Supreme Court allows environmental NGO standing under s. 50A of Planning Act 2000 despite general rule against unincorporated bodies.

THE SUPREME COURT

[Appeal Nos. 143/2013 & 171/2013]

Denham C.J.

Hardiman J.

Fennelly J.

O’Donnell J.

Clarke J.

Between/

Sandymount & Merrion Residents Association

Plaintiff/Appellant

-v-

An Bord Pleanála

Respondent

Minister for Arts, Heritage & The Gaeltacht,

Ireland, and The Attorney General

Respondents/Appellants

Dublin City Council

Notice Party/Appellant

Judgment of Mr. Justice Clarke delivered the 27th November, 2013.

1. Introduction

1.1. Associations of one form or another have played a significant role in the planning and environmental process in Ireland for many

years. Some such organisations are local and are concerned with general issues arising in their area. Others, whether local or national,

are specifically established to pursue environmental aims and objectives. The applicant/respondent (“SAMRA”) is one of the latter. It

is an organisation established of persons ordinarily resident in the Sandymount or Merrion districts of Dublin or those who subscribe to

the aims of the association, which are concerned with the preservation and enhancement of Sandymount and Merrion strands.

1.2. The background to these proceedings involves an application by the notice party/appellant (“Dublin City Council”) to the first

named respondent (“An Bord Pleanála”) relating to an expansion of the existing waste water treatment works at Pigeon House Road,

Ringsend in Dublin. Ultimately, an oral hearing was directed at which SAMRA was represented by solicitor and counsel. Permission was

granted by An Bord Pleanála. Shortly thereafter, the second named respondent/appellant (“The Minister”) announced a number of new

special areas of conservation under the provisions of the European Communities (Birds & Natural Habitats) Regulations 2011 (S.I. No.

473 of 2011). These included one area encompassing, among other areas, Sandymount Strand. It is said that a so-called long sea

outfall pipe tunnel (“LSOT”) connected with the project impinges on what has become a special area of conservation. Against that

general background SAMRA has sought to initiate judicial review proceedings in the High Court.

1.3. However, this Court is not now concerned with the merits or otherwise of the underlying challenge which SAMRA seeks to make

to the permission granted to Dublin City Council in respect of the waste water treatment plant. Rather, in circumstances which will be

necessary to address in early course, both Dublin City Council and the second to fourth named respondents/appellants (“the State”)

sought to have a preliminary issue determined before the High Court challenging the capacity of SAMRA to bring these proceedings.

1.4. For reasons which it will be necessary to address, that challenge failed before Charleton J., (Sandymount & Merrion Residents

Association v An Bord Pleanála & Ors [2013] IEHC 291). Dublin City Council and the State appealed against that decision to this Court.

For completeness, it should be noted that An Bord Pleanála did not raise the capacity point before the High Court and did not,

therefore, participate in the hearing before the High Court. Likewise An Bord Pleanála, for good reason, did not participate in the

appeal before this Court.

1.5. This judgment is, therefore, directed towards the question of whether SAMRA has capacity to bring these judicial review

proceedings. Given that practical arrangements for the hearing of the substantive judicial review application continued in the High

Court, notwithstanding this appeal, and given the overall urgency of the case, this Court indicated, on the 10th October, 2013, that

it proposed to dismiss the respective appeals of Dublin City Council and the State and that reasons for coming to that view would be

delivered at a later stage.

1.6. The purpose of this judgment is to set out the reasons why I supported the decision of this Court in that regard.

1.7. The starting point has, therefore, to be to set out the basis of the application made to the High Court. I turn to that question.

2. The High Court Application

2.1. On 18th January, 2013, SAMRA applied for and was granted leave to commence judicial review proceedings by Peart J. SAMRA

sought to have the decision of An Bord Pleanála declared invalid and quashed, as well as declarations to the effect that the State

had failed to comply with its obligations under the Habitats Directive (Council Directive 92/43/EEC) At that time SAMRA also obtained

an ex parte injunction to stop Dublin City Council proceeding with the relevant works. After subsequent discussions, SAMRA accepted

Dublin City Council’s undertaking not to commence construction of that part of the development comprising the LSOT until such time

as the proceedings were determined.

