While in the ordinary course a decision of this Court on a matter raised before it is final and conclusive, the Court has made it clear that where special or unusual circumstances are demonstrated the Court will nonetheless intervene to interfere with its own order. This power derives from the special role assigned under the Constitution to this Court to protect constitutional rights and justice. As Denham J. stated in Re Greendale Developments Ltd. (No. 3)  I.R. 514:-
“The Supreme Court has jurisdiction and a duty to protect Constitutional rights. This jurisdiction may arise even if there has been what appears to have been a final order. However, it will only arise in exceptional circumstances. The burden on the applicants to establish that exceptional circumstances exist is heavy.”
I would immediately observe that the instant case is distinguishable from Greendale in that no final order has been made by this court. This case has not reached the stage where the Court has made a decision which, in terms of Article 34, section 4.6 of the Constitution, is “final and conclusive”. Nonetheless Greendale provides a useful guide as to the principles which should apply when trying to resolve the kind of difficulty which has arisen here. It undoubtedly involves the invocation of a special jurisdiction. In considering whether or not the threshold has been reached for the invocation of this special jurisdiction, it is necessary to consider the overall importance of the point sought to be raised. Clearly it must be a point which, if valid, would as a matter of probability have affected the outcome of the case. It is also important for the Court to consider whether or not the particular point could have been raised in the High Court by a party who had the opportunity to argue the point in that Court. This might be described as an application or example of the doctrine in Henderson v. Henderson (1843) Hare 100 which requires the parties to litigation to bring forward their entire case at time of trial. While this latter consideration does not apply to An Taisce, which was unaware of the proceedings, it would, in my view, greatly weaken the strength of its application in the present instance if the point in question could have been raised by Kildare County Council. I say so because it must be assumed that the planning interests of the planning authority and those of An Taisce are similar if not identical insofar as protection of the planning process is concerned.
It is indisputable that a planning permission in default cannot be given for a development which the respondent authority had no vires to give. It was submitted before the Court that a planning permission in default cannot be given for a development that does not comply with the requirements of the Directive 85/337/EEC. In Commission v. Belgium (Case C/230/00)  ECR 1- 4591 the European Court of Justice expressly held that:-
“As was pointed out at para. 52 of the judgment in Case C/287/98 Linster  ECR 1/6917, the essential aim of Directive 85/337 ‘is that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to an assessment with regard to their effects’.
It follows from that case law that tacit authorisation cannot be compatible with the requirements of the Directives referred to in this action because they prescribe…in the case of Directive 85/337 assessment procedure preceding the grant of authorisation. The national authorities are therefore required under each of those directives to examine individually every request for authorisation.”
This is in no way a novel proposition or a development of such recent origin that the respondent council should not have been well aware of it. It is expressly flagged and referred to in the seminal authority on Irish environmental law “Environmental and Land Use Law” by Professor Yvonne Scannell (Thompson Round Hall, 2006 at p. 183).
In “Planning and Development Law” by Garrett Simons (Thompson Round Hall, 2nd Ed. 2007) the author states (at p. 160):-
“A default planning permission is not available where the proposed development is subject to the EIA Directive. The essence of environmental impact assessment is that an informed decision, subject to mitigation measures where appropriate, is made following a pubic consultation process. A default decision is the antithesis of this. Just as a planning authority is precluded from making a decision to grant planning permission for EIA development without carrying out the requisite assessment, it cannot produce the same result by its inactivity.”
While, as the author notes, the purpose of the default mechanism is to compel, as far as possible, a planning authority to consider and decide an application within the appropriate period, he nonetheless states (at p. 155):-
“The existence of this default mechanism is indefensible. There is nothing to be said in its favour: it is inherently unfair; unpopular with judges; disproportionate to the mischief which it is intended to remedy; and inconsistent with other aspects of the Planning and Development Act, 2000.”
It is, in those circumstances, noteworthy that the point was neither argued nor adverted to in any way in the court below. It will be recalled that the arguments there focused exclusively on the issue as to whether or not a planning application which was “open for consideration” by the planning authority by reference to its own development plan could be the subject matter of a default permission. The point in relation to the EIS was never canvassed at any stage.
In this context, it must be emphasised that the Court, be it the High Court or this Court can adjudicate only on matters which are placed before it for that purpose. The Court does not perform an inquisitorial or prosecutorial function. The Court offers itself by way of tabula rasa and leaves it to the parties to advance the points on which they rely and requires the parties to raise and argue all relevant points at the same time.
However, notwithstanding that counsel for Kildare County Council frankly acknowledges that no consideration was given to the EIS point in the High Court because of the particular line of defence adopted, he now contends before this Court that in any event it was not open to him to raise the point. His contention in that regard relies upon a number of authorities which hold that an emanation of the State may not rely upon its own default in aid of its defence. He described this as the doctrine of “non applicability of inverse direct effect”.
The contention advanced by counsel on behalf of Kildare County Council finds support in the decision of the European Court of Justice in Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching)  E.C.R. 723.
In that case, in the context of a Council Directive (76/207/E.E.C.) which provided that men and woman were guaranteed the same conditions of employment without discrimination on grounds of sex, the court held that the terms of the relevant article (5(1)) of the Directive were unconditional and sufficiently precise and could thus be relied upon by an individual in an action against the State, but not against another individual. In the course of argument before the European Court of Justice, the respondent authority and the United Kingdom conceded and admitted that a Directive, having direct effect as against a member state does not permit reliance by the state upon its failure to perform its obligations under the Directive.
