6b. david browne bl aarhus convention paper (14 july 2018)

1
“Should Trees (and Hen Harriers) Have Standing? A Critique of Locus Standi in
Environmental Law Post the Supreme Court Decision in Grace & Sweetman”
David Browne BL1
Introduction
The purpose of this paper is to trace the evolution of the concept of standing in
planning and environmental law in Ireland, by reference to the relevant case-law, and
to offer some suggestions on how standing rules should be applied, following the
Supreme Court decision in Grace & Sweetman v An Bord Pleanála2
and in light of
the proposed legislative changes.
Before I look at the legal obligation on EU Member States to ensure wide access to
justice, I propose to look at some of the early ethical and jurisprudential writings on
standing in environmental law which precede both the Environmental Impact
Assessment (“EIA”) Directive and the Aarhus Convention.
Should Trees Have Standing and the Mineral King Case
In 1972, Prof. Christopher D. Stone published “Should Trees Have Standing?
Towards Legal Rights for Natural Objects” in the Southern California Law Review
which argued that natural objects and wilderness should have legal rights ipso facto,
thus giving academic support to the land ethic espoused by Aldo Leopold.3
1
David Browne BL is a practising barrister in the areas of administrative, commercial and
chancery law and specialising in EU, local government, procurement, environmental and
planning law. He is the author of The Law of Local Government (published in December 2014
by Thomson Reuters, Roundhall) and co-author (with Patrick McGovern) of ‘Procurement
Law in Ireland’ which is due to be published in July 2018. He lectures in Administrative Law
and Planning and Environmental Law in the Honorable Society of King's Inns and is also the
Course Director of the Advanced Diploma in Planning and Environmental Law in the
Honorable Society of King's Inns. He was previously an advisor in the Department of
Transport, Post-doctoral Research Fellow in Trinity College, Dublin, Fulbright Scholar in the
Energy and Resources Group at the University of California, Berkeley and an Associate in the
Environment and Planning Group in Arthur Cox.
2
[2017] IESC 10.
3
Published in 1949 as the finale to A Sand County Almanac, Aldo Leopold’s “Land
Ethic” essay is a call for moral responsibility to the natural world and emphasised the
role of caring about people, about land, and about strengthening the relationships
between them. In Leopold’s vision of a land ethic, the relationships between people and
land are intertwined: care for people cannot be separated from care for the land. A land
ethic is a moral code of conduct that grows out of these interconnected caring

2
Prof. Stone argued that children, juvenile defendants, slaves, women, Native
Americans, racial minorities, aliens, and endangered species had been conferred legal
rights in the past which they previously did not have and suggested that inanimate
objects and natural objects such as forests and rivers should be conferred standing so
that they could be represented in court.
It was argued that “The fact is, that each time there is a movement to confer rights
onto some new "entity," the proposal is bound to sound odd or frightening or
laughable”. In positing the view that natural objects should have standing, Prof. Stone
suggested that “It is not inevitable, nor is it wise, that natural objects should have no
rights to seek redress in their own behalf. It is no answer to say that streams and
forests cannot have standing because streams and forests cannot speak.”
The article acknowledged that there had been a relaxation to the approach to standing
where a person was aggrieved, as for example in Scenic Hudson Preservation
Conference v. Federal Power Commission4
where the United States Second Circuit
Court of Appeals held that Scenic Hudson had legal standing because of their “special
interest in aesthetic, conservational and recreational aspects” of the mountain.
However, this fell short of the guardianship approach advocated in the article.
Prof. Stone argued that if the term ‘legal rights’ was to have any content at all, an
entity cannot be said to hold a legal right “unless and until some public authoritative
body is prepared to give some amount of review to actions that are colorably
inconsistent with that "right." It was concluded that, in a similar way to the
recognition by the US Supreme Court in Brown v Board of Education5
that state laws
which enshrined segregation by establishing separate public schools were
unconstitutional, in the case of the environment, the Supreme Court could award
‘rights’ in a way that would contribute to a change in popular consciousness and
relationships. Leopold stated the basic principle of his land ethic as: "A thing is right when it
tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when
it tends otherwise."
4
354 F.2d 608 (2d Cir. 1965), cert. denied, Consolidated Edison Co. v. Scenic Hudson
Preservation Conservation, 384 U.S. 941 (1966).
5
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

3
would “be a modest move, to be sure, but one in furtherance of a large goal: the
future of the planet as we know it.”
Shortly after the publication of what might otherwise have been an obscure academic
article, Justice William O. Douglas of the United States Supreme Court published his
famous dissent in Sierra Club v Morton, i.e. the Mineral King case.6
The majority of
the Supreme Court held that because the Sierra Club had failed to allege that it would
be injured it lacked standing to challenge the Forest Service’s grant to Walt Disney
Enterprises of a permit for a ski resort and other amenities which was designed to
serve fourteen thousand visitors per day and which was proposed to be located in the
Mineral King Valley of Sequoia National Park.
In his dissent, in which he referred to Prof. Stone’s article, Justice Douglas held that
“The critical question of "standing" would be simplified and also put neatly in focus if
we fashioned a federal rule that allowed environmental issues to be litigated before
federal agencies or federal courts in the name of the inanimate object about to be
despoiled, defaced, or invaded by roads and bulldozers and where injury is the
subject of public outrage. Contemporary public concern for protecting nature's
ecological equilibrium should lead to the conferral of standing upon environmental
objects to sue for their own preservation…..
Inanimate objects are sometimes parties in litigation….So it should be as respects
valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees,
swampland, or even air that feels the destructive pressures of modern technology and
modern life. The river, for example, is the living symbol of all the life it sustains or
nourishes - fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all
other animals, including man, who are dependent on it or who enjoy it for its sight, its
sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part
of it. Those people who have a meaningful relation to that body of water – whether it
6
405 U.S. 727 (1972). Justice Douglas was an Associate Justice of the United States Supreme
Court between 1939 and 1975. Prior to his Opinion in Mineral King, Justice Douglas
published A Wilderness Bill of Rights in 1965 where he called for an ethical relationship
between people and nature by reforming the legal structure and wrote that “The wilderness
cannot be preserved against the pressures of population and ‘progress’, unless the
guarantees are explicit and severely enforced, unless wilderness values become a crusade”.

4
be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the
values which the river represents and which are threatened with destruction.....
The voice of the inanimate object, therefore, should not be stilled. That does not mean
that the judiciary takes over the managerial functions from the federal agency. It
merely means that before these priceless bits of Americana (such as a valley, an
alpine meadow, a river, or a lake) are forever lost or are so transformed as to be
reduced to the eventual rubble of our urban environment, the voice of the existing
beneficiaries of these environmental wonders should be heard. Perhaps they will not
win. Perhaps the bulldozers of "progress" will plow under all the aesthetic wonders of
this beautiful land. That is not the present question. The sole question is, who has
standing to be heard?
Those who hike the Appalachian Trail into Sunfish Pond, New Jersey, and camp or
sleep there, or run the Allagash in Maine, or climb the Guadalupes in West Texas, or
who canoe and portage the Quetico Superior in Minnesota, certainly should have
standing to defend those natural wonders before courts or agencies, though they live
3,000 miles away. Those who merely are caught up in environmental news or
propaganda and flock to defend these waters or areas may be treated differently. That
is why these environmental issues should be tendered by the inanimate object itself.
Then there will be assurances that all of the forms of life which it represents will
stand before the court - the pileated woodpecker as well as the coyote and bear, the
lemmings as well as the trout in the streams. Those inarticulate members of the
ecological group cannot speak. But those people who have so frequented the place as
to know its values and wonders will be able to speak for the entire ecological
community. Ecology reflects the land ethic.....That, as I see it, is the issue of
"standing" in the present case and controversy.”7
7
Justice Douglas acknowledged the role of environmental protection in his Opinion in United
States v. Republic Steel Corporation 362 U.S. 482 (1960) and United States v. Standard Oil
Company 7384 U.S. 224 (1966) in which he found violations of the Rivers and Harbors Act
of 1899. He also wrote prolifically on environmental issues, including Of Men and
Mountains, which was published in 1950, and My Wilderness: The Pacific West, which was
published in 1960 and was a paean to Glacier Peak in the Cascade Mountain Range in the
Pacific North West.

