Judge will not refer dispute over Co Kildare housing plan to EU court

A High Court judge has decided not to refer a dispute over a development of 366 new homes in Co Kildare to the Court of Justice of the EU (CJEU).

Mr Justice Garrett Simons changed his mind about making a reference to the CJEU after being persuaded by submissions from the Attorney General.

He also agreed to strike out the proceedings which came from a challenge by four local residents over the granting of permission by An Bord Peanála for the development at Capdoo, Clane, under strategic housing legislation.

Both sides had agreed the proceedings should be struck out three days into the hearing of the case.

In April, Mr Justice Simons refused to do so because he first wanted guidance from the CJEU relating to the interpretation of a 2011 EU environmental impact assessment (EIA) directive and how that should affect the strike out application by the parties.

The judge adjourned making a reference to the CJEU for a preliminary ruling for three weeks to allow the parties bring to the attention of the court any error in the draft reference, in accordance with the March protocol on delivery of electronic judgments.

The Attorney General (AG) then asked to be joined as a party in the case and further submissions were made.

In August, the judge had notified the parties he would not be making a reference to the CJEU. He said he was persuaded, for reasons set out in the AG’s written submission, he has no jurisdiction, as a matter of national constitutional law, to make a reference.

On Friday, he gave his reasoned decision for that. He said the parties were in agreement before his April judgment the court should exercise its discretion to allow the case to be settled with a strike out.

The AG adopted a different approach and submitted that, as a matter of constitutional law, the court did not have any jurisdiction to determine proceedings where parties no longer wished any issue to be resolved, he said.

The court’s initial judgment “mistakenly approached the matter as one of discretion, rather than one of jurisdiction”.

In particular, he said it failed to recognise, if and insofar as the leave of the court is required for the withdrawal of proceedings, the court’s jurisdiction was properly confined to the precise terms upon which the proceedings may be withdrawn.

The court had mistakenly found that domestic law afforded a broader discretion than it does and that CJEU guidance was required, he said.

“Now that this mistake has been identified and acknowledged, the premise for the proposed preliminary reference falls away,” he said.

The proceedings were therefore struck out in their entirety, he said.