Access to Justice, Standing, Injunctive Relief, Environmental Impact Assessments, Permits, Public Participation, Remedies, Jurisdiction, Evidence, Human Rights
The Applicant had applied to judicially review a decision approving a roadway, on the ground that it was not conditional on remediation in the event it had a worse than expected effect on an area of special conservation. The Applicant also raised an issue as to the proper transposition of an EU environmental directive,the Directive 2003/35/EC that provides for public participation in respect of the drawing up of certain plans and programmes relating to the environment. The High Court refused leave. The question in issue is whether the process of judicial review available in the Irish courts is sufficient to meet the obligations on Ireland under Article 10a of the Directive, that recognise the right to a review procedure before a court of law or other independent and impartial body established by law, to challenge the substantive or procedure legality of decisions, acts or omissions subject to the public participation provisions. The Court examined whether there is available in Ireland, on the law as it currently stands a sufficient form of review necessary to meet the obligations on Ireland under the directive; and secondly whether the aspect of the directive imposing an obligation to provide such review is directly effective. The Judge is of the view that the statement of ground does not raise a challenge to the adequacy of the type of review provided in Ireland at all. It confines itself to challenging the exposure to costs. In those circumstances, having regard to the jurisprudence, such a challenge can only now be brought by amendment and that, again relying on that jurisprudence, an amendment can only be allowed if there is "good and sufficient reason" for allowing it to be brought outside the time limit. The appropriate approach to be taken in respect of a challenge to a particular decision is to consider whether there are substantial grounds for suggesting that, in relation to that decision, a higher level of scrutiny is required on the facts of the case and, in turn, to determine whether, on applying such a higher level of scrutiny, there would be substantial grounds for the challenge itself. In the context of the facts of this case, there is no failure to transpose nor the Applicant has established substantial grounds for contending that the decision ought be overturned.