5
Justice Blackmun also published a dissent where he queried rhetorically: “Must our
law be so rigid and our procedural concepts so inflexible that we render ourselves
helpless when the existing methods and the traditional methods do not quite fit”. On
remand the Sierra Club amended its complaint to make the necessary allegations of
injury and to include a claim that the Forest Service had violated the recently enacted
National Environmental Policy Act of 1969. In 1978 the US Congress added Mineral
King Valley to Sequoia National Park in California as part of an omnibus Park Barrel
Bill.
After the Mineral King case, Prof. Stone published “Should Trees Have Standing?
Revisited: How Far Will Law and Morals Reach? A Pluralist Perspective8
in 1985
and argued for a "moral pluralism" in which one set of ethical principles may govern
one group of moral activities (such as a person's relations with other persons) while
another set of ethical principles may govern another group of moral activities (such as
a person's relations with nature). In 2010 Prof. Stone updated his treatise, which was
published as “Should Trees Have Standing? Law, Morality and the Environment” and
offered a compelling argument that the environment should be conferred with legal
rights.
The idea that the environment is a public good and cannot represent itself was
endorsed by the European Commissioner for the Environment Janez Potočnik in
November 2012 in which he referred to the opinion of Advocate General Sharpston
where she stated that “the fish cannot go to court”.
Standing in Public Law Challenges in Ireland
The issue of standing in public law and Constitutional challenges in Ireland has been
considered in a number of cases whereby a plaintiff was required to demonstrate
sufficient interest (which is the standing requirement in Order 84 of the Rules of the
Superior Courts). Order 84, rule 20(5) of the Rules of the Superior Courts, as
amended by the Rules of the Superior Courts (Judicial Review) 2011 (S.I. No.691 of
2011) states that “The Court shall not grant leave unless it considers that the
applicant has a sufficient interest in the matter to which the application relates”.
8
59 S. Cal. L. Rev. 1 (1985).

6
In Cahill v Sutton9
, the Supreme Court applied a restrictive view of standing to
challenge the constitutionality of legislation. Henchy J. stated that “While a cogent
theoretical argument might be made for allowing any citizen, regardless of personal
interest or injury, to bring proceedings to have a particular statutory provision
declared unconstitutional, there are countervailing considerations which make such
an approach generally undesirable and not in the public interest…Without concrete
personal circumstances pointing to a wrong suffered or threatened, a case tends to
lack the force and urgency of reality.”
It was noted by Henchy J. at 285-286 that “[T]he absence of a prejudice or injury
peculiar to the challenger might be overlooked, in the discretion of the court, if the
impugned provision is directed at or operable against a grouping which includes the
challenger, or with whom the challenger may be said to have a common interest –
particularly in cases where, because of the nature of the subject matter, it is difficult
to segregate those affected from those not affected by the challenged provision…..The
primary rule as to standing in constitutional matters is that the person challenging the
constitutionality of the statute, or some other person for whom he is deemed by the
court to be entitled to speak, must be able to assert that, because of the alleged
unconstitutionality, his or that other person's interests have been adversely affected,
or stand in real or imminent danger of being adversely affected, by the operation of
the statute." This victim-based approach emphasised the need to demonstrate harm or
injury.
However, that rule was subject to “expansion, exception or qualification when the
interest of the case so requires” and, therefore, was flexible and embraced a number
of exceptions.10
In R. v Inland Revenue Commissioners Ex Parte National
Federation of Self-Employed and Small Business Limited11
, Lord Roskill considered
that sufficient interest was “a mixed question of fact and law; a question of fact and
degree and the relationship between the Applicant and the matter to which the
Applicant relates, having regard to all of the circumstances of the case.”.
9
[1980] I.R. 269 at 283.
10
See also Society for the Protection of Unborn Children (Ireland) Ltd. v Coogan [1989] I.R.
734.
11
R. v Inland Revenue Commissioners Ex Parte National Federation of Self-Employed and
Small Business Limited [1982] A.C. 617.

7
In State (Lynch) v Cooney12
a broader approach was adopted to the interpretation of
Constitutional law in Ireland with Walsh J. stating that “… restrictive rules about
standing are, in general, inimical to a healthy system of administrative law…. the
question of whether or not a person has sufficient interest must depend upon the
circumstances of each particular case. In each case the question of sufficient interest
is a mixed question of fact and law which must be decided upon legal principles.” In
S.P.U.C v Coogan13
, Finlay C.J. identified the test as “bona fide concern and interest,
interest being used in the sense of proximity or an objective interest” in the protection
of a constitutionally protected right not conferred than the moving party. That case
also suggests that an earlier record of successful litigation on the topic can establish
standing.
In Mulcreevy v Minister for Environment14
, the issue of locus standi was also
addressed in the context of the National Monuments Act 1930 and it was held by
Keane C.J. that “it was not in the public interest that a decision by a statutory body
should wholly escape scrutiny because the applicant for judicial review could not
show that he was personally affected, in some sense peculiar to him, by the decision”.
However, “While it is undesirable that invalid legislation or unlawful practices
should escape scrutiny because of the absence of an indisputably qualified objector, it
is always important to ensure that unfounded and vexatious challenges are not
entertained.”
In Digital Rights Ireland Limited v The Minister for Communications, Marine and
Natural Resources15
, it was held by McKechnie J., in determining that the plaintiff
had locus standi, that it “may…..be possible for the Plaintiff to litigate matters which
do not, or cannot, affect it personally and specially in limited circumstances.” It was
held by McKechnie J. that, with regards to alleged infringements of the plaintiff’s
rights and by reference to the decision in Cahill, it was only necessary for the court, in
deciding locus standi, to determine that a limited company might avail of such rights,
not the extent or breadth of those rights. In principle, a plaintiff should not be
12
[1982] 1 I.R. 337 at 368.
13
[1989] I.R. 734 at 742.
14
Mulcreevy v Minister for Environment [2004] 1 I.R. 72.
15
[2010] 3 I.R. 251.

8
prevented from bringing proceedings to protect the rights of others where it had a
bona fide concern and interest, taking into account the nature, extent, importance and
application of the right which it sought to protect or invoke and where the plaintiff
was not a crank, meddlesome or a vexatious litigant.16
Furthermore, where the constitutionality of a law which would affect every citizen
equally was impugned, a plaintiff would not necessarily be denied locus standi simply
because he/she/it was unable to point to any specific prejudice or injury which the
impugned legislation would visit upon him.17
Accordingly, McKechnie J. held that the
court should keep in mind the tension between the public interest, as represented by
public bodies established by the State, and the right of access to the court to litigate
issues relating to whether the public interest was being protected. As a result, it was
held that the court had a duty to prevent the unconstitutional abuse of public power
and where it was clear that a particular public act could adversely affect a plaintiff’s
constitutional rights and/or rights under the European Convention on Human Rights
(“ECHR”) or indeed society as a whole, a more relaxed approach to standing might
be allowed in order for the court to uphold that duty and vindicate those rights.18
Thus, where issues of European Union law arose in litigation, the courts might be
required to take a more liberal approach to the issue of standing so that a person’s
rights would not be unduly hampered or frustrated and the rules on standing should be
interpreted in a way which avoided making it ‘virtually impossible’ or ‘excessively
difficult’ or which impeded or made ‘unduly difficult’ the capacity of a litigant to
challenge measures of general application of European law. Finally, it was held that
where questions of European law were raised and a preliminary reference requested,
the court was not automatically precluded from refusing a plaintiff standing.
However, if the court was minded to allow standing in relation to the questions asked,
but for a strict application of the national rules on locus standi, the court should
16
See also Irish Penal Reform Trust Ltd. v Governor of Mountjoy Prison [2005] IEHC 305.
17
See Crotty v An Taoiseach [1987] I.R. 713.
18
See Lancefort Ltd. v An Bord Pleanála (No.2) [1999] 2 I.R. 270.

