8.1 We propose to consider the position of Ms. Grace first for, if it is clear that she has standing, then the proceedings can progress to a consideration of the substantive issue in any event.
8.2 It must first be recalled that the proposed development is intended to take place on a site which is protected as a matter of European law. That fact in itself must carry significant weight in the assessment of standing. The protection of such sites involves the legitimate interests of, arguably, every citizen. It is likely that many such sites will be located in areas where the population may be less dense than in more developed locations. The very purpose of the designation of the site, which in this case is to provide for habitat for the hen harrier which is, as will become clear when considering the substantive issue, a species which is expressly protected by the relevant European measures, involves the type of amenity value which is not necessarily confined only to those who reside in its immediate proximity. In fact, the hen harrier does not frequent areas of built-up human habitation or intensive farming. Developments that have an adverse effect on its habitat are therefore unlikely, in the normal course of events, to cause any personal prejudice or injury to the interests of individual objectors.
8.3 It seems to us that the nature of a protected site is relevant to the question of standing. Where that site - in this case a habitat of a relatively rare bird that avoids areas of human activity - is such that it is unlikely that any person can demonstrate that the proposed development will have any direct effect on their own affairs including their enjoyment of an amenity, the interpretation of the requirement of “sufficient interest” should be interpreted with a view to the necessity to protect the site against adverse effects. The legal protection of such sites could otherwise be gravely weakened.
8.4 On the other hand it is clear, as counsel for the Board argued, that the fact that both the Aarhus Convention and the Public Participation Directive gives status to national standing rules necessarily implies that it is open to subscribing or member states to impose some limitations on those who may have standing.
8.5 For the reasons already addressed it is clear that, as a matter of national law, a failure to participate in the permission granting process does not of itself exclude a person from having standing but that it may be a factor which can, in an appropriate case, be taken into account. That may be especially so where the person concerned does not have a reasonably close physical proximity to the development in question or an established connection with a particular amenity value which might arguably be impaired by the proposed development. In that context it is important to emphasise that participation in the process will undoubtedly confer standing. A failure to participate may, (or may be likely to) leave the question of standing open to doubt particularly in the case of persons who cannot show either a physical proximity or a more general established interest in an amenity value of the site of the proposed development which may potentially be impaired.
8.6 There is an added factor in this case in that neither Ms. Grace nor Mr. Sweetman put forward any significant explanation as to why they did not participate. According to their counsel they were simply unaware of the proposed development until after permission had been granted.
8.7 It is, however, clear that 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.
8.8 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.
8.9 Applying those criteria we are satisfied that Ms. Grace does have standing. She lives less than one kilometre from the SPA and relatively close to the site of the proposed development. According to her affidavit, she chose to purchase a house in the area because of its unspoilt nature, rich biodiversity, wildlife and history. She is involved in a number of local voluntary groups. Two appear to be concerned with sustainable energy. Another group aims to establish a craft trail in part of the SPA. She is currently the Chair of a community project promoting tourism in the area. She expresses a belief that the proposed development will jeopardise the work of these groups. In the context of a protected site and the nature of the development concerned together with its potential effect on the site we are satisfied that Ms. Grace, notwithstanding the absence of participation in the permission process, nonetheless has, in all the circumstances of this case, standing.
8.10 The position in respect of Mr. Sweetman is less clear. He does not have any physical proximity to the site. While he undoubtedly has an interest in environmental matters generally, he has placed no evidence before the Court to show that he has any particular interest in the specific amenity value which is potentially impaired by this development. Nor has he given any real explanation as to why he did not participate. 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. None of those factors are present in Mr. Sweetman’s case.
8.11 However, given that we are satisfied that Ms. Grace has standing and given that it is appropriate, in those circumstances, to go on to consider the merits of the substantive issue, we do not find it necessary to reach a final determination on the question of Mr. Sweetman’s standing in this case. We would simply reiterate that had he participated in the permission granting process or given the Court some cogent explanation for non-participation, then it would have been much easier to resolve the standing question in his favour.
8.12 In any event it is, therefore, necessary to turn to the substantive issue.
9. The Substantive Issue
9.1 We have reached the view that the proper resolution of the substantive issue requires the resolution of an issue of EU law which is not an acte clair in the sense in which that term is used in the jurisprudence of the CJEU. For those reasons we propose that the Court should refer certain questions of European law to the CJEU for its opinion.
9.2 There is set out in a draft reference an analysis of the legal issues which arise in relation to the substantive issue and the reasons why we have come to the conclusion that it is necessary to refer certain questions concerning the proper interpretation of Articles 6(3) and 6(4) of Directive 92/43/EEC to the Court of Justice of the European Union.
9.3 There is also set out in a schedule to the draft reference the facts which we consider have been established on the evidence and on the materials which were before the Board. We do not, therefore, find it necessary to set out the facts again here or to elaborate on the legal issues which arise.
10.1 For the reasons set out in this judgment we have concluded that at least Ms. Grace has standing to pursue these proceedings and this appeal. In those circumstances we do not consider it necessary, for the proper resolution of this appeal, to reach a final determination on whether Mr. Sweetman also has standing.
10.2 We have concluded that it is not necessary to revisit the existing jurisprudence in respect of the absence of an entitlement to appeal from the refusal of a certificate of leave to appeal by the High Court in a case such as this. An appellant has an independent possibility of appealing directly to this Court under Article 34.5.4. While an appeal to the Court of Appeal must always remain the most normal route for any appeal to follow, nonetheless a party who is refused a certificate which has the effect of preventing them from invoking the jurisdiction of the Court of Appeal, has a constitutional route open to them.
10.3 In the light of our findings on those two issues we are satisfied that it is necessary, for the proper resolution of this appeal, to consider the merits of the substantive issue. For reasons which are apparent from a draft order of reference circulated in conjunction with this judgment, we are of the view that not all of the issues of European law which are necessary to determine this appeal are clear and we, therefore, propose to refer certain issues of European law to the Court of Justice of the European Union. While it is well established that it is for the referring court to decide on the form and content of the reference document, we propose that the parties should be given 14 days to make observations on the form of that reference. The final decision on form will, however, remain a matter entirely for the Court.
10.4 In addition, it must be clear that, in our view, a reference is required and the observations should be directed simply to the text of the proposed document. As noted in the proposed reference document it is intended to invite the Court of Justice to adopt such procedures as it may consider appropriate to ensure that the answer to the question is given in the minimum time possible. In that regard we have considered the potential effect of any undue delay on the viability of the project.