Date of text
Sabin Center
Court name
High Court of Ireland
Reference number
2017 No.344 JR
Climate Change

Friends of the Irish Environment challenged the Fingal County Council’s decision to issue a five-year extension to the Dublin Airport Authority for their planning permission to construct a new runway. The court declined to grant any of the relief sought by plaintiffs because they failed to assert a viable claim for standing. However, in a historic first, the High Court issued a judgment recognizing “a personal constitutional right to an environment” under the Irish Constitution. Despite finding a lack of standing, the High Court issued a comprehensive review of the merits in anticipation of a future appeal.

The High Court declared that, “A right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfilment of all human rights. It is an indispensable existential right that is enjoyed universally, yet which is vested personally as a right that presents and can be seen always to have presented, and to enjoy protection, under Art. 40.3.1° of the Constitution.” The Court elaborated that this right was not so “Utopian” as to prevent enforcement, but would rather become enforceable once made concrete through the definition and demarcation of specific duties and obligations. The High Court explained that recognizing this previously unenumerated constitutional right was a first step in this process to define and demarcate a right to an environment.

However, the High Court did not find that the Fingal County Council violated this newly recognized right to an environment by extending the planning permission for the runway. The Court explained, “. . . even though the court accepts that members of the [Friends of Irish Environment] enjoy the contended-for constitutional right, and that the [Friends of the Irish Environment] itself has standing as a body corporate, and has a sufficient basis to contend for recognition of that existing but unenumerated constitutional right, the [Friends of the Irish Environment] nevertheless did not have a right to participate in the extension decision under [Section 42 of the Planning and Development Act 2000] (there is no such right of participation) and it has failed to establish that there is, by reference to that section and on the facts presenting, any disproportionate interference with the personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large. In truth, the court sees in [Section 42] nothing more than a proper and proportionate legislative interference with the said, ever-present and now expressly recognised personal constitutional right.”

Further, the High Court ruled that Friends of the Irish Environment did not fulfill standing requirements under section 42 of the Planning and Development Act 2000, Article 11 of the Consolidated EIA Directive, or the “Aarhus Convention” (i.e. the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters adopted on 25th June 1998 in the Danish city of Aarhus). The High Court found that neither the Planning and Development Act 2000 nor the Consolidated EIA contained requirements for further public participation in granting an extension of a planning permission. Claims concerning the original decision to grant a planning permission in 2007 were deemed impermissible collateral attacks.

The Court did not find that the Section 15 of the Climate Action and Low Carbon Development Act 2015 changed the substance of Section 42 of the Planning and Development Act in a way relevant to the claims of this case. Section 15 creates an obligation that "A relevant body shall, in the performance of its functions, have regard to . . . the furtherance of the national transition objective, and the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State." The High Court said that the Fingal Council would only need to provide reasons if it elected to entirely depart from the objectives of Section 15. The High Court did not believe this this sort of departure was present in the case at hand.

Key environmental legal questions

Applicability of a constitutional right to the environment and public participation requirements to granting a five-year extension of a planning permission for an airport runway