9
nonetheless grant standing where to do otherwise would render the plaintiff’s rights
effectively unenforceable.19
In Christian v Dublin City Council20
, Clarke J. (as he then was) commented that “it
is clear that standing is far from a rigid settled concept. There are numerous
examples in the case law where the courts have adopted a flexible approach which is
based on the circumstances of the individual case and the interests of justice
generally.” Clarke J. also noted that in East Donegal Co-operative Livestock Mart
Limited & Others v The Attorney General21
, the court expressly refrained from
making any finding as to the existence or otherwise of an actio popularis or right of
action entitling any person who is a citizen to challenge any Act of the Oireachtas.
Public Interest and Environmental Issues
Prior to the Planning and Development Act 2000 (the “PDA 2000”), the standing
threshold was that of ‘sufficient interest’. This was construed without the gloss of EU
law which was added following the 2003 Public Participation Directive (Directive
2003/35/EC) and preceded the ‘substantial interest’ test introduced by s.50(4)(b) of
the PDA 2000. Following the amendment to the PDA 2000 by s.20 of the
Environment (Miscellaneous Provisions) Act 2011, the test has now reverted to
‘sufficient interest’.
In Lancefort Ltd. v An Bord Pleanála (No.2)22
, it was held by the Supreme Court, in
affirming the High Court order refusing the application for judicial review, that, in
considering whether an applicant had locus standi, a court should have regard to the
legal and factual merits of the grounds being advanced by the applicant and that
having regard to the legal and factual merits of the grounds advanced by the applicant
in this case, it did not have locus standi. The fact that an applicant had established
substantial grounds for challenging a planning decision did not necessarily lead to the
conclusion that an applicant had locus standi; a "sufficient interest" in the matter must
19
See Case C-314/91, Beate Weber v European Parliament [1993] E.C.R. I-1093 at para.8
and Case C-294/83, Parti Ecologiste “Les Verts” v European Parliament [1986] E.C.R. I-
1339 at para.23.
20
[2012] 2 I.R. 506 at 554.
21
East Donegal Co-operative Livestock Mart Limited & Others v The Attorney General
[1970] 1 I.R. 317 at 338.
22
[1999] 2 I.R. 270.

10
also be shown. The fact that a person affected by a proposed development did not
participate in the statutory appeal was not in itself a reason for refusing locus standi.
Keane J. (for the majority) noted that “The authorities reflect a tension between two
principles which the courts have sought to uphold: ensuring, on the one hand, that the
enactment of invalid legislation or the adoption of unlawful practices by public bodies
do not escape scrutiny by the courts because of the absence of indisputably qualified
objectors and, on the other hand, that the critically important remedies provided by
the law in these areas are not abused”.23
It was noted that: “there would be a grave lacuna in public law if.….’outdated
technical rules of locus standi’ prevented a person from bringing unlawful conduct on
the part of a public body to the attention of the courts and getting the conduct
stopped……the requirements of national law as to standing may…..have to yield to
the paramount obligation on national courts to uphold the law of the European
Union.”24
Keane J. recognised “the right of persons associating together for non-
profit making or charitable activities to incorporate themselves as limited companies
and the fact that they have chosen to do so should not of itself deprive them in every
case of locus standi”.
Denham J. (dissenting) noted that “the move from victim related standing to one of
public interest is of particular relevance to environmental issues”. It was stated at 290
that “principles which have enabled public interest litigants to litigate for the
protection of the constitution are relevant also to litigation to protect other public
interests such as the environment. Indeed, a progress from a principle of a
‘victim’ locus standi to one where the public interest is an important factor may be
seen in some cases relating to the environment”. It was further stated that “....In
litigation on the environment….there are unique considerations in that often the
issues affect a whole community as a community rather than an individual per
23
[1999] 2 I.R. 270 at 308. This was endorsed by Finlay Geoghegan J. in Friends of the
Curragh. v An Bord Pleanála (No.2) [2007] 1 I.L.R.M. 386.
24
[1999] 2 I.R. 270 at 312.

11
se….The ‘sufficient interest’ required by the rules and statutes should be interpreted
accordingly”.25
However, in Chambers v An Bord Pleanála26
, it was held by the Supreme Court, in
allowing the appeal, that on the evidence the plaintiffs as aggrieved persons had a
sufficient interest and accordingly had locus standi. In Construction Industry
Federation v Dublin City Council27
, it was held by Gilligan J. that the constituent
members of the applicant association were clearly persons who would be affected by
the operation of the development contribution scheme and the applicant had a
common interest with those affected as it represented those persons. In the
circumstances of the case and in the interests of justice, it was held that it would not
be appropriate to adopt a restrictive approach to the question of standing and the
applicant had locus standi to challenge the scheme.28
In Friends of the Curragh
Environment Ltd. v An Bord Pleanála29
, Finlay Geoghegan J. noted that the strict
statutory interest requirements should “not be applied in such a restrictive manner as
would preclude the courts from checking ‘a clear and serious abuse of process by the
relevant authorities’”.
Impact of the Aarhus Convention
Article 1 of the Aarhus Convention, which was ratified by Ireland on 20 June 2012
and came into force in this jurisdiction on 18 September 2012, sets out the objective
of the Convention: ‘In order to contribute to the protection of the right of every
person of present and future generations to live in an environment adequate to his or
her health and well-being, each Party shall guarantee the rights of access to
information, public participation in decision-making, and access to justice in
environmental matters in accordance with the provisions of this Convention’.
25
[1999] 2 I.R. 270 at 297.
26
Chambers v An Bord Pleanála [1992] 1 I.R. 134.
27
Construction Industry Federation v Dublin City Council [2005] 2 I.R. 496.
28
See also Genmark Pharma Limited v The Minister for Health [1998] 3 I.R. 111 wherein it
was held by Carroll J. that although the action was not perfectly constituted, the applicant had
demonstrated sufficient interest to prosecute the proceedings and the applicant for product
authorisation knew of and acquiesced in this action taken by the applicant.
29
Friends of the Curragh Environment Ltd. v An Bord Pleanála [2007] 1 I.L.R.M. 386 at 393.

12
Article 2 defines:- ‘the public’ as “one or more natural or legal persons, and, in
accordance with national legislation or practice, their associations, organizations or
groups” and
The term ‘the public concerned’ is defined as “the public affected or likely to be
affected by, or having an interest in, the environmental decision-making; for the
purposes of this definition, non-governmental organizations promoting environmental
protection and meeting any requirements under national law shall be deemed to have
an interest” (emphasis underlined).
Article 9(2) of the Convention, which is broadly similar to art.11 of the consolidated
EIA Directive, states that “Each Party shall, within the framework of its national
legislation, ensure that members of the public concerned (a) Having a sufficient
interest or, alternatively, (b) Maintaining impairment of a right, where the
administrative procedural law of a Party requires this as a precondition, have access
to a review procedure before a court of law and/or another independent and impartial
body established by law, to challenge the substantive and procedural legality of any
decision, act or omission…….What constitutes a sufficient interest and impairment of
a right shall be determined in accordance with the requirements of national law and
consistently with the objective of giving the public concerned wide access to justice
within the scope of this Convention”.30
Definition of ‘Sufficient Interest’ in the EIA Directive
Article 11(1) of the EIA Directive states that “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
provisions of this Directive”.31
30
See also Recital 9 of Directive 2003/35/EC (‘the Public Participation Directive’).
31
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

