Special Costs Rules
Planning and Development
Costs in environmental matters.
50B.— (1) This section applies to proceedings of the following kinds:
(a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of—
(i) any decision or purported decision made or purportedly made,
(ii) any action taken or purportedly taken, F472[…]
(iii) any failure to take any action,
pursuant to a F473[statutory provision] that gives effect to—
(I) a provision of Council Directive 85/337/EEC of 27 June 1985 to which Article 10a (inserted by Directive 2003/35/EC 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 Directive 85/337/EEC and 96/61/EC) of that Council Directive applies,
(II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, or
(III) a provision of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control to which Article 16 of that Directive F473[applies, or]
F474[(IV) paragraph 3 or 4 of Article 6 of the Habitats Directive; or]
(b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a);
(c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in relation to a proceeding referred to in paragraph (a) or (b).
F475[(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986) and subject to subsections (2A), (3) and (4), in proceedings to which this section applies, each party to the proceedings (including any notice party) shall bear its own costs.]
F476[(2A) The costs of proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the actions or omissions of the respondent or notice party, or both of them, contributed to the applicant obtaining relief.]
(3) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so—
(a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious,
(b) because of the manner in which the party has conducted the proceedings, or
(c) where the party is in contempt of the Court.
(4) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.
(5) In this section a reference to “the Court” shall be construed as, in relation to particular proceedings to which this section applies, a reference to the High Court or the Supreme Court, as may be appropriate.]
F474[(6) In this section “statutory provision” means a provision of an enactment or instrument under an enactment.]
Annotations
Amendments:
F471
Inserted (28.09.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 33, S.I. No. 451 of 2010.
F472
Deleted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 29(a)(ii), S.I. No. 436 of 2018.
F473
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 29(a)(i), (iii), S.I. No. 436 of 2018.
F474
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 29(a)(iv), (b), S.I. No. 436 of 2018.
F475
Substituted (23.08.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 21(a), S.I. No. 433 of 2011.
F476
Inserted (23.08.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 21(b), S.I. No. 433 of 2011.
Modifications (not altering text):
C92
Application of section extended (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 10(17), S.I. No. 403 of 2019.
Appeal to Board against relevant regulatory decision
10. …
(17) Sections 50, 50A and 50B of the Act of 2000 shall, with all necessary modifications, apply to a decision of the Board under subsection (8) (a) on the appeal as those sections apply to a decision of the Board under section 37 of that Act on an appeal referred to in section 37R(1) of that Act.
…
C93
Application of section extended (8.09.2011) by European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 (S.I. No. 456 of 2011), reg. 22.
Costs in certain civil proceedings
22. Section 50B (inserted by section 33 of the Planning and Development (Amendment) Act 2010 (No. 30 of 2010)) as amended by section 21 of the Environmental Miscellaneous Provisions Act 2011 (No. 20 of 2011) of the Planning and Development Act 2000 applies mutatis mutandi to these Regulations.
Editorial Notes:
E211
Previous affecting provision: application of section extended (14.10.2010) by European Communities (Forest Consent and Assessment) Regulations 2010 (S.I. No. 558 of 2010), reg. 22; revoked (24.05.2017) by Forestry Regulations 2017 (S.I. No. 191 of 2017), reg. 23(1)(a), in effect as per reg. 1(2).
E212
Previous affecting provision: subs. (2) substituted (28.09.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 33, S.I. No. 451 of 2010; substituted as per F-note above.
Environment (Miscellaneous Provisions) Act 2011.
Costs of Certain Proceedings to be Borne by Each Party in Certain Circumstances
Costs of proceedings to be borne by each party in certain circumstances.
3.— (1) Notwithstanding anything contained in any other enactment or in—
(a) Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986),
(b) Order 66 of the Circuit Court Rules (S.I. No. 510 of 2001), or
(c) Order 51 of the District Court Rules (S.I. No. 93 of 1997),
and subject to subsections (2), (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.
(2) The costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant, or as the case may be, the plaintiff, to the extent that he or she succeeds in obtaining relief and any of those costs shall be borne by the respondent, or as the case may be, defendant or any notice party, to the extent that the acts or omissions of the respondent, or as the case may be, defendant or any notice party, contributed to the applicant, or as the case may be, plaintiff obtaining relief.
(3) A court may award costs against a party in proceedings to which this section applies if the court considers it appropriate to do so—
(a) where the court considers that a claim or counter-claim by the party is frivolous or vexatious,
(b) by reason of the manner in which the party has conducted the proceedings, or
(c) where the party is in contempt of the court.
(4) Subsection (1) does not affect the court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.
(5) In this section a reference to “court” shall be construed as, in relation to particular proceedings to which this section applies, a reference to the District Court, the Circuit Court, the High Court or the Supreme Court, as may be appropriate.
Annotations
Editorial Notes:
E6
Certain court fees excluded for proceedings to which section applies (30.10.2014) by Supreme Court, Court of Appeal and High Court (Fees) Order 2014 (S.I. No. 492 of 2014), art. 8, in effect as per art. 1(2).
E7
Previous affecting provision: certain court fees excluded for proceedings to which section applies (3.02.2014) by Supreme and High Court (Fees) Order 2014 (S.I. No. 24 of 2014), art. 8; revoked (30.10.2014) by Supreme Court, Court of Appeal and High Court (Fees) Order 2014 (S.I. No. 492 of 2014), art. 11.
E8
Previous affecting provision: certain court fees excluded for proceedings to which section applies (3.12.2013) by Supreme Court and High Court (Fees) (No. 2) Order 2013 (S.I. No. 466 of 2013), art. 7, in effect as per art. 1(2); revoked (3.02.2014) by Supreme Court and High Court (Fees) Order 2014 (S.I. No. 24 of 2014), art. 11.
E9
Previous affecting provision: certain court fees excluded for proceedings to which section applies (10.07.2013) by Supreme Court and High Court (Fees) Order 2013 (S.I. No. 239 of 2013), art. 8, in effect as per art. 1(2); revoked (3.12.2013) by Supreme Court and High Court (Fees) (No. 2) Order 2013 (S.I. No. 466 of 2013), art. 10.
Civil proceedings relating to certain licences, etc.
4.— (1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (3), instituted by a person—
(a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement F1[specified in or attached to a licence, registration, permit], permission, lease F2[, notice] or consent specified in subsection (4), or
(b) in respect of the contravention of, or the failure to comply with F1[such licence, registration, permit], permission, lease F2[, notice] or consent,
and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment.
(2) Without prejudice to the generality of subsection (1), damage to the environment includes damage to all or any of the following:
(a) air and the atmosphere;
(b) water, including coastal and marine areas;
(c) soil;
(d) land;
(e) landscapes and natural sites;
(f) biological diversity, including any component of such diversity, and genetically modified organisms;
(g) health and safety of persons and conditions of human life;
(h) cultural sites and built environment;
(i) the interaction between all or any of the matters specified in paragraphs (a) to (h).
(3) Section 3 shall not apply—
(a) to proceedings, or any part of proceedings, referred to in subsection (1) for which damages, arising from damage to persons or property, are sought, or
(b) to proceedings instituted by a statutory body or a Minister of the Government.
(4) For the purposes of subsection (1), this section applies to—
(a) a licence, or a revised licence, granted under section 83 of the Environmental Protection Agency Act 1992,
(b) a licence granted pursuant to section 32 of the Act of 1987,
(c) a licence granted under section 4 or 16 of the Local Government (Water Pollution) Act 1977,
(d) a licence granted under section 63, or a water services licence granted under section 81, of the Water Services Act 2007,
(e) a waste collection permit granted pursuant to section 34, or a waste licence granted pursuant to section 40, of the Act of 1996,
(f) a licence granted pursuant to section 23(6), 26 or 29 of the Wildlife Act 1976,
(g) a permit granted pursuant to section 5 of the Dumping at Sea Act 1996,
F3[(h) a licence granted under section 7 of the Forestry Act 2014.]
(i) F1[a licence or registration granted pursuant to regulations made under section 30 of the Radiological Protection Act 1991],
(j) a lease made under section 2, or a licence granted under section 3 of the Foreshore Act 1933,
(k) a prospecting licence granted under section 8, a State acquired minerals licence granted under section 22 or an ancillary rights licence granted under section 40, of the Minerals Development Act 1940,
(l) an exploration licence granted under section 8, a petroleum prospecting licence granted under section 9, a reserved area licence granted under section 19, or a working facilities permit granted under section 26, of the Petroleum and Other Minerals Development Act 1960,
(m) a consent pursuant to section 40 of the Gas Act 1976,
(n) a permission or approval granted pursuant to the F4[Planning and Development Act 2000,]
F2[(o) a consent to a plan or project for which a screening for appropriate assessment is required under regulation 42 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011), and
(p) a consent or notice under regulation 43 of those regulations.]
(5) In this section—
“damage”, in relation to the environment, includes any adverse effect on any matter specified in paragraphs (a) to (i) of subsection (2);
“statutory body” means any of the following:
(a) a body established by or under statute;
(b) a county council within the meaning of the Local Government Act 2001;
(c) a city council within the meaning of the Local Government Act 2001.
(6) In this section F1[a reference to a licence, registration, revised licence,] permit, permission, approval, lease or consent F1[is a reference to such licence, registration, permit, lease or consent and any conditions or other requirements specified in or attached to it] and to any renewal or revision of such licence, permit, permission, approval, lease or consent.
Annotations
Amendments:
F1
Substituted (25.01.2019) by Radiological Protection (Amendment) Act 2018 (8/2018), s. 33, S.I. No. 10 of 2019.
F2
Inserted (19.07.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 61(a), (b)(ii), commenced on enactment.
F3
Substituted (24.05.2017) by Forestry Act 2014 (31/2014), s. 31(3), S.I. No. 189 of 2017.
F4
Substituted (19.07.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 61(b)(i), commenced on enactment.
F5
Substituted by Minerals Development Act 2017 (23/2017), s. 250, not commenced as of date of revision.
Modifications (not altering text):
C3
Prospective affecting provision: subs. (4)(k) substituted by Minerals Development Act 2017 (23/2017), s. 250, not commenced as of date of revision.
F5[(k) a prospecting licence granted under section 17, a retention licence granted under section 22, a mining licence granted under section 65 or continued under section 232, an ancillary surface rights licence granted under section 113, or a rehabilitation plan prepared or adopted under section 134 of the Minerals Development Act 2017,]
Proceedings relating to Information Regulations.
5.— (1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (2), instituted by a person relating to a request referred to in Regulation 6 of the Information Regulations.
(2) Section 3 shall not apply to proceedings instituted by the Commissioner for Environmental Information or a public authority pursuant to the Information Regulations.
(3) In this section—
“Information Regulations” means the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007);
“public authority” has the meaning assigned to it by the Information Regulations.
Additional proceedings to which section 3 applies.
6.—Section 3 applies to—
(a) proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review, of proceedings referred to in section 4 or 5,
(b) an appeal (including an appeal by way of case stated) from the District Court, Circuit Court or High Court in any proceedings referred to in section 4 or 5 or paragraph (a), and
(c) proceedings for interim or interlocutory relief in relation to any proceedings referred to in section 4 or 5 or paragraph (a).
Application to court for determination that section 3 applies to proceedings.
7.— (1) A party to proceedings to which section 3 applies may at any time before, or during the course of, the proceedings apply to the court for a determination that section 3 applies to those proceedings.
(2) Where an application is made under subsection (1), the court may make a determination that section 3 applies to those proceedings.
(3) Without prejudice to subsection (1), the parties to proceedings referred to in subsection (1), may, at any time, agree that section 3 applies to those proceedings.
(4) Before proceedings referred to in section 3 are instituted, the persons who would be the parties to those proceedings if those proceedings were instituted, may, before the institution of those proceedings and without prejudice to subsection (1), agree that section 3 applies to those proceedings.
(5) An application under subsection (1) shall be by motion on notice to the parties concerned.
Judicial notice to be taken of Convention.
8.— Judicial notice shall be taken of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998.
Cases
Spencer Place Development Company Ltd. v Dublin City Council
[2019] IEHC 384 (30 May 2019)
JUDGMENT of Mr Justice Garrett Simons delivered on 30 May 2019.
INTRODUCTION
1. The underlying dispute between the parties to these proceedings concerns the interpretation of a set of statutory guidelines issued by the Minister for Housing, Planning and Local Government. The guidelines are entitled ” Urban Development and Building Heights ” and were issued in December 2018 (” the building height guidelines “). The issue of interpretation is net, and centres on the interaction between the guidelines and statutory planning schemes adopted in respect of strategic development zones (” SDZs “).
2. The parties are in disagreement as to whether the relevant policy under the building height guidelines distinguishes between a planning scheme and the development plan simpliciter. The resolution of this disagreement will depend, in part, on the correct inference to be drawn from the fact that a planning scheme is “deemed” to form part of a development plan. (Section 169(9) of the PDA 2000). It will also depend on whether the guidelines must be read in conjunction with the SEA statement prepared for the purposes of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (” the SEA Directive “) and the implementing national regulations, the EC (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 (as amended).
3. The practical significance of the underlying dispute lies in its implications for two applications for planning permission submitted by Spencer Place Development Company Ltd. (” the Developer “). These applications are pending before Dublin City Council. The proposed development would exceed the maximum building heights prescribed under the relevant planning scheme. The Developer maintains, however, that the legal effect of the building height guidelines is that the planning authority is now authorised to grant planning permission notwithstanding this exceedance.
4. The Developer seeks certain declarations as to the meaning and effect of the guidelines in these judicial review proceedings. In particular, the Developer seeks a declaration that the building height guidelines apply to the determination of planning applications for development within the area of any SDZ planning scheme as and from the date of the publication of the guidelines. The proceedings have an urgency in that Dublin City Council is required to make a decision on the planning applications by Friday, 31 May 2019. A judgment on the correct interpretation of the guidelines might be conclusive of the outcome of the planning application. This is not certain however: for example, the planning authority might decide to refuse planning permission for reasons entirely unrelated to building height.
5. This lack of certainty as to the implications of a judgment for the outcome of the planning application process gives rise to a second area of dispute between the parties. The planning authority objects that the proceedings are inadmissible on the basis that any application for judicial review should have awaited the making of a decision on the two planning applications. It is submitted that—pending the determination of the two planning applications—there is as of yet no “decision” or “act” on the part of the authority which is amenable to judicial review. It is said, therefore, that the proceedings are premature. In response, the Developer contends that a briefing note issued by the City Planning Officer setting out his interpretation of the building height guidelines is justiciable.
6. I propose to address this procedural objection first, before turning to consider, if necessary, the substantive issue, i.e. the interpretation of the building height guidelines.
7. Before turning to that task, however, it is necessary first to set out a brief summary of the factual background.
FACTUAL BACKGROUND
8. The Developer is the leaseholder of lands at Spencer Place, Spencer Dock, Dublin 1. The lands are located in an area which has been designated as a strategic development zone, namely the North Lotts and Grand Canal Strategic Development Zone. A statutory planning scheme was prepared in respect of the SDZ in 2014. This is known as the North Lotts and Grand Canal Planning Scheme 2014 (” the North Lotts planning scheme “). Insofar as relevant to the Developer’s sites, the North Lotts planning scheme prescribes maximum building heights of 5 to 8 storeys (commercial), and 6 to 10 storeys (residential), with one possible set back floor.
9. The Developer seeks to rely on the building height guidelines in order to obtain planning permission for additional storeys on two sites. In each instance, the Developer already has the benefit of extant planning permissions which authorise building heights of a scale allowed for under the North Lotts planning scheme. Following on from the publication of the guidelines in December 2018, the Developer submitted planning applications in January 2019, and February 2019, respectively, which seek amendments to the permitted development in order to increase the height of same. The first planning application relates to office buildings at Spencer Dock described as the ” Salesforce Building “; and the second planning application relates to proposed residential development and an aparthotel at Spencer Place. This second planning application seeks, inter alia, amendments to increase the maximum height of Block 1 of the permitted development from 7 storeys to 13 storeys, and to increase the maximum height of Block 2 to 11 storeys.
10. The Developer maintains the position that the two planning applications fall to be determined by reference to the building height guidelines. It is suggested that the guidelines authorise Dublin City Council to grant planning permission notwithstanding that the scale of the development now proposed conflicts with the building heights prescribed in the North Lotts planning scheme.
11. Prior to the institution of the within judicial review proceedings, the Developer had sought to articulate its position in this regard by way of correspondence with Dublin City Council. This correspondence commenced on 2 January 2019. During the course of the exchange of correspondence, the Developer furnished Dublin City Council with no less than four opinions from two senior counsel as to the correct interpretation of the building height guidelines.
12. In parallel to this correspondence, members of Dublin City Council had also raised queries as to the applicability of the building height guidelines. In response, the City Planning Officer, Mr John O’Hara, prepared a document entitled ” Briefing Note on the City Development Plan and Height Guidelines” dated 31 January 2019. Given that one of the principal reliefs sought in these judicial review proceedings is an order declaring this briefing note to be invalid, it is necessary to rehearse the relevant parts of same in full.
“4. In relation to the Building Height Guidelines, SPPR No. 1 requires PA’s to explicitly identify through future statutory plans, areas where increased height will be actively pursued to secure the urban consolidation objectives of the NPF ‘and shall not provide for blanket numerical limitations on height’.
SPPR 3 states that where an applicant demonstrates how a proposal complies with certain criteria (e.g. proximity to good public transport, contribution to place-making/streetscape, daylight/microclimatic impacts, effect on the historic environment etc.), to the satisfaction of the Planning Authority, then permission may be granted, ‘ even where specific objectives of the relevant Development Plan or Local Area Plan may indicate otherwise’
5. These requirements do not apply to an approved SDZ Planning Scheme. However, the Planning Authority/Development Agency must, on the coming into force of the Guidelines, carry out a review, to ensure the NPF/Guidelines are reflected in the Scheme. The review of the existing DCC SDZ Planning Schemes has commenced. The Guidelines at 2.11 state that it is crucial that Development Plans identify and provide policy support for specific locations or precincts where increased height is not only desirable, but a policy requirement. In this regard, the review of the current City Development Plan must commence by September 2020. It is not necessary or proposed to review the current City Development Plan to take account of the new Building Height Guidelines.”
13. Mr O’Hara explains the genesis of this briefing note as follows in his affidavit of 14 May 2019. The Corporate Policy Group of Dublin City Council, at its meeting of 25 January 2019, had raised a query as to the impact of the new height guidelines on the development plan. Mr O’Hara states that the query was about the guidelines in general and did not concern the two planning applications nor indeed SDZs. Mr O’Hara explains the purpose of the briefing note as follows.
“11. On foot of this, I prepared a short report on the matter dated 31st January 2019. The report was prepared to address the CPG’s concerns about the effect of the Guidelines on the Development Plan, especially as there were a number of SHD (Strategic Housing Development) applications for over 100 units submitted directly to An Bord Pleanála around that time. The reference to SDZ’s in the briefing note was incidental to the main purpose of the report and was included for the sake of completeness. […]
[…]
13. It is important to note that this was a briefing note, not a recommendation or a decision on specific planning applications, nor was it specific to any development in the SDZ.”
14. It seems that the intention had been that the briefing note would be put before the elected members at the Council meeting in February 2019. It was not, however, reached on that occasion, and went back to the meeting on 4 March 2019.
15. Counsel for the Developer places emphasis on the fact that the Chief Executive of Dublin City Council, Mr Eoin Keegan, was in attendance both at the meeting on 25 January 2019 when the preparation of a briefing note was agreed upon, and at the subsequent meeting on 4 March 2019 when the briefing note was “noted” by the elected members. Emphasis is also placed on the fact that the Assistant Chief Executive, Mr Richard Shakespeare, was also at the meeting of 4 March 2019. The function of determining planning applications has been delegated to Mr Shakespeare. All of this, it is submitted, is indicative of the fact that the senior executives of Dublin City Council were all in agreement that the building height guidelines did not govern an application for planning permission in respect of an SDZ planning scheme. This is said to be relevant to Dublin City Council’s objection that the proceedings are premature. I will return to consider this objection presently.
16. All the while these events were occurring, the statutory time-limit for the determination of the two planning applications was running. A planning authority is under a statutory duty to determine an application for planning permission within a period of eight weeks beginning on the date of receipt by the planning authority of a (valid) application. This time-limit can, however, be extended by the written consent of the applicant for planning permission. See section 34(9) of the PDA 2000. The planning consultants acting on behalf of the Developer, John Spain Associates, wrote to Dublin City Council consenting to an extension of time. The giving of this consent was a unilateral act on the part of the Developer, in the sense that the planning authority had not requested such consent. In each instance, the Developer consented to an extension of time up to 31 May 2019.
17. The rationale for this approach has been explained by Mr Spain in his second affidavit (17 May 2019) as follows.
“6. The extension of time was the appropriate route for the Applicant to follow where the Council’s interpretation of the Building Height Guidelines as set out in the Briefing Note would mean that planning permission would have to be refused for the two applications as the increase in height for which planning permission was sought was not in compliance with the Planning Scheme. The purpose of the extension was to allow time for this matter to be resolved prior to the Council making a decision on the application.”
18. On behalf of Dublin City Council, Mr O’Hara makes the following observation in his affidavit of 14 May 2019.
“16. It is most unusual for an applicant to unilaterally consent to an extension of time. There is no record of this procedure being used in the last 5 years, until these two applications. In my experience this procedure is used extremely rarely, for example where there is an unexpectedly large number of submissions to be considered or when the case officer is out sick, and in order to avoid default permission being granted. In such rare cases the time extension is agreed between the City Council and the Applicant.”
19. The within proceedings were instituted by way of an ex parte application for leave to apply for judicial review on 23 April 2019. The proceedings were case managed by the Judge in Charge of the Judicial Review List (Noonan J.). The matter came on for full hearing before me for two days commencing on Tuesday 28 May 2019.
BUILDING HEIGHT GUIDELINES
20. The dispute in the proceedings centres largely on the interpretation and application of a particular provision of the guidelines known as “SPPR 3”. The abbreviation “SPPR” refers to a “specific planning policy requirement”. The full text of this requirement, and the relevant extracts from the SEA statement published for the purposes of the SEA Directive pursuant to regulation 16 of the EC (Assessment of Plans and Programmes) Regulations 2004 (as amended) will be set out presently.
21. For introductory purposes, the overall objective of the building height guidelines might be summarised as follows. In accordance with government policy to support increased building height and density in locations with good public transport accessibility, particularly town/city cores, planning authorities are required to explicitly identify areas where increased building height will be actively pursued, and not to provide for blanket numerical limitations on building height. Planning authorities are also required to ensure an appropriate mixture of uses, such as housing and commercial or employment development. The guidelines identify development management criteria which are to be taken into account in assessing individual planning applications. Where the relevant planning authority considers that such criteria are appropriately incorporated into development proposals, then the planning authority is required to apply SPPR 3.
RELIEF SOUGHT
22. The Developer seeks three declarations which can be summarised as follows. First, a declaration that the legal interpretation in the briefing note of 31 January 2019 is ultra vires and/or incorrect as a matter of law. Secondly, a declaration that Dublin City Council is obliged to apply SPPR 3 (A) in the determination of planning applications for development within the area of any SDZ planning scheme, including the North Lotts and Grand Canal Planning Scheme 2014, as of the date of the publication of the building height guidelines. Thirdly, a declaration that Dublin City Council is obliged to apply and/or comply with the building height guidelines prior to undertaking and/or completing any review and/or amendment of the North Lotts and Grand Canal Planning Scheme.
(1). PROCEDURAL OBJECTION
INTRODUCTION
23. The case was heard on 28 and 29 May 2019, and the parties have requested that judgment be delivered prior to Friday, 31 May 2019, i.e. the date upon which the two planning applications must be decided. The very tight timelines which the court faces in this regard give rise to the following practical difficulty. If the court were to decide the procedural objections in favour of Dublin City Council, and to refuse to address the substantive issue, i.e. the interpretation of the guidelines, then this might result in an overly convoluted appeals process.
24. More specifically, were this court to decide the case solely by reference to the procedural objection, only for that finding to be set aside on appeal, it would then be necessary for the matter to be remitted to the High Court for a determination on the substantive issue. There might then be a second appeal to the Court of Appeal. It seems preferable, therefore, that this judgment should address both the procedural objection and the substantive issue. Thereafter, in the event that the parties wish to exercise their right of appeal, all issues will come before the Court of Appeal and can be disposed of at a single hearing. This is so notwithstanding that, as explained immediately below, I would have resolved the procedural objection in favour of Dublin City Council and this finding on its own would have been sufficient to dispose of the proceedings.
25. The gravamen of Dublin City Council’s procedural objection is that the briefing note of 31 January 2019 impugned in these proceedings has no formal legal standing. There is no statutory provision under the PDA 2000 which allows for a planning authority to provide an advisory opinion on the correct interpretation of planning policy, still less a purported interpretation of a statutory provision. The closest one finds are the provisions of section 5 of the PDA 2000 which allow for a planning authority to make a formal determination as to whether a particular act constitutes development or exempted development for the purposes of planning permission. This does not apply in this case.
