Irish Habitats Regulations / exemption licensing process referred to European Court
The Irish High Court referred four legal questions to the Court of Justice of the European Union (CJEU). These questions relate to the validity of aspects of the Birds and Natural Habitats Regulation 2011 (the 2011 Regulation), which transposes the EU Habitats Directive to Ireland. The key substantive referral issue concerns the process under the 2011 Regulations for obtaining a “permit of derogation” to disturb protected wildlife.
In particular, Judge Humphreys asked the CJEU whether the 2011 regulations, insofar as they allow a developer to obtain a derogation permit after the granting of a building permit, comply with the Habitats Directive. .
The relevant Irish proceeding was a judicial review of the building permit for the Dublin Mountain Visitors Center project near the Hellfire Club in Montpelier Hill, which was granted in June 2020. The applicant for judicial review was an association of residents, which had opposed the first application for planning permission. The main remedies requested in the proceedings were as follows:
- Relief one: an order of certiorari canceling the authorization ??
- Relief three: a statement that section 175 of the Planning and Development Act 2000 (PDA) (which sets out requirements for environmental impact assessment of development carried out by or on behalf of local authorities) is invalid on the grounds that it does not adequately provide for public participation ??
- Relief four: a declaration that Regulations 51 and 54 of the European Community (Birds and Natural Habitats) Regulations 2011 (relating to the protection of species and the derogation process) are incompatible with EU law
Denial of relief
The High Court refused most of these remedies. In particular, the judge considered that:
Was there no error in internal or European law which would justify a certiorari order being made ??
The Residents’ Association did not have standing to claim that section 175 was invalid. As noted, this argument was based on an inadequate provision for public participation in section 175. The judge noted that the Association had been able to submit the request, so even though there was a gap in the provision, this had not hampered the right of the Association rights. As the judge said, “[one] cannot assert the due process rights of another person who is not a claimant, except in exceptional circumstances which do not apply here ”??
No decision had been taken “under” the 2011 Regulations, as there was no current, established or likely requirement for an exemption license, and therefore no exemption had been requested.
Consequently, the Court refused to declare invalid the Regulation of 2011 insofar as it allows to obtain a derogation before the granting of the planning authorization.
Referral of certain questions to the CJEU
After making the above findings, the High Court then heard further arguments on the validity of the 2011 regulations as they apply to the situation after the granting of the development authorization.
A key feature of the Irish derogatory license system is that this permission is not required systematically (i.e. not all developments need to obtain a derogatory license). Instead, the requirement to request a derogation only arises when a development would disrupt or interfere with protected species in violation of the “strict protection” rules for particular species set out in the 2011 Regulations. , a developer may not be able to practically confirm that this obligation applies and apply for a derogation permit before granting the planning permit.
As the High Court noted, in deciding whether a waiver is necessary in these circumstances, “the board, that is, the developer in this case, must rely on its own judgment in determining whether it would violate criminal law “. The application and validity of this process has been raised in a number of recent judicial review proceedings. In the Hellfire Club case, the Residents’ Association stated in particular that:
- The “ex post grant” of derogatory licenses is incompatible with the strict protection requirements for the purposes of the Habitats Directive ??
- The 2011 Regulation does not comply with Article 6 of the Aarhus Convention as it does not provide for a system of public consultation with regard to the granting of an exemption authorization under Regulation 54 of the 2011 Regulation.
- Regulations 51 and 54 of the 2011 Regulations do not adequately implement Articles 12 and 16 of the Habitats Directive
The Court identified the following procedural and substantive issues arising from these grounds, which it referred to the CJEU for decision:
1. Should the reference to “EU law” in the Residents’ Association’s Fourth Appeal be interpreted as implicitly including a reference to the Aarhus Convention?
2. Are national procedural rules against ‘hypothetical’ challenges valid in the context of challenges based on EU law?
3. Whether the 2011 regulations are invalid due to a lack of integration between the exemption system (“post-consent”) and the building permit process. In particular, the judge defined this process as requiring an “ad hoc” assessment by the contracting authority as to the need to obtain an exemption.
4. If the 2011 regulations are invalid due to the lack of opportunity for the public to participate in the exemption authorization process
A referral to the CJEU on the basis of the validity of the 2011 Regulation seems to have been “on the cards” for some time, given the confidence that opponents of planning applications increasingly place in arguments based on necessity. to obtain and the process of obtaining, a derogation permit.
In particular, the need for some kind of “interconnection” between the building permit process and the waiver process, and the possibility that developers will only get a waiver license after the building permit has been granted. , have become subjects of controversy.
In a separate judgment after the Hellfire Club case, Humphreys J stressed that he did not believe that EU law required developers to obtain a derogation license before they could obtain a building permit. However, the judge again said there was an open question as to whether EU law requires the building permit and derogation permit processes to be linked.
In this context, the referral to the CJEU should clarify the legality or otherwise of the exemption system provided for by the 2011 regulations.