13
Article 11(3) states that “What constitutes a sufficient interest and impairment of a
right shall be determined by the Member States, consistently with the objective of
giving the public concerned wide access to justice. To that end, the interest of any
non-governmental organisation meeting the requirements referred to in Article 1(2)
shall be deemed sufficient for the purpose of point (a) of paragraph 1 of this Article.
Such organisations shall also be deemed to have rights capable of being impaired for
the purpose of point (b) of paragraph 1 of this Article” (emphasis underlined).
Article 1(2)(e) defines the ‘public concerned’ as “the public affected or likely to be
affected by, or having an interest in, the environmental decision-making procedures
referred to in Article 2(2). For the purposes of this definition, non-governmental
organisations promoting environmental protection and meeting any requirements
under national law shall be deemed to have an interest”.
It is submitted that it is clear from the wording of art.11 of the consolidated EIA
Directive that the review procedure which must be established by Member States to
review decisions, acts or omissions of public bodies in relation to projects requiring
EIA must ensure access for members of the public concerned who: (a) have a
sufficient interest or (b) maintain that certain rights have been impaired where the
administrative law of the relevant Member State requires this as a pre-condition.
Although the terms ‘sufficient interest’ and ‘impairment of a right’ are not expressly
defined in the EIA Directive, art.11(3) requires Member States to determine what
constitutes ‘sufficient interest’ and/or ‘impairment of a right’ in a manner which is
consistent with providing the public with a wide access to justice. It is submitted that
“impairment of a right” is an alternative to “sufficient interest” and indeed is not a
pre-condition under Irish law.
private projects on the environment (codification). The precursor of art.11 was art.10a which
was originally inserted by art.3(7) of Directive 2003/35/EC of the European Parliament and of
the Council of 26 May 2003 which provides for public participation in respect of the drawing
up of certain plans and programmes relating to the environment and amends Council
Directives 85/337/EEC and 96/61/EC with regard to public participation and access to justice
(‘the Public Participation Directive’).

14
Substantial Interest Test
Section 50(4)(b) of the PDA 2000, as originally enacted, stated that leave would not
be granted unless the High Court was satisfied that there were substantial grounds for
contending that the decision was invalid or ought to be quashed and that the applicant
had a substantial interest in the matter which was the subject of the application. In
addition, leave would not be granted to a member of the public who had not made
submissions or observations to the Board in relation to an appeal or referral.
Section 50(4)(c) also included a general provision that a person who did not satisfy
the aforementioned requirements could be granted leave if there were ‘good and
sufficient reasons’ for not making objections, submissions or observations, as the case
may be. Accordingly, there was a degree of discretion at the leave stage to grant leave
to the applicant(s) even where the applicant(s) had not satisfied the prior participation
requirement.32
Section 50(4)(d) stated that a substantial interest was not limited to an
interest in land or other financial interest.
Therefore, s.50(4) of the PDA 2000 required an applicant to demonstrate participation
in the decision-making process or good and sufficient reasons for failure to
participate. This altered the pre-2000 position by requiring the applicant to
demonstrate a ‘substantial interest’ rather than ‘sufficient interest’ and, secondly, by
introducing a public participation requirement.
In Harrington v An Bord Pleanála33
, Macken J. stated at 403 that the substantial
interest which an applicant must have was one which was ‘peculiar or personal’ to
him or her. The decision in Harrington was subsequently endorsed in Harding v
Cork County Council34
wherein the Supreme Court considered the criteria by
reference to which an applicant may be said to have a ‘substantial interest’. Clarke J.
held that once an interest was identified the next step was to identify whether or not
32
See Moriarty v South Dublin County Council, unreported, High Court, ex tempore, Quirke
J., April 4, 2004, wherein it was held by Quirke J. that there were ‘good and sufficient
reasons’ for conferring locus standi on the applicant. In Cummins v An Bord Pleanála,
unreported, High Court, De Valera J., July 20, 2007, leave was granted to an applicant who
had not made submissions in respect of a planning application as a result of certain assurances
given to him by employees of the planning authority.
33
Harrington v An Bord Pleanála [2006] 1 I.R. 388.
34
Harding v Cork County Council [2008] 4 I.R. 318.

15
the interest was substantial by reference to the following criteria: (a) the scale of the
project and the extent to which the project might be said to give rise to a significant
alteration in the amenity of the area concerned; (b) the extent of the connection of the
applicant concerned to the effects of the project by particular reference to the basis of
the challenge which was put forward; and (c) such other factors as may arise on the
facts.
On the facts of the case, Clarke J. held that an individual who was born in the area of
the Old Head in Kinsale and lived 3km from the site but continued to visit it regularly
by virtue of family connections and had an interest in the area was insufficiently
connected to qualify as having a ‘substantial interest’. On appeal, Murray C.J. (as he
then was) expressly approved the principle that the applicant’s interest must ‘be
peculiar or personal to him’ and endorsed the analysis of Clarke J. Kearns J. also
observed (para.76) - “The explicit reference to ‘substantial interest’ in the statutory
provision not only reflects a higher threshold than the previous standard of ‘sufficient
interest’, but also affords legislative recognition to the importance to be attached to
the requirement”.
In Cumann Thomas Daibhis v South Dublin County Council35
the High Court
(O’Néill J) considered the effect of the change from “sufficient interest” to
“substantial interest”: “The change to ‘substantial interest’ from the previous
requirement of ‘sufficient interest’ indicates and indeed has been held by this Court in
a number of cases to necessitate an interest of significantly greater weight or
personal connection of the applicant to the subject matter of the application.” In
distinguishing between ‘substantial interest’ and ‘sufficient interest’, Ó Néill J. noted
that the test of ‘substantial interest’ connoted a personal connection between the
applicant and the subject matter of the application, which was ‘peculiar’ to the
applicant and affected the “applicant personally or individually in a substantial way”.
35
[2007] IEHC 118.

16
In Sweetman v An Bord Pleanála36
, Clarke J. (applying the old ‘substantial interest’
test) stated – “If it should prove to be necessary, on the facts of any individual case, to
give a more generous interpretation of the requirement of ’substantial interest’ so as
to meet the ‘wide access to justice’ criteria … then there would be no difficulty in
construing the term ‘substantial interest’ in an appropriate manner. It seems to me
that it follows, therefore, that the term ‘substantial interest’ needs to be construed
having regard to the requirement that art.10a, (in the cases to which it applies, such
as this) and having regard to the requirement that there be wide access to justice.”
Clarke J. held that the Applicant had established a substantial interest in the
proceedings, having regard to the obligation under the EIA Directive to allow wide
access to justice and the necessity to afford a wide range of people with an
opportunity to have their concerns dealt with in relation to sensitive areas or European
sites (at paras.94-95): “The second leg of the substantial interest test concerns the
connection which the applicant must have with the development. As I pointed out
in Harding v. Cork County Council……the nature of the development itself (and this
obviously includes the location of the development) necessarily has an effect on the
judgment as to what persons can reasonably be said to be affected by it in a way such
as would give them a substantial interest in the development itself……..That point
applies with particular force in the case of specially sensitive areas such as a S.A.C.
Such areas are frequently remote and many persons who have real and genuine
interest in them may not live proximate to them. In particular having regard to the
obligation under the directive to allow wide access to justice and the application of
that principle to the necessity to afford a reasonably wide range of people with an
opportunity to have their concerns dealt with in relation to sensitive areas.”
In that case the fact that the complaint concerned a European site was held to be
critical in finding that the Applicant had a substantial interest even though he had
made a skeletal submission and was not personally affected by the proposed
development.
36
[2008] 1 I.R. 177.