26. Dublin City Council also makes the point that Mr O’Hara, although occupying a senior position in Dublin City Council, is not the person ultimately responsible for making the decision on the two planning applications. The implementation of the planning scheme for the North Lotts and Grand Canal SDZ, and the function of determining planning applications, has been delegated to the Assistant Chief Executive, Mr Shakespeare, by order dated 23 November 2018 (Order No. CE 5429). See written submissions as follows.
“18. In addition to the question of justiciability of the position taken by the Chief Planner in his letter of advices to the Elected Members, there is an issue of prematurity where an application is pending for planning permission which is not due to be delivered until the 31st May next, by which time the decision-maker (the Chief Executive of the respondent) can take a view different from that of the Chief Planner as expressed in the memorandum of advices (of a general nature) which were furnished to the Elected Members in March 2019. For that reason it is not appropriate to grant relief without allowing the planning process to be fully exhausted before seeking to challenge the decision, which ultimately will be the outturn of the termination of the planning process currently under consideration. The timing of the issue of the present proceedings was therefore misconceived.
[…]
22. Moreover, the advices given by the Planning Department (which were of a general rather than a specific nature) regarding the Guidelines on height restrictions was a set of advices given to the Elected Members who are not the ultimate decision-makers regarding the Applicant’s applications for planning permission in this case so that the advices, even if flawed were not going to have any adverse impact on the outcome of the process ultimately leading to the grant or refusal of the Applicant’s application for planning permission. It will also constitute a form of prejudgment and a fettering of its discretion for the Council to state that it was going to adopt the same position set out in the briefing note in determining the planning applications.”
27. In a sense, however, all of this has been overtaken by the events. The fact that the Developer instituted the within judicial review proceedings necessitated the planning authority adopting a formal stance in its opposition papers on the substantive question, namely, the applicability of the building height guidelines to a planning scheme. Dublin City Council has formally pleaded that SPPR 3 (A) does not apply to planning schemes. See, in particular, paragraphs 20, 26, 28 and 29 of the Statement of Opposition.
28. Against this background, any argument that the views expressed by Mr O’Hara in the briefing note of 31 January 2019 merely represent his own personal view, as opposed to the corporate view of Dublin City Council, falls away. Dublin City Council has committed itself in its pleadings to a particular interpretation of the building height guidelines. Specifically, the authority has adopted the position that SPPR 3 (A) does not apply to a planning scheme and, accordingly, the authority cannot rely on the guidelines to authorise development in a SDZ which is not consistent with the relevant planning scheme.
29. Counsel on behalf of the Developer submits that Dublin City Council’s interpretation of the guidelines as set out in the briefing note is justiciable. In this regard, counsel helpfully opened a series of cases wherein non-statutory advices were found by the Courts of England and Wales to be reviewable by the courts. Reliance was placed, in particular, on Gillick v. West Norfolk and Wisbech Health Authority [1986] AC 112; R . v. Worthing Borough Council (1983) 49 P. & C.R. 53; and R. v. Agricultural Dwelling-House Advisory Committed for Bedfordshire, Cambridgeshire and Northamptonshire (1986) 19 H.L.R. 367.
FINDINGS OF THE COURT
30. The procedural objection raised by Dublin City Council presents an important issue of principle as to the timing of judicial review proceedings in the planning process. Dublin City Council has settled upon a particular interpretation of the building height guidelines. On this interpretation, it appears to be almost inevitable that the two pending planning applications will be refused in circumstances where it is common case that the scale of the proposed development would exceed the maximum height requirements prescribed under the North Lotts planning scheme. A planning authority is required under section 28 of the PDA 2000 to have regard to Ministerial guidelines and to comply with specific planning policy requirements. It follows as a necessary corollary that a planning authority must properly interpret the guidelines: the authority cannot be said to have had regard to or to have complied with guidelines which it has not properly understood. If a planning authority misinterprets the guidelines, then this represents an error of law which is amenable to judicial review. This is consistent with the case law on the interpretation of a development plan: see, in particular, Tennyson v. Dun Laoghaire Corporation [1991] 2 I.R. 527; Brophy v. An Bord Pleanála [2015] IEHC 433, [24] and Navan Co-ownership v. An Bord Pleanála [2016] IEHC 181 (citing Tesco Stores Ltd. v. Dundee City Council [2012] UKSC 13).
31. The issue for this court is whether the Developer is entitled to challenge Dublin City Council’s interpretation of the building height guidelines now, or, alternatively, whether the Developer must first await the outcome of the decision-making process in respect of the two planning applications. This issue must be determined by reference to the statutory judicial review procedure provided for in the case of planning decisions under section 50 and 50A of the PDA 2000. It appears from this scheme that the legislative intent is that where a matter is within the jurisdiction of a planning authority then recourse to the courts should, generally, be a matter of last resort.
32. In this regard, express provision is made under sections 50(4) and (5) of the PDA 2000 for judicial review proceedings to be stayed as follows. (This test was recently applied by the High Court in Sweetman v. Clare County Council [2018] IEHC 517 and Dunnes Stores (Limerick) v. Limerick City and County Council [2019] IEHC 59).
“(4) A planning authority, a local authority or the Board may, at any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (2) applies and which relates to a matter for the time being before the authority or the Board, as the case may be, apply to the High Court to stay the proceedings pending the making of a decision by the authority or the Board in relation to the matter concerned.
(5) On the making of such an application, the High Court may, where it considers that the matter before the authority or the Board is within the jurisdiction of the authority or the Board, make an order staying the proceedings concerned on such terms as it thinks fit.
33. Whereas no formal application was made by Dublin City Council to stay the within proceedings, the court is nevertheless entitled to have regard to the legislative intent which informs the above sections. This legislative intent is consistent with a well-established line of case law which indicates that the planning legislation, in its previous guise of the Local Government (Planning & Development) Acts, represented a self-contained administrative code. See State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381.
34. On the particular facts of the present case, I am satisfied that no prejudice would have been caused to the Developer had it been required to await the outcome of the decision-making process in respect of the two planning applications before instituting judicial review proceedings. In circumstances where the Developer has sought, in its planning applications, to rely upon the building height guidelines, it will be necessary for Dublin City Council to address this issue in its decisions. It will be evident from the face of the planning decisions as to what view the planning authority took in relation to the interpretation of the building height guidelines. As noted in paragraph 30 above, if a planning authority misinterprets the guidelines, then this represents an error of law which is amenable to judicial review. Accordingly, the very legal argument which the applicant wishes to make in these proceedings, can be made equally well in proceedings directed to a decision to refuse planning permission.
35. During the course of the hearing before me, counsel for the Developer suggested that one reason for allowing judicial review proceedings at this stage is that a potential developer should not be put to the trouble and expense of preparing a detailed planning application in circumstances where the stated position of the planning authority meant that such an application would inevitably fail. In another case, there might have been some merit in this argument. However, on the facts of the present case, the two planning applications had been submitted before the judicial review proceedings were instituted. Thus, the costs of preparing the planning applications had already been incurred. Indeed, but for the fact that the Developer took the highly unusual step of unilaterally consenting to an extension of time, the two applications would have been determined prior to 23 April 2019, i.e. the date on which the within judicial review proceedings were instituted.
36. It would have been more satisfactory had the Developer allowed the two planning applications to be determined in the ordinary way, and to defer any judicial review proceedings pending the outcome of the planning process. In the event that planning permission were granted, then judicial review proceedings would be unnecessary. In the event that planning permission were refused, the fact that any judicial review proceedings would take place by reference to an actual decision, and by reference to the reports of Dublin City Council’s planners, would give the case a less abstract air.
37. For the reasons indicated earlier, I do not intend to dispose of the case on this procedural objection, rather I intend to consider the substantive issues de bene esse .
(2). SUBSTANTIVE ISSUES
LEGISLATIVE SCHEME
38. The dispute as to the interpretation of the building height guidelines takes place against a complicated legislative background which requires consideration not only of principles of national law but also of EU law. In particular, the implications of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment must be considered (” the SEA Directive “).
39. In order to better understand the competing arguments of the parties, it is first necessary to explain what is meant by the terms “strategic development zone”, “planning scheme” and “specific planning policy requirement”. It is also necessary to explain the role of the development plan in the planning process, and how the objectives of a plan appear to be vulnerable to being overridden by a “specific planning policy requirement”.
40. The general position is that an application for planning permission is determined by having “regard to” the relevant development plan. A development plan is drawn up after a public participation process, which includes an environmental assessment for the purposes of the SEA Directive. The making of a development plan is a “reserved function”, i.e. it requires a resolution of the elected members of the local authority, and, thus, the plan carries a democratic imprimatur.
41. The adjudication upon planning applications involves a two-stage process: the application is made at first instance to the planning authority, and there is a statutory right of appeal thereafter to An Bord Pleanála. An Bord Pleanála hears the appeal de novo , i.e. as if the planning application had been made to it in the first instance.
42. A planning authority is required “to have regard” to the development plan in determining an application for planning permission. If a planning authority intends to grant planning permission for a proposed development which would involve a material contravention of the development plan, it is necessary to invoke a special statutory procedure which involves enhanced public participation and requires a vote of a qualified majority of the elected members.
43. An Bord Pleanála is also required “to have regard” to the development plan. The board is not, however, constrained by the development plan in the same way as is the planning authority. The board can grant planning permission in material contravention without the necessity for invoking any special procedure. If, however, the planning authority at first instance had decided to refuse permission on the grounds that the proposed development materially contravenes the development plan, then An Bord Pleanála can only grant planning permission if one of the four contingencies identified in section 37(2)(b) of the PDA 2000 is fulfilled.
44. As part of the amendments introduced under the PDA 2000, a streamlined planning application process is now available in respect of areas which have been designated as strategic development zones (” SDZs “). Development within SDZs is subject to a “planning scheme”. The content of a planning scheme is more prescriptive than that of development plans generally. Relevantly, a planning scheme must prescribe maximum building heights. See section 168(2)(c) of the PDA 2000.
45. The making of a planning scheme is subject to a detailed public participation procedure including a requirement for confirmation of the scheme by An Bord Pleanála. The making of the scheme is subject to the requirements of the SEA Directive.
46. An application for proposed development within an SDZ subject to a planning scheme is distinguished from a conventional planning application principally by the following two features.
47. First, a planning authority is obliged to grant planning permission (” shall “) where it is satisfied that the proposed development would be consistent with a planning scheme. See sections 170 (1) and (2) of the PDA 2000 as follows.
“(1) Where an application is made to a planning authority under section 34 for a development in a strategic development zone, that section and any permission regulations shall apply, subject to the other provisions of this section.
(2) Subject to the provisions of Part X or Part XAB, or both of those Parts as appropriate, a planning authority shall grant permission in respect of an application for a development in a strategic development zone where it is satisfied that the development, where carried out in accordance with the application or subject to any conditions which the planning authority may attach to a permission, would be consistent with any planning scheme in force for the land in question, and no permission shall be granted for any development which would not be consistent with such a planning scheme.”
48. Secondly, there is no right of appeal against the planning authority’s decision to An Bord Pleanála. See section 170(3) of the PDA 2000. The perceived advantage of this is that the delays which might otherwise arise from a full de novo appeal to An Bord Pleanála are avoided. The absence of an appeal at the level of individual planning applications can be justified by the fact that An Bord Pleanála has a crucial role in approving the planning scheme.
49. Notwithstanding that section 170(1) indicates that section 34 and any permission regulations shall apply to an application under section 170, the decision-making function which a planning authority exercises under section 170 is entirely different from that which it exercises in the case of a conventional planning application. The function is confined to determining whether the proposed development is consistent with the planning scheme.
50. The limited nature of the function is explained as follows in the judgment of the High Court (Haughton J.) in O’Flynn Capital Partners v. Dun Laoghaire Rathdown County Council [2016] IEHC 480. The court drew a comparison between the function under section 170 of the PDA 2000 and the function of certifying development proposals under the Dublin Docklands Development Authority Act 1997.
“122. Apart from the foregoing there are two particularly important features common to both: both contain, in accordance with statutory requirements, a significant level of detail, and far more than would be contained in the usual Development Plan. Most relevantly, both contain a radical provision providing that, where a proposed development is ‘consistent with [the] planning scheme’, then the development must be permitted; under s. 25(7) of the DDDA Act a Certificate of Exemption from the requirement of planning permission is given; under s. 170(2) the planning authority “shall grant permission”, subject in both instances to such conditions as may be lawfully attached. This introduces a major constraint on the decision-maker, because the detail against which the proposed development must be assessed has been pre-determined to large extent by the prior planning and consultative process.”
*Emphasis (italics) added.
51. One consequence of the limited function is that the planning authority’s decision as to whether a proposed development is consistent with the planning scheme is not subject to the attenuated form of review allowed for under the principles in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. See O’Flynn Capital Partners at [123] and [124].
52. As discussed presently, on the Developer’s interpretation of the building height guidelines, the planning authority’s function under section 170 would be extended beyond recognition. Rather than being constrained by the objective criteria prescribed under the planning scheme, a planning authority would instead be at large to conduct a project-specific assessment of the detail of the planning application with a view to applying the subjective criteria under the guidelines. There would be no appeal to An Bord Pleanála against the outcome of this assessment.
THE ROLE OF MINISTERIAL GUIDELINES
53. Prior to amendments introduced under the Planning and Development (Amendment) Act 2018, the ability of the Minister to influence planning policy was limited. Whereas the Minister was empowered to issue statutory guidelines pursuant to section 28 of the PDA 2000, planning authorities were merely obliged to “have regard to” the guidelines. This meant that a planning authority was not required to comply with guidelines; the planning authority simply had to demonstrate that it had had regard to the guidelines and, possibly, to state reasons for not complying with the same. See, for example, the judgment in Tristor Ltd. v. Minister for Environment, Heritage and Local Government . [2010] IEHC 397, [7.11]
“[…] As was pointed out in Glencarr Explorations Plc v. Mayo County Council (No.2) [2002] 1 IR 84 (by Keane C.J. at p. 142) it may be inferred that, if the Oireachtas intended that there be an obligation to comply with a particular matter rather than simply have regard to it, it might be expected that the Oireachtas would have said so in the legislation concerned. Likewise, Quirke J. in McEvoy v. Meath County Council [2003] 1 IR 208, noted, in relation to an obligation to ‘have regard’ to matters, that the local authority concerned was not ‘bound to comply with the Guidelines and may depart from them for bona fide reasons consistent with the proper planning and development of the areas for which they have planning responsibility’. I adopt the view of the Quirke J. as being applicable to this case.”
54. The status of Ministerial guidelines has since been enhanced as a result of the introduction of the concept of a “specific planning policy requirement” under the Planning and Development (Amendment) Act 2018. Such a requirement is defined as follows under section 34(2)(d) of the PDA 2000.
“(d) In this subsection ‘specific planning policy requirements’ means such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including the Board, in securing overall proper planning and sustainable development.”
55. A planning authority is required to comply with a specific planning policy requirement. See section 28(1)(C) of the PDA 2000 as follows.
“(1C) Without prejudice to the generality of subsection (1), guidelines under that subsection may contain specific planning policy requirements with which planning authorities, regional assemblies and the Board shall, in the performance of their functions, comply.”
56. I pause here to note that the effect of the amendments introduced under the Planning and Development (Amendment) Act 2018, is that a single set of Ministerial guidelines may contain within it two different types of requirement. The first type are policies to which a planning authority is merely required to have regard. The second type are policy requirements which a planning authority is obliged to comply with. It is important when reading through a set of guidelines to distinguish between the two different types and the legal effect of same.
57. One of the most striking features of a specific planning policy requirement is that same appears to take precedence over the objectives of the development plan. This is provided for under section 34(2) (aa) and (ba) of the PDA 2000 as follows.
“(aa) When making its decision in relation to an application under this section, the planning authority shall apply, where relevant, specific planning policy requirements of guidelines issued by the Minister under section 28.
[…]
(ba) Where specific planning policy requirements of guidelines referred to in subsection (2)(aa) differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the development plan.”
58. The legislation does not expressly address the interaction between (i) the obligation to apply a specific planning policy requirement instead of the objectives of the development plan, and (ii) the restrictions imposed under section 34(6) of the PDA 2000 on the grant of planning permission for proposed development which would involve a material contravention of the development plan. On one reading of the legislation, the effect of the making of a specific planning policy requirement may be to authorise a planning authority to grant a material contravention of its development plan without having to observe any special procedural requirements. If this is the correct interpretation, then it represents a radical change in planning law and an attenuation of the status of the development plan.
59. The legal position in respect of the interaction between a specific planning policy requirement and a planning scheme is, if anything, even more difficult to state. As appears from section 170(2) of the PDA 2000, the principal determinant of an application for proposed development within an area subject to an SDZ is consistency with the relevant planning scheme. The amendments introduced under the Planning and Development (Amendment) Act 2018 do not include a provision—analogous to that applicable to a development plan under section 34 (2) (aa) and (ba)—which states that a planning authority is to apply the provisions of a specific planning policy requirement in the case of a difference between same and the planning scheme.
60. The Developer argues nonetheless that the same result is, in practice, achieved by one or other of the following two routes. First, the Developer relies on the fact that a planning scheme is deemed to be part of a development plan under section 169(9) of the PDA 2000. The Developer submits that the reference to “development plan” in section 34(2) (aa) and (ba) must accordingly be understood as encapsulating a planning scheme. On this extended interpretation of “development plan”, it is said that the planning authority is authorised to apply the provisions of a specific planning policy requirement in preference to any contrary requirement of a planning scheme.
61. Secondly, the Developer relies on the provisions of section 169(8A) of the PDA 2000 as follows.
“(8A)(a) A planning scheme that contains a provision that contravenes any specific planning policy requirement in guidelines under subsection (1) of section 28 shall be deemed to have been made, under paragraph (b) of subsection (4) of section 169, subject to the deletion of that provision.
(b) Where a planning scheme contravenes a specific planning policy requirement in guidelines under subsection (1) of section 28 by omission of a provision in compliance with that requirement, the planning scheme shall be deemed to have been made under paragraph (b) of subsection (4) of section 169 subject to the addition of that provision.”
62. The Developer submits that the effect of this section is that any provision of a planning scheme which is inconsistent with a specific planning policy requirement is deleted from the planning scheme.
63. Notwithstanding the skilful submissions on the part of leading counsel on behalf of the Developer, Mr Eamon Galligan SC and Mr Patrick Butler SC, I do not think that either argument is correct. First, the function and role of a planning authority in determining an application under section 170 of the PDA 2000 is so different, and so much more limited, than that arising in the context of a conventional planning application, that I do not think that it is correct to read across the requirements of sections 34(2) (aa) and (ba). It would completely change the role and function of the planning authority from an almost mechanical confirmation that the proposed development is consistent with the prescribed criteria under the planning scheme, to one where the planning authority exercises a general discretion similar to that which it would enjoy in the case of a conventional planning application. Such a significant change would require express statutory language. It seems to me, therefore, that the term “development plan” must be understood in the context of section 34 as referring to the development plan simpliciter . The extended definition of “development plan” argued for on behalf of the developer by reference to the deeming provisions of section 169(9) of the PDA 2000 does not apply to section 34.
64. For the sake of completeness, I should also record that I do not think that the deeming provision under section 169(9) has the legal effect contended for by the Developer. The very use of the phrase ” shall be deemed to form part of ” the development plan under section 169(9) indicates that a planning scheme does not form part of the development plan in the normal sense. In this regard, a development plan is defined under section 2 as ” a development plan under section 9(1)”. The definition section does not make any reference to a planning scheme nor to the provisions of section 169(9).
65. Even if I am incorrect in this—and the normal definition of “development plan” should be understood as referring to the “development plan plus planning scheme”—it does not necessarily follow that this extended definition is applicable on each instance where the term “development plan” appears in the planning legislation. The statutory definitions under the planning legislation are subject to the general proviso under section 2 that the definitions apply except where the context otherwise requires . The context of section 34(4) (aa) and (ba) is such that it should properly be interpreted as confined to the development plan simpliciter .
66. Turning to the second argument, I think that the counterargument advanced on behalf of Dublin City Council by Mr James Connolly, SC is correct. Section 169(8A) of the PDA 2000 is engaged in the context of the process of the making of a planning scheme. It therefore only applies in circumstances where there is already a specific planning policy requirement in force at the time a planning scheme is being made. If, notwithstanding the obligation upon it to have regard to the specific planning policy requirement under 169(8), An Bord Pleanála nonetheless purports to approve a planning scheme which contains a provision that contravenes any specific planning policy requirement, then the effect of section 170 is the planning scheme shall be deemed to have been made as if the provision was deleted.
67. Section 169(8A) has no application where—as in the present case—Ministerial guidelines are issued after a planning scheme has already been made. It would undermine the public participation process leading up to the making of the planning scheme and be contrary to the SEA Directive were the legislation to be interpreted in such a way as to allow the Minister to change retrospectively the content of a planning scheme by issuing guidelines.
68. Strictly speaking, it is not necessary for the court to make a definitive determination in respect of these two issues of statutory interpretation in order to resolve the present case. This is because—as explained in detail at paragraph 80 et seq . below—I am satisfied that the intended effect of the building height guidelines is much less ambitious than that argued for on behalf of the Developer. More specifically, I am satisfied that the guidelines are not intended to disapply the provisions of a planning scheme. Rather, the extent of the obligation under the guidelines is a requirement upon planning authorities to review and amend planning schemes. Until such an amendment is made in accordance with the public participation procedure provided for under section 170A of the PDA 2000, the existence of the building height guidelines does not affect planning applications made in the interim. Put shortly, during the interregnum between the issuing of the building height guidelines in December 2018 and the making of an amendment to a planning scheme, the extant planning scheme continues to govern applications for planning permission in the area of an SDZ.
SEA DIRECTIVE
69. The initial approach taken under the PDA 2000 seems to have been that there was no obligation to subject Ministerial guidelines to an environmental assessment for the purposes of the SEA Directive. However, as a result of an amendment introduced under the Planning and Development (Amendment) Act 2018, there is now an express recognition that the carrying out of an environmental assessment may be required.
70. This is provided for under a new subsection, namely section 28(1D) of the PDA 2000 as follows.
“(1D) A strategic environmental assessment or an appropriate assessment shall, as the case may require, be conducted in relation to a draft of guidelines proposed to be issued under subsection (1).”
71. This amendment is, presumably, intended to reflect the fact that the legal landscape in respect of the SEA Directive has changed as the result of two important judgments of the CJEU. The first judgment confirmed that the obligation to carry out a strategic assessment applies even in the case of what might be described as a voluntary plan or programme, i.e. where it is not mandatory under legislation to make such a plan or programme. Ministerial guidelines are voluntary in this sense. See C 567/10 Inter-Environnement Bruxelles , [28] and [31].
72. Secondly, it follows from the judgment in Case C 290/15 D’Oultremont that the obligation to carry out an assessment is not confined to plans or programmes which are directed to specific geographical areas. Thus, guidelines such as the building height guidelines, which apply generally throughout the State, are, in principle, subject to the SEA Directive.
73. One vestige of the fact that there was originally no obligation under national law to carry out a strategic assessment in respect of Ministerial guidelines is that the newly introduced requirement under section 28(1D) entails an assessment under the EC (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 (as amended). The assessment of all other plans and programmes under the planning legislation takes place under the planning regulations, as amended by the Planning and Development (Strategic Environmental Assessment) Regulations 2004.
74. At all events, it is necessary that a decision to make Ministerial guidelines be subject to a screening exercise, and if it is concluded that the proposed plan is likely to have significant effects on the environment, then it is necessary to carry out the SEA process. This includes public participation and, relevantly, the publication of an SEA statement as part of the decision-making. The question which then arises is as to whether it is appropriate and necessary in interpreting the Ministerial guidelines to have regard to the content of the SEA statement. This question assumes a crucial importance in the present case where, as we shall see, the original draft of the building height guidelines was amended so as to treat differently of planning schemes.
75. The relevant provisions of the SEA Directive were opened to the court in full by Mr James Connolly, SC on behalf of the City Council and provide as follows.
“Article 9
Information on the decision
1. Member States shall ensure that, when a plan or programme is adopted, the authorities referred to in Article 6(3), the public and any Member State consulted under Article 7 are informed and the following items are made available to those so informed:
(a) the plan or programme as adopted;
(b) a statement summarising how environmental considerations have been integrated into the plan or programme and how the environmental report prepared pursuant to Article 5, the opinions expressed pursuant to Article 6 and the results of consultations entered into pursuant to Article 7 have been taken into account in accordance with Article 8 and the reasons for choosing the plan or programme as adopted, in the light of the other reasonable alternatives dealt with, and
(c) the measures decided concerning monitoring in accordance with Article 10.
2. The detailed arrangements concerning the information referred to in paragraph 1 shall be determined by the Member States.”
76. Mr Connolly also opened the relevant provisions of the EC (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 which implement the SEA Directive as follows.
16. (1) As soon as practicable after the adoption of a plan or programme, or modification to a plan or programme, the competent authority shall—
(a) send notice of adoption of, and a copy of, the plan or programme, or modification to a plan or programme, and a copy of the statement referred to in sub-article (2)(b) to the environmental authorities specified in article 9(5), as appropriate, and
(b) publish notice of the adoption of the plan or programme, or modification to a plan or programme, in at least one newspaper with a sufficiently large circulation in the area covered by the plan or programme, or modification to a plan or programme.