2.2 On the 4th February, 2013, the proceedings were entered into the Commercial List in accordance with Order 63A Rule 1(g) of the

Rules of the Superior Courts. Dublin City Council’s motion seeking to dismiss the proceedings was heard on the 21st February, 2013.

The motion sought to dismiss on two grounds: first, the alleged incapacity of SAMRA – it not being a natural or legal person - and,

second, an alleged non-disclosure by SAMRA in its leave application of the fact that the works had already commenced. The State

supported the motion to dismiss on the capacity ground alone. Charleton J. delivered his judgment, rejecting both grounds for

dismissal, on the 25th March, 2013.

2.3. Against that backdrop it is next necessary to turn to the decision of the trial judge.

3. The High Court Judgment

3.1. Charleton J. commenced his analysis of the legal status of SAMRA by setting out the relevant provisions of the Aarhus

Convention, Directive 2003/35/EC and the Planning and Development Act 2000, as amended, and noted that the focus of those

provisions is on the question of the interest and locus standi of an applicant for judicial review, rather than the related question of

capacity. Charleton J. held that SAMRA clearly had a sufficient interest to bring judicial review proceedings as required by s. 50A(3) of

the 2000 Act.

3.2 The question of capacity was then discussed. First, the trial judge acknowledged the traditional position, at common law, that an

unincorporated body does not have legal personality and, thus, cannot bring either a public or private law action. However, he held

that this inability is capable of being removed by legislation granting capacity to such bodies. Charleton J. then turned to the relevant

requirements under the Planning and Development Act 2000, as amended, (and in particular s. 50A) in the following passage:

“The judge must be “satisfied” that the applicant “is a body or organisation … the aims or objectives of which relate to

the promotion of environmental protection” and is pursuing same for at least the 12 months prior and, quoting now the

text of section 37(4), may appeal a planning decision to An Bord Pleanála because the mater requires an environmental

impact statement, and in respect of which the Minister for the Environment and Local Government, quoting from the

text of sub-paragraph (e) thereof, may “prescribe additional requirements … for the purpose of promoting

transparency” in relation to “its membership” and “its aims or objectives” and “in relation to the possession of a

specified legal personality…”.

However, Charleton J. held that, in the absence of the Minister having prescribed any such requirements under the legislation, SAMRA

was entitled to bring its application for leave. Charleton J. went on to suggest that:

“It would be contrary to common sense for leave, in that context, to mean leave until the proceedings are struck out by

reason of an applicant, so empowered by legislation to commence a case, being an unincorporated association with no

legal personality. Once there is no requirement made by ministerial regulation that appeals to An Bord Pleanála cannot be

taken by an association such as the applicant, leave means an entitlement to argue the merits of the case through to

its conclusion. It may be that it might be argued that this subsection deals only with sufficiency of interest. But that is

not, in respect of environmental matters, what it says: it establishes capacity, otherwise how is the High Court to give

leave under the criteria set out in the legislation?”

Thus, in substance, Charleton J. construed s. 50A as creating an exception to the normal position that unincorporated bodies cannot

sue.

3.3 On the non-disclosure ground, Charleton J. ruled that any visible indicators of construction in the area were not of such an extent

as to have put a member of the public on notice of the commencement of work on the treatment plant and pointed to the fact that

various members of SAMRA had sworn or signed declarations that they had no knowledge of this work. Therefore, that aspect of the

motion was also dismissed. There is no appeal against this aspect of the judgment.

3.4 Against the background of that judgment it is next necessary to turn to the issues which arose on this appeal.

4. The Issues on the Appeal

4.1. Detailed written submissions were filed on behalf of all parties. From those submissions and the subsequent oral hearing, it is

possible to identify the principal issues which separate the parties. It is, perhaps, appropriate to start by setting out some matters

which were not in controversy.

