Planning dispute over Galway homes referred to European Court
A Galway City planning dispute could be tied up in legal knots for several more months, after the High Court referred the case to Europe.
The High Court has referred to the Court of Justice of the European Union key questions on the issues of costs in the judicial review of An Bord Pleanála’s decision to grant permission to build 102 units on the former Par 3 golf course at Rosshill.
Under the Strategic Housing Development process, An Bórd Pleanála had granted planning permission to Alber Developments Limited for 102 units on the site in Rosshill, which is located close to two European protected sites (Galway Bay Special Area of Conservation and Inner Galway Bay Special Protection Area) and the nearby Roscam Folly.
The Save Roscam Peninsula campaign appealed this decision by way of judicial review to the High Court.
It argued several grounds, including environmental, and that the decision was invalid because it contravened the Development Plan and was contrary to various planning policies including Irish and EU law.
As part of the judicial review, Save Roscam Peninsula applied for ‘costs protections’ under EU law. An Bórd Pleanála accepted this for some of the grounds but not others.
The local objectors argued that the Court of Justice of the EU (CJEU), an independent arbitrator, should consider the issue of cost protection and the High Court judge agreed.
The matter has been before the courts on several occasions since December.
The High Court has now referred the question of costs relating to the interpretation of European law principles to the CJEU along with other cases that raise similar issues.
“It speaks to an uncertainty in the rules on costs in environmental cases that can partly be put down to the creativity of applicants and to a lack of clarity the legislative scheme but also partly to some inconsistencies in caselaw, despite considerable effort at all levels,” the High Court judge said.
Mr Justice Richard Humphreys said he “can’t pretend to be able to deliver an end to that confusion by means of the present judgment” but suggested that the Supreme Court should be asked to deal with the issue of protective costs on domestic law, and the CJEU should be asked to decide on legal costs relating to EU law.
The referral of the questions of protection of costs could take up to 15 months or more to be adjudicated on in Luxembourg.
It is understood that the High Court judicial review must await the outcome of that process before it hears the substantive arguments.
The stay on the grant of planning permission remains until the judicial review concludes, meaning the development will be delayed.
Galway City Council has made submissions on the case, the High Court judgement confirmed.
In a recent submission to the Draft City Development Plan 2023-2029, Alber Developments Limited sought the removal of the environmental sensitivities’ designation on the site and the rezoning of the lands for the construction of more than 700 units.
Meanwhile, in its submission to the plan, the Office of the Planning Regulator (OPR) told the City Council to review its approach to Low Density Residential zoning and to omit previously zoned areas on the Roscam Peninsula.