(2) A notice under sub-article (1)(b) shall state that
(a) a copy of the plan or programme, or modification to a plan or programme, and associated environmental report are available for public inspection at the offices of the competent authority during office hours and on the website of the authority or any other stated place or places at the stated times during a specified period which shall be not less than 4 weeks from the date of the notice (and the copy shall be kept available for inspection accordingly), and
(b) a statement is also available for inspection which summarises—
(i) how environmental considerations have been integrated into the plan or programme, or modification to a plan or programme,
(ii) how
(I) the environmental report prepared pursuant to article 12,
(II) submissions and observations made to the competent authority in response to a notice under article 13, and
(III) any consultations under article 14,
have been taken into account during the preparation of the plan or programme, or modification to a plan or programme,
(iii) the reasons for choosing the plan or programme, or modification to a plan or programme, in the light of the other reasonable alternatives dealt with, and
(iv) the measures decided upon to monitor, in accordance with article 17, the significant environmental effects of implementation of the plan or programme, or modification to a plan or programme.”
PRINCIPLES OF INTERPRETATION
77. The parties were in broad agreement as to the legal principles governing the interpretation of Ministerial guidelines. Both parties cited the judgment of the Supreme Court in In re X.J.S. Investments Ltd . [1986] I.R. 750 at 756. The parties submitted that the guidelines fall to be construed in their ordinary meaning as it would be understood by members of the public without legal training, as well as by developers and their agents.
78. The principles in X.J.S. Investments Ltd . have been recently affirmed as follows by the Supreme Court in Lanigan v. Barry [2016] IESC 46; [2016] 1 I.R. 656. The test is that of an “ordinary and reasonably informed person”.
“[30] The principles applicable to the construction of a planning permission are, of course, well settled and were described by McCarthy J. in the oft-quoted passage from In re X.J.S. Investments Ltd . [1986] I.R. 750 as requiring the court to construe planning documents not as complex legal documents drafted by lawyers but rather in the way in which ordinary and reasonably informed persons might understand them. It might, in passing, be appropriate to note that this was, perhaps, an early example of the move towards what has been described as the ‘text in context’ method of construction appropriate to the determination of the meaning of all documents potentially affecting legal rights and obligations. This approach has now become well established. The ‘text in context’ approach requires the court to consider the text used in the context of the circumstances in which the document concerned was produced including the nature of the document itself.”
79. This requirement to consider the text used in the context of the circumstances in which the document concerned was produced has a special significance in the case of Ministerial guidelines which have been subject to an environmental assessment. This is because the rationale for the guidelines is to be found in the SEA statement published at the time of the decision to issue the guidelines. I return to this point at paragraph 98 below.
DISCUSSION
SPPR 3
80. The dispute between the parties in the present case centres on the interpretation and application of the third of the special planning policy requirements set out in the building height guidelines, referred to in the guidelines by the shorthand “SPPR 3”. This requirement reads as follows.
“SPPR 3
It is a specific planning policy requirement that where;
(A) 1. an applicant for planning permission sets out how a development proposal complies with the criteria above; and
2. the assessment of the planning authority concurs, taking account of the wider strategic and national policy parameters set out in the National Planning Framework and these guidelines;
then the planning authority may approve such development, even where specific objectives of the relevant development plan or local area plan may indicate otherwise.
(B) In the case of an adopted planning scheme the Development Agency in conjunction with the relevant planning authority (where different) shall, upon the coming into force of these guidelines, undertake a review of the planning scheme, utilising the relevant mechanisms as set out in the Planning and Development Act 2000 (as amended) to ensure that the criteria above are fully reflected in the planning scheme. In particular the Government policy that building heights be generally increased in appropriate urban locations shall be articulated in any amendment(s) to the planning scheme
(C) In respect of planning schemes approved after the coming into force of these guidelines these are not required to be reviewed.”
81. The Developer also attaches significance to §2.15 as follows.
“2.15 In light of the above, planning authorities should critically evaluate the existing written statements and development objectives of their statutory development plans, local area plans and planning schemes for consistency of approach and where any policy departures arise, to undertake the necessary reviews, variations or amendments to ensure proper alignment of national and local planning policies.”
82. On its ordinary meaning, SPPR 3 treats differently of development plans and local area plans under paragraph (A), and planning schemes under paragraphs (B) and (C). In the case of the former, the effect of the guidelines is to authorise a planning authority to approve development even where specific objectives of the relevant plan indicate otherwise. Put shortly, the planning authority can rely on the guidelines to disapply objectives of the development plan or the local area plan.
83. In the case of the latter, namely planning schemes, the requirement under paragraph (B) is confined to an obligation to undertake a review of the planning scheme. The purpose of the review is to ensure that the building height criteria will ultimately be reflected in an amended planning scheme. Crucially, however, the amendment of the planning scheme must comply with the statutory requirements in this regard which include public participation and the possibility of a (further) environmental assessment for the purposes of the SEA Directive. The amendment of a planning scheme is subject to confirmation by An Bord Pleanála.
84. Paragraph (C) addresses the position of a planning scheme approved after the coming into force of the guidelines. There was no need to insert an obligation under the guidelines to carry out a review in circumstances where An Bord Pleanála is required to have regard to a specific planning policy requirement under section 169(8).
85. An “ordinary and reasonably informed person” would understand that the building height guidelines draw a distinction between a development plan and local area plan, on the one hand; and a planning scheme, on the other. This distinction is obvious from the structure of SPPR 3. Paragraph (A) refers only to development plans and local area plans, and paragraphs (B) and (C) refer only to planning schemes.
86. One practical consequence of this difference in treatment between development plans/local area plans and planning schemes is that the benefit of the new policy in respect of building heights is deferred in the case of planning schemes. It is necessary first to review and amend the planning scheme, and this statutory process will take some time to complete. During the interregnum pending the amendment of a planning scheme, any planning applications will fall to be determined by reference to the extant planning scheme. By contrast, the legal effect of the guidelines in the case of a development plan or a local area plan is immediate , and a planning authority is able to rely on the guidelines to disapply conflicting objectives of the plans. This reflects the provisions of section 34(2)(ba) of the PDA 2000.
DEVELOPER’S INTERPRETATION
87. The Developer in the present case seeks to advance an alternative interpretation of the guidelines, which would result in their having an immediate effect on planning applications in respect of planning schemes. This is done in circumstances where, as explained earlier, the Developer has two applications for permission to construct higher buildings pending before Dublin City Council in respect of sites within the North Lotts planning scheme.
88. The alternative interpretation advanced on behalf of the Developer necessitates departing from the “ordinary meaning” of the guidelines in favour of a legalistic one. More specifically, the Developer’s argument is predicated on the legal nicety that a planning scheme is “deemed” to form part of any development plan. See Section 169(9) of the PDA 2000 as follows.
“(9) A planning scheme made under this section shall be deemed to form part of any development plan in force in the area of the scheme until the scheme is revoked, and any contrary provisions of the development plan shall be superseded.”
89. The logic of the Developer’s argument is that a member of the public, armed with this legal knowledge, would then understand SPPR 3 (A) as applying to planning schemes by dint of their being deemed to form part of the development plan.
90. With respect, this is precisely the sort of legalistic interpretation which has been deprecated in X.J.S. Investments Ltd . The Supreme Court, per McCarthy J., expressly stated that planning documents are to be construed in their ordinary meaning as it would be understood by members of the public without legal training.
91. The Developer has also sought to attach significance to §1.14 of the guidelines.
“1.14 Accordingly, where SPPRs are stated in this document, they take precedence over any conflicting, policies and objectives of development plans, local area plans and strategic development zone planning schemes. Where such conflicts arise, such plans/ schemes need to be amended by the relevant planning authority to reflect the content and requirements of these guidelines and properly inform the public of the relevant SPPR requirements.”
92. It is submitted that the ordinary member of the public would interpret this provision as indicating that a planning authority is authorised to override the provisions of an SDZ planning scheme which conflicts with SPPR 3 (A). With respect, this argument does not appear to be correct for the following two reasons. First, the paragraph must be read as a whole. The second sentence indicates that the “precedence” is to be afforded to the SPPRs by the amendment of the plans/schemes. In other words, §1.14 on its own does not indicate that the requirements are self-executing but rather indicates that the further procedural step of a review process, which would involve public participation, must be carried out.
93. Secondly, an SPPR can only take “precedence” on its own terms. If SPPR 3, on its proper interpretation, merely requires that a planning scheme be reviewed and amended, but does not require immediate implementation in the context of individual planning applications, then there is no inconsistency between §1.14 and SPPR 3.
FINDINGS OF THE COURT
ORDINARY MEANING OF GUIDELINES
94. I am satisfied that the interpretation of SPPR 3 advanced on behalf of the Developer cannot be correct for the following reasons. First, as already noted, it necessitates imputing a level of legal knowledge to a member of the public which is impermissible under the “ordinary meaning” test.
95. Secondly, it is inconsistent with the general approach of the building height guidelines whereby the terms “development plan” and “planning scheme” are used disjunctively. At a number of points in the guidelines, development plans, local area plans and planning schemes are referred to as separate items within the same paragraph. Examples of this are be found at §1.14; §2.7; and §2.15. This indicates that the guidelines are employing the term “development plan” in its ordinary meaning, and not the extended meaning of “development plan plus planning scheme”.
96. The Developer’s approach jars with this and requires that, uniquely, the reference to a “development plan” under SPPR 3(A) must be understood as referring to a composite of the development plan simpliciter and the planning scheme.
97. Thirdly, if SPPR 3(A) was intended to include a composite reference to a “planning scheme”, then the subsequent paragraphs at (B) and (C) would be superfluous. This is because if paragraph (A) applied to a planning scheme, then the guidelines would have the immediate effect of overriding the planning scheme, and such an effect would not be contingent on the carrying out of and completion of a review and amendment of the planning scheme. The inclusion of paragraphs (B) and (C) only makes sense when one understands that the guidelines are treating differently of (i) development plans and local area plans, and (ii) planning schemes. It is precisely because paragraph (A) does not apply to planning schemes that it was necessary to make separate provision for planning schemes under paragraphs (B) and (C).
SEA STATEMENT
98. For the reasons set out above, I am satisfied that, on its ordinary meaning, SPPR 3(A) does not apply to a planning scheme in respect of an SDZ. This finding is sufficient of and in itself to dispose of the Developer’s argument.
99. As it happens, the correct interpretation of the building height guidelines is put beyond all doubt when one has regard to the SEA statement published as part of the decision-making process required under the SEA Directive. This document not only identifies the amendments between the draft guidelines and the “as issued” guidelines, it also explains the precise rationale for distinguishing between a development plan simpliciter and a planning scheme.
100. The relevant extracts from the SEA statement have been set out as an Appendix to this judgment. As appears therefrom, the original version of SPPR 3 in the draft guidelines published in September 2018 contained a single paragraph which expressly referred to the relevant development plan, local area plan or planning scheme. This paragraph was otherwise broadly similar to what is now paragraph (A). However, the draft guidelines were subsequently amended so as to delete the words “planning scheme” from the paragraph, and to introduce what are now paragraphs (B) and (C). This is indicated by the striking through of the words “planning scheme” in the table.
101. The rationale for these amendments is explained in detail at §4.3.3 of the SEA statement ( Application of SPPRs on extant SDZ schemes ). In brief, the amendments were introduced to reflect the particular status of planning schemes. Crucially, as part of the assessment of the environmental impact of the guidelines, it is noted that any subsequent amendment to a planning scheme will itself be subject to assessment.
“In respect of these recommendations it should be noted that any amendment to a planning scheme that is material will have to include appropriate consideration of its environmental effects (SEA/ AA).”
102. The fact that there would be a future assessment allowed the decision-maker, the Minister, to reach the conclusion that SPPR 3 (B) would not itself have an immediate environmental impact which required to be assessed under the SEA for the guidelines. Rather, the environmental impact of any amendments would be assessed separately in the context of section 170A of the PDA 2000.
103. Counsel for the Developer sought to persuade the court that regard should not be had to the SEA statement when interpreting the guidelines. In particular, it was submitted that the guidelines must be interpreted on their own terms, and that it is not permissible to have regard to an extraneous document as an aid to interpretation. Reference was made in this regard, by analogy, to the judgment of the Supreme Court in Ferris v. Dublin Corporation , unreported, 7 November 1990. With respect, this argument is untenable for the following reasons.
104. First, the SEA statement is not an extraneous document. Rather, it is an integral part of the decision-making process mandated by the SEA Directive. Article 9 of the SEA Directive imposes an obligation to publish an SEA statement at the time of the adoption of a plan or programme, in this case, the building height guidelines. The provisions of Article 9 have been faithfully implemented into national law by Regulation 16 of the EC (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 (as amended). It is expressly provided that the SEA statement is to summarise the reasons for choosing the plan or programme as adopted. The SEA statement must be published as soon as practicable after the adoption of a plan or programme.
105. In the circumstances, it is legitimate to read the building height guidelines in conjunction with the SEA statement. The SEA statement is the output from the public participation process, and is precisely intended to inform members of the public. Accordingly, it is material of which an “ordinary and reasonably informed person” would be aware.
106. Secondly, it would undermine the effectiveness of the SEA Directive if a court were precluded from having regard to the SEA statement with the consequence that the relevant “plan or programme”, in this instance, the building height guidelines, were given a contrary interpretation to that intended by the decision-maker. The entire elaborate process of public participation would have been set at naught. As appears, the Minister’s conclusion that the potential significant environmental impacts associated with the implementation of the guidelines have been identified and that these impacts have been given appropriate consideration was informed, in part, by the fact that any amendments to a planning scheme would themselves be subject to a separate process of environmental assessment. If the court were to interpret the guidelines as having a different effect, then this would mean that the Minister’s decision had been reached on a false premise.
107. Thirdly, the reliance which the Developer seeks to place on the judgment of the Supreme Court in Ferris v. Dublin Corporation is misplaced. On the facts of that case, the planning authority was seeking to rely on an extraneous document for the purposes of modifying the objectives of the development plan. The planning authority was not relying on the document as an aid to the interpretation of the development plan, but rather for the precise purpose of overriding and modifying the development plan. More importantly, however, the SEA statement is an integral part of the decision-making process as required under Article 9 of the SEA Directive.
WEIGHT TO BE ATTACHED TO MINISTER’S INTERPRETATION
108. There was some debate at the hearing before me as to the weight, if any, which should be attached to the Minister’s interpretation of the guidelines. More specifically, the Minister, in response to Parliamentary Questions, has expressed the view that the building height guidelines do not apply immediately to planning zones. See, for example, response to PQ 8398/19 as follows (20 February 2019).
“By way of background, however, it is important to note that the guidelines specifically address their application in the context of areas covered by Strategic Development Zone Planning Schemes (SDZs), in particular, through the insertion of Specific Planning Policy Requirements (SPPR) 3(B & C). SDZs may be reviewed at any stage by their respective development agencies to reflect changing implementation and policy circumstances and development agencies frequently employ these review mechanisms.
The intention of the above policy requirement is to ensure that, on the one hand, planning authorities give practical effect to Government policy on building height in planning scheme areas, while at the same time allowing for effective public engagement in any significant policy shift in relation to heights to comply with Government policy and in view of the absence of third party appeal rights in relation to planning applications in SDZs.
For this reason, it is not the intention that SPPR 3 would allow an immediate ‘over-ride’ facility for the alteration of approved planning schemes without the undertaking of a review process that is provided for in statute. Rather, the implementation of SPPR 3, and its components at A, B and C, as an integrated package is focused on securing strategic planning outcomes commensurate with proper public consultation.”
109. On behalf of the City Council, Mr Connolly, SC submits that some weight should be given to the views of the Minister as author of the guidelines. Mr Connolly accepts that, ultimately, the correct interpretation of the guidelines is a matter for the court. (A contrary argument in the written legal submissions is not now being pursued.)
110. With respect, I do not think that it is appropriate to have regard to the Minister’s views as stated in response to the Parliamentary Questions. The interpretation of the guidelines is a question of law for the court. The court is not required to show any deference to the views of the Minister. The position is analogous to the interpretation of a development plan. The interpretation of a development plan is capable of objective assessment, and the courts are not required to defer to the view of the planning authority notwithstanding that it is author of the plan. See case law cited at paragraph 30 above.
111. Moreover, the responses to the Parliamentary Questions fall into the category of extraneous material. In contrast to the SEA statement, which is an integral part of the SEA decision-making process, the responses to the Parliamentary Questions are separate from the decision-making process and are not something which should be imputed to the hypothetical intelligent and informed person.
CONCLUSIONS
112. SPPR 3 (A) does not apply to a planning scheme. The most that the guidelines do is to require a planning authority to review and amend a planning scheme. This is provided for under SPPR 3 (B). This process must be carried out in accordance with the statutory procedure prescribed. In particular, it may be necessary to undertake an environmental assessment of the amendments for the purposes of the SEA Directive. In any event, it will be necessary to seek the approval of An Bord Pleanála to any proposed amendments to an existing planning scheme. Thus, the fact that the Minister has issued guidelines is not necessarily conclusive of the outcome of the statutory process of amendment.
113. In the event that a planning scheme is amended, then the policy under the guidelines is given effect through the medium of the amended planning scheme. The requirement to comply with SPPR 3 (B) is spent. Any planning applications will be determined in accordance with section 170(2). For the avoidance of doubt, SPPR (A) is still not applicable.
114. Pending the making of an amendment to a planning scheme, any planning application made in the interim falls to be determined under section 170 of the PDA 2000 by reference to the extant planning scheme. On their correct interpretation, therefore, the building height guidelines do not authorise a planning authority to disapply the criteria prescribed under a planning scheme for an SDZ.
115. In interpreting Ministerial guidelines, it is legitimate to have regard to the content of the SEA statement prepared pursuant to Article 9 of the SEA Directive and Regulation 16 of the 2004 Regulations.
THE PROPOSED ORDER
116. In light of the findings above, the Applicant for judicial review is not entitled to any of the declarations sought in the Statement of Grounds. Accordingly, the application for judicial review is dismissed in its entirety.
117. I will hear the parties in relation to costs and, in particular, as to whether these proceedings are governed by the special cost rules under section 50B of the PDA 2000.
APPENDIX
EXTRACTS FROM THE SEA STATEMENT
4.3.3 Application of SPPRs on extant SDZ schemes
Issues Raised
A significant number of submissions referred to the application of the SPPRs on extant SDZ schemes. In essence concern was raised that by applying SPPR3 (which gives effect to the Development management criteria set out in section 3), would adversely affect the operation of SDZ’s and call into question the certainty that SDZ’s offer developers, third parties and development agencies. The ‘settled’ nature of the scale and scope of development in SDZ’s would be adversely affected. It was expressed that as there are no third party rights to appeal in an SDZ following the approval of a Planning Scheme any move away from the scheme without public consultation would undermine confidence in the SDZ process. A number of submissions however supported the draft Guidelines as drafted.
Influence on the Final Guidelines
The purpose of SPPR 3 is to allow planning authorities to consider, and where they approve, grant permission for taller buildings where they accord with the criteria set out and positively align with the objectives of the NPF, notwithstanding contrary objectives that may be in statutory plans. In relation to SDZ’s, their planning schemes do have a particular status, by virtue of their particular adoption process and operation. In view of this, on balance, it is appropriate that the implications of SPPR3 be further considered. However, while they are approved through a particular process, it should not be the case that an approved SDZ made at a particular time remains ‘immune’ to the evolvement of Government policy in relation to spatial planning. The Planning and Development Act 2000 (as amended) does allow for the capacity to amend a planning scheme. The purpose of Section 3 including SPPR 3 is to clearly and unequivocally support the promotion of taller buildings in appropriate urban locations, subject to appropriate safeguards. In this regard, SDZ’s should be required to undertake a review of the planning scheme to ensure that the criteria and general policy, as set out, in Section 3 of these guidelines is fully reflected.
Policy SPPR3 has been amended so that SDZ’s are required to be reviewed to ensure the planning scheme fully reflects the criteria and general policy as set out in Section 3 of the Guidelines. It has been clarified that SDZ’s coming into force after these guidelines will not have to be reviewed, as account will have to be taken of the criteria and policy in their formulation. In respect of these recommendations it should be noted that any amendment to a planning scheme that is material will have to include appropriate consideration of its environmental effects (SEA/ AA).
Reference Text for Final Guidelines Assessment for SEA
SPPR 3
(A) It is a specific planning policy requirement that where; 1. an applicant for planning permission sets out how a development proposal complies with the criteria above; and 2. the assessment of the planning authority concurs, taking account of the wider strategic and national policy parameters set out in the National Planning Framework and these guidelines;
then the planning authority may approve such development, even where specific objectives of the relevant development plan, or local area plan [ or planning scheme] * may indicate otherwise.
(B) In the case of an adopted planning scheme the Development Agency in conjunction with the relevant planning authority (where different) shall [ immediately] ,* upon the coming into force of these guidelines, undertake a review of the planning scheme, utilising the relevant mechanisms as set out in the Planning and Development Act 2000 (as amended) to ensure that the criteria above are fully reflected in the planning scheme. In particular the Government policy that building heights be generally increased in appropriate urban locations shall be articulated in any amendment(s) to the planning scheme
(C) In respect of planning schemes approved after the coming into force of these guidelines these are not required to be reviewed.
The policy has been amended to include an additional Part B which requires that the various planning schemes are reviewed and updated to reflect the Development Management Criteria and Specific Assessments. This will be directly positive across environmental objectives, as it will ensure that the specific considerations outlined for the protection of environmental receptors (namely BFF, CH, LT and PHH) will be integrated into the planning process. It is noted that any modifications proposed to a planning scheme must be considered in the context of SEA, EIA and AA screening as appropriate prior to adoption of the changes.
No impacts from Part C as new schemes will be subject to SEA and AA.
*These words are struck through.
Shillelagh Quarries Ltd v An Bord Pleanála (No. 2)
[2012] IEHC 402.
Judgment of Mr. Justice Hedigan delivered the 27th day of June 2012
1. The applicant is a limited liability company carrying on business as the operator of a quarry. Its address is Aghfarrell, Brittas, Co Dublin. The respondent is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts. The first notice party is the County Council with responsibility for the administrative area of South Dublin. The second notice party is a Conservation and Environmental Group concerned with the Dublin mountains. Their nominated agent is O’Connell & Clarke Solicitors whose address is Suite 124, The Capel Building, Mary’s Abbey, Capel Street, Dublin 7.
2. The applicant seeks the following relief:-
(i) An order of certiorari quashing the decision of An Bord Pleanála (“the Board”) the respondent herein, dated the 24th December 2010, bearing South Dublin County Planning Register Reference Number SD07A/0276 and An Bord Pleanála Reference Number PL 06S. 231371 whereby the Board refused permission for:-
(a) Continuance of use of the existing quarry on lands that have been used for this purpose since before 1st October 1964 on a site registered under Section 261 of the Planning and Development Act, 2000 (Quarry Reference SDQU05A/1);
(b) all existing ancillary facilities including the existing processing plant (crushing and screening plant), overburden storage areas, stockpile areas, water management system and the truck/vehicle partaking area;
(c) extension of the existing quarry extraction area by 4.2 hectares, within the registered area to give a total extraction area of 15.5 hectares within an overall application area of 28.1 hectares;
(d) provision of a wheelwash and hydrocarbon interceptor;
(e) landscaping and final restoration of a site.
(ii) A declaration that the quarry the subject of the Board’s decision (the Quarry) commenced operations prior to the 1st October 1964.
(iii) A declaration that the quarry is not unauthorised.
(iv) If required, a stay on any proceedings pursuant to part VIII of the Planning and Development Act 2000 and/ or any proceedings in respect of any alleged breach of planning legislation in respect of the Quarry pending the final determination of the proceedings herein.
Background
3.1 The applicant is the operator of a quarry at Aughfarrell, Brittas, in County Dublin. On the 20th of October 2005, the applicant’s agents provided South Dublin County Council with the information relating to the operation of the quarry as required by section 261 of the Planning and Development Act 2000, which deals with the requirement to register quarries. The Council sought further information relating to the operation of the quarry pursuant to section 261 (3) of the 2000 Act. The applicant provided this information. The Council then published a notice in the Irish Times pursuant to section 261(4) of the 2000 Act, advising that the quarry had been registered in accordance with section 261 and that the Council was considering requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry and inviting submissions regarding the operation of the quarry. A submission was made in response to that notice by the Dublin Mountain Conservation and Environmental Group (the ‘DMC&EG’), the second notice party herein.
3.2 On the 19th April, 2006, the Council issued a notice in accordance with section 261(7) of the 2000 Act requiring the applicant to apply for planning permission and submit an environmental impact statement in respect of the continued operation of the quarry. On the 23rd September 2008, a notification issued in respect of the Council’s decision to grant permission for the continued use of the quarry subject to conditions. The Dublin Mountain Conservation and Environmental Group lodged a third party appeal in respect of the Council’s decision to grant permission and the applicant’s agents lodged a first party appeal against five of the conditions of the said decision to grant permission.