4.2. The underlying legislation is to be found in s. 50A of the Planning and Development Act 2000, as inserted by s. 13 of the Planning

and Development (Strategic Infrastructure) Act 2006 and amended by s. 32 of the Planning and Development (Amendment) Act 2010

and s. 20 of the Environment (Miscellaneous Provisions) Act 2011. In material part the section as it now stands provides as follows:-

“50A(3) The Court shall not grant section 50 leave unless it is satisfied that—

(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be

quashed, and

(b) (i) the applicant has a sufficient interest in the matter which is the subject of the application, or

(ii) where the decision or act concerned relates to a development identified in or under regulations made under

section 176, for the time being in force, as being development which may have significant effects on the

environment, the applicant—

(I) is a body or organisation (other than a State authority, a public authority or governmental body or

agency) the aims or objectives of which relate to the promotion of environmental protection,

(II) has, during the period of 12 months preceding the date of the application, pursued those aims or

objectives, and

(III) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under

section 37(4)(c), would have to satisfy by virtue of section 37(4)(d)(iii) (and, for this purpose, any

requirement prescribed under section 37(4)(e)(iv) shall apply as if the reference in it to the class of

matter into which the decision, the subject of the appeal, falls were a reference to the class of matter

into which the decision or act, the subject of the application for section 50 leave, falls).”

4.3. It is also of some relevance to refer, as indeed s. 50A itself does, to s. 37 which is the section which deals specifically with the

entitlement of parties to appeal from a planning decision of a local authority to An Bord Pleanála. In material part that section

provides as follows:-

“37(4)(c) Notwithstanding subsection (1), a body or organization referred to in paragraph (d) shall be entitled to appeal

to the Board against a decision by a planning authority on an application for development (being development in respect

of which an environmental impact statement was required to be submitted to the planning authority in accordance with

section 172) before the expiration of the appropriate period within the meaning of that subsection.

(d) The body or organisation mentioned in paragraph (c) is a body or organisation (not being a State authority, a

public authority or a governmental body or agency)—

(i) the aims or objectives of which relate to the promotion of environmental protection,

(ii) which has, during the period of 12 months preceding the making of the appeal, pursued those aims

or objectives, and

(iii) which satisfies such additional requirements (if any) as are prescribed under paragraph (e).

(e) The Minister may prescribe additional requirements which a body or organisation of the foregoing kind must

satisfy in order to make an appeal under paragraph (c), being requirements of a general nature and for the

purposes of promoting transparency and accountability in the operation of such organisations, including

requirements—

(i) in relation to its membership,

(ii) that the pursuit of its aims or objectives be otherwise than for profit,

(iii) in relation to the possession of a specified legal personality and the possession of a constitution or

rules,

(iv) that the area of environmental protection to which its aims or objectives relate is relevant to the

class of matter into which the decision, the subject of the appeal, falls.”

These subsections were inserted by s. 10 of the Planning and Development (Strategic Infrastructure) Act 2006.

4.4. It is also of relevance to note s. 18 of the Interpretation Act 2005 which states:

““Person” shall be read as importing a body corporate (whether a corporation aggregate or a corporation sole) and an

unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further

use of “person” shall be read accordingly.”

4.5. Thus, the overall structure of s. 50A is clear. There are two bases on which an applicant can have standing to bring an

application for leave to challenge a relevant environmental decision. First, the applicant may have a “sufficient interest” in the subject

matter under s. 50A(3)(b)(i). Alternatively, the applicant can be a non-governmental agency which meets the criteria specified in s.

50A(3)(b)(ii).

4.6. It was not disputed that SAMRA met the criteria specified in s. 50A. Thus it was accepted that SAMRA had standing to bring

judicial review proceedings seeking to challenge the validity of the permission in this case. However, the substance of the case made

on behalf of Dublin City Council and the State was that the conferring of standing on a body, such as SAMRA, to maintain such

judicial review proceedings did not get over the question of whether SAMRA, as an unincorporated body not having a formal legal

personality, had the capacity to bring any form of court proceedings. Thus the core issue on this appeal was as to whether SAMRA

had such capacity, it being accepted that if it had capacity, it undoubtedly has standing.

4.7. Next, it is necessary to turn, albeit briefly, to the general law which ordinarily applies in respect of the power of an

unincorporated association to bring or defend proceedings before the courts. There was no real dispute between counsel as to the

applicable law. All parties agree that the general position is that set out in Halsbury (5th Ed) (Vol. 96, par. 29):

“For legal purposes, an incorporated association has no separate legal entity as distinct from the individuals who

comprise its membership.”