In that case the court recalled, in accordance with a long line of decisions of the court, in particular its judgment in Becker v. Finanzamt Munster-Innenstadt (Case 8/81)  E.C.R. 53, that whenever the provisions of a Directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where that State fails to implement the Directive in national law by the end of the period prescribed or where it fails to implement the Directive correctly.
Such a view is based on the consideration that it is incompatible with the binding nature which the Treaty confers on a Directive to hold as a matter of principle that the obligation imposed thereby cannot be relied upon by those concerned. Thus in the Becker case the court deduced that a member state which has not adopted the implementing measures required by the Directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the Directive entails. Transposing that point to the instant case it would mean that An Taisce could invoke the requirement for the EIS to challenge the deemed decision to grant a default permission but the respondent council could not rely on any non-transposition of the requirements of the Directive to defend the case.
The Court of Appeal in the United Kingdom was faced with a similar difficulty in R. v. Durham County Council and Others, Ex parte Huddleston  1 W.L.R. 1484. This was a planning case and it is thus particularly relevant to the instant case because it also concerned a default permission. A company applied to revive a dormant old mining permission by registering it with the council under the provisions of the Planning and Compensation Act, 1991. The company submitted a scheme of conditions but did not provide an environmental impact assessment. Since the council were unable to determine appropriate conditions for development within three months of the application, they considered that they were deemed to have granted permission on the company’s conditions by virtue of paragraph 2(6)(b) of Schedule 2 to the Act of 1991. The applicant, Mr. Huddleston, who lived near the quarry, applied for judicial review of the council’s decision, seeking a declaration that paragraph 2(6)(b) failed to give effect to council Directive (85/337/E.E.C.) on the assessment of the effects of certain public and private projects on the environment, which required member states to ensure that an assessment was made of any significant environmental effects before giving development consent for development of the kind proposed, and should be suspended. While the court at first instance refused the application an appeal from that decision was successful. The Court of Appeal held that, under European law, the court could give direct effect to an unimplemented Directive unless to do so would alter the legal relations between individuals, impose legal obligations on an individual which limited his freedom of action vis-ŕ-vis other individuals or create criminal sanctions.
Of particular relevance and importance in the present context, however, were the comments of Sedley L.J. who in the course of his judgment stated as follows (at p. 1497):-
“As the European Court of Justice cases show, the failure of the state to transpose a Directive inevitably renders the state itself impotent to implement it; but, for an individual with a recognised interest in proper implementation, it is precisely the state’s failure which disables it from taking refuge in its own wrongdoing; and it is this which in turn entitles the citizen, as Advocate General Sir Gordon Slynn explained in Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) (Case 152/84)  Q.B. 401, to assert rights conferred by the Directive either as a sword or as a shield against the state, though not directly against another individual. So what followed from Durham’s undoubted inability to treat Sherburn as if the Directive had been implemented was not that Mr. Huddleston was rendered equally powerless but, on the contrary, that he was entitled to insist that the state should act as Durham of its own motion could not act, in conformity with the Directive. In doing so he was neither having Sherburn criminalised nor securing some change in his own relationship with them: he was seeking, in the commentators’ jargon, to give the Directive a vertical effect which would clothe Durham with the powers it ought to have had. This would of course subject Sherburn to more onerous conditions for the grant of permission (though by their counsel they have disavowed any desire to on regardless of the effect on the environment, and although they have in fact now produced an environmental impact assessment); but to do this is not, in my judgment, to impose an obligation in the objectionable sense identified in the court’s jurisprudence – that is to say, to interpose a new obligation in the relations between individuals or retrospectively to criminalise the activity of one of them. It is to prevent the state, when asked by a citizen to give effect to the unambiguous requirements of a Directive, from taking refuge in its own neglect to transpose them into national law.” (Emphasis added)
I am satisfied that these authorities suggest clearly that the point raised by An Taisce, namely, that the failure to carry out an assessment of the EIS is a point going to the very heart of a decision to grant permission, be it on a ‘deemed’ basis or otherwise, and, further, is one of substance which would, if upheld, have affected the outcome of the proceedings herein. Whatever about the respondent council, An Taisce would not have been precluded from asserting, in accordance with the provisions of Council Directive 85/337/E.E.C., that a tacit approval could not be granted without appropriate assessment of the EIS in this case. I am further of the view that An Taisce is in this context to be regarded as an ‘affected’ party.
Further, I am not satisfied that the authorities cited above necessarily preclude the respondent council from arguing that a decision to grant permission by default should not be deemed to have been made. The rule that a Member State or its emanations is precluded from relying on its own failure to implement a directive has been applied only in circumstances where an individual (such as in Becker or in Marshall) seeks to rely on his or her own Community law rights against the State. The rationale of that principle is that effect should be given to the directive even where it has not been implemented. That principle is not applicable where it is the respondent council which seeks to argue for the effectiveness of Community law. I would prefer, however, to leave any decision on that point for consideration by the High Court.
While obviously one is always reluctant to revisit a judgment which in ordinary circumstances would be regarded as bringing matters to a conclusion, the exceptional and unusual circumstances of this case really leave the Court with no alternative if it is to do justice. All of the adverse consequences which flow from a default planning permission have been fully adumbrated in the passage from Mr. Simon’s book to which I have referred. I believe the only proper course for the Court to adopt in the circumstances which have arisen is to defer making any final order until the issue in relation to the EIS is determined by the High Court. I would favour remitting that issue, and that issue alone, to the High Court for that purpose. I would also accede to An Taisce’s request to be heard at any hearing which may take place there.
It follows that the judgment which this Court has previously delivered herein must be construed as meaning that its declaration that a permission is deemed to have been granted is nonetheless subject to any determination made either by the High Court or this Court as to whether a default permission can in law be deemed to have been given in the absence of any assessment required by the Directive