3.3 On the 24th December 2010, An Bord Pleanála refused permission in respect of the planning application for the continued use of the Quarry. The reasons for the decision were as follows:-
“1. On the basis of the submissions made in connection with the planning application and the appeal, the planning history of the site, High Court Judgement Ref. No. [1978] ILRM 85 (Frank Patterson and Eily Patterson v. Martha Murphy and Trading Services Ltd.), and available aerial photography, the Board is not satisfied that the existing quarrying operations presently conducted on site commenced prior to the appointed day, namely, 1 October, 1964, nor are they authorised by a grant of planning permission. Accordingly, the Board is precluded from considering a grant of permission for the proposed development in such circumstances.
2. Having regard to:-
(a) the planning history of the site,
(b) High Court Judgement Ref. No. [1978] ILRM 85 (Frank Patterson and Eily Patterson v. Martha Murphy and Trading Services Ltd.),
(c) the nature, scale and extent of activities carried out on site,
(d) the provisions of Section 261 of the Planning and Development Act, 2000, as amended, and
(e) the judgment of the European Court of Justice in Case C-215/06, Commission v. Ireland, delivered on 3rd day of July 2008, in which it was held that the retention permission system, as it applies in Irish law to projects that are required to be subject to Environmental Impact Assessment under the EIA Directives, does not comply with the Directives,
It is considered that as the proposed development for which permission is sought is of a class that requires Environmental Impact Assessment in accordance with the requirements of EU Directive 85/337/EEC (as amended) and that it includes a significant element of retention permission, the Board is, therefore, precluded from considering a grant of planning permission in this case.”
3.4 The applicant sought leave to apply for judicial review of the decision of Board Pleanála. The applicant made an ex parte application before Mr. Justice Ryan on the 14th February 2011, and the Court decided that the application for leave to apply for judicial review should be conducted inter partes pursuant to s.50A(2)(b) of the Planning and Development Act, 2000 (as amended). The parties subsequently agreed and the Court has directed that a telescoped hearing be held. As such, both the leave and substantive applications are before this Court which may, if it is minded to grant leave to the applicant, proceed directly to a consideration of the substantive issue without the need for a second hearing.
Applicants Submissions
4.1 As this matter is proceeding by way of telescoped hearing the applicant must satisfy the Court that it has met the criteria for the grant of leave to seek judicial review. Section 50 A (3) of the Planning and Development Act 2000, sets out the requirements for leave. It provides that:-
“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 substantial interest in the matter which is the subject of the application …”
The applicant herein was the applicant for planning permission the subject of the Board’s decision and the applicant operates the quarry the subject of the Board’s decision. The applicant submits that in these circumstances it clearly has the required interest in the matter which is the subject of these proceeding.
4.2 While it was held in An Taisce (The National Trust for Ireland) v Ireland & Ors [2010] IEHC 415 that the mere registration of a quarry does not alter its legal status, that is not the argument that the applicant is making. The applicant submits that the legal authorised status of the quarry was confirmed by the Council by virtue of its decision to require the applicant submit a planning application and EIS for the continued use of the quarry. Once that determination was made the consequential planning application has to be assessed on that basis and that determination could not be questioned unless by way of Judicial Review pursuant to section 50 of the 2000 Act. Section 261(7) sets as a precondition for its application that “the continued operation of a quarry … that commenced operation before 1 October 1964”. Thus the applicant submits that the Council must have been satisfied that the quarry in the instant case was materially the same as that which commenced prior to the appointed day.
4.3 The Councils notice requiring the applicant to apply for planning permission warned the applicant that if it failed to apply for planning permission as required the quarry “shall be unauthorised”. The implication being, of course, that where the required application is made the quarry shall not be unauthorised. In a letter which the Council sent on the 18th April 2006 it stated:-
“Having considered the information provided in the registration application submitted, including the additional information received on 27th September 2005, and the correspondence received from John Barnett & Associates dated the 7th April 2006 submitted by way of response to the Council’s letter to you dated 21st February 2006 … the Planning Authority is satisfied that the extracted area of the subject quarry exceeds 5 hectares and that the subject quarry commenced operation before 1st October 1964 …”
Thus, having considered all the information relating to the operation of the quarry that was put before it in the course of the registration process, the Council were satisfied that the “subject quarry commenced operation before 1st October 1964”. This information included three statutory declarations including one from a former Dublin Council Engineer in charge of road maintenance confirming the operation of the Quarry before 1st October 1964.
4.4 Comprehensive information is provided before a planning authority makes its determination under s. 261(7). In O’Reilly v Galway City Council [2010] IEHC 97, Charleton J. made the following observations in relation to the information to be provided at p. 23:-
“This means all relevant information which would enable the planning authority to exercise any of its functions under ss. 4, 5, 6, 7 or 8. Because the planning authority is entitled to modify an existing planning permission under subs. 4 or 5, or to require the making of a new planning application under the same subsections, it is clear that the information to be provided must be fulsome.”
It follows that some degree of measured consideration of what was before the Council was necessary. Of course the County Council has a bank of knowledge and experience going back over some years concerning the matters in question.
4.5 On the 24th December, 2010, the Board decided to refuse permission in respect of the planning application for the continued use of the quarry. It is clear from the Board’s reasons and considerations that the board disagreed with the Council and was not satisfied that the quarry commenced prior to the appointed day, namely, 1st October, 1964. Thus the Board was of the view it was unauthorised development. For this reason, the Board decided that it was precluded from considering a grant of planning permission. The applicant submits that once the planning authority determined that the quarry commenced prior to the period to 1st October 1964, it was not open to the Board to go behind that determination when considering the consequential planning application. If this was not the case the provision of section 261(8) (b) would be anomalous, it provides:-
“Where, in relation to a quarry to which subsection (7) applies, a planning authority, or the Board on appeal, refuses permission for development under section 34 or grants permission there under subject to conditions on the operation of the quarry, the owner or operator of the quarry shall be entitled to claim compensation under section 197…”
The applicant submits that it could never have been the intention of the Oireachtas to allow the owner of an unauthorised quarry to apply for planning permission and upon refusal to be entitled to claim compensation.
4.6 The applicant submits that the Board’s decision was a direct attack on the validity of the Council’s determination and that in the absence of a challenge by way of Judicial Review pursuant to section 50 of the 2000 Act (for which the time had long passed) the Board was not entitled to question the validity of the Council’s determination and it had to make its decision on the premise that the quarry commenced operation prior to 1st October 1964. If the Board had proceeded on this basis it could not have concluded that the quarry was unauthorised and would not have concluded that it was precluded, by virtue of such unauthorised status, from considering a grant of planning permission. In essence the Board trespassed into the Council’s jurisdiction and considered a matter that it had no jurisdiction to consider, i.e. whether the quarry commenced operation period to 1st October 1964.
4.7 A fundamental error was made by the Board was in considering that the planning application before it “includes a significant element of retention permission”. The Board only came to this view because it disagreed with the Council’s view that the quarry commenced operation before the 1st October 1964. The judgment of the European Court of Justice in Case C-215/06, Commission v. Ireland, delivered on 3rd day of July 2008, concerning the retention permission system as it applies in Irish law does not preclude the Board from considering a grant of planning permission for the continued operation of a Quarry which up to the time of the Board’s decision is not unauthorised. In considering that it was “precluded from considering a grant of planning permission in this case” the Board made an error of law. The Department of the Environment, Heritage and Local Government in its Circular PD 6/08 dated the 8th October, 2008 provides that:-
“It is the Department’s understanding that a notification [that a planning permission is in breach of Case C-215/06, Commission v. Ireland] need not be made in respect of a permission granted since 3rd July for the continued operation of a quarry in respect of which an application for planning permission was made under and in strict accordance with section 261(7) of the 2000 Act, i.e. an application, with an environmental impact statement, made within such period as was specified by or agreed with the planning authority for the purposes of the subsection in respect of a quarry that commenced operation before 1 October 1964. (By extension, any such application currently being processed may proceed to determination).”
The applicant submits that because the Board’s decision is based on an identifiable error of law it should be quashed.
Respondents Submissions
5.1 The parties have agreed and the Court has directed that a telescoped hearing be held. The applicant must satisfy this Court that it has met the criteria for the grant of leave to seek judicial review. In order to be granted leave to seek judicial review pursuant to sections 50 and 50A of the Planning and Development Acts 2000-2010, the applicant must satisfy the Court that it has both substantial grounds and a substantial interest. The respondents submit that the applicant does not have substantial grounds.
5.2 In this case South Dublin County Council required the making of a planning application and the preparation of an environmental impact statement in respect of the quarry in accordance with s. 261(7). Requesting the above application involves the planning authority reaching a decision per s. 261 (7) (a) (ii) that the quarry commenced operations before 1st October 1964. The applicant maintains that this means that the Board is precluded from reaching a conclusion other than that the quarry commenced operations before 1st October 1964 and that it was and remains, “not unauthorised”. The respondent submits that this is not correct. In Pierson and Others v. Keegan Quarries Limited [2009] IEHC 550 Irvine J offered a detailed analysis of the function and purpose of s.261 and, in particular, approved the following from Simons, Planning and Development Law (2nd Ed., Dublin: Round Hall, 2007) at para. 8.136 where he states:-
“The effect of registration is simply to ensure that the planning authority and members of the public, have sufficient information to allow the question of what renewed controls, if any, should be imposed to be addressed.”
Irvine J also held:-
“… If the quarry constituted unauthorised development at the start of the s. 261 process, its registration subject to conditions does not, in my view, alter its status…”
5.3 The applicant claims that the Board has erred in deciding that the quarry constitutes unauthorised development. The applicant seeks a declaration that the quarry commenced operations prior to the 1st October 1964 and a declaration that the quarry is not unauthorised. The respondent submits that a distinction must be drawn between quarrying activity which may have commenced prior to the 1st October 1964 and which has carried on without an intensification and quarrying activity which may have similarly commenced, but which has since that time, intensified so as not to benefit from any exemptions by reason of its pre 1st October 1964 origins. The respondent further submits that account ought be taken of the nature of the jurisdiction this Court is being asked to exercise and the respective functions of this Court and an expert decision making body such as the Board, in a technical field such as planning. In particular, a decision as to whether or not an intensification involves unauthorised development requires the application of specialist planning considerations.
5.4 The applicant’s quarry was the subject of the decision of Costello J. in Patterson v Murphy [1978] ILRM 85. That case concerned an application by then residents of Shillelagh Lodge (a residence near the Quarry) for an injunction against Martha Murphy and Trading Service Ltd in respect of the carrying on of quarrying activities on the site. Costello J. found as a fact that the operations then carried out at the quarry were so different to those carried on prior to the 1st October 1964 that it could not be said that the development had commenced prior to the appointed day. The Board had before it the text of Patterson v Murphy [1978] ILRM 85 when reaching its decision.
5.5 The applicant maintains that by reason of steps taken by South Dublin County Council pursuant to s.261 of the Planning and Development Act, 2000 the Board is precluded from determining that the Quarry constitutes unauthorised development. Specifically, it is maintained at Ground E.12 that “this issue had already been decided by…South Dublin County Council by its decision of the 18th April2006 pursuant to s.261(7)(a) of the 2000 Act, which decision was not judicially reviewed and is thereby res judicata.” It is further contended that “this part of the reason” (i.e. that the existing quarrying operations presently conducted on site did not commence prior to the appointed day, namely 1st October 1964) constitutes “a collateral attack on this decision outside the statutory time limit and thus “it is … submitted constitutes an error in law”. It was held in An Taisce v Ireland [2010] IEHC 415 that “the mere registration of a quarry does not establish a pre 1964 use.” Therefore there is no basis for the argument that the Board was precluded from determining its status to be unauthorised.
Decision of the Court
6.1 The applicant is the operator of a quarry at Aughfarrell, Brittas, in County Dublin. On the 20th October 2005, the applicant applied to register its quarry and as required by section 261 of the Planning and Development Act it provided the Council with the relevant information relating to the operation of the quarry. The Council published a notice pursuant to section 261(4) of the 2000 Act, advising that the quarry had been registered and that the Council was considering requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry. The Council invited submissions in this regard. A submission was made by the Dublin Mountain Conservation and Environmental Group the second notice party herein. On the 19th April, 2006, the Council issued a notice in accordance with section 261(7) of the 2000 Act requiring the applicant to apply for planning permission and submit an environmental impact statement in respect of the continued operation of the quarry. On the 23rd September 2008, a notification issued in respect of the Council’s decision to grant permission for the continued use of the quarry subject to conditions. The Dublin Mountain Conservation and Environmental Group lodged a third party appeal in respect of the Council’s decision to grant permission and the applicant’s agents lodged a first party appeal against five of the conditions attached to the said permission. On the 24th December, 2010, An Bard Pleanála refused permission in respect of the planning application for the continued use of the quarry. The applicant made an ex parte application for leave to apply for judicial review of the decision of Board Pleanála. The Court decided that the application for leave to apply for judicial review should be conducted inter partes. The parties subsequently agreed and the Court has directed that a telescoped hearing be held. As such, both the leave and substantive applications are before this Court. In order to be granted leave the applicant must show that there are substantial grounds for contending that the decision concerned ought to be quashed.
6.2 Section 261 of the Planning and Development Act, 2000 requires the owner or operator of a quarry to provide particular information pertaining to such quarry to the relevant planning authority. Once such information is received, the planning authority who then registers the quarry must publish notice of the registration in one or more newspapers circulating in the area within which the quarry is situated. The planning authority may as was done in this case indicate in this notice that it is considering, in accordance with s.261(4)(iii)(II), requiring the making of a planning application and the preparation of an environmental impact statement in respect of the quarry in accordance with s.261(7). That sub-section provides where the continued operation of a quarry with an extracted area which is greater than 5 hectares, or that is situated on a European site or any other area prescribed and that commenced operation before 1st October 1964, would be likely to have significant effects on the environment a planning authority shall require, the owner or operator of the quarry to apply for planning permission and to submit an environmental impact statement to the planning authority.
Requesting that a planning application be made and an EIS be submitted involves the planning authority reaching a decision per s.261 (7) (a) (ii) that the quarry commenced operations before 1st October 1964. The applicant argues that this means that the Board was precluded from concluding that the quarry commenced operations before 1st October 1964. This contention was expressly rejected in An Taisce v Ireland [2010] IEHC 415 Charleton J. held that:-
“Further, the mere registration of a quarry does not establish a pre-1964 use. The statement is a legal error. Nor was there anything before the Board which established that there had been no intensification of use since that time…. It is settled as a matter of law that the registration of a quarry under s. 261 does not alter its status.”
In that case the Board had considered that the pre-1964 status of the quarry had been established and accepted in the registration of the quarry. Charleton J. held that this was a “legal error” and the Board was obliged to carry out its own assessment of the planning status of the quarry in that case.
6.3 The applicant claims that the Board has erred in determining that the existing quarrying operations presently conducted on site are unauthorised development. I accept the respondents submission that there is a difference in planning terms between quarrying activity which may have commenced prior to the 1st October 1964 but which has carried on without an intensification and quarrying activity which may have similarly commenced, but which has since that time, intensified so as not to benefit from any exemptions by reason of its pre 1st October 1964 origins. I gratefully adopt the statement of Charleton J in An Taisce v Ireland [2010] IEHC 415, at para.3:-
“…Upon the coming into force of the planning code on the 1st October 1964, there were many quarries which had an entitlement to continue with their operation in a proportionate fashion. The Oireachtas made a decision that all such quarries should be registered and, when their operation had been properly analysed by local planning authorities as to the information which must be supplied for this process, quarries might need to be further regulated beyond the restrictions that the commencement of operations prior to 1st October 1964 would have necessarily attracted. In that context, I have referred to the continuance by a business or a quarry, on a proportionate basis, of operations on the implementation of the first planning code. By this I mean that no quarry would have been entitled to intensify the use of its operations after that date so as that intensification of use amounted to change of use and which had an impact, proven directly or by necessary implication, on planning considerations for the area in which it is situate…”
Clearly intensification can amount to a change of use thus requiring a planning application.
6.4 In the period since 1964 there has been very substantial intensification of use of this quarry. Indeed the intensification of use was considered by the High Court in 1978 in the case Patterson v Murphy [1978] ILRM 85 where Costello J held as follows with regard to user in the period between 1964 and 1978:-
“The present operations differ materially from those carried on prior to 1st October 1964. I have reached this conclusion bearing in mind the following considerations. The object of the present operations is to produce a different product to that being produced in 1964. As stated in the parties agreement, the operations are designed to manufacture stone. The 4 inch stone now being produced is different to shale; it is used for a different purpose in the building industry, and it fetches a different price. The method of production is different to that obtaining in and before 1964. The raw material (rock) for the end product is now obtained by means of blasting and this is done on a regular basis. Large crushing and screening plant is used to produce stones of the correct dimension. Considerable ancillary equipment is used and a considerable labour force employed. Finally, the scale of operations is now a substantial one, and bears no relationship to the scale of operations carried on prior to the appointed day.”
The Court is informed by Counsel for the Board that there has been a 15 fold intensification of operations since the 1970’s. The quarry now covers 48.5 hectares, it has an extraction rate of 500,000 tonnes and there are 200 vehicle movements per day. In short it is very different from the primitive operation that was carried on pre 1964.
6.5 In addition to having the text of Patterson v Murphy [1978] ILRM 85 before it, the Board also had before it the Inspector’s Report. The Inspector states as follows at page 40:-
“…I am of the view that the existing operation bears little resemblance to the pre- 1964 development carried out on site…Having concluded that the existing operation is development which does not have the benefit of pre-1964 status and in the absence of any grant of planning permission authorising same, in my opinion, the existing quarry operation constitutes unauthorised development and thus the Board is precluded from considering a grant of permission in this instance”.
It seems to me that there was compelling evidence before the Board upon which it could reach the conclusion that although the quarry had commenced prior to the 1st October 1964 there was intensification of use such that there was no entitlement to an exemption.
6.6 The applicant argues that the Board erred by characterising the application as one for retention and taking the view that the decision of the European Court of Justice in Case C-215/06 Commission v Ireland precluded the grant of permission herein.
The effect of the applicant’s submission is that if the label of retention is not used the decision in Case C-215/06 Commission v Ireland does not apply. I agree with the respondents submission that whether or not the word “retention” is used, the substance is the same here as in the case of retention permission. Development, which would otherwise be required to undergo the EIA process, cannot be given ex post facto development consent under EU Law. In this case planning permission was being sought for inter alia, “Continuance of use of the existing quarry on lands that have been used for this purpose since before 1st October 1964”. To grant planning permission would therefore have been to give development consent for a matter which was required to undergo the process of an EIA. The applicant seeks to rely on the provisions of Circular PD 6/08 exhibited at TM3 which provides:-
“It is the Department’s understanding that a notification need not be made in respect of a permission granted since 3rd July for the continued operation of a quarry in respect of which an application for planning permission was made under and in strict accordance with s.261 (7) of the 2000 Act, i.e. an application, with an environmental impact statement, made within such period as was specified by or agreed with the planning authority for the purposes of the sub-section in respect of a quarry that commenced operation before 1 October 1964 (By extension, any such application currently being processed may proceed to determination).”
The Board, however, has determined that the existing quarrying operations did not commence prior to the 1st October 1964 in any sense with attracts the pre 1st October 1964 status as otherwise-than-unauthorised. Thus the Board has determined that the quarry does not benefit from any pre 1st October 1964 status. It is not a quarry that commenced operation before 1 October 1964 in any sense which renders it exempted development.
6.7 To summarize, Firstly I do not accept the argument that once the planning authority determined that the quarry commenced prior to the period to 1st October 1964, it was not open to the Board to go behind that determination when considering the consequential planning application. The mere registration of a quarry does not establish a pre-1964 use. In fact not only is the Board entitled to look at the planning status of the quarry, it is obliged to carry out its own assessment of the planning status of the quarry.
Secondly, I am satisfied that there was evidence before An Bord Pleanála upon which it could reach the conclusion that the quarry operations intensified since 1964. This fact was the clear finding of Costello J in Patterson v. Murphy [1978] ILRM 85 (cited above) Such an intensification amounted to a change of use disentitling the applicants to an exemption on the basis of pre 1964 status. Thirdly, it seems to me that the Board was entitled to conclude that the permission sought included a significant element of retention permission, and to take account of the case C-215/06 Commission v Ireland. The permission sought was for the continuance of use of the existing quarry.
This matter proceeded by way of telescoped hearing. For all the above mentioned reasons I am not satisfied that the applicant has shown that there are substantial grounds for contending that the decision concerned ought to be quashed. Leave is therefore denied.
Kenny v Trinity College Dublin [2012] IEHC 77
JUDGMENT of Mr. Justice Ryan delivered the 24th February, 2012
Introduction
Article 10a of Directive 85/337/EEC requires Member States to ensure that persons who have a legitimate interest in decisions affecting the environment have access to a review procedure which is “fair, equitable, timely and not prohibitively expensive”. That provision was inserted by Article 3.7 of Directive 2003/35/EC adopting into Community law the Aarhus Convention that was signed on the 25th June 1998.
The applicant invokes Article 10a in this motion, seeking to review the taxation of costs in three cases in which he was the unsuccessful party who was ordered to pay the costs of the successful litigants, Trinity College Dublin and Dublin City Council. He made a submission to the Taxing Master that the provisions of the Convention and the Directive operated to limit the costs that could be awarded against him to amounts that were “not prohibitively expensive”. The Taxing Master did not agree and proceeded to make his decisions in the three cases on the traditional basis.
Mr Kenny’s challenge is on this one ground only, that the Taxing Master was wrong in law in not applying the proposed criterion. The question for decision therefore is whether that test applied to the costs in the three cases. If the Court is not persuaded by his argument, the applicant seeks a reference to the Court of Justice of the Union.
Mr Kenny represented himself. Mr Cathal Murphy, Barrister, appeared for the respondents.
The Costs Orders
The three cases are parts of Mr Kenny’s marathon litigation over planning permission for development at Trinity Hall, Dartry. It is necessary to say something about them. On the 27th May 2008, the Supreme Court ordered him to pay Trinity College’s costs in a case alleging fraud which the Court had dismissed in limine on the 10th April, 2008 in a written judgment. On the issue of costs, the Court said that it was “not necessary to get involved in questions of the Aarhus Convention. Although raised in argument, the Aarhus Convention has not been given effect in domestic law in any event.”
The second order for costs was made on the 18th March, 2009 also by the Supreme Court. The judgment was handed down on the 5th March, 2009. In those proceedings, Mr Kenny unsuccessfully appealed against a High Court refusal to quash a decision made by Dublin City Council as to compliance by Trinity College with planning permission. A letter from the solicitors for Trinity College dated the day after the costs hearing recorded that Counsel for Mr Kenny referred to the Directive but the Court “was satisfied that there was no reason to depart from the usual rule with regard to costs, noting that the Directive could not add to the facts of the case as it had not been implemented …”
The third costs order was made on the 23rd July, 2009 by Laffoy J in an application by Mr Kenny to be permitted to apply for an order preventing Trinity College from going on with well-charging proceedings. The judge said that all of the costs that the plaintiff sought to have declared well-charged “arose out of proceedings which predated the obligations of the State under that directive.”
Having regard to these observations by the Courts that imposed the orders for costs, I cannot see how the Taxing Master could have acceded to Mr Kenny’s request that he apply Article 10a to the measurement of costs. The respondents submit, in my view correctly, that the question of the applicability of Article 10a was determined by the Courts and that it was not open to the Taxing Master to decide otherwise.
Taxation of Costs
Order 99 rule 10(2) of the Rules of the Superior Courts applies to party and party costs and provides that “on a taxation on that basis there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.”
On a review of taxation an applicant must show that the Taxing Master was in error and that there was an injustice: section 27(3) of the Courts and Courts Officers Act, 1995. In this case the applicant relies on the inherent probability that if the costs were to be measured by reference to the suggested test, the outcome would be a greatly reduced bill. Injustice is to be inferred as a matter of probability. The question whether the costs were prohibitively expensive did not arise at the hearing before the Taxing Master. There was no evidence before me that the amounts that were permitted were in fact excessive and it would seem therefore that if I upheld Mr Kenny’s objections, it would be necessary to send the matter back to the Master for a new hearing.
The Taxing Master is required to carry out his function in accordance with the above Act and with the Rules of the Superior Courts. That is to decide on questions that are raised by the parties as to the costs a receiving party should recover from a paying party. The successful party is entitled to recover from the paying party the costs that it was reasonable for him to incur in pursuing or defending the action.
In the circumstances, it was not open to the Taxing Master to superimpose the test that the applicant proposed.
The Aarhus Convention
As is normal with such agreements, the Aarhus Convention did not have direct effect. It needed to be brought into force in our national law by an enactment of our legislature. Alternatively, it could come into law in the State by an enactment of the European Union/Community. It would be contrary to our Constitutional arrangements if legislative effect were to be conferred otherwise than by a domestic measure or a Community enactment sanctioned by the Constitution. And if the Aarhus Convention did have effect without local enactment, it would have been wholly unnecessary to embody its terms in a directive.