It is also accepted by all sides that the consequence of this is that an unincorporated association cannot sue or be sued in its own

name but that there are exceptions to this general rule, as can be seen, for example, from the ability of a registered trade union to

participate in certain proceedings. However, there was disagreement as to the extent of the relevant exceptions. As there appears to

be a dearth of Irish case law on this point, all parties sought to rely on decisions of the English courts.

4.8 Dublin City Council and the State relied in particular on the decision in R v Darlington Borough Council, ex p Association of

Darlington Taxi Owners [1994] COD 424 where leave to seek judicial review on the part of the unincorporated association was set

aside on the basis of that association’s legal incapacity.

4.9 SAMRA relied on the judgments in R. v. Commissioner for Northwest Traffic Area, ex parte Brake [1996] COD 248 and in R v

Ministry of Agriculture Fisheries and Food, ex p British Pig Industry Support Group [2000] EuLR 724 which suggest that a distinction

may be drawn between public and private law cases, thus allowing unincorporated associations to bring judicial review in certain

circumstances. In British Pig Industry Support Group, Richards J. stated that:

“there was no overriding requirement for [a claimant] for judicial review to have legal personality, but it is important in

such a case that adequate provision should be made for the protection of [the defendant] in costs.”

Dublin City Council and the State in response pointed to the contrast in procedure between judicial review in Ireland, where the

applicant brings the proceedings in his own name against the public body, and that in England, where the dispute is technically

between the Crown and the public body.

4.10. It follows that it was accepted that, in the ordinary course as a matter of common law, an unincorporated body, such as

SAMRA, could not bring court proceedings. Thus the question which arose on this appeal was as to whether an exception to that

general position is to be found in respect of environmental judicial review litigation either generally or by virtue of the terms and

structure of the 2000 Act, as amended.

4.11. Finally, there is the European dimension. The Aarhus Convention, the more common name for the United Nations Economic

Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in

Environmental Matters (“the Aarhus Convention”), was signed on the 25th June, 1998. Although, Ireland was one the original

signatories to the Convention, Ireland only ratified it on the 20th June, 2012. The European Union is also itself a signatory to the

Convention.

4.12. It is helpful to set out some of its provisions. Article 2 of the Aarhus Convention defines the terms “the public” and “the public

concerned”:

“4. “The public” means one or more natural or legal persons, and, in accordance with national legislation or

practice, their associations, organizations or groups;

5. “The public concerned” means 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.”

Article 9 is titled “Access to Justice” and provides:

“2. 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 subject to the provisions of article 6 and, where so provided for under

national law and without prejudice to paragraph 3 below, of other relevant provisions of this

Convention.

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. To this end, the interest of any non-governmental organization

meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of

subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the

purpose of subparagraph (b) above. The provisions of this paragraph 2 shall not exclude the possibility of a

preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion

of administrative review procedures prior to recourse to judicial review procedures, where such a requirement

exists under national law.

3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party

shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have

access to administrative or judicial procedures to challenge acts and omissions by private persons and public

authorities which contravene provisions of its national law relating to the environment.

4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3

above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair,

equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing.

Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”

4.13. Directive 2003/35/EEC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect

of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and

access to justice Council Directives 85/337/EEC and 96/61/EC (“The Public Participation Directive”) was designed to incorporate parts

of the Aarhus Convention into European Union law.

4.14. Recital 4 of the Public Participation Directive states:

“Participation, including participation by associations, organizations and groups, in particular non-governmental

organizations promoting environmental protection, should be accordingly be fostered including inter alia by promoting

environmental education of the public”

Article 1 sets out the objective of the Directive:

“The objective of this Directive is to contribute to the implementation of the obligations arising under the Århus

Convention, in particular by:

(a) providing for public participation in respect of the drawing up of certain plans and programmes relating to the

environment;

(b) improving the public participation and providing for provisions on access to justice within Council Directives

85/337/EEC and 96/61/EC.”

4.15 Of particular relevance to the instant case is Article 3(7), which inserts Article 10a into Council Directive 85/337/EEC. This

provides:

“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.

Member States shall determine at what stage the decisions, acts or omissions may be challenged.

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 this 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 subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being

impaired for the purpose of subparagraph (b) of this Article.