17
Move Back to Sufficient Interest
The threshold for leave to apply for judicial review of a planning decision is now set
out in s.50A(3) of the PDA 2000. This requires applicants(s) to establish: (a) that
there are substantial grounds for contending that the decision or act is invalid or ought
to be quashed and (b) that the applicant has sufficient interest in the matter which is
the subject of the application or, in the alternative, to qualify under the standing
requirements for environmental NGOs.37
The former threshold of ‘substantial interest’ (which was originally included in
s.50(4)(b) PDA 2000) was restored to the lower threshold of ‘sufficient interest’ by
s.20 of the Environment (Miscellaneous Provisions) Act 2011, to bring the PDA into
conformity with art.11 of the consolidated EIA Directive and art.9(2) of the Aarhus
Convention38
as noted by Charleton J. in Sandymount and Merrion Residents
Association (SAMRA) v An Bord Pleanála & Ors.39
A prospective applicant or applicants must satisfy the court at the leave stage that the
grounds raised are substantial and that the applicant(s) has/have sufficient interest or
qualify under the standing requirements for environmental NGOs, namely that the
eNGO: (a) is concerned with the promotion of environmental protection; (b) has
pursued that aim or objective for the period of twelve months preceding the
application; and (c) satisfies any relevant requirements which are necessary to enable
that organisation to submit an appeal to a planning decision pursuant to s.37(4)(c) of
the PDA 2000.
Section 50A(4) provides that “A sufficient interest for the purposes of subsection
(3)(b)(i) is not limited to an interest in land or other financial interest.” There is no
specific definition of ‘sufficient interest’ in the PDA 2000 or Order 84 RSC. In
general, establishing whether an applicant has ‘sufficient interest’ to maintain
proceedings is case-specific and fact-dependant.
37
PDA 2000 s.50A(3)(b)(ii) as inserted by s.13 of the Planning and Development (Strategic
Infrastructure) Act 2006.
38
This entered into force on 30 October 2001 and was approved on behalf of the European
Community on 17 February 2005. It was ratified by Ireland in June 2012 and came into force
in September 2012.
39
Sandymount and Merrion Residents Association (SAMRA) v An Bord Pleanála & Ors.
[2013] IEHC 291.

18
Impact of Wide Access to Justice
Prior to the introduction of the ‘Access to Justice’ provisions in the EIA Directive, the
courts identified a legislative policy to restrict access to justice in respect of planning
matters. As explained by the Supreme Court in K.S.K. Enterprises Ltd. v An Bord
Pleanála40
: “…it is clear that the intention of the legislature was greatly to confine
the opportunity of persons to impugn by way of judicial review decisions made by the
planning authorities”. That approach was re-iterated in Harding v Cork County
Council41
which was expressly concerned with standing: “The Act of 2000 may thus
be seen as expressly underscoring the public and community interest in having duly
authorised development projects completed as expeditiously as possible”.
The clear policy imperative identified by the Supreme Court was that if a project had
been granted planning permission, the public interest lay in the completion of the
project rather than facilitating a challenge. Rather than adopting a restrictive
approach, the policy behind the EIA Directive is to promote ‘wide access to justice’
or rather the “broadest possible” access to justice, as noted by the Court of Justice of
the European Union (“CJEU”) in Case C-137/14, Commission v Germany.42
In Case C-72/12, Gemeinde Altrip43
, the CJEU emphasised the importance of being
able to review decisions which invoke the EIA Directive: “Although it is true that
that extension may have the effect, in practice, of delaying the completion of the
projects involved, a disadvantage of that kind is inherent in the review of the legality
of decisions, acts or omissions falling within the scope of Directive 85/337, a review
in which the legislature of the European Union has, in accordance with the objectives
of the Århus Convention, sought to involve members of the public concerned having a
sufficient interest in bringing proceedings or maintaining the impairment of a right,
with a view to contributing to preserving, protecting and improving the quality of the
environment and protecting human health.”
40
[1994] 2 I.R. 128.
41
[2008] 4 I.R. 318.
42
Judgment of the Court (Second Chamber) of October 15, 2015.
43
Case C-72/12 Gemeinde Altrip v Land Rheinland-Pfalz, Judgment of the Court (Second
Chamber) of 7 November 2013 at para.45.

19
The public interest in the protection of the environment was emphasised in Case C-
260/11, R. (Edwards) v Environment Agency, which concerned the requirement that
proceedings not be “prohibitively expensive”. Advocate General Kokott observed at
paras.39-42 - “Legal protection in environmental matters…. generally serves not only
the individual interests of claimants, but also, or even exclusively, the public. This
public interest has great importance in the European Union, since a high level of
protection of the environment is one of the European Union’s aims… Recognition of
the public interest in environmental protection is especially important since there may
be many cases where the legally protected interests of particular individuals are not
affected or are affected only peripherally. However, the environment cannot defend
itself before a court, but needs to be represented, for example by active citizens or
non-governmental organisations”. In its judgment, the CJEU also stressed the public
interest in the protection of the environment, emphasising the need to take into
account “both the interest of the person wishing to defend his rights and the public
interest in the protection of the environment”.44
The CJEU has emphasised in a number of cases that standing requirements should be
consistent with ‘wide access to justice’. In Case C-115/09, Bund für Umwelt45
the
Trianel company was granted a permit to build and operate a coal-fired power plant in
Lünen in Germany which was was to be situated within 8 kilometres of five
designated special conservation areas. The local chapter of Friends of the Earth (FoE)
sought to have the permit annulled by the Higher Administrative Court for the
Nordrhein-Westfalen Land. FoE argued that the permit infringed provisions of
German law that transposed the Habitats Directive. The German court found that an
NGO such as FoE, like any other claimant, could not bring an action for an
infringement of law as its own rights must be infringed in order to appeal to a court.
The particular law which was alleged to be infringed did not protect individual rights
and therefore, FoE did not have the right to seek an annulment of the permit.
44
Judgment of the Court (Fourth Chamber) of 11 April 2013.
45
Judgment of the Court (Fourth Chamber) of 12 May 2011.

20
The CJEU concluded that Article 10a of the EIA Directive (as it then was) precludes
national legislation that does not allow environmental NGOs to bring a development
permit appeal alleging a violation of a rule flowing from EU environmental law, if the
reason for not allowing the appeal is that rule protects only the public interest and not
an individual interest. The Court stressed that the provisions on standing “must be
interpreted in the light of, and having regard to, the objectives of the Aarhus
Convention, with which – as is stated in recital 5 to Directive 2003/35 – EU law
should be ‘properly aligned”. It was held at paras.43-44 that “although it is for the
Member States to determine……what rights can give rise, when infringed, to an
action concerning the environment, they cannot, when making that determination,
deprive environmental protection organisations which fulfil the conditions laid down
in Article 1(2) of [the EIA Directive] of the opportunity of playing the role granted to
them both by Directive 85/337 and by the Aarhus Convention.”
, the CJEU noted at para.52 that under German
Law “it is in general incumbent on the applicant, in order to establish impairment of
a right, to prove that the circumstances of the case make it conceivable that the
contested decision would have been different without the procedural defect invoked”.
The Court warned – “That shifting of the burden of proof onto the person bringing the
action, for the application of the condition of causality, is capable of making the
exercise of the rights conferred on that person by Directive 85/337 excessively
difficult.” It was held at para.45 that " it is for each Member State to lay down, in its
legal system, the detailed procedural rules governing actions for safeguarding rights
which individuals derive from Union law, those detailed rules….in accordance with
the principle of equivalence, must not be less favourable than those governing similar
domestic actions and, in accordance with the principle of effectiveness, must not make
it in practice impossible or excessively difficult to exercise rights conferred by Union
law”.
46
Case C-72/12 Gemeinde Altrip v Land Rheinland-Pfalz, Judgment of the Court (Second
Chamber) of 7 November 2013 at para.45.