The Community signed the Convention but it did not become law. Directive 2003/35/EC is dated the 26th May 2003 and it gave Member States until the 25th June 2005 to comply with its obligations. Ireland did not enact measures to implement the Directive with the result that it became part of our law on the last day of the permitted period. The submissions presented by Mr. Murphy cite a number of cases in which it is declared or accepted that the Directive came into effect on the 25th of June 2005. Laffoy J so held in the third of the cases whose costs orders are in issue. Cooke J came to the same conclusion in another case brought by Mr Kenny.
Mr Kenny argued that the Convention was operative from 1998 when it was signed or, alternatively, from a date in 2001. The respondents argued that the correct date is that which was specified in the Directive as the latest date for implementation. The Directive had not at that time been transposed into Irish law by any other measure. Mr Kenny cited an Opinion of Advocate General Sharpston in which she said that the Convention became effective on the 30th October 2001- that is the date when, in accordance with its own provisions, it came into force on achieving the requisite number of ratifying countries. According to its Article 20, the Convention was to enter into force on the 90th day after the date of deposit of the 16th instrument of ratification with the UN Secretary-General. That. however, does not determine the applicability of the Convention or the Directive in Irish law.
In my judgment, neither the Convention nor the Directive was in force before 25th June 2005. The first order for costs was made by the Supreme Court on 27th May 2008 in proceedings with High Court record number 14269/2002 and were commenced by plenary summons dated 7th November 2002. The second set of proceedings began on the 4th July 2002 by way of application for leave to seek judicial review. The last proceedings originated on the 20th July 2009. It follows therefore that the first two cases were instituted before the last date allowed by the Directive for bringing it into domestic law. As to the third case, it concerned the application of Article 10a.
Mr. Murphy for the respondents submitted that even if Mr Kenny was correct in claiming that there was a breach of Community law in failing to implement the Directive, the Taxing Master was not free to apply the suggested Aarhus test in his taxation of the costs. In yet another of Mr Kenny’s applications, (Unreported, High Court 23rd July 2010) Mr Justice Cooke said that the failure to implement the Directive gave rise to a possible action against the State, if it was correct, but it did not affect the rights of other parties. It may be that a person who can show that he was put to cost that was prohibitively expensive is in a position to claim against the State to recover any amount which can be shown to be excessive. But that does not affect the entitlement of a successful party to recover his reasonable costs when the court has made an order in his favour.
Application of Article 10a to the three cases
The respondents submit that the Directive giving access to courts for people with a legitimate interest in environmental decisions does not apply to any of these three cases. The fraud case and the compliance proceedings and the case about a stay, although they do trace their origins to planning issues, are actually relatively remote from the principle of public access to the courts to challenge sensitive environmental decisions. That is what the Supreme Court has said and so has Clarke J in this Court in regard to Mr Kenny’s proceedings.
When the issues in litigation have been decided and further disputes are raised, there comes a point at which the original legal context segues into other, quite different legal rubrics. That is what has happened in the matter of Mr Kenny’s epic struggle over the Trinity Hall development. It follows that these three cases are subject to the same logic. They are not about the environment.
Conclusion
For all of the above reasons, this application for review of taxation must fail and there is no basis for a reference to the Court of Justice of the European Union.
APPROVED: Ryan, J
Maher
[2012] IEHC 445
Judgment of Mr. Justice Hedigan delivered on 22nd day of October, 2012.
1. There are two applications made on behalf of the applicant today. The first is for an order ex parte guaranteeing against any liability for costs in proceedings the plaintiff wishes to bring in respect of certain planning decisions made recently. It is made upon the basis that this Court is a European Court and should give effect to the prohibitive costs prevention provisions of the Aarhus Convention.
2. In my view, the modus operandi whereby the State has attempted to give effect to this Convention is to be found in the provisions of the Environmental Protection Act 2011 and specifically section 3. This provides for the courts to make no order for costs in certain cases to which s. 3 of the Environmental Protection Act applies. It provides this may be done by agreement with the intended defendants or by notice of motion on them for an order that the proceedings are ones to which s. 3 applies.
3. No provision is made for this Court to make ex parte an order such as is sought herein. It is not for this Court to legislate in this way and I will not do so. The correct approach is for the plaintiff to seek to obtain the consent of those intended defendants or failing that to bring a motion on notice to those parties for a declaration that s. 3 applies.
4. The second application today is that, in the event I would refuse the order sought and direct the application be dealt with by way of notice of motion on the intended defendants, I would make an order that no order for costs would be awarded against the applicant were the motion to fail. I do not believe I have any jurisdiction to make such an order. The issue of costs will be for the Judge who hears the motion. I consider that this may well be unsatisfactory to the applicant as it leaves her in peril of an order for costs of that motion. I cannot accept those costs would be as high as has been represented today but I am conscious that such as they are they may mount an insuperable obstacle to the applicant bringing a motion.
5. Whilst I am sympathetic to the applicant’s situation in this regard, I am unaware of any legal authority that will permit me to make such an order. It is very arguable that the absence of some legal provision permitting an applicant to bring such a motion without exposure to an order for costs acts in such a way as to nullify the State’s efforts to comply with its obligation to ensure that costs in certain planning matters are not prohibitive. As things stand, I have no power to change this.
6. Both the orders sought must be refused.
Rowan v Kerry County Council (No. 2) [2012] IEHC 544
JUDGMENT of Mr Justice Birmingham delivered the 17th day of February 2012
1. By order of the High Court (McCarthy J.) dated the 23rd September 2011, the applicant was granted leave to apply by way of judicial review for the following reliefs:-
(a) An order of certiorari quashing the decision made by the respondent on or about the 7th day of September 2011 whereby the respondent purported to confirm that the public road (L-4022) to the south of the site at Doolahig, Glenbeigh, County Kerry had been realigned to its satisfaction in accordance with Condition 1 of Planning Permission Register Reference 04/654 (Appeal Reference PL08.218394).
(b) A declaration that the said decision was ultra vires.
(c) A stay on the operation of the said decision dated 7th September 2011.
2. The issue of a stay referred to at para (c) has been the subject of a separate ruling by Edwards J. and the Court is now concerned with the relief sought at paras. (a) and (b). The applicant’s entitlement to these reliefs is opposed by the respondent and by the notice party.
Factual Background
3. The notice party is the owner of farmland at Doolahig, Glenbeigh, County Kerry. There is, and has long been, a private road or laneway running through these lands and joining the public road network at Doolahig. The applicant and other members of his family are the owners of a holiday home in Doolahig which is close to the lands owned by the notice party. Access to the public road network for the applicant and others using the holiday home is by means of the same private laneway or road. For the sake of completeness, I should point out that the lane in question, apart from providing access to the public road network for the occupants of the Rowan holiday dwelling and those visiting or having business at the lands of the notice party, is also used by the occupants of another dwelling. The owners of this dwelling are foreign nationals and have not taken any part in the present proceedings.
4. Again for the sake of completeness I should mention that the notice party has erected a structure on his lands which he uses for stabling; one element of the family business of the notice party is the breeding of Kerry bog ponies.
5. The notice party has long been anxious to erect a family home on his lands. His attempts to obtain planning permission to do so have given rise to an extraordinary planning saga in which the matter that now comes before the Court is merely the latest chapter. Given the history to date, one could not be at all confident that this will be the last chapter.
6. It may be necessary to refer, to some limited extent, to aspects of the tangled planning history. However, of immediate relevance to the application before the Court is that on the 17th January 2007, An Bord Pleanala (“the Board”) decided under s. 37 of the Planning and Development Act 2000, to grant planning permission to Mr. Tim Mulvihill to construct a single storey dwelling on his lands at Doolahig, Glenbeigh. The permission was subject to seven conditions of which one- Condition
1(1) – is at the core of the present case. That condition was in these terms:- “Development shall not commence until the public road to the south of the site has been realigned to the satisfaction of the planning authority.
Reason: In the interest of traffic safety.”
7. Condition 7 is also of some relevance. It is in these terms:-
“The developer shall pay to the planning authority a financial contribution as a special contribution under section 48(2)(c) of the Planning and Development Act 2000 in respect of the realignment of the public road to the south of the site. The amount of the contribution shall be agreed between the planning authority and the developer or, in default of such agreement, the matter shall be referred to the Board for determination. The contribution shall be paid prior to the commencement of the development or in such phased payments as the planning authority may facilitate and shall be updated at the time of the payment in accordance with changes in the Wholesale Price Index – Building and Construction (Capital Goods) published by the Central Statistics Office”.
Reason: It is considered reasonable that the developer should contribute towards the specific exceptional costs which are incurred by the planning authority which are not covered in the Development Contribution Scheme and which will benefit the proposed development.”
8. Following the grant of planning permission, the notice party, Mr. Timothy Mulvihill, commenced construction work. He did so following payment of an agreed amount as a special development contribution but prior to any decision of Kerry County Council that realignment of the public road had taken place to its satisfaction. The applicant, Mr. Michael Rowan, commenced proceedings pursuant to s. 160 of the Planning and Development Act 2000, seeking to restrain the carrying out of further works until such time as the conditions of the planning permission, in particular Condition 1 (1),had been complied with. In the course of those proceedings the notice party gave an undertaking not to carry out further works on the site until a declaration was obtained from Kerry County Council that it was satisfied with the way in which the public road to the south of the site had been realigned. In order to understand subsequent events, it is necessary by way of background to be aware of the fact that in the course of the consideration of the matter by the Board, Mr. Mulhivill had submitted a letter from one Georóid O’Connor, owner of land to the south of the proposed site and to the east or upper side of the public roadway (L-4022), in which Mr. O’Connor agreed to cede lands to the notice party. The idea was that control of these lands by the notice party would enable him to address issues that would arise in relation to traffic. This issue was addressed in the course of a report prepared for An Bord Pleanala by its inspector, Ms. Fiona Tynan. She recommended the granting of planning permission, but suggested that it should be subject to the following conditions:-
“Prior to the commencement of development, the applicant shall enter into an agreement with the Planning Authority for the transfer of land outlined in yellow on the site location map, scale 1:25,000, submitted to Kerry County Council on 24th February 2004, and for the payment in full of cost by the applicant for the necessary road realignment works in accordance with the proposals outlined by the applicant in his submission and by his agent on the applicant’s behalf to An Bord Pleanala.”
The lands in question have been the subject of much discussion during the proceedings. For convenience, counsel has referred to them as the “yellow lands”, as they were outlined in yellow on the site location map, and I will continue this practice.
9. As we have seen the Board accepted the thrust of the inspector’s report in that it unanimously decided to grant approval but instead of the condition formulated by the inspector, it opted to impose Condition 1(1).
10. Thereafter, Mr. Mulvihill purchased the lands to the east of the public road and proceeded to carry out work on the acquired lands by clearing vegetation and reducing the level of the lands through excavation.
11. By letter from his solicitor dated 6th April 2011, the notice party called on the Council to approve what was described as the road realignment he had carried out or alternatively, if the Council was of the view that the road realignment was unacceptable, to state why that was so and to indicate what additional measures were required to satisfy the Council.
12. Kerry County Council responded to this letter by saying that it required the “yellow lands” to be transferred into its ownership, so as to allow it to carry out road improvements. The required undertakings in relation to the transfer of ownership were forthcoming and on foot of these in August 2011, the Council carried out works on the lands in question. The works involved the removal of vegetation and earth to a depth of 100 millimetres below the edge of the roadway or carriageway level, backfilling the area with crushed stones and erecting 70 metres of post and chain link fencing. In the course of the affidavit sworn by Mr. Charlie O’Sullivan, Director of Services Roads, Transport and Safety, of Kerry County Council, Mr. O’Sullivan explained that the Council’s works widened the road and the chain and post link fencing provided a new edge to the road. In essence, the effect of the work carried out was to create a flat open surface to the east of the road carriageway over which vehicles actually pass, which has the appearance of a lay-by. Once these works were completed, the Council confirmed to Mr. Mulvihill, by letter dated the 7th September 2011, that the public road to the south of the site had been realigned to its satisfaction as the relevant planning authority.
13. The applicant, Mr. Rowan, contends that in reaching that decision the planning authority acted ultra vires Condition 1(1) of the permission of the 17th January 2007. The arguments advanced are first, that the works carried out at the location do not constitute a realignment of the road. Secondly, it is submitted that, having regard to the fact that the Board had stated that it was imposing Condition 1(1) in the interest of road safety, no reasonable planning authority could be satisfied that the works carried out amounted to a satisfactory realignment of the public road, and that the decision to declare itself satisfied was so inconsistent with the requirements of road safety that it was not one that could have been reached by any reasonable planning authority.
14. The written submissions filed also contend that the decision of Kerry County Council was unlawful and contrary to public policy in circumstances where work was carried out by Mr. Mulhivill without planning permission when such permission was required. This point has not really been pressed in oral argument but to the extent that the issue remains part of the case, I am of the view that this is not a point of substance. Even without having to decide whether Mr. Mulhivill required a specific planning pem1ission, in the particular circumstances, it is abundantly clear that the Council did not express itself satisfied on the basis of work carried out by Mr. Mulvihill. It carried out work itself once their requirements in relation to the transfer of the land had been met, and it was on the basis of this work carried out by Kerry County Council that it, as the planning authority, declared itself satisfied that the road had been realigned.
15. Before considering in detail the arguments that were addressed to these issues, it is convenient to refer briefly to some additional developments. On the 18th July 2011, the notice party, Mr. Mulvihill was granted leave by Peart J., in separate proceedings, to seek relief by way of a declaration that he had fully complied with Condition 1(1). In August 2011, as we have seen, Kerry County Council carried out certain works to the south of the proposed site and then on the 7th September 2011 wrote to the notice party, Mr. Mulvihill, informing him of the decision it had arrived at. It did so in these terms:
“I refer to the above planning permission granted by An Bord Pleanala on 18th January, 2007 to erect a dwelling house served by an effluent treatment tank at Doolahig, Glenbeigh, and specifically to condition no. 1(1).
I now confirm that the public road to the south of the site has been re-aligned to the satisfaction of the Planning Authority.”
16. The terms of Condition 1(1) of the planning permission and the planning authority’s conclusion that its terms had been complied with potentially give rise to two issues:
(a) Was the public road to the south of the site realigned?
(b) If the answer to (a) was in the affirmative, was the realignment of the public road south of the site satisfactory to the planning authority and if that was the case was that a conclusion that was open to the planning authority?
17. The framework for the consideration of each of these issues is quite different. The Board’s decision requires that the public road to the south of the site be realigned. This was a condition which had to be met before the planning authority could proceed to consider whether what had been put in place was satisfactory to it. In other words it was not open to Kerry County Council to find as satisfactory, a solution that did not involve the realignment of the public road south of the site. Before considering whether the works carried out were satisfactory, the planning authority had to ask first whether what had occurred meant there had been compliance with the condition of the planning permission which required the public road to the south of the site be realigned.
18. In the case of O’Connor v. Dublin Corporation (Unreported, High Court, 3rd October 2000), O’Neill J. expressed the view that the question whether there was compliance with a condition in a planning permission did not involve the “O’Keeffe test”. He commented:-
“It necessarily follows from this, that what is required of this compliance procedure is no more that faithful implementation of the decision of An Bord Pleanala. The jurisdiction so invoked on the part of the Respondents is a very limited one and of a ministerial nature. What they have to do is to implement that which has already been decided in essence. Thus, all that they must ascertain is the true or correct meaning of the conditions attached to the planning permission and to confine themselves and the Notice Party to such proposals as are in compliance with those conditions.”
He went on to observe, “Necessarily, such an approach excludes, in my view, “the reasonableness test” as laid down in O’Keefe v. An Bord Pleanala from the compliance procedure”.
19. If it is established that there has been a realignment of the public road to the south of the site, the planning authority must then go on to consider what has occurred and specifically go on to consider whether it is satisfied by the works undertaken. It is agreed, and indeed specifically conceded, by the applicant, Mr. Rowan, that if that stage is reached, then the reference to “satisfaction” in Condition 1(1) confers a discretion on the planning authority.
20. The first issue therefore, is whether there has been compliance with the terms of the planning permission by the realignment of the public road to the south of the site. It will be seen that this itself gives rise to two sub-issues, namely, what is meant by ‘realignment’ and what is meant by ‘public road’? It may be noted that the permission to be interpreted is a so-called Grampian one, taking its name from the case of Grampian Regional Council v. City of Aberdeen D.C [1984] 47 P&C.R. 633, i.e. it is a negative condition in the sense that it stipulates that development shall not commence unless, and until, a particular thing happens.
21. The applicant has put before the Court a number of affidavits from two engineers, Dr. Martin Rogers and Mr. Ger O’Keeffe which assert that there has been no realignment of the public road south of the site. This view is challenged both by the respondent, Kerry County Council, and the notice party, Mr. Tim Mulvihill. The basis for taking issue with the position adopted by the applicant and his experts is succinctly put by Mr. Charlie O’Sullivan of Kerry County Council in his first affidavit when he says that it is the situation that the applicant has conflated in its entirety the concept of ‘road’ on the one hand and ‘roadway or carriage’ on the other.
22. Section 2(1) of the Roads Act 1993, offers the following definition of ‘public road’, ‘road’, and ‘roadway ‘:
‘Public road’ means a road over which a public right of way exists and the responsibility for the maintenance of which lies on a road authority;
‘Road’ includes:-
(a) Any street, lane, footpath, square, court, alley or passage
(b) Any bridge, viaduct, underpass, subway, tunnel, overpass, overbridge, flyover, carriageway (whether single or multiple), pavement or footway,
(c) Any weighbridge or other facility for the weighing or inspection of vehicles, toll plaza or other facility for the collection of tolls, service area, emergency telephone, first aid post, culvert, arch, gulley, railing, fence, wall, barrier, guardrail, margin, kerb, lay-by, hard shoulder, island, pedestrian refuge, median, central reserve, channelliser, roundabout, gantry, pole, ramp, ballard, pipe, wire, cable, sign, signal or Ughting forming part of the road, and
(d) Any other structure or thing forming part of the road and –
(i) necessary for the safety, convenience or amenity of road users or for the construction, maintenance, operation or management of the road or for the protection of the environment, or
(ii) prescribed by the Minister.
‘Roadway’ means that portion of a road which is provided primarily for the use of vehicles.
This definition of ‘road’ has been incorporated into the planning and development sphere by the Planning Act of 2000, section two of which provides that ‘road’ has the same meaning as in the Roads Act 1993.
23. This definition of ‘road’ is an extensive one, incorporating some things which would not normally be thought of as forming part of the road, such as a weighbridge. What clearly emerges from the definition however, is that there is a distinction between a ‘road’ and a ‘roadway.’ As the ‘roadway’ is the area over which vehicles pass, it is a constituent part of the wider ‘road’.
24. At common law the concept of the public road was also wider than the roadway or carriageway. Keane on Local Government, 2nd Edition, at pg. 84 states:-
“At common law everything between the fences including footpaths, cycle tracks and grass margins constitute the public road, unless there is evidence to the contrary”
25. In common parlance too, the word ‘road’ is often given a wider meaning than ‘carriageway’. A person may talk of “going down the road to the shops”, but this does not mean that he or she will walk along and over the roadway or carriageway if there is a footpath or grass margin available.
26. There is some limited internal evidence within the planning permission itself that the condition imposed was not concerned with a realignment of the existing roadway/carriageway. The reasons and consideration for the actual decision to grant a permission is set out in the body of the decision as follows:-
“Having regard to the “Sustainable Rural Housing Guidelines for Planning Authorities” issued by the Department of the Environment, Heritage and Local Government in April, 2005, the local nature of the housing need, the suitability of the site for a proprietary wastewater treatment system and proposed alterations to the road layout to the south of the site, it is considered that, subject to compliance with the conditions set out below, the proposed development would not seriously injure the amenities of the area, would not be prejudicial to public health, would be acceptable in terms of traffic safety and convenience and would be in accordance with the proper planning and sustainable development of the area. (Emphasis added).
27. It seems to me that the reference to the realignment of the public road in Condition 1 (1) has to be read in conjunction with the reference to a proposed alteration to the road layout to the south of the site. At the time of the decision of An Bord Pleanala on the 17th January 2007, there was no proposal to alter the layout of the existing roadway/carriageway; what was under consideration was the carrying out of road works on the yellow lands.
28. Confirmation that the planning permission was not concerned solely with the roadway/carriageway but with the broader public road is to be found if one has regard to the planning history of the site. It seems to me that it is reasonable and proper to have regard to the planning history although I fully accept that a planning permission is a public document which is to be interpreted objectively. In that regard the remarks of Henchy J. in the course of his disserting judgment in Readymix (Eire) Limited v. Dublin City Council and the Minister for Local Government (Unreported, Supreme Court, 30th July 1974) are very clear indeed. There is no doubt that the subjective beliefs, either of the applicant, the planning authority or for that matter anyone else, are not relevant or admissible as aids to interpretation. However, the Supreme Court decisions of Gregory v. Dunlaoghaire Rathdown County Council (Unreported, High Court, Geoghegan J, 16th July 1996) and Kenny v. Dublin City Council [2009] IESC 19 leaves one in no doubt that a court is not confined to a purely literal interpretation. In that context, it is of interest to note that there had been earlier applications for planning permission for a dwelling in respect of a different site on the same lands. When that application was under consideration by Kerry County Council the applicant, Mr. Mulvihill, made a proposal with regard to the purchase of certain lands- the “yellow lands”. That application to Kerry County Council was successful but the decision was appealed by Mr. Rowan. The report to the Board by its inspector, Mr. Des Johnson, (Ref. PL01-3103) referred to the purchase of lands by the applicant to improve sight lines, the willingness to transfer lands to Kerry County Council and the willingness of the applicant to pay for road-alignment. On that occasion, the Board overturned the decision to grant permission on the basis that the proposed site for the dwelling was an exposed one. However, in the present context it is of interest that the earlier application involved consideration of the acquisition of lands and the opportunity to improve sight lines as a result.
29. On the 24th February 2004, Mr. Mulvihill made a fresh application for planning permission and again there were objections. On this occasion the application was refused by the planning authority on the grounds that it would constitute disorderly background development and that it would endanger public safety by reason of traffic hazard. The notice party, Mr. Mulvihill, submitted an appeal. This time around the report for the Board was prepared by Mr. Bernard Wyse. In the course of his report he comments:-
“In relation to traffic hazard the proposal to improve sight lines at the junction of the access lane and the public road, involving the acquisition of adjacent lands to provide for a straightening of the public road at the applicant’s expense are the same as those put forward under planning reference 3103/01 and found acceptable to the Planning Authority and subsequently to An Bord Pleanala.”
That decision of the Board was quashed by the High Court, (Feeney J.) on 26th May 2006 for reasons not relevant to the present case. The result was that the appeal was heard de novo, with a report being prepared on this occasion by Ms. Fiona Tynan. In the course of her report she commented:-
“In relation to the access arrangements, the Inspector in PL08.13128 noted that the laneway already serves one dwelling and the previous “Board decision under RefB/5/884100 did not refer to inadequate access arrangements as a reason for the refusal”. The inspector elaborates that the “transfer of lands could facilitate a straightening of the public road and improvements of sight lines at this existing entrance which would be acceptable. As the first party has offered to transfer the land, I am satisfied that an appropriate condition could be attached to any permission granted.” … However, I am concerned that this is not as explicitly stated as in the previous application on a letter dated 30th May 2003 and received by the Council on the 4th June 2003… If permission is considered, it would be preferable that a copy of this letter be resubmitted to ensure that the applicant can be conditioned to carry out the stated works at his own cost.”
Her recommendation included, as we have seen, condition 1(a), quoted in full at paragraph 8.
30. I refer to this history because it does indicate that throughout the convoluted history of the proposal, the focus has been on what could be achieved by the acquisition of lands to the south of the site and to the east of the roadway/carriageway, the “yellow lands” in the first instance by the notice party and then the transfer of the lands to Kerry County Council
Realignment
31. I have been referred to a number of dictionary definitions as well as to the definitions as set out in the British Standards “Building and civil engineering, Vocabulary”. This exercise reached its nadir in the first affidavit sworn by Dr. Martin Rogers which referred to Wikipedia and Wiktionary entries. Sensibly, counsel for the applicant indicated that he was not relying on these passages from the affidavit.
32. Understandably, all sides have referred to the decision of Kearns P. in the case of Hoare and Others v. Limerick City Council [2011] IEHC 27, a case involving a proposed Quality Bus Corridor at Ballinacurra Road, Limerick. The issue that Kearns P. had to consider was whether the proposed development was one that was covered by Article 80 of the Planning and Development Regulations 2001 to 2010 and thus required a public consultation process. That, in turn, required consideration of whether the proposed development involved the construction of a new road or the widening or realignment of an existing road where the length of the new road or the widened or realigned portion of the existing road exceeds 100 metres within an urban area.
33. In Hoare the respondent argued that ‘road ‘ and ‘roadway’ have separate meanings. In effect the respondent contended that unless there was an encroachment on lands beyond the boundary of the road, as distinct from the roadway, the development was not within the ambit of Article 80 and accordingly, a public consultative process was not necessary.
34. The applicant relied upon the British Standard “Building and civil engineering, Vocabulary” definitions which defined ‘horizontal alignment’ as “the direction and course of the central line of a road or carriageway in plan” and defined ‘vertical alignment’ as “the direction and course of the central line of a road or carriageway in profile”. The applicant in the present case has also referred to the British Standards.