The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative

authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to

judicial review procedures, where such a requirement exists under national law.

Any such procedure shall be fair, equitable, timely and not prohibitively expensive.

In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical

information is made available to the public on access to administrative and judicial review procedures.”

The public is defined in Article 2(1) as meaning “one or more natural or legal persons and, in accordance with national legislation or

practice, their associations, organisations or groups.” Also of note is Article 2(3) which provides:

“Member States shall identify the public entitled to participate for the purposes of paragraph 2, including relevant

nongovernmental organisations meeting any requirements imposed under national law, such as those promoting

environmental protection.

The detailed arrangements for public participation under this Article shall be determined by the Member States so as to

enable the public to prepare and participate effectively.”

4.16. It is important to note, therefore, that the Public Participation Directive has, at all material times, made provision for the

possibility that what one might loosely term environmental NGOs (that is bodies that complied with Article 2(3)) would have an

entitlement to participate in decision making in the manner guaranteed by the Public Participation Directive. It was, however, argued

on behalf of Dublin City Council and the State that the Directive, while permitting the involvement of environmental NGOs, does not

require that they be permitted to become involved in court review proceedings irrespective of their legal capacity. It was said that so

much can be gleaned from Article 2(1) which defines the public as natural and legal persons and associations, organisations or groups

“in accordance with national legislation or practice”. On that basis it was argued that each member state may, in accordance with its

national law, make provision for rules as to the capacity or qualification of such unincorporated bodies or organisations to participate

in environmental litigation governed by Union law. There was something of a debate between counsel as to the extent to which it

could be said that the relevant provision enables merely regulation of unincorporated bodies or whether it permitted national law to

exclude unincorporated bodies not having legal personality in their entirety.

4.17. However that latter question would only arise if, on foot of ordinary principles of construction of Irish statutes, the overall

position were to appear to be that unincorporated bodies not having legal personality were entirely excluded from participating at the

court level. In such an eventuality, a question might arise as to whether Irish legislation, so construed, was consistent with the Public

Participation Directive so that the further question might arise as to whether the Irish legislation should or could be construed in a

different manner so as to render it compatible with the Directive. That question would, of course, only arise if the ordinary

construction, in accordance with Irish law, of the relevant Irish legislation, led to a conclusion that unincorporated bodies, not having

legal personality, such as SAMRA were excluded from the judicial review process by virtue of their alleged lack of capacity.

4.18. On the basis of that analysis the first true issue is quite net. Leaving aside the issues of Union law for the moment, the question

concerns the proper interpretation of the 2000 Act, as amended, and its impact on the ability of an unincorporated body such as

SAMRA to have the capacity to maintain environmental judicial review proceedings. Does the legislation, as counsel for SAMRA

argued, carry with it the necessary implication that organisations or bodies such as SAMRA have been given the capacity, as well as

standing, to bring proceedings of this type? That was the core issue on this appeal.

5. Discussion

5.1. While the case made on this appeal by, respectively, Dublin City Council and the State was largely the same, there was, perhaps,

one difference of emphasis in the arguments addressed to the Court at the oral hearing. Counsel for the State emphasised that the

State’s position was not, in substance, that an unincorporated association such as SAMRA could not bring relevant judicial review

proceedings in the environmental field at all but rather that such an organisation could only bring proceedings through appropriate

officers (that is natural persons) such as trustees or committee members authorised by the organisation to bring the proceedings.

When asked to comment on that submission, counsel for SAMRA drew attention to the fact that the provisions of s. 50A specify that

the applicant for judicial review can be a “body or organisation” which meets the criteria specified in that section. On that basis it

was argued that it is the body or organisation itself on which standing is conferred rather than individuals representing that body. It

seemed to me that that point was well made. The legislation confers standing on environmental NGOs who meet the relevant criteria.