21
The CJEU has increasingly placed emphasis on the need to give effect to the Aarhus
Convention. In Case C-240/09, LZ47
(the Brown Bears I case) it was held that “… in
so far as concerns a species protected by EU law, and in particular the Habitats
Directive, it is for the national court, in order to ensure effective judicial protection in
the fields covered by EU environmental law, to interpret its national law in a way
which, to the fullest extent possible, is consistent with the objectives laid down in
Article 9(3) of the Aarhus Convention.”
In Case C-664/15, Protect Natur48
, it was held that environmental NGOs (eNGOs)
must have access to justice in proceedings under the Water Framework Directive and
that under some circumstances NGOs must be afforded party status to participate in the
administrative proceedings. The Court made a number of key observations concerning
the access to justice pillar of the Aarhus Convention, and clarified and developed its
earlier ruling in Brown Bears II.49
First, it noted that Art.9(3) of the Aarhus Convention, when read in conjunction with
Article 47 of the Charter of Fundamental Rights (CFR), requires that a recognized
NGO must be able to challenge a decision which might violate article 4 of the Water
Framework Directive. Secondly, Article 9(3) of the Convention read in conjunction
with Article 47 CFR as well as Article 14(1) of the Water Framework Directive must
be interpreted such as to prevent any national provisions denying participation rights
as a party to administrative proceedings, where such status is a prerequisite to
challenge decisions which are made in the framework of these proceedings. Thirdly, it
was held that Articles 9(3) and 9(4) of the Convention – as applied to the specific
circumstances of the national law(s) and case at issue – preclude a national procedural
rule, according to which ENGOs would lose their rights as a party to the
administrative procedure, and therefore could not bring an action against the
conclusion of that procedure, by virtue of failing to submit its submissions during the
47
[2011] I-01255.
48
Case C-664/15, Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation v
Bezirkshauptmannschaft Gmünd, Judgment of the Court (Second Chamber) of 20 December
2017.
49
Case C-243/15, Lesoochranárske zoskupenie VLK v Obvodný úrad Trenčín, Judgment of
the Court (Grand Chamber) of 8 November 2016.

22
administrative procedure in a “timely” fashion and, at the very latest, during the oral
stage of that procedure.
The CJEU went on to say that, although Member States have some discretion in
establishing standing criteria according to their national laws, these may not be so strict
that it is practically impossible for eNGOs to challenge acts and omissions within the
meaning of art.9(3). National courts must interpret the national procedural rules on
standing to allow such challenges. The Court went on to emphasize that where such an
interpretation is not possible, national courts must disapply such rules on their own
initiative. With regard to the issue of participation in the administrative procedures
themselves, the CJEU indicated that those rights do not arise by virtue of Article 9(3)
alone. However, where the national law so provides – as in the case before it – that the
right to judicial review is conditioned on participation as a party to the administrative
proceedings, then such extensive participation rights in the form of being a party must
be accorded. To fail to do so would defeat the right to judicial review and be contrary to
Article 9(3) and Article 47 of the CFR.
Prior Participation
As noted earlier the original incarnation of the PDA 2000 imposed a participation
requirement. Section 13 of the Planning and Development (Strategic Infrastructure)
Act 2006 removed the requirement for prior participation (and an explanation for non-
participation). However, it was generally understood that judicial review proceedings
could only rely on points that were made during the planning process, arising out of
the Supreme Court decision in Lancefort Ltd. v An Bord Pleanála where it was
suggested that failure to raise a ground of objection before the relevant planning body
might preclude an applicant from relying on such a ground in subsequent judicial
review proceedings.50
This appears to have influenced the decision in Grace & Sweetman v An Bord
Pleanála51
where Fullam J. held at para.59 that: “A person who seeks to raise an issue
at review stage which he could have raised during the decision-making process must
provide a cogent explanation for his non-participation”.
50
[1999] 2 I.R. 270.
51
[2015] IEHC 593.

23
It was also held at para.76 that: “The Applicants have not provided any explanation,
much less a cogent explanation, for their non-participation at the decision making
stage.” It is respectfully submitted that if the legislature had intended to impose a
requirement regarding prior public participation this would have been expressly
provided for in the legislation, as was the case in the original s.50 of the PDA 2000.
Any suggestion that such a requirement can be implied into the legislation falls foul of
the requirements for specificity, precision and clarity set out in Case C-427/07,
Commission v Ireland52
(in the context of the EIA Directive) and renders nugatory
the legislative changes to s.50A.
In Case C-263/08, Djurgården-Lilla53
, the CJEU stressed the restrictions on the
autonomy of Member States. The issue in that case was the restrictions imposed by
Swedish law on the ability of environmental NGOs to bring judicial review
proceedings. In addressing this issue, the CJEU stressed the restrictions on the
autonomy of Member States and held that the national rules must ensure ‘wide access
to justice’ and render effective the provisions of the EIA Directive on judicial
remedies. On the facts it was held that art.11 of the consolidated EIA Directive
precluded a provision of national law which reserved the right to bring an appeal
against a decision which falls within the scope of the EIA Directive solely to
environmental protection associations which have at least 2,000 members.
In its judgment, the Court noted that the EIA Directive provides for members of the
public who fulfil certain conditions to have wide access to a review procedure before
a court of law or another independent body in order to challenge the legality of
measures which fall within its scope. The court held that the fact that development
consent was given by a court exercising administrative powers did not prevent an
association fulfilling the conditions set out in art.10a from exercising its right of
access to a review procedure in order to challenge that decision.
52
Case C-427/07, Commission of the European Communities v Ireland [2009] I-06277 at
paras.54-55.
53
Case C-263/08, Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun
genom dess marknämnd [2009] I-09967 (see paras.47 and 48 of the decision of Fullam J. of 1
October 2015).

24
The right of access to a review procedure does not depend on whether the authority
which adopted the decision is an administrative body or a court of law. Participation
in an environmental decision-making procedure is separate and has a different
purpose from review. Therefore, participation in the decision-making procedure has
no effect on the conditions for access to the review procedure. Accordingly, members
of the public concerned must be able to have access to a review procedure to
challenge the decision by a body attached to a court of law, regardless of the role that
they might have played in the examination of that request by taking part in the
procedure before that body and by expressing their views.
It was held that “While it is true that Article 10a….leaves to national legislatures the
task of determining the conditions which may be required in order for a
non-governmental organisation which promotes environmental protection to have a
right of appeal under the conditions set out above, the national rules thus established
must, first, ensure ‘wide access to justice’ and, second, render effective the provisions
of Directive 85/337 on judicial remedies…..national rules must not be liable to nullify
Community provisions which provide that parties who have a sufficient interest to
challenge a project and those whose rights it impairs, which include environmental
protection associations, are to be entitled to bring actions before the competent
courts”.
The CJEU also considered the relationship between the decision-making procedure
and the judicial review procedure at paras.38-39 - “…participation in an
environmental decision-making procedure under the conditions laid down in
Articles 2(2) and 6(4) of Directive 85/337 is separate and has a different purpose
from a legal review, since the latter may, where appropriate, be directed at a decision
adopted at the end of that procedure. Therefore, participation in the decision-making
procedure has no effect on the conditions for access to the review procedure……the
members of the public concerned….must be able to have access to a review procedure
to challenge the decision by which a body attached to a court of law of a Member
State has given a ruling on a request for development consent, regardless of the role
they might have played in the examination of that request by taking part in the
procedure before that body and by expressing their views” (emphasis underlined).

25
Furthermore, it was held at paras.52-53 that art.11 of the consolidated EIA Directive
precludes a provision of national law which reserves the right to bring an appeal
against a decision which falls within the scope of the EIA Directive solely to
environmental protection associations which have at least 2,000 members.
, the CJEU considered a reference by Germany
referring to rules of standing in EIA cases. The question referred was: “whether the
case-law consistently applied by the national courts is compatible with that right,
given that it holds that the rights of a person concerned by a project subject to the
carrying out of an environmental assessment may be impaired only if there is a causal
link between the procedural irregularity and the final result of the planning approval
decision that adversely affects him.” It was held at para.47 that “it was not the
intention of the legislature to make the possibility of invoking a procedural defect
conditional upon that defect's having an effect on the purport of the contested final
decision.”
Furthermore, the CJEU stated at para.48 that the “public must be able to invoke any
procedural defect in support of an action challenging the legality of decisions covered
by that directive.” It was held that national law could not limit access to the courts
against administrative decisions where no EIA had been carried out as EU law did not
contain any such restriction. Thus, art.11 of the EIA Directive must be interpreted as
meaning that the review procedure provided for in that provision must also include
the possibility of challenging the procedural legality of a decision in cases where an
EIA was carried out but was incorrect or inadequate. Thus, an applicant could in
principle invoke any procedural defect in the EIA procedure.55
54
Case C-72/12, Gemeinde Altrip and Others v Land Rheinland-Pfalz, Unreported Judgment
of the Court (Second Chamber) of 7 November 2013.
55
See also Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband
Nordrhein-Westfalen (‘Trianel’) [2011] E.C.R. I-3673.