35. Kearns P. agreed with counsel for the applicant that the project far exceeded anything that could be termed ‘maintenance.’ He was of the view that the respondent’s arguments relied, to an unacceptable degree, upon a strained interpretation of key words and terms relevant to s. 179 of the Planning and Development Act 2000, the section in issue. He found nothing in the exemption either in the Act or Regulations which provided a clear basis for including the major development that was under consideration within the exempted categories. He pointed out that the project involved a reconfiguration of the roadway which would extend at some points into areas where it never ran previously. It involved turning a two-lane roadway into a three-lane roadway and, it seemed to him to involve both vertical and horizontal realignment. He categorised as artificial and irrational the argument that, unless there was an encroachment on lands beyond the boundary of the road, the consultation process was not engaged.
36. The views expressed by Kearns P. are of considerable interest. However, a degree of caution is called for. That is for two reasons; first, Kearns P. was interpreting the phrase “widening or realignment of an existing road” that appeared in a statutory instrument. Secondly, he was dealing with a proposal that left unaltered the outer boundaries of the road, but which effected a significant, even radical, reconfiguration within the boundaries.
37. I am not convinced that the exercise of searching far and wide for dictionary definitions is a particularly useful one. Ultimately, the decision on whether there has been realignment depends on whether the focus is on the ‘road’ or on the ‘roadway’. If the focus is on the narrow ‘roadway’, it seems to be impossible to conclude that there has been realignment. However, if the focus is on the broader ‘road’ a different conclusion is reached. If that is the focus, and I am of the view that is where the focus should be, then it seems to me that there has been a significant reconfiguration of the road involving the lowering of the road level and the pushing back of its boundaries. If that is the focus of attention then the conclusion has to be that there has been both horizontal and vertical realignment. In these circumstances the applicant’s argument, that there has been no realignment of the public road to the south of site, fails.
Was the decision one open to the Planning Authority?
38. The other leg of the challenge sees the applicant, Mr. Rowan, contend that the decision was ultra vires as no reasonable planning authority could have concluded that sufficient measures had been undertaken to justify the planning authority being satisfied with the situation as required by Condition 1(1). It is said that this is clearly the case if one has regard to the fact that the condition imposed by An Bord Pleanala was stated to have been imposed in the interest of traffic safety.
39. The applicant points to the report of the Road Design Office of Kerry County Council which was before the respondent at the time of the decision. The applicant claims that the report established conclusively that the sight lines from the entrance to the access lane/road were significantly in breach of relevant sight line standards. The report points out that the existing sight distance of the southern direction, if measured from a point 2.4 metres back from the road edge which, it is said, is the appropriate way to take measurements, indicates a sight distance of 15 metres. The report refers to guidelines of the National Roads Authority entitled “Design Manual for Roads and Bridges” (DMRB) and the tables there set out. On the basis that the calculated design speed for the local road in question, L-4022, is 70km/h, this would indicate that the desirable minimum stopping sight distance is 120 metres. Even if one were to apply what is known as the “two steps below desirable minimum” approach, this would still require a sight distance of 70 metres, a distance more than four times, indeed almost five times, the distance available. The alleged inadequacy is said to be clearly established if one has regard to the DMRB guidelines. In fact the applicability of these guidelines is a matter of dispute. The respondent planning authority says that the DMRB guidelines refer to national roads carrying large volumes of traffic and are of little relevance to local roads carrying very low volumes of traffic. In that regard, the respondent points to clauses 1.5 and 1.6 of the guidelines. Those clauses are in these terms:-
“1.5 The DMRB sets a standard of good practice that has been developed principally for trunk roads in the U.K. Similarly, the NRA DMRB sets a standard of good practice intended principally for national roads in Ireland. Both documents may also be applicable in part to other roads with similar characteristics. Where they are used for local road schemes, it is for the local road authority to decide on the extent to which the documents in the manual are appropriate in any particular situation.
1.6 While the requirements given in the manual may be the best guidance available to road authorities, such authorities should ensure that their application to local road schemes does not compromise safety, result in poor value for money, or have an unacceptable impact on the environment. It is recommended that any local authority making use of the manual should establish formal procedures for considering whether it is appropriate to depart from particular requirements…”
While those who created the guidelines may not have had the Glenbeigh- Cromane Road, or similar roads in mind, the guidelines are the only ones available and it is proper that Kerry County Council should have regard to them. However, the extent of the obligation on the planning authority was just that, to “have regard to” the existence of the guidelines. As it was put by Quirke J. in McEvoy v. Meath County Council [2003] 1 IR 208 speaking in the context of strategic planning guidelines, “having regard to” guidelines means “to inform [oneself] fully of and give reasonable consideration to” such concerns. It is clear from the documentation and in particular a report prepared by Mr. O’Sullivan for the Council entitled “Report on Road Widening at Doolahig, Glenbeigh & Decision in relation to Planning Application 04/654 (Mulvihill)” that the respondent was fully aware of the relevance of the guidelines throughout but decided, after due consideration, to depart from them. The real question is whether the decision to depart from the guidelines was a reasonable one, one that was open to Kerry County Council.
40. The threshold to be overcome by the applicant, Mr. Rowan, if he is to succeed is a formidable one. As Finlay C.J. pointed out in O’Keeffe v. An Bord Pleanala [1993] 1 I.R. 39, the Court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that:-
(a) It is satisfied that on the facts as found it would have raised different inferences and conclusions, or
(b) It is satisfied that the case against the decision made by the authority was much stronger than the case for it.
In seeking to assess the conclusion arrived at by Kerry County Council a number of matters are required to be borne in mind. There is, first of all, the obvious point that the junction formed by the private lane/road and public roadway is already in existence. There is no question of the Council permitting a new exit on to the roadway. The private lane/road already serves three premises, the Rowan dwelling, the other dwelling on the lane and the Mulvihill stables and lands. Almost all of the attention during the hearing has focussed on sight lines south of the junction and understandably so, given the terms of the planning permission and the Condition 1(1) which is in issue. However, it is of some interest that the sight distance to the north is also limited, indeed even more limited. It has been measured at 13 metres. The limiting factor in the case of the sight lines to the north is the vegetation in the garden of the Rowan dwelling. A limiting factor in the case of the sight line to the south is the vegetation surrounding another dwelling which borders the public roadway. The owner of that unit is not a party to the present proceedings, but has sworn an affidavit on behalf of the applicant. The attitude taken by the occupiers of the Rowan dwelling and the other roadside dwelling in failing to cut back or trim the vegetation offers some support for the view that the decision of the County Council in the context of this local road was not an unreasonable one. Those who are closest to the junction and presumably know it best have not ordered their affairs so as to improve sight lines. In terms of the threat posed by the pre-existing situation i.e. the situation before a decision on planning permission, it is of note that the County Council although aware that there was a junction with restricted sight lines, both north and south did not seek to invoke statutory powers to have vegetation cut back or cleared. Mr. O’Sullivan, in the course of his report to the Council, referred to the provisions of s. 70(2) of the Roads Act 1993 which imposes an obligation on landowners to take all reasonable steps to ensure that shrubs, hedges or vegetation on their land are not a hazard or potential hazard to road users and allows for a road authority to serve a notice on a landowner in particular circumstances requiring the cutting, trimming or removal of the vegetation. Mr. O’Sullivan felt that invoking that provision would certainly be considered an extreme use of the powers under the Act and would set a poor precedent.
41. The exhibits in this case contain photographs taken before the transfer of lands by Mr. Mulvihill and photographs taken after the Council carried out its works. I do not believe that anyone viewing the two sets of photographs could fail to conclude that the works carried out represent a significant improvement. The improvement achieved will benefit all those using the exit, and indeed all using the public roadway who have to pass that junction. It is true that the situation is far from perfect. The new arrangements mean that vehicles approaching from the south will be visible from the exit at a point on the road between 115 and 130 metres away and will be again visible at a distance of approximately 30 metres from the exit. However, the downside is that vehicles travelling on the roadway over the section between 115 metres and 30 metres would be hidden from view. If a vehicle were travelling at 70kph, this would mean that the vehicle would be out of sight for approximately five seconds and re-emerge in view for approximately 1 ½ seconds. As I have indicated this is very far from perfect. However, this is not a case of a planning authority having to decide whether to tolerate the creation of a new dangerous exit; the exit is already there. It is not a question of creating a new hazard, but rather ameliorating one that has already existed. That is not achieved without a price; permitting the erection of a dwelling, which will be the third to be served by the private lane/road, must involve an increase in traffic volume at the junction. Whether the general improvement that will result adequately compensates for this is a matter peculiarly within the competence of the planning authority. Kerry County Council was well aware of the nature of the locality in issue, including being aware that there was no record of any accident at the location and that a traffic survey it conducted, albeit conducted outside the peak tourist season, indicated very low volumes of traffic.
42. It is not necessarily the case that every planning authority faced with this decision would decide it in the same way, but I suspect many would. Certainly, I do not believe that it can be said that the conclusion that Kerry County Council arrived at was one that could not be reached by a reasonable planning authority. On the contrary, it seems to me that the decision arrived at, and it was a difficult decision, was one that was carefully considered by Kerry County Council and the conclusion reached was one that was entirely open to it.
43. In these circumstances the applicant’s claim that the decision was unreasonable or irrational fails. Having regard to the view that I have reached that the road at the location in question has been realigned, this means that I must refuse the application and decline to grant the reliefs sought.
APPROVED
Coffey v EPA
[2013] IESC 31
UDGMENT of Mr. Justice Fennelly delivered the 26th day of February 2013
1. This judgment provides the reasons for the decision of the Court made at the hearing of these thirteen appeals on 11th December 2012 declining the application of the thirteen appellants to be permitted to be represented at the hearing of the appeal by Mr. Percy Podger or, put otherwise, the application of Mr. Podger to be permitted to appear for and to argue the appeals as the representative or advocate of the appellants.
2. For the purpose of considering that issue, the Court has heard Mr. Podger and permitted him to argue that point and that point only. Having heard him, the Court ruled that it would not hear Mr. Podger as representative of the appellants. It informed the appellants that it would hear them or any of them who wished to present the appeal on his or her own behalf. The Court adjourned briefly to enable them to consider the position. At the resumed hearing, none of the appellants wished to do so. However, Mr. Podger announced that he had, during the period of the adjournment of the hearing, been made a member of the appellant company, No2GM Ltd, and that he proposed to represent it. The Court declined to hear him as representative of the company.
3. In this judgment, I give the reasons for ruling that the Court should not hear Mr. Podger as advocate or representative of the appellants.
4. The situation is procedurally singular, if not unique. The appeals, like the applications in the High Court, are presented ex parte, even though the appellants applied to the High Court and are now applying to this Court for orders potentially adversely affecting the interests of the respondents to their intended applications for judicial review but without hearing the latter. Thus, the appellants and Mr. Podger on their behalf do not even name the affected bodies (the Environment Protection Agency and Teagasc) in the titles of their applications in the High Court or in their notices of appeal to this Court.
5. The appellants are: Stella Coffey, No2GM Ltd., Derek Banim, Thomas O’Connor, Richard Auler, Theresa Carter, David Notley, Michael Hickey, Malcolm Noonan, Gavin Lynch, Danny Forde, Enda Kiernan and Dymphna Maher. It will be noted that one of the appellants is a company, in fact a company limited by guarantee. The papers submitted to the High Court and supporting submissions for each of the 13 appellants are, in effect, identical and clearly prepared by the same person. It is clearly Mr. Podger who is co-ordinating the applications for judicial review which the appellants apparently wish to commence in the High Court.
6. The appeals are taken against judgments of the High Court delivered respectively by Birmingham J. on 14th August (one case), Hogan J. on 28th August 2012 (eleven cases) and Hedigan J. on 22nd October 2012 (one case).
7. It appears that each of the appellants wishes to seek judicial review of a decision made on the 25th July, 2012 by the Environment Protection Agency (“EPA”) in the exercise of the powers conferred on it by the Genetically Modified Organisms (Deliberate Release) Regulations 2003 (S.I. No. 500 of 2003) granting a consent to Teagasc, Oak Park, County Carlow to carry out the deliberate release of certain genetically modified potato lines subject to certain conditions. None of the applicants has, to date, in fact made any application to the High Court for leave to apply for judicial review. In fact, they did not even place before the High Court any material by way of evidence or legal argument providing grounds for judicial review of the EPA decision. As Birmingham J. said, in the case of Stella Coffey, “the papers address only the request for a not prohibitively expensive order.”
8. The appellants each applied to the High Court for what they describe as a “Not-Prohibitively Expensive Costs Order.” Each applicant is described on the face of the application as a “European citizen…… lacking sufficient resources.”
9. The appellants base their application for a “Not-Prohibitively Expensive Costs Order” essentially on the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters done at Aarhus, Denmark, on 25 June 1998. That is a United Nations Convention, which was not ratified by Ireland until 20th June 2012 though it had been ratified by the European Union in February 2005 and effect has been given to certain provisions in European Union Law.
10. The appellants allege that to proceed without the benefit of the claimed “Not-Prohibitively Expensive Costs Order” would render them financially incapable of continuing with the challenge against the EPA, and would leave them financially exposed should they be ultimately unsuccessful and have costs awarded against them.
11. The Aarhus Convention is the basis of the appellants’ argument that costs incurred in challenging an environmental decision should not be “prohibitive.” The appeals brought by the thirteen appellants against the substance of the High Court orders remain pending before this Court. This judgment does not deal with the correctness or otherwise of the High Court judgments or the merits of the appeals. For that reason, it is sufficient to state very briefly the effect of the High Court judgments.
12. None of the High Court judgments decided, on the merits, whether the court had jurisdiction to make what the appellants term a “not-prohibitively expensive costs order.” Hogan J. raised issues concerning the status of the Aarhus Convention in Irish law and referred to case-law of the Court of Justice. He was of the view that further clarification would have to be sought from the Court of Justice. However, his decision was based, like those of Birmingham J. and Hedigan J., on the fundamental departure from fair procedures which would be involved in making a final order of that kind necessarily affecting an opposing party but without affording that party any opportunity to be heard. As Hogan J. expressed the matter:
“Since the making of a final order of the kind sought without notice to other parties actually or potentially affected by such order would infringe fundamental principle of fair procedures as understood by the Constitution, the European Convention of Human Rights and the EU Charter of the Fundamental Rights, I consider that I have no jurisdiction to make such an order. For those reasons, I must decline to grant the relief sought.”
13. As I have emphasised, however, that is a matter for the substantive hearing of the appeals, which remain pending. I turn, therefore, to the question of Mr. Podger’s representation of the appellants.
14. Each of the three judges heard Mr. Podger in the High Court. Hogan J. said, in the case of No2GM Ltd Mr. Podger had represented the applicants, though he had freely admitted that he was neither a solicitor nor counsel. The learned judge said that he had heard him “[a]s a concession and a courtesy to the applicant…” He added: “I express no view as to whether he was lawfully entitled to represent the company in this manner, whether by virtue of being a McKenzie friend or otherwise.”
15. Each of the appellants included the following statement in his or her grounding affidavit and repeated in an affidavit for this court:
“My person of choice, to speak and interact for me, with you for the instant matters, pursuant not only to your duties and obligations towards wide access to justice but also in the interests of the full and proper application of the EU Law and International Law and you giving full effect to and moreover-best effect to-and proper application to the European Law and International Law, and proceed to permit me to make this application here with Mr Percy Podger, who has,- as Justice Murphy of the Irish Superior Courts High Court acknowledged, – has a particularly good knowledge of this European Law concerned, and consequently I know he can handle it better than I, with a better flow of communication, – thus best effect possible – as anything other than so, if forced upon me by you, shall be a violation of the EU Law concerned inter-alia the rubric of the application, as I declare I have lesser abilities to make this application particularly in verbal communication and interaction with you, though of course I comprehend the nature of the application etc.
Any, so-called “ McKenzie friend” type of communication with you, and where such friend cannot address the court and speak on my behalf is a too restrictive approach and not allowing wide access to justice, and obstructs the flow of thought and obstructs the flow of communication and is an impediment to Justice itself, apart from being in practice dysfunctional and resulting in poor communication and consequently is wholly unacceptable and unnecessary and contrary to letter, spirit and intent of the European Law and International Law concerned, and makes it in practice impossible or excessively difficult for me to exercise my rights conferred by EU law, in the instant matter. If I be somehow wrong in this, then I put it to you: — that less you can state answers to the following two questions precisely and with detailed reference as to:-
A. – Where does it state in “European Law” that I must only represent myself via your (or our former Colonial Rulers) so-called “McKenzie Friend” process or suchlike process? And
B. -if it does, then where is it said in “European Law” of that such discrimination is proper and in order and why?” [Emphasis in original]
16. These paragraphs encapsulate the nature of the application being made by Mr. Podger on behalf of the appellants. The Court is not confronted in this case with a litigant in person. Such litigants have become an increasingly common feature of litigation in our courts. The reasons are many and various. There can be no doubt that a major contributory factor has been that the difficult economic circumstances prevailing in recent years have made it difficult or impossible for many people to pay for their own legal representation. In these circumstances, the courts of necessity are obliged to allow parties to present their own cases and, though it may be difficult for them, legal arguments. The courts have recognised the capacity of a McKenzie friend to assist a lay litigant, usually by giving advice or organising papers. That procedure, however, must, of necessity, be carefully supervised. Only in the most limited circumstances, will a court permit a McKenzie friend to address it. In the family courts, in particular, it is necessary to ensure that the admission of a McKenzie friend does not undermine the confidentiality of proceedings being heard in camera. Furthermore, any application in this regard must be made bona fide and must relate solely to the activities which, if admitted, such a friend may perform.”
17. The notion of a McKenzie friend originates in the decision of the Court of Appeal in England in McKenzie v McKenzie [1970] 1 P. 33. Davies L.J. recalled the following statement of Lord Tenterden C.J. in Collier v Hicks (1831) 2 B. & Ad. 663:
“Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.”
18. That brief statement continues to represent an accurate description of the role of a McKenzie friend and is generally accepted by our courts. It was considered in the High Court by Macken J. in R.D. v McGuiness [1999] 2 IR 411, which were family-law proceedings. She concluded, at page 421, that “a party who prosecutes proceedings in person is entitled to be accompanied in court by a friend who may take notes on his behalf and quietly make suggestions and assist him generally during the hearing, but……may not act as advocate.” This conclusion was based, in part, on an order made by this Court in an earlier case, where there was no note of a written judgment. Nonetheless, I am satisfied that the statement is correct. It will be noted, of course, that this is a description of the role of the McKenzie friend. This is not to say that a judge may not, on occasion, as a matter of pure practicality and convenience, invite the McKenzie friend to explain some point of fact or law, where the party is unable to do so or do so clearly. That must always be a matter solely for the discretion of the judge. The McKenzie friend has no right to address the court unless invited to do so by the presiding judge.
19. Here the court is asked to permit something utterly different.
20. In effect, Mr. Podger wishes to be permitted to exercise the role of advocate, without restriction. If he were himself an appellant, he would have the right to appear for himself. In that situation, each of the other appellants would be able briefly to adopt his arguments. But then, he would be a party, with an interest with all the attendant duties and responsibilities associated with that status and would, inter alia, be liable for any costs awarded against him.
21. Mr. Podger is neither counsel nor a solicitor, nor does he wish to act in the capacity of a McKenzie friend. He seeks an unrestricted right of audience before the courts. As I understand it, he wishes to be permitted to present the appeal on behalf of all of the appellants to the same extent as if he were a professionally qualified counsel or solicitor. He rejects the suggestion that he could act as a McKenzie friend. He is unwilling to accept the limited nature of that role. He considers it unduly restrictive that he should be limited to assisting the appellants without enjoying a right of audience. He seeks an unlimited right to appear and to argue the appeals but without any of the limitations which would apply either to a McKenzie friend or to a properly qualified legal practitioner. He submits that, in the absence of any provision of EU law prohibiting such a lay advocate as himself, that he is entitled to an unrestricted right of audience before the courts and that to deny him such a right of audience is to infringe the rights of the appellants to access justice in general, and specifically to access justice under the Aarhus Convention.
22. I am satisfied that the application of the appellants to be allowed to be represented by Mr. Podger and by him that he should be allowed to represent them must be rejected.
23. The fundamental rule is that the only persons who enjoy a right of audience before our courts are the parties themselves, when not legally represented, a solicitor duly and properly instructed by a party and counsel duly instructed by a solicitor to appear for a party. That rule does not exist for the purpose of protecting a monopoly of the legal professions. Kennedy C.J. considered an application, In the matter of the Solicitors (Ireland) Act, 1898 and in the matter of an application by Sir James O’Connor [1930] 1 I.R. 623 at page 629, for the readmission to the roll of solicitors of a person who had formerly practised as both a solicitor and a barrister before being appointed to the bench from which he had retired. That issue is not before the Court and I express no view on the issue of readmission of former members of a profession. It is of interest, however, that the Chief Justice explained that one of the points of view of relevance was that “of the public—of the people from whom ultimately are derived and held,……as a privilege the monopoly of the right to practise as solicitors and advocates,” The limitation of the right of audience to professionally qualified persons is designed to serve the interests of the administration of justice and thus the public interest.
24. The exclusive right of counsel to audience in the courts is derived from the common law. In order to extend that right, in the case of the superior courts, to solicitors, it was necessary to enact s. 17 of the Courts Act 1971, which provides:
“A solicitor who is acting for a party in an action, suit, matter or criminal proceedings in any court and a solicitor qualified to practise (within the meaning of the Solicitors Act, 1954) who is acting as his assistant shall have a right of audience in that court.”
25. Thus, the right of audience is regulated by law. It is true that a party to proceedings (other than a corporation) has the right to appear for him or herself and to plead his or her own case. This is a matter of necessity as well as right. Regrettably it is a fact of life especially during the current economic difficulties in our country that many people are unable to afford the often high cost of professional representation and that the availability of legal aid is limited. There are other cases where litigants disagree with their lawyers or are unwilling to accept representation. Whatever the reason, there is an inevitable number of cases before the courts where litigants are unrepresented. In those cases, they have the right to represent themselves. It has to be accepted that this is sometimes unavoidable, which is not to say that it is desirable. There is no doubt that courts are better able to administer justice fairly and efficiently when parties are represented.
26. In R.B. v A.S. [2002] 2 IR 428 at 447, Keane C.J. remarked on the difficulties presented by the necessity to deal with litigants in person:
“The conduct of a case by a lay litigant naturally presents difficulties for a trial court. Professional advocates are familiar with the rules of procedure and practice which must be observed if the business of the courts is to be disposed of in as expeditious and economic a manner as is reconcilable with the requirements of justice. That is not necessarily the case with lay litigants. Advocates, moreover, are expected to approach cases with a degree of professional detachment which assists in their expeditious and economic disposition: one cannot expect the same of lay litigants, least of all in family law cases.
The trial of cases involving lay litigants thus requires patience and understanding on the part of trial judges. They have to ensure, as best they can, that justice is not put at risk by the absence of expert legal representation on one side of the case. At the same time, they have to bear constantly in mind that the party with legal representation is not to be unfairly penalised because he or she is so represented. It can be difficult to achieve the balance which justice requires and the problem is generally at its most acute in family law cases, such as the present.”
27. Sir John Donaldson M.R. in Abse and Others v Smith [1986] 2 W.L.R. 322 remarked on the benefits for the administration of justice from the competent representation of parties. At pages 326 to 327 of his judgment he referred to the limitation of rights of audience to qualified persons:
“These limitations are not introduced in the interests of the lawyers concerned, but in the public interest. The conduct of litigation in terms of presenting the contentions of the parties in a concise and logical form, deploying and testing the evidence and examining the relevant law demands professional skills of a high order. Failure to display these skills will inevitably extend the time needed to reach a decision, thereby adversely affecting other members of the public who need to have their disputes resolved by the court and adding to the cost of the litigation concerned. It may also, in an extreme case, lead to the court reaching a wrong decision.”
28. The Master of the Rolls also made some remarks, with which I agree, concerning the essential qualities of probity and integrity expected of qualified members of the legal profession and how important it is to the fairness and efficiency of the administration of justice. He said:
“The public interest requires that the courts shall be able to have absolute trust in the advocates who appear before them. The only interest and duty of the judge is to seek to do justice in accordance with the law. The interest of the parties is to seek a favourable decision and their duty is limited to complying with the rules of the court, giving truthful testimony and refraining from taking positive steps to deceive the court. The interest and duty of the advocate is much more complex, because it involves divided loyalties. He wishes to promote his client’s interests and it is his duty to do so by all legitimate means. But he also has an interest in the proper administration of justice, to which his profession is dedicated, and he owes a duty to the court to assist in ensuring that this is achieved. The potential for conflict between these interests and duties is very considerable, yet the public interest in the administration of justice requires that they be resolved in accordance with established professional rules and conventions and that the judges shall be in a position to assume that they are being so resolved. There is thus an overriding public interest in the maintenance amongst advocates not only of a general standard of probity, but of a high professional standard, involving a skilled appreciation of how conflicts of duty are to be resolved.
These high standards of skill and probity are not capable of being maintained without peer leadership and pressures and appropriate disciplinary systems and the difficulty of maintaining them increases with any increase in the size of the group who are permitted to practise advocacy before the courts.”