5.2. It is true, of course, that, in the ordinary way, for the reasons already identified, an unincorporated association or body does not

have the legal capacity to bring or defend court proceedings. Such an unincorporated body or association is simply the sum of its

individual members with no independent legal personality. However, it is also clear that there can be, whether by legislation or

otherwise, exceptions to that general rule. The first question which arose was, therefore, as to whether s. 50A must be said to have

created such an exception. It was argued on behalf of Dublin City Council and the State that any such exception must be clear and

not arise simply by inference. I was satisfied that the true test is as to whether a statutory provision (in the absence of expressly

conferring capacity) carried with it a necessary implication that capacity was being conferred. Against that test it seemed to me that

the position was clear. It would be extraordinary if the legislature went to the considerable trouble of conferring standing to

commence relevant environmental judicial review proceedings on environmental NGOs (subject to meeting the relevant statutory

criteria) but at the same time intended that any such environmental NGOs not having legal personality would nonetheless be unable to

bring such proceedings by virtue of a lack of capacity.

5.3 It seemed to me that this view was strengthened by an analysis of the wording of the legislation itself. S. 50A(3) starts by

specifying that leave shall not be granted unless the court is satisfied of various matters. So far as relevant to an environmental NGO,

the court must be satisfied that it meets the requirements set out at subsection (b)(ii) (including those specified at (III). That

requirement in turn requires the court to be satisfied that the relevant environmental NGO would be entitled to bring an appeal under

s. 37(4)(c). Each of those requirements operates as an alternative to the requirement that the applicant has a sufficient interest in

the subject matter of the challenge. It seemed to me to follow that s. 50A(3) itself necessarily implies that any environmental NGO

which qualifies under s. 37 must have capacity for the purposes of mounting the sort of challenge contemplated by s. 50 itself.

5.4. In addition it is clear that the Public Participation Directive allows national law, at a minimum, to regulate the rules by which

associations or other bodies not having separate legal personality can be entitled to bring proceedings. It would, for example, be open

to the Minister to make regulations requiring that any such bodies be registered prior to their having capacity. It is of interest that

another jurisdiction having similar common law traditions to our own, that is Malta, now allows associations to participate in legal

proceedings provided that they comply with the relevant Maltese legislation (see the Second Schedule to the Maltese Civil Code).

Whether such a measure finds favour in this jurisdiction is, of course, a matter for the Oireachtas. However, at least so far as

environmental litigation covered by European Union law is concerned, it is clear that the legislative regime both at the European and

Irish level does not, necessarily, require that associations do not have to go through any formalities prior to having capacity. The

Minister can regulate capacity both under the Irish legislation and the Public Participation Directive. However, the Minister has

chosen, to date, not to make any appropriate regulations.

5.5. It seemed to me to follow that it is a necessary inference to be drawn from s. 50A that it is intended that any environmental

NGOs meeting the criteria specified in the section are (in the absence of any regulation concerning capacity) entitled to bring relevant

judicial review proceedings and have the necessary capacity so to do.

5.6. I was, therefore, satisfied that s. 50A provides a clear statutory exception, by necessary implication, to the general rule that

unincorporated bodies and associations cannot maintain proceedings.

5.7. For those reasons it did not seem to me to be necessary to deal with the extent to which the Irish regime might be said to

conform with European Union law for it seemed to me to be clear that SAMRA had, on that basis, both the necessary capacity and

standing to maintain these proceedings.

6. Conclusions

6.1. For those reasons I was satisfied that Charleton J. was correct to dismiss the application brought by both Dublin City Council and

the State seeking to set aside the leave to seek judicial review in this case on the basis of the alleged lack of capacity of SAMRA. I

was satisfied that, on its proper construction, s. 50A of the 2000 Act (as amended) carried with it a necessary implication that there

is thereby provided an exception to the general rule that unincorporated bodies and associations do not have the capacity to bring

legal proceedings. Within the parameters of the types of proceedings referred to in the section bodies complying with the criteria

therein specified have, in my view, both capacity and standing to bring proceedings.

6.2. If it is desired to regulate further (whether by means of registration or otherwise) the types of unincorporated bodies who are to

have capacity to bring such proceedings then the Minister has power so to do subject to such regulation being intra vires the 2000

Act and being consistent with the Public Participation Directive. However, in the absence of any such regulation of necessary

capacity, all environmental NGOs meeting the criteria specified in s. 50A of the 2000 Act have, in my view, both capacity and

standing to maintain the types of judicial review proceedings permitted by the relevant aspects of that section.

6.3. For those reasons I agreed with the decision of the Court to dismiss the appeal and affirm the order of Charleton J.