26
In Case C-137/14, Commission v Germany56
, the Commission argued that the
restriction in the German procedural rules - that objections raised in legal proceedings
be limited to those previously made in the administrative procedure - was contrary to
art.11 of the EIA Directive’ and art.25 of Directive 2010/75 (‘Industrial Emissions
Directive’) and constituted “a disproportionate obstacle to the right of the public
concerned to challenge the legality of administrative decisions in the areas covered
by those directives”. It was contended that this was contrary to access to justice and
restricted the effective legal protection of the public and that the EU legal order does
not allow the admissibility of pleas raised during legal proceedings to be made subject
to the fact that they were previously raised in the administrative procedure (see
paras.68-69 of the judgment).
The Commission submitted that judicial proceedings are independent proceedings in
the course of which it must be possible to carry out a full assessment of the legality of
a decision and the admissibility of pleas in law cannot be limited to pleas which have
already been advanced in the limited period prescribed for raising objections during
the administrative procedure.57
Germany attempted to justify the restriction on the
ground that objections which were known at the time of the administrative procedure
could be tactically reserved for legal proceedings and that the administrative
procedure or planning process would no longer be able to fulfil its function of
reconciling interests between different parties.58
The CJEU held that art.11(4) of the EIA Directive does not prevent national law from
requiring the applicant to exhaust all “administrative review procedures” before legal
proceedings can be brought. However, restrictions placed on an applicant as to the
nature of the pleas in law which can be raised before the court reviewing the legality
of the administrative decision could not be justified. The objective of art.11 of the
EIA Directive is to ensure that the litigant has the broadest possible access to review
by the courts and may challenge the substantive and/or procedural legality of the
contested decision.59
56
Judgment of the Court (Second Chamber) of October 15, 2015.
57
Judgment of the Court (Second Chamber) of October 15, 2015 at paras.68-69.
58
59
Judgment of the Court (Second Chamber) of October 15, 2015 at para.77.

27
The Court rejected the argument that “the principle of legal certainty” justified the
purported restriction and stated – “As regards the argument concerning the efficiency
of administrative procedures, although it is true that the fact of raising a plea in law
for the first time in legal proceedings may, in certain cases, hinder the smooth
running of that procedure, it is sufficient to recall that the very objective pursued by
Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 is not only to
ensure that the litigant has the broadest possible access to review by the courts but
also to ensure that that review covers both the substantive and procedural legality of
the contested decision in its entirety.”60
The CJEU identified the appropriate balance at para.81 - “Nonetheless, the national
legislature may lay down specific procedural rules, such as the inadmissibility of an
argument submitted abusively or in bad faith, which constitute appropriate
mechanisms for ensuring the efficiency of the legal proceedings.” Ultimately, it was
held that Germany was in breach of art.11 of the EIA Directive (and art.25 of the
Industrial Emissions Directive) by restricting the standing to bring proceedings and
the scope of the review to the objections which have already been raised during the
administrative procedure.
Implications of the Decision in Grace and Sweetman
In Grace & Sweetman v An Bord Pleanála61
, neither applicant participated before the
planning authority or An Bord Pleanála (the “Board”) nor were they considered to
have put forward an adequate explanation for their non-participation. In the High
Court, Fullam J. held at para.59 that “The applicant must show that the interest
concerned is personal to him and is not vicarious or general and it must be shown
that such interest is adversely affected or in danger of being so affected”. It was also
held at para.78 that the Applicants had not “shown an impairment of rights personal
to them”.
60
61
[2015] IEHC 593.

28
This approach appears to rely on the Supreme Court decision in Harding v Cork
County Council62
although it is not expressly referred to. In Harding, it was held that,
in order to establish a ‘substantial interest’ in the subject matter of the application, it
was necessary for the applicant to establish the following criteria. First, the applicant
had to have an interest in the development that was ‘peculiar and personal’ to the
applicant. Secondly, the applicant had to establish that the nature and level of such
interest was significant or weighty. Thirdly, the applicant had to establish that the
interest was affected by or connected with the proposed development.63
The decision
as to whether the interests of a particular applicant met such criteria was dependent
upon the circumstances of the case.
The Board relied on the decision in Harding to suggest that the Applicants must be
personally affected by the decision and/or have participated in the planning process.
However, this is not what is required by the EIA Directive, particularly where the
Applicants can establish ‘sufficient interest’. Further, Harding and Harrington were
decided in the context of the old ‘substantial interest’ test which is no longer the
relevant threshold.
At para.59 of the judgment, Fullam J. distilled a number of propositions from the
cases cited and held that, while the EIA Directive requires effective public
participation and envisages wide access to justice at the subsequent stage of judicial
review, that access is conditional on members of the public concerned demonstrating
(a) sufficient interest or (b) maintaining the impairment of a right. Such conditions
should not be so restrictive as to render the remedy ineffective.
Secondly, it was held that failure to participate in the decision-making process should
not, of itself, be determinative of the issue of locus standi. The court was of the view
that ‘wide access to justice’ does not mean ‘open house’. A person who seeks to raise
an issue at review stage which he could have raised during the decision-making
process must provide a cogent explanation for his non-participation. The applicant
must show that the issue proposed to be raised at judicial review could not have been
advanced prior to the making of the decision impugned. Finally, it was held that the
62
[2008] 4 I.R. 318.
63
See also Harrington v An Bord Pleanála (No.1) [2006] 1 I.R. 388.

29
applicant must show that the interest concerned is personal to him and is not vicarious
or general and it must be shown that such interest is adversely affected or in danger of
being so affected.
It is submitted that the judgment gave too much weight or emphasis on the impact or
‘injury’ suffered by an aggrieved complainant. This calls to mind the approach
adopted by the US Supreme Court in Lujan v Defenders of Wildlife64
where the
Defenders of Wildlife challenged the Secretary of the Interior’s interpretation that the
Endangered Species Act (ESA) did not apply to federal agency actions overseas. It
was held, in finding that the plaintiff did not have standing and had failed to satisfy
the requirement of ‘injury in fact’, that “the irreducible constitutional minimum of
standing contains three elements….. [f]irst, the plaintiff must have suffered an ‘injury
in fact’—an invasion of a legally protected interested which is (a) concrete and
particularized, and (b) ‘actual or imminent, not “conjectural or
hypothetical…..Second, there must be a causal connection between the injury and the
conduct complained of—the injury has to be ‘fairly trace[able] to the challenged
action of the defendant, and not . . . th[e] result [of] the independent action of some
third party not before the court…..Third, it must be ‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” This
tripartite standing test has become the baseline for assessing standing in federal
environmental cases in the United States.
In Massachusetts v Environmental Protection Agency65
where the US Supreme
Court considered whether the Clean Air Act authorised the Environmental Protection
Agency to regulate carbon dioxide and other greenhouse gases, it was held by Justice
Stevens (in finding that 12 States did have standing) that “To demonstrate standing, a
litigant must show that it has suffered a concrete and particularized injury that is
either actual or imminent, that the injury is fairly traceable to the defendant, and that
a favorable decision will likely redress that injury.”
64
504 U.S. 555 (1992). The case arose over issues of US funding of development projects in
Aswan, Egypt and Mahaweli, Sri Lanka that could harm endangered species in the affected
areas. The government declared that the act did not apply to projects outside of the United
States and Defenders of Wildlife sued.
65
549 U.S. 497 (2007).