29. It would be inimical to the integrity of the justice system to open to unqualified persons the same rights of audience and representation as are conferred by the law on duly qualified barristers and solicitors. Every member of each of those professions undergoes an extended and rigorous period of legal and professional training and sits demanding examinations in the law and legal practice and procedure, including ethical standards. Barristers and solicitors are respectively subject in their practice to and bound by extensive and detailed codes of professional conduct. Each profession has established a complete and active system of profession discipline. Members of the professions are liable to potentially severe penalties if they transgress.
30. There would be little point in subjecting the professions to such rules and requirements if, at the same time, completely unqualified persons had complete, parallel rights of audience in the courts. That would defeat the purpose of such controls and would tend to undermine the administration of justice and the elaborate system of controls.
31. I wish to make it clear that there is no reason at all to suspect the integrity of Mr. Podger, his commitment to the cases he wishes to bring on behalf of the appellants or his knowledge of this particular area of environmental law. However, the fact remains that he is not qualified in law and does not have any right of audience.
32. It may be that the representation of companies presents a particular aspect of the problem. In Battle v Irish Art Promotion Centre Ltd [1968] 1 I.R. 252, Ó’Dálaigh C.J., with the agreement of his colleagues, ruled that:
“…in the absence of statutory exception, a limited company cannot be represented in court proceedings by its managing director or other officer or servant. This is an infirmity of the company which derives from its own very nature. The creation of the company is the act of its subscribers; the subscribers, in discarding their own personae for the persona of the company, doubtless did so for the advantages which incorporation offers to traders. In seeking incorporation they thereby lose the right of audience which they would have as individuals; but the choice has been their own.”
33. In the course of his judgment, the Chief Justice cited with approval the statement of Viscount Simon L.C. in his speech in Tritonia Ltd. v. Equity and Law Life Assurance Society [1943] 1 A.C. 584. where he said at p. 586 of the report:— “In the case of a corporation, inasmuch as the artificial entity cannot attend and argue personally the right of audience is necessarily limited to counsel instructed on the corporation’s behalf.”
34. This ruling proceeds from the fact that the incorporated company is, as a strict matter of law, a legal person separate from its members and from its directors and management. Nonetheless, in practice, the courts have to deal on a daily basis with difficult cases involving unrepresented companies, frequently because there are simply no funds to provide for legal representation. The company, being a purely legal or notional person, cannot speak except through a representative of some kind. If it has no legal representation, it will not be represented at all. Although that is far from ideal, it represents the present law.
35. A slight modification of the strict rule regarding companies was adopted in the New Zealand case of Re G.J. Mannix Ltd [1984] 1 NZLR 309, considered by Budd J. in P.M.L.B. v P.H.J. (High Court unreported 5th May 1992, Budd J.). Cooke J. in the New Zealand Court of Appeal had thought that the court should retain a residual discretion to hear unqualified advocates but considered that it would be a “reserve or rare expedient.”
36. In Coffey v Tara Mines Limited [2008] 1 IR 436, O’Neill J. thought that Battle v Irish Art Promotion Centre Ltd did not preclude him from exercising an inherent jurisdiction where, in his view, there was in existence “a combination of circumstances that are so exceptional or rare as to probably, be unique.” He permitted the plaintiff to be represented by his wife because he had formed the view that the action would proceed no further, and that is an outcome or consequence that would be destructive of the interests of justice.”
37. In conclusion, the general rule is clear. Only a qualified barrister or solicitor has the right, if duly instructed, to represent a litigant before the courts. The courts have, on rare occasions, permitted exceptions to the strict application of that rule, where it would work particular injustice. The present case comes nowhere near justifying considering the making of an exception. Mr. Podger seeks nothing less than the general right to appear on behalf of a group of thirteen litigants and to plead their cases to precisely the same extent as if he were a solicitor or counsel, which he accepts that he is not, but without being subject to any of the limitations which would apply to professional persons.
38. Nor do I think that the attempt to represent the company No2GM Ltd gives rise to any exception. Mr. Podger has not demonstrated any exceptional circumstance which would justify permitting him to speak as the representative of the company. It was patent that Mr. Podger availed of the opportunity provided by the Court’s brief adjournment of the hearing to defeat the effect of its ruling by devising the stratagem of making himself a member of the company. It was a device and was without merit.
39. Finally, Mr. Podger purports to demand that the Court provide some reference to a provision of EU law excluding him from representing the appellants. That would be to reverse the proper nature of the inquiry, which is whether there is any provision of EU law precluding the Court from applying the fundamental tenets of its legal system adopted in the interests of the protection of the integrity of the administration of justice. In fact, Article 19 of the Statute of the Court of Justice regulates the representation of parties in proceedings before the Court of Justice of the European Union. Member States and the Institutions of the Union must “be represented before the Court of Justice by an agent appointed for each case…” The agent “may be assisted by an adviser or by a lawyer.” Most materially, the Article then provides:
“Other parties must be represented by a lawyer.
Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court.”
Furthermore,
“University teachers being nationals of a Member State whose law accords them a right of audience shall have the same rights before the Court as are accorded by this Article to lawyers.”
To similar effect, Rule 36 of the Rules of Court of the European Court of Human Rights provides that an applicant “must be so represented at any hearing decided on by the Chamber, unless the President of the Chamber exceptionally grants leave to the applicant to present his or her own case, subject, if necessary, to being assisted by an advocate or other approved representative.” Furthermore, any such representative shall “be an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them, or any other person approved by the President of the Chamber.”
It is clear, therefore, that there is no warrant for the claim that, in the application of EU law or the European Convention on Human Rights, specifically either by the Court of Justice or the European Court of Human Rights, there is any obligation on the court of a Member State to permit a litigant to be represented by a person other than a duly qualified lawyer.
40. Thus Mr Podger’s application to be allowed to represent the appellants at the hearing of their appeals must be rejected.
Browne v Fingal County Council
[2013] IEHC 630
DECISION BY MR JUSTICE MICHAEL PEART ON PRELIMINARY COSTS ISSUE, GIVEN ON THE 11TH DAY OF DECEMBER 2013:
1. The applicant is not legally represented, and has filed an application for leave to seek remedies by way of judicial review against Fingal County Council in a matter which I will loosely refer to as an environmental matter.
2. As a preliminary matter, and before moving his application for leave, the applicant has asked this Court for what has been referred to as a ‘protective costs order’. However it is important to understand exactly what the applicant means by that.
3. He does not mean simply that in the event that he loses the action in due course no order for costs will be made against him; or that i8n the event that he wins he will be granted an order for his costs against Fingal County Council.
4. If these matters were what concerned him he would be easily reassured by the provisions of Section 50B of the Planning & Development Act, 2000, as amended whereby in cases coming within the class of case to which the section applies (including the applicant’s case), the Court shall make no order as to costs, subject to the provisions of Section 50B(2A) as inserted, whereby the Court retains a discretion to award costs, or a portion of those costs in favour of a successful applicant to the extent that he has succeeded.
5. But the applicant seeks more than that, and does so by reference to the what he believes are this State’s obligations under the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”), and certain Council Directives made in that regard.
6. The applicant seeks an order from this Court in advance of moving his application for leave that his legal costs will be paid, regardless of the outcome. He needs this assurance before he engages a legal team to act on his behalf. In effect, he is seeking an order that regardless of what his costs may turn out to be, these will be met by Fingal County Council. He believes that if the Aarhus Convention, and the Council Directives in question are to be given proper effect, he is entitled to such an order now. What he is seeking amounts to legal aid, or an indemnity in respect of his own costs regardless of the outcome of the case.
7. Under Article 9 of the Aarhus Convention judicial proceedings in environmental disputes must not be “prohibitively expensive” – a term which is not defined in the Convention. Nor is any explanation given, or even guidance as to whether the test is a subjective or an objective one.
8. The present application was put back from time to time so that the applicant could await the delivery of judgment by the European Court of Justice in David Edwards v. Environment Agency and others – Case C-260/11, upon a reference had been made to that Court which might give some clarification as to what is meant by the term “not prohibitively expensive”.
9. In its judgment the Court makes clear at paragraph 25 that the phrase does not mean that the national court is precluded from making an order for costs. It has stated also at paragraph 33 that the requirement “pertains … to the observance of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, and the principle of effectiveness, whereby procedural rules must not make it in practice impossible, or excessively difficult to exercise rights conferred by European law”, and that the cost of bringing a challenge “must not be so expensive as to prevent the public from seeking review in appropriate cases”.
10. The Court goes on to state in paragraph 35 that “when a national court is called upon to make an order for costs against a member of the public who is an unsuccessful claimant in an environmental dispute, or where, as in the United Kingdom, it is required to state its views at an earlier stage of the proceedings on a possible capping of the costs for which the unsuccessful party may be liable, it must satisfy itself that the requirement has been complied with.”
11. In this country, it appears that what is provided for in relation to costs in cases of this kind gives even greater protection to an unsuccessful applicant than is required under the Aarhus Convention. That protection is what appears in Section 50B of the Planning & Development Act, 2000 as amended. Under these provisions no order as to costs may be awarded against an unsuccessful applicant. The Court is required to make no order as to costs in such a case. The Court may of course under Section 50B (2A) of the Act of 2000, as inserted, make an order for costs in favour of a successful applicant.
12. Neither the Aarhus Convention, nor the Edwards case, mandate that legal aid be available to impecunious applicants as part of the requirement that access to justice should not be prohibitively expensive. Paragraph 38 of Edwards makes a brief reference to legal aid schemes in member states as being something, inter alia, to be taken into account. Clearly, if legal aid had to be available, or some sort of pre-emptive order for costs in advance of an application, this would have been clearly stated, and it is not.
13. In so far as the applicant might have sought, as part of his reliefs, a declaration that he is entitled under Aarhus or otherwise to an advance indemnity in relation to his costs, no matter what the result of his proceedings, this is something which would require that the Attorney General be joined to meet the arguments that the State has failed in its obligations under Aarhus. Certainly the applicant could not expect that Fingal County Council would in every case brought against it, have to meet the applicant’s costs, no matter what the result of the case brought against it.
14. The applicant was offered an opportunity to consider whether he wanted to join the Attorney General but he has decided that he will not do so.
15. I am satisfied that while Aarhus applies, and the State must meet its obligations under it, Section 50B as amended more than meets those obligations as properly understood in relation to costs orders.
16. I am not satisfied that under Aarhus the applicant is entitled to the sort of blanket costs indemnity order he now seeks in advance of bringing his application for leave to seek judicial review. Neither am I satisfied that this Court has jurisdiction under Statute or otherwise to make the order which he is seeking. The jurisdiction to in certain circumstances make a protective costs order, which is identified by Laffoy J. in Village Residents Association Ltd v. An Bord Pleanala [2000] 4 IR. 321, and referred to by Kelly J. in Friends of the Curragh Environment Ltd v. An Bord Pleanala [2006] IEHC 243 is not so wide as to encompass what the applicant seeks herein.
17. I refuse this application.
18. The applicant must now decide if he wishes to continue with his leave application, and I will put the matter back so that he can consider his position in the light of my decision.
19. I should add that in so far as the applicant asserts that his application is a proceedings which he seeks to bring in the general public interest, and relies upon that fact to assist his present application, I have to say that this may not be the case as it certainly appears from the papers which have been filed that he has a private commercial interest in the outcome of the proceedings should he succeed in obtaining leave to seek his reliefs. I mention this aspect in case by failing to do so, I may be taken by the applicant as conceding that the intended proceedings are in the general public interest.
20. Finally I refer to the fact that the applicant has stated that part of his application was that a cap should be set upon the amount of any costs, in a way similar to what can occur in the United Kingdom under the Civil Procedure Rules. A cap on costs is not relevant in the present case where Section 50B of the Act of 2000 mandates that no order as to costs be made, subject to the Court having a discretion to award costs to a successful applicant. However, if the applicant loses the proceedings at the end of the day, this Court is precluded from awarding any costs against him. Setting a limit on such costs therefore does not arise.
McCallig v An Bord Pleanála (No. 2)
[2014] IEHC 353 UDGMENT of Mr. Justice Herbert delivered the 9th day of April, 2014
1. The applicant in this case was granted leave to apply for judicial review by Order of this Court made on the 6th April, 2011. The application for judicial review was made returnable for the 4th May, 2011. The statement of opposition was delivered by the second notice party on the 22nd September, 2011 and by the respondent on the 5th October, 2011. The matter came on for hearing before this Court on the 6th June, 2012 and was heard over a period of fifteen days. Judgment was delivered on the 24th January, 2013.
2. Section 50B(2) of the Planning and Development Act 2000, as inserted by s. 33 of the Planning and Development (Amendment) Act 2010, became operative on the 28th September, 2010, pursuant to the provisions of SI 451/2010. The Environment (Miscellaneous Provisions) Act 2011 was passed on the 26th July, 2011 and was signed by the President on the 2nd August, 2011. Section 21 of the Act of 2011, became operative on the 23rd August, 2011, pursuant to the provisions of SI 433/2011. It was therefore operative before the second notice party or the respondent joined issue with the applicant on anything advanced in her statement of grounds.
3. The applicant claims an order for the costs of the entire proceedings on foot of s. 50B(2) of the Act of 2000, as amended by s. 21 of the Act of 2011. The second notice party and the respondent rely on the unamended provisions of s. 50B(2) of the Act of 2000 and submit that the court should make no order as to costs or alternatively should order that each party bear its own costs of the proceedings.
4. Section 50B(2) of the Act of 2000, as inserted by s. 33 of the Act of 2010, provides that:-
“Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts and subject to subss (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.”
5. Section 50(3) confers a discretion on the court to award costs against a party in specified circumstances: none of which arise in this case. Section 50(4) confers a discretion on the Court to award costs in favour of a party where it considers the matter to be of exceptional public importance and in the special circumstances of the case it is in the interests of justice to so do.
6. Section 50B(2) of the Act of 2000 as inserted by s. 33 of the Act of 2010, was amended by s. 21 of the Act of 2011, which confers a further discretion on the court to award the costs of the proceedings or a portion of those costs to an applicant to the extent that such applicant succeeds in obtaining relief in the proceedings.
7. The second notice party and the respondent (the first notice party took no part in the proceedings), submit that this litigation had been commenced and was pending at the date the amending provisions of s. 21 of the Act of 2011, came into force and, that those provisions do not therefore apply to these proceedings. They submit that the presumption at common law, stated in Gardiner v Lucas (1873) 3 A.C. 528 at 601 and, approved by the Supreme Court in Hamilton v. Hamilton [1982] I.R. 466 at 474, that:-
“. . . unless there is some declared intention of the Legislature – clear and unequivocal – or unless there are some circumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prospective and is not retrospective.”
applies in this case as there is nothing in the Act of 2011, and, in particular, s. 21 of that Act, to rebut the presumption. They submit that it would be, “so unfair” to apply the provisions of s. 21 of the Act of 2011, retroactively to proceedings already pending when it came into force, that the Legislature could not have intended that it should be so applied. They referred to: Secretary of State for Social Security v. Tunnicliffe [1991] 2 A.E.R. 712 at 724 per. Staughton L.; L’Office Cherifen v. Ymashita-Shinnihon Steamship Company Limited [1994] 1 A.C. 486 at 527G – 528C per. Lord Mustill; Mahbub Alam and Others v. Secretary for State for the Home Department [2012] EWCA Civ 960, para. 33, per. Sullivan L.J.; and, Wilson v. secretary of State for Trade and Industry [2003] UKHL 40, per. Lord Nicholls of Birkenhead, paras. 19 and 20 and Lord Rodger of Earlsferry, paras. 198 to 201.
8. It is submitted by the applicant that the provisions of s. 21 of the Act of 2011, are concerned solely with the power of the court to award legal costs and therefore deal only with the practice and procedure of the courts and not with “vested” or “specific” existing rights. The applicant submits that as there is no clear and unequivocal expression to the contrary in the Act of 2011, it applies to actions commenced before as well as after the coming into force of the Act, (Wright v. Hale (1860) 6. H. and N. 237 at 230-233 per. Pollock C.B.; 30 L.J. Ex. 40: Re. Hefferon Kearns Limited (No. 1) [1993] 3 I.R. 177 at 184 per. Murphy J. – High Court). The applicant also submits that the provisions of s. 50B(2) of the Act of 2000 as inserted by the Act of 2010 and, the amending provisions of s. 21 of the Act of 2011, apply in any event only to costs in environmental matters and that the provisions of O. 99, of the Rules of the Superior Courts otherwise apply.
9. I am satisfied that these proceedings had been commenced and were “pending” when the provisions of s. 21 of the Act of 2011, came into force. Leave to apply for judicial review was given on the 6th April, 2011, and the section came into force on the 23rd August, 2011. Order 84, r. 20(1) of the Rules of the Superior Courts, 1986, (the Rules of the Superior Courts (Judicial Review) 2011, did not come into operation until the 1st January, 2012, per. SI. 691/2011), provides that, “no application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule”. Order 84, r. 22(1) provides that the application for judicial review, (after leave has been first obtained) shall be made by originating notice of motion. In the instant case, the notice of motion is dated the 11th April, 2011, and it was filed in the Central Office of the High Court on the 11th April, 2011. Therefore, the court in my judgment had cognisance of the application and could make an order in the matter before the provisions of s. 21 of the Act of 2011, became operative. The fact that the second notice party and the respondent did not deliver their statements of opposition until the 22nd September, 2011 and the 5th October, 2011, respectively is not in any way determinative of the issue.
10. It was held by the Supreme Court in Hamilton v. Hamilton [1982] I.R. 466, that statutes are to be construed as operating prospectively and not retrospectively unless there is some declared intention of the legislature, – clear and unequivocal, to the contrary or, unless there are circumstances rendering it inevitable that the other view should be taken. It is a rule of interpretation that an enactment should not be given a construction such as would take away or impair any vested or existing right or obligation unless that cannot be avoided without doing violence to the language employed in the enactment. In Re. Hefferon Kearns Limited (No. 1) [1993] 3 I.R. 177 at 184 (High Court) Murphy J. held that the basis for this rule is the presumption that the legislature did not intend to create the injustice which would normally flow from retrospective legislation.
11. In Wilson v. Secretary of State for Trade and Industry [2003] UKHL 40, Lord Rodger of Earlsferry at para. 198, gave his opinion that the presumption that legislation does not affect proceedings which are pending at the time when it came into force, unless the language of the enactment compels such a conclusion, is a more limited version of the general presumption that legislation is not intended to affect vested rights. He went on to hold that since the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this narrower presumption will be that much harder to displace.
12. At para. 196 of the same judgment, Lord Roger of Earlsferry held that:-
“The courts have tended to attach the somewhat woolly label ‘vested’ to those rights which they conclude should be protected from the effect of the new legislation.”
13. In Dublin City Council v. Fennell [2005] 1 IR 604, Kearns J. (as he then was) in delivering the judgment of the Supreme Court, after reviewing a large number of cases decided in this jurisdiction, in the United Kingdom and in the United States of America with regard to the retrospective/retroactive operation of statutes, and a number of authoritative texts on the law of statutory interpretation, – p. 628, para. 75 to p. 636, para. 100, – adopted the following passage at pp. 480 and 481 from the judgment of Henchy J. in Hamilton v. Hamilton (above cited):-
“From a wide range of judicial decisions I find the relevant canon of interpretation at common law to be this. When an Act changes the substantive, as distinct from procedural law then, regardless of whether the Act is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act, unless the Act expressly or by necessary intendment provides to the contrary.”
14. In Wright v. Hale (1860) 6 H. and N. 227: 30 L.J. Ex. 40, it was held by the Court of Exchequer, (Pollock C.B., Bramwell and Wilde B.B.), that enactments as to costs deal with procedure only and, unless the contrary is expressed, such an enactment applies to all actions whether commenced before or after the passing of the Act. Wilde B. held as follows:-
“I am prepared to decide this case upon principle. The rule applicable to cases of this sort is that, when a new enactment deals with rights of action unless it is so expressed in the Act an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act. That this is the true principle sufficiently appears from the cases that have been referred to on both sides. The cases cited by Mr. Chambers are cases relating to rights, which were not affected; those referred to by Mr. Hawkins were cases relating to procedure. Enactments as to costs have been held by the all the Courts to apply to actions commenced before the passing of the Acts in which they are contained. In Cox v. Thomason (2 C. and J. 498) it was held that a rule of Court relating to the taxation of costs which was general in its terms, applied to all taxations after the period when it came into operation whether the action was commenced before or not. Mr. Chambers says that the enactment now in question takes away a right from the plaintiff. I do not agree with them. The right of the suitor is to bring an action and have it conducted according to the practice of the Court. Pending the action the procedure may be varied, but his right is to have his action conducted according to the existing course of procedure, whatever that may be.”
15. In O’Riordan v. O’Connor [2005] 1 IR 551 at 557, Finlay Geoghegan J. held that this decision related to legal costs only and, at p. 556, para. 18 went on to hold that:-
“The exclusion of statutes affecting only procedure and practice of the courts from the presumption against retrospective constructions is explained by Maxwell Interpretation of Statutes (12th Ed 1969) p. 222 in the following terms:-
‘No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode.’”
16. Finlay Geoghegan J. also averted to the judgment of Blackburn J. in Kimbray v. Draper (1868) L.R. 3 Q.B. p. 160, where the Court of Queens Bench (Cockburn C.J., Blackburn, Mellor and Lush J.J.) held itself bound by the decision in Wright v Hale (ante). In the course of his judgment Blackburn J. pp. 162 to 163 held that:-
“The canon of decision in Wright v. Hale (1860) 30 L.J. Ex. 40 is, that when the effect of an enactment is to take away a right, prima facie it does not apply to existing rights; but where it deals with procedure only, prima facie it applies to all actions pending as well as future. Whether the Court of Exchequer applied that test properly, in holding it was matter of procedure where a statute enabled a judge to deprive a plaintiff of costs in a case where but for the statute he would have been absolutely entitled to them, may be questionable; but for the decision in that case I certainly should have been inclined to think this was taking away a right. The present case, however, is far more clearly matter of procedure, as the statute only imposes on the plaintiff the alternative of giving security for costs or proceeding in the county court. This is certainly much more a matter of mere procedure than was the case in Wright v. Hale, and we are bound by the principle of that case, and the rule must therefore be absolute.”
17. In Republic of Costa Rica v. Erlanger (1876) 3 Ch. D. 62 at 69, Mellish L.J. held that:-
“No suitor has any vested interest in the course of procedure, nor any right to complain if during the litigation the procedure is changed, provided of course, that no injustice is done.”
18. In an earlier case of Freeman and Others: Executors of Freeman v. Moyes (1834) 1 A.D. and E. 339, the executors as plaintiffs commenced proceedings as executors in Easter Term 1832. A verdict was given for the defendant in Michaelmas Term 1833. The statute 3 and 4 W. 4c 42, s. 31 came into operation on the 1st June, 1833 and provided that:-
“. . . in every action brought by any executor . . . in the right of the testator . . . such executor . . . shall unless the Court . . . shall otherwise order, be liable to pay costs to the defendant in case of . . . a verdict passing against the plaintiff . . .”
It was held, Lord Denman C.J. and Taunton J. (Littledale J. dissenting), in Kings Bench that on inquiry made Common Pleas and Court of Exchequer had held that actions commenced when the statute came into operation were within the meaning of the section and they held likewise. Littledale J. dissenting, held as follows:-
“I must own, as far as my own opinion goes, I should have thought differently. It seems to me a strange consequence of the Act that a party should commence a suit and find only on the eve of the trial that he is liable to costs; which, if he had known before, he probably would not have brought the action.”
19. The above reservation of Blackburn J. in Kimbray v. Draper, found an echo in the judgment of Slynn J. in R. v. Dunwoodie [1978] 1 A.E.R. 923, but he also deferred to the weight of judicial authority and academic endorsement.
20. In that case solicitors who acted for the defendants in a criminal trial were dissatisfied with the assessment by the taxing authority of the fees payable to them under the Legal Aid in Criminal Proceedings (Fees and Expenses) Regulations 1968. Following a review by the taxing authority, the solicitors remained dissatisfied. After a further review by a Taxing Master they continued to be dissatisfied and appealed to the High Court. This appeal came on for hearing, but before it was heard, the Legal Aid in Criminal Proceedings (Fees and Expenses) (Amendment) Regulations 1977, came into force. The test for whether the sums payable would provide fair remuneration for the work done was amended from a test of whether, “exceptional circumstances existed” (1968 Regulations), to a test of whether “the nature, importance, complexity or difficulty of the work done or the time involved was such that the sums so payable would not provide fair remuneration”, (1977 Regulations). Slynn J. held that the 1977 Regulations applied as the taxation had not been completed before they came into force, even though the work had been done prior to that date. In the course of his judgment at p. 928H and 929 A and B, he held as follows:-
“During the argument, I doubted it very much whether what is said to be a change in the amount of costs to be awarded was truly a matter for procedure or a remedy. It is certainly not one, which in the words of Lord Denning in Blyth v. Blyth [1966] 1 A.E.R. 524 at 535 [1966] A.C. 343 at 666, ‘only alter the form of procedure’. I have, however, been referred to the decision in Wright v. Hale (1860) 6.H. and N. 227 at 230 to 231, where Pollock C.B. said that changes in practice or procedure do apply to existing proceedings unless not made retroactive, and he added: ‘Rules as to costs to be awarded in an action are of that description and are not matters in which there can be vested rights’. There is a passage to the same effect, but in different words in the report in the Law Journal Exchequer (1860) 30 L.J.Ex. 40 at 42. The decision in that case was doubted in Kimbray v. Draper (1868) L.R. 3 Q.B. 160, but the principle was followed, and it has been accepted also in the textbooks. Maxwell Interpretation of Statutes (12th Edn. 1969) p. 224 states: ‘statutes affecting costs are of a procedural nature for the purpose of the rules about retrospectivity’. Craies Statute Law (7th Edn. 1971) p. 140, states the same principle.
Accordingly, despite my own doubts, on the basis of these authorities I accept that the provisions as to costs are to be treated as procedural and in the absence of any express or implied contrary intention, changes would normally take effect on proceedings pending at or commenced after the date of the change. In my judgment, the new regulation 7(6) is to be applied in taxations which have not been completed by or which take place subsequent to the 20th June, 1977, even if the work was done prior to that date.”
21. In McEnery v. Sheahan [2012] IEHC 331, Feeney J. referred with approval to the opinion of Lord Rodger of Earlsferry, in Wilson v. Secretary of State for Trade and Industry [2003] UKHL 40 [2004] 1 AC 816 at 199-202, which was also applied in Mahbub Alam and Others v. Secretary of State for the Home Department [2012] EWCA Civ 906. Lord Rodger of Earlsferry stated as follows:-
“STATUTES ALTERING MATTERS OF PURE PROCEDURE
‘199 So far I have been dealing with changes in substantive law. As can be seen from the statement of Wright J in In Re. Athlumney [1898] 2 Q.B. 547, 552 which I quoted above, changes in matters of pure procedure have been treated differently. Wilde B stated the position most starkly in Wright v Hale (1860) 6 H & N 227, 232: ‘where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act’.
The justification for treating matters of pure procedure differently was stated by Mellish L.J. in Republic of Costa Rica v Erlanger (1876) 3 Ch. D. 62, 69:
‘No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done’.”
Although, at a general level, the distinction between matters of substance and matters of pure procedure is readily understandable, in practice it has not always proved easy to apply, especially in relation to legislation on limitation or prescription. For that reason, in Yew Bon Tew v Kenderaan Bas Mara [1983] AC 553, 558H – 559A Lord Brightman cautioned against the potential dangers lurking in the description of a measure as ‘procedural’. In L’Office Cherifien v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, 527G – 528C Lord Mustill went further and suggested that a single criterion of fairness should be applied to all provisions. He added, at pp 525F – H:
‘Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by parliament cannot have been intended to mean what they might appear to say.’
This is an application of the ‘true principle’ identified by Staughton L.J. in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712, 724f – g:
‘that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.’
201. On Lord Mustill’s approach an appropriate test might be formulated along these lines: Would the consequences of applying the statutory provision retrospectively, or so as to affect vested rights or pending proceedings, be ‘so unfair’ that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions.”
22. In my judgment the application of s. 50B(2) of the Act of 2000, as amended by s. 21 of the Act of 2011, to proceedings seeking judicial review, commenced and pending prior to the operative date of the amendment on the 23rd August, 2011, would be “so unfair” that the legislature must be considered not to have intended it to so apply in the absence of a clear and unequivocal direction to the contrary in the Act. In every case, the possibility of exposure to an order for costs in favour of another party is something to which every potential reasonable litigant must rationally have regard in deciding to sue or to defend. With respect to judicial review proceedings commenced between the 28th September, 2010 and the 23rd August, 2011, in the instant case it will be recalled that leave to apply for judicial review was granted on the 6th April, 2011, the only rational and reasonable inference is that parties would be materially influenced by the then statutory provision that subject to the provisions of subs. (3) and (4), the litigation expenses of any party or notice party could not be awarded against them in contesting environmental matters even if they had to bear their own costs in that regard. The fact that in the instant case, the statement of opposition of both the second notice party and the respondent were not delivered until after the 23rd August, 2011, when the provisions of s. 21 of the Act of 2011, were already operational, is not a basis from which to consider whether or not the legislature intended the amendment to operate retrospectively as well as prospectively. There could clearly be other situations where parties could have become exposed to extensive pre-hearing and interlocutory costs prior to the 23rd August, 2011 and perhaps even to the full costs of a hearing.
23. There is nothing in the words employed by the legislature in s. 21 of the Act of 2011, which would require this Court to hold that it was the expressed plain and unequivocal intention of the legislature that its provisions should apply to pending as well as to future proceedings. I do not accept that it could have been the intention of the legislature to effect an improvement in the position of an applicant in the course of proceedings pending on the 23rd August, 2011, when the amending provisions of s. 21 of the Act of 2011, became operational, at the expense of the other parties to the same pending litigation. The magnitude of such unfairness is not ameliorated by the discretionary nature of the power to award costs vested in the court by the amending section. This is a judicial discretion and the court could not decline to award costs to an applicant, “to the extent that the applicant succeeds in obtaining relief”. In the case of proceedings taken after the operative date, the parties in deciding whether to embark on or participate in litigation would do so in full awareness of these provisions as to costs. The fact that very frequently in proceedings concerning environmental matters the respondent or notice party will be a public body, or a very large service provider does not in any way serve to lessen the fundamental unfairness of such a change in the course of pending litigation.
24. Counsel for the applicant submitted that s. 33 of the Act of 2010 and s. 21 of the Act of 2011 were both enacted by the legislature to give effect to the obligations entered into by this State on signing the United Nations Economic Commission for Europe, Convention on Access to Information, Participation in Public Decision Making and Access to Justice in Environmental Matters (the Aarhus Convention): of 25th June, 1998. The long title of the Act of 2011 certainly refers to it and, s. 8 of that Act provides that judicial notice shall be taken of it. Counsel submitted that the later in time provisions of the Act of 2011 must be seen as an acceptance by the legislature that the earlier in time provisions of Act of 2010 did not sufficiently discharge the obligations of the State under the Convention. From this, counsel submitted, the court should infer an intention on the part of the legislature that the provisions of the Act of 2011 should apply both retrospectively as well as prospectively in order to redress this situation.
25. This is an interesting argument but one I am unable to accept. It invites the Court to find that the legislature intended to remedy an alleged insufficiency of the Act of 2010 by making the provisions of s. 21 of the Act of 2011 retroactive, one assumes to the operative date of the Act of 2010, regardless of whether this might result in an injustice to parties to proceedings pending at the operative date of the Act of 2011. Only an express unequivocal statement to that effect or an unavoidable and compelling inference would persuade me to accept that such an extremity had been the intention of the legislature. I find nothing of this nature in s. 21 of the Act of 2011, considered in the context of the Act read as a whole, or elsewhere in that Act. This is scarcely surprising as such a provision is neither necessary or desirable to the implementation of the obligations assumed by the State under the Aarhus Convention.
26. Ireland signed the Aarhus Convention on the 25th June, 1998, but did not ratify the Convention until the 20th June, 2012. The Aarhus Convention is not part of domestic law except where incorporated through the law of the European Union which ratified the Convention in February, 2005, (see O’Connor v. Environment Protection Agency [2012] IEHC 370; NO2GM Ltd v. Environment Protection Agency [2012] IEHC 369). However, in my judgment by signing the Convention in June 1998, subject to later ratification, this State accepted an obligation to bring domestic law into conformity with all the requirements of the Convention and, by analogy, not to enact legislation which would be in breach of those requirements or the spirit of those requirements. In the interpretation of domestic legislation enacted to give effect to international treaties and conventions it is legitimate to have regard to the nature of the obligations assumed by the State in such treaties and conventions as an aid in ascertaining the intention of the legislature in the construction of any provisions of such legislation which may be ambiguous or vague. (ÓDomhnaill v. Merrick [1984] I.R. 151, per. Henchy J. at p. 159 and per. McCarthy J. at p. 166: Quazi v. Quazi [1979] 3 AER 897 at 903 b-c, per. Lord Diplock).
27. I find nothing in the terms of the Aarhus Convention, in particular sub-Articles 9.3, 9.4 and 9.5, Access to Justice, which would require this State to frame domestic legislation implementing the terms of the Convention relating to access to justice in environmental matters in any specific form. Sub-Articles 9.4 and 9.5 require parties to the Convention to undertake to introduce into domestic law procedures providing an adequate and effective remedy to the public, (as defined by Article 2), in environmental matters which is, “not prohibitively expensive” and, to “consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice”, in environmental matters. It is left to each party to the Convention to determine, “in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9.3”, (L.Z. [2011] E.C.R. I.-0000 para. 50), and (in the case of this State after the 18th September, 2013), subject to the supervisory role of the Aarhus Convention Compliance Committee, how it will implement in domestic legislation the provisions of Articles 9.3, 9.4 and 9.5 of the Convention. This will manifestly require careful consideration, perhaps also public consultation and debate and, it might well require a number of successive legislative attempts before a just, balanced and acceptable implementation is achieved.
28. I do not consider that the decision of the legislature, expressed in s. 21 of the Act of 2011 to improve the costs position of applicants relative to respondents and notice parties in environmental matters can reasonably or rationally be construed as an acknowledgment by the legislature that the provisions of s. 33 of the Act of 2010, itself enacted, one may assume, following the decision in Commission v. Ireland [2009] E.C.R – I-6277 and, to give effect to the Convention and to comply with European Union Directives aligning aspects of European Union Law with the requirements of the Convention, had failed to give effect to the provisions of sub-Articles 9.3, 9.4 and 9.5 of the Convention and, that the Legislature must therefore be presumed to have intended that the provisions of s. 21 of the Act of 2011 should therefore apply retroactively to make good that failure. In my judgment, s. 21 of the Act of 2011 simply reflects a legislative reassessment of the position. The legislature probably based this reassessment upon such considerations as the perceived strength of public finances to cope with a win, no costs, lose, pay costs, regime as applying to public bodies. It may also have had regard to the fact that respondents and notice parties in judicial review proceedings concerning environmental matters are almost invariably public bodies, major service providers or, well funded corporate developers, while applicants are generally private persons or voluntary public-interest associations, organisations or groups for whom an inability to recover costs, even though protected from liability to pay costs, could still be a major disincentive to becoming involved in judicial review proceedings in respect of environmental matters. I therefore find nothing in the obligations assumed by the State under the Aarhus Convention which would lead me to presume that the legislature intended that the provisions of s. 21 of the Act of 2011 should apply retroactively.
29. A similar argument was advanced on behalf of the applicant based on the provisions of article 10(a) of Council Directive 85/337/EEC of 27th June, 1985, (now article 11 Directive 2011/92/E.U.), as inserted by Council Directive 2003/35/E.C. of 26th May, 2003, and is rejected for the same reasons. Even in a matter concerned solely with national parties and issues this Court is obliged, in ascertaining the correct interpretation of a statutory provision in domestic law, particularly a provision enacted for the purpose of implementing the requirements of a Directive, to interpret domestic law, so far as possible, in the light of the wording and purpose of the Directive concerned in order to achieve the result sought by the Directive, (Pfeiffer & Ors v. Deutsches Rotes Kreuz [2004] E.C.R. I-68835, (Case – 397/01 to C. – 403/01). I find nothing in Article 10a which would lead me to consider that the legislature intended that s. 21 of the Act of 2011, in order to comply with article 10a should have retroactive effect. Article 10a simply requires Member States to ensure that domestic law contains a review procedure before a court of law which is fair, equitable, timely and not prohibitively expensive in order to enable qualifying members of the public to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive. The general objective of the Directive, to ensure and facilitate effective participation by the “public”, (as defined), in decision-making procedures affecting the environment, including by way of recourse to judicial review proceedings, is not in my judgment a sufficient basis from which to infer an intention on the part of the legislature that the costs provisions of s. 21 of the Act of 2011 should apply retroactively.
30. The obligation to provide in domestic law a judicial review procedure in environmental matters which is not “prohibitively expensive” cannot reasonably be construed as requiring that any legislation amending earlier legislation with a view to making procedure by way of judicial review less expensive for the “public”, – defined in Article 1 of the Directive as, “one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups”, – should apply retroactively unless perhaps where national legislation put or remaining in place after the 26th May, 2003, manifestly failed to implement the terms of Article 10a of the Directive. This was not the situation here. The provisions of s. 33 of the Act of 2010 may, on further examination and evaluation have been considered by the legislature not to have gone far enough to reduce the cost of access to the courts by the “public” in judicial review proceedings relating to environmental matters, but it could not reasonably be held that after the enactment of s. 33 that such costs remained, “prohibitively expensive”.
31. I find nothing of assistance regarding the intention of the legislature as to whether or not s. 21 of the Act of 2011 should apply retrospectively in s. 47 of the same Act dealing with “Savings and Transitionals”. Sections 22, 23 and 24 of the Act of 2011 expressly provide that the amendments effected by the immediately preceding subsection of each of these sections shall not apply to development begun prior to the commencement of the section. The legislature is therefore expressly providing that these sections are not to have retroactive effect as regards any such development. These sections relate to the carrying out of works affecting the character of a protected structure or proposed protected structure, the carrying out of works to the exterior of a structure located in an architectural conservation area and, development within an area of special planning control. Section 48 of the Act of 2011 substituted s. 194 of the Local Government Act which provides that while place-name changes made under s. 189 or s. 190 of that Act become effective from the dates specified in the declaration or order, references to the place-name in any enactment, instrument or document applicable, or in any civil or criminal proceedings pending immediately before that date, shall be construed as references to the new place-name.
32. Section 3 and s. 6 of the Act of 2011 introduce cost provisions in civil proceedings, including applications for interim interlocutory relief regarding compliance with or enforcement of certain licenses, permits, permissions, leases or contracts where non-compliance had caused, was causing or was likely to cause damage to the environment, similar to the costs provisions of s. 50B of the Planning Development Act 2000, (as inserted by s. 33 of the Act of 2010, and as amended by s. 21 of the Act of 2011). Section 7 of the Act of 2011 provides as follows:-
“7. – (1) A party to proceedings to which section 3 applies may at any time before, or during the course of, the proceedings apply to the court for a determination that section 3 applies to those proceedings.
(2) Where an application is made under subsection (1), the court may make a determination that section 3 applies to those proceedings.
(3) Without prejudice to subsection (1), the parties to proceedings referred to in subsection (1), may, at any time, agree that section 3 applies to those proceedings.
(4) Before proceedings referred to in subsection (3) are instituted, the persons who would be the parties to those proceedings if those proceedings were instituted, may, before the institution of those proceedings and without prejudice to subsection (1), agree that section 3 applies to those proceedings.
(5) An application under subsection (1) shall be by motion on notice to the parties concerned.”
In my judgment the correct inference to be drawn from these other sections of the Act of 2011, is that the legislature has indicated a concern and a clear intention that the provisions of that Act should not operate retrospectively if the effect of that would be to adversely affect any existing specific right or privilege, or cause an injustice to any party in proceedings pending on the operative date of that Act of 2011.
33. Section 21 of the Act of 2011, is expressed to “amend” s. 50B of the Planning and Development Act 2000, as inserted by s. 33 of the Planning and Development (Amendment) Act 2010, by “substituting” a new subs. (2) for the existing subs. (2) and by “inserting” an additional subsection, designated (2A). The effect of this is to repeal the original subs. (2) which provided that notwithstanding anything contained in O. 99, of the Rules of the Superior Courts and subject to subs. (3) and (4) in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.
34. Section 26(1) of the Interpretation Act 2005, provides that where an enactment repeals another enactment and substitutes other provisions for the enactment so repealed, the enactment so repealed continues in force until the substituted provisions come into operation. Subsection (2)(c) of the same section provides that proceedings taken under the former enactment may, subject to s. 27(1) be continued under and in conformity with the new enactment insofar as that may be done consistently with the new enactment. Section 27(1) of the Interpretation Act 2005, provides, inter alia, that where an enactment is repealed the repeal does not:-
“(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment, . . . or
(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention.”
35. Section 27(1)(b) of the Interpretation Act 2005, provides that anything already done or permitted to be done by virtue of a repealed statute or a section of a statute or, any other use or employment of a statute or a section of a statute prior to its repeal remains lawful despite that repeal. In the instant case, no issue as to costs arose prior to the repeal of s. 50B(2) of the Act of 2000, as inserted by s. 33 of the Planning and Development (Amendment) Act 2010, by s. 21 of the Act of 2011, as no legal right had been, or had failed to be, established in the proceedings prior to the 23rd August, 2011, Judgment in the case was delivered on the 24th January, 2013. Section 27(1)(b) of the Interpretation Act 2005, has therefore no application in the present case.
36. Section 50B(2) of the Act of 2000, as inserted by s. 33 of the Planning and Development (Amendment) Act 2010, was in my judgment concerned solely with an aspect of procedural law. It was concerned solely with an aspect of the rules and provisions by reference to which rights and duties are judicially defined or enforced. It did not give rise to any vested, acquired or accrued right or privilege enforceable by legal proceedings. The granting of leave to seek judicial review on the 6th April, 2011, did not, in my judgment, vest in any party to these proceedings a specific right or privilege in the terms of s. 50B(2), which, by virtue of s. 27(1)(e) of the Interpretation Act 2005, remained unaffected despite the repeal of that subsection and the substitution therefore after the 23rd August, 2011, of a new section 50B(2).
37. However, it appears to me that it would be so unjust to parties to litigation, whether as applicants, respondents or notice parties, commenced after the Act of 2010, with the assurance of this statutory declaration as to how costs would fall to be assessed as and when the occasion arose, to significantly alter those provisions during the course of that litigation that I am compelled to conclude that the legislature did not intend the repealing provisions of the Act of 2011, to apply retrospectively to proceedings commenced prior to the operational date of that Act and after the operative date of the Act of 2010.
38. Section 50B(2) of the Planning and Development Act 2000, (as inserted by s. 33 of the Planning and Development (Amendment) Act 2010), provides that in proceedings to which s. 50B(1) applies each party, including any notice party, shall bear its own costs notwithstanding anything contained in Order 99 of the Rules of the Superior Courts, unless the provisions of subsections (3) and (4) apply. Section 50B(3) vests a discretion in the court to award costs against a party in proceedings to which s. 50B applies, if it considers that a claim or counterclaim of a party is frivolous or vexatious or, that the party is in contempt of the court or, because of the manner in which the party has conducted the proceedings. I am quite satisfied that none of these arose in the instant case. Section 50B(4) entitles the court to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.
39. Section 50(B)(1) applies only to proceedings in the High Court by way of judicial review or seeking leave to apply for judicial review of any decision or purported decision made or purported to be made, or any action taken or purported to be taken, or any failure to take any action pursuant to the law of the State which gives effect to the provisions of Council Directive 85/337/EEC of 27th June, 1985, to which Article 10a, as inserted by Directive 2003/35/EC of the European Parliament and of the Council of 26th May, 2003 applies.
40. In, J.C. Savage Supermarket Limited & Anor v. An Bord Pleanála [2011] IEHC 488, Charleton J. (p. 11 of 11 para. 4.0) held that:-
“The new default rule set out in s. 50B(2) that each party bear its own costs is expressed solely in the context of a challenge under any law of the State which gives effect to the three specified categories: these three and no more. There is nothing in the obligations of Ireland under European Law which would have demanded a wholesale change on the rules as to judicial discretion in costs in planning cases.”
I adopt this statement of law by Charleton J.
41. At paras. 4.1 and 4.2 of the same judgment Charleton J. continued as follows:-
“4.1 The circumstances whereby the State by legislation grants rights beyond those required in a Directive are rare indeed. Rather, experience indicates that the default approach of the Oireachtas seems to be ‘thus far and no further’. There can be exceptions, but where there are those exceptions same will emerge clearly on a comparison of national legislation and the precipitating European obligation. Further, the ordinary words of the section make it clear that only three categories of case are to be covered by the new default costs rule. I cannot do violence to the intention of the legislature. Any such interference would breach the separation of powers between the judicial and legislative branches of the government. The intention of the Oireachtas is clear from the plain wording of s. 50B and the context enforces the meaning in the same way. The new rule is an exception. A default provision by special enactment applicable to defined categories of planning cases is that each party bear its own costs but only in such cases. That special rule may exceptionally be overcome through the abuse of an applicant, or notice party supporting an applicant, of litigation as set out in s. 50B(3). Another exception set out in s. 50B(4) provides for the continuance of the rule that a losing party may be awarded some portion of their costs “in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so”.
4.2 The Court must therefore conclude that as this litigation did not concern a project which required an environmental assessment, costs must be adjudged according to the ordinary default rule that costs should follow the event unless there are exceptional circumstances.”
42. It was submitted on behalf of the second notice party and adopted by the respondents that the “proceedings” in the instant case were by way of judicial review of a decision or purported decision made pursuant to one of these three specific categories and, therefore, each party should bear that party’s own costs of the entire proceedings. It was submitted on behalf of the applicant that the provisions of s. 50B(2) applied only to that specific part of her challenge to the decision of the respondents as was based on environmental impact assessment grounds and, that the provisions of Order 99 of the Rules of the Superior Courts applied to the other distinct and severable part of her challenge which was based solely on a breach of the planning permission requirements of s. 34(i)(a) as applied by s. 37(i)(b) of the Planning and Development Act 2000, and of Article 22(2)(g) of the Planning and Development Regulations 2001 (as amended). I find that this submission of the applicant is correct.
43. In the written replying submission of the applicant she expressly identified two bases for her challenge to the decision of the respondents to grant planning permission to the second notice party. At para. 1.4 of this replying submission the applicant stated that, “the primary basis for the challenge…is that the decision was made in breach of the requirements of s. 34(i) as applied by s. 37(i)(b) of the 2000 Act”. At para. 5.1 of that submission the applicant referred to:-
“Another group of grounds upon which [the applicant] bases her challenge to the validity of the decision, relates to the failure of the respondent to ensure that the likely significant effects of the proposed development on environmental matters were assessed prior to the development consent being given contrary to the provisions of Council Directive 85/337/EC as amended by Council Directive 97/11/EC and, Council Directive 2003/35/EC and contrary to Irish planning legalisation.”
The particular environmental matters identified by the applicant were, the likely significant impact of the proposed development on flora and fauna and in particular avifauna and also on the cultural heritage of the area which is an important Gaeltacht.
44. In my judgment “proceedings” as used in s. 50B(1) only refers to that part of judicial review proceedings which challenge a decision made or action taken or a failure to take action pursuant to one or more of the three categories therein specified. “Proceedings” is not defined in the Act of 2010, in the Planning and Development Act 2000, or in the Interpretation Act 2005. It is not a term of legal art and where undefined its meaning falls to be established by reference to the context in which it is used, (see Minister for Justice v. Information Commissioner [2001] 3 IR 43 at 45: Littaur v. Steggles Palmer [1986] 1 W.L.R. 287 at 293 A-E). In my judgment it cannot be considered that the legislature intended so radical an alteration to the law and practice as to costs as to provide that costs in every judicial review application in any planning and development matter, regardless of how many or how significant the other issues raised in the proceedings may be, must be determined by reference only to the fact that an environmental issue falling within any of the three defined legal categories is raised in the proceedings. Such a fundamental change in the law and practice as to awarding costs is not necessary in order to comply with the provisions of the Directive. It would encourage a proliferation of judicial review applications. Litigants would undoubtedly resort to joining or non-joining purely planning issues and environmental issues in the same proceedings so as to avoid or to take advantage of the provisions of s. 50B(2). This is scarcely something which the legislature would have intended to encourage.
45. The applicant submitted that notwithstanding the provisions of s. 50B(2) she should be awarded the costs of the entire proceedings as it was a matter of exceptional public importance and in the special circumstances of the case it was in the interests of justice that she should be awarded those costs. I find that a number of the issues raised in the instant case are arguably concerned with matters of general public importance. A number of the issues raised inter partes which the court was called upon to determine have a general and significant public importance which transcends the private and particular concerns of the litigants themselves. The decision of the court on these issues may well provide a precedent in future cases. The fact that in the course of inter partes litigation, such as the instant case, the court formulates new legal principles or, makes some novel application of established law to facts which are not so unique that identical or similar facts are unlikely to occur in the future may render the matter one of public importance. However, in my judgment it is not sufficient to make it a matter of “exceptional public importance”. In my judgment it was the intention of the legislature in employing the phrase “exceptional public importance” to signify that the matter at issue had to be of special importance to the general public and not just to the parties to the proceedings.
46. As to the construction of “exceptional” I adopt what was held by Lord Bingham of Cornhill C.J. in R. v. Kelly [2000] QB 198 at 208, [1999] 2 AER 13 at 20 (c), (in the context of s. 2 of the Crime (Sentences) Act, 1997 – exceptional circumstances which justify not imposing a sentence of life imprisonment), where he held that:-
“We must construe “exceptional” as an ordinary familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly or routinely or normally encountered.”
47. In my judgment a reasonable approach in applying the first part of the two-part test mandated by s. 50B(4) would be for the court to ask itself whether it could reasonably be considered that the ruling sought by a party to the litigation was on a matter not only of importance to that party but also of particular value and interest to the