30
However, it is respectfully submitted that the standing rules adopted by the US
Supreme Court require a plaintiff to demonstrate injury or harm which is not
necessitated by the Aarhus Convention and/or the EIA Directive.
In Grace & Sweetman v An Bord Pleanála66
the Supreme Court, in allowing the
appeal and determining the first named appellant had standing, identified some
criteria which it appears the courts will avail of to determine whether an applicant has
sufficient interest within the meaning of s.50A(3)(b)(i) of the PDA 2000.
It was held (at para.8.5) 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. The court emphasised that participation in the process will undoubtedly
confer standing. A failure to participate might 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.
The court held 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. 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.
66
[2017] IESC 10.

31
The court held that an applicant 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.
In summary, the court held that:
(a) Prior participation is not necessary to establish standing and does not of itself
exclude standing
(b) Participation in the process will of itself confer standing even where the
participant is not affected by the development and does not live close to it
(c) However, prior participation is a relevant factor to be taken into account,
particularly where there is no close physical proximity to the proposed
development
(d) Sufficient proximity will confer standing even without participation
(e) Where there is no sufficient proximity or prior participation, it is necessary to
show a potential impact on the applicant
(f) The nature of the site and local receiving environment will be taken into account
In applying those principles, it was held that the first named Appellant did have
standing because she lived less than 1km from the special protection area (“SPA”)
which, it was alleged, would be affected and could demonstrate links to local
voluntary community groups. However, the court was more circumspect about the
second named Appellant and, whilst not definitively resolving the issue, considered
that he did not live close to the development and, while he undoubtedly had an
interest in environmental matters generally, did not place any evidence before the
court to show that he had a particular interest in that SPA or any real explanation as to
why he did not participate. It was concluded that if someone has a general or broad
interest, for example in the environment, it would be expected that they would have
participated in the process or at least provided an explanation as to why not.

32
These principles were subsequently applied in McDonagh v An Bord Pleanála67
which concerned the proposed Apple datacentre in Athenry. In that case, the High
Court (McDermott J.) was satisfied that the applicant did not have standing to bring
the proceedings as (a) he was not living in physical proximity to the site in issue in
Athenry but was based in Dublin; (b) he did not participate in the planning process
before Galway County Council or the Board; (c) there was no explanation as to why
he did not participate in that process; (d) there was no evidence to indicate that he had
any local and conservation interest in the destruction of forest in County Galway; (e)
there was no evidence of any wider interest in the area based on its designation as an
SPA (as was the case in Grace) and (f) the area in issue was not a special area of
conservation (“SAC”) or SPA and is not near any such site.
The effect of the decisions in Grace and McDonagh is that it is clear that failure to
participate in the planning process is not an automatic barrier to standing. This
appears to follow the decisions of the CJEU in Case C-263/08, Djurgården-Lilla68
and Case C-72/12, Gemeinde Altrip69
. In both those cases, the CJEU examined
provisions of national law restricting access to justice and found them to be
inconsistent with the requirement of the Directive. It is also consistent with the
decision in Case C-137/14, Commission v Germany.70
However, it will be a factor which is taken into account and, in the absence of other
factors, will require some explanation. What is problematic about the decision in
Grace is that standing is automatically conferred where a submission is made even if
this is a minimal submission and where the person making the submission is not
materially impacted upon. It is also not clear what degree of physical proximity is
required and this will be determined on a case-by-case basis. If there has been no prior
participation, it is more likely that standing will be conferred if there is some evidence
of potential environmental harm.
67
[2017] IEHC 586.
68
genom dess marknämnd [2009] I-09967.
69
Case C-72/12, Gemeinde Altrip and Others v Land Rheinland-Pfalz, Unreported Judgment
of the Court (Second Chamber) of 7 November 2013.
70
Judgment of the Court (Second Chamber) of 15 October 2015.

33
Proposed Legislation
There have been recent media reports on proposed legislation which would appear to
have the potential effect of restricting standing, for example by requiring an applicant
to demonstrate that the proposed development would directly impact on him/her and
limiting NGOs’ right of automatic participation to organisations that have been in
existence for more than three years.
Whilst this would not necessarily affect established NGOs, it could impact on
community groups as well as groups of individuals who have a genuine
environmental interest/interest in the particular amenity but may fall foul of any
‘proximity requirement’ that is included in prospective legislation. However, it is
submitted that the Oireachtas might risk imposing excessively strict standing
requirements which are not consistent with the Aarhus Convention and EIA Directive
and may not withstand challenge.
Member State Autonomy and Obligation to Ensure Effective Judicial Protection
Although European Directives generally confer a margin of discretion on Member
States, this is still subject to the principles of equivalence and effectiveness and
Member States cannot compromise the objective of effective judicial protection. The
CJEU is generally deferential to Member State procedural rules, provided that they do
not breach the principles of equivalence and effectiveness. Any undue restrictions are
likely to be in breach of art.11 of the EIA Directive which guarantees ‘wide access to
justice’.
In Cases C-87/90, C-88/90 and C-89/90, Verholen v Sociale Verzekeringsbank
Amsterdam71
it was noted at para.24 that “While it is, in principle, for national law to
determine an individual’s standing and legal interest in bringing proceedings,
Community law nevertheless requires that the national legislation does not undermine
the right to effective judicial protection … and the application of national legislation
cannot render virtually impossible the exercise of the rights conferred by Community
law.”
71
Cases C-87/90, C-88/90 and C-89/90, Verholen v Sociale Verzekeringsbank Amsterdam
[1991] E.C.R. I-3757.

34
In Case C-432/05, Unibet (London) Ltd & Unibet (International) Ltd v
Justitiekanslern72
, it was stated at paras.42-44 that “while it is, in principle, for
national law to determine an individual’s standing and legal interest in bringing
proceedings, Community law nevertheless requires that the national legislation does
not undermine the right to effective judicial protection…..In that regard, the detailed
procedural rules governing actions for safeguarding an individual’s rights under
Community law must be no less favourable than those governing similar domestic
actions (principle of equivalence) and must not render practically impossible or
excessively difficult the exercise of rights conferred by Community law (principle of
effectiveness)……Moreover, it is for the national courts to interpret the procedural
rules governing actions brought before them, such as the requirement for there to be
a specific legal relationship between the applicant and the State, in such a way as to
enable those rules…….to be implemented in such a manner as to contribute to the
attainment of the objective……of ensuring effective judicial protection of an
individual’s rights under Community law.”
Suggested Approach
It is submitted that an applicant should be deemed to have standing if the application
for judicial review is genuine and legitimate and is not frivolous or vexatious or
intended to be an abuse of process. Provided that the applicant is bona fide and did
not wilfully withheld his/her concerns or deliberately not participate in the planning
process, it is submitted that they should be deemed to have standing. In Case C-
137/14, Commission v Germany, the CJEU held at para.81 that the “national
legislature may lay down specific procedural rules, such as the inadmissibility of an
argument submitted abusively or in bad faith, which constitute appropriate
mechanisms for ensuring the efficiency of the legal proceedings.”
Secondly, it is submitted that the nature of the challenge is important. In other words,
if the challenge concerns the substantive and procedural legality of a decision (as per
the EIA Directive) or the potential impact on a European site and does not concern
any pecuniary or proprietary interest, it is respectfully submitted that the courts should
adopt an expansive view of standing.
72
Case C-432/05, Unibet (London) Ltd & Unibet (International) Ltd v Justitiekanslern [2007]
E.C.R. I-2271.

35
Thirdly, the right to participate in a review procedure should not be contingent on
whether an applicant has made submissions to that effect during the public
participation process. This is supported by the case-law in Case C-263/08,
Djurgården-Lilla73
and Case C-137/14, Commission v Germany.74
Furthermore, it is
conceivable that grounds of challenge might only manifest themselves when the
Board issues its decision, such as where the incorrect test is applied for screening or
Stage II appropriate assessment.
73
genom dess marknämnd [2009] I-09967.
74
Judgment of the Court (Second Chamber) of 15 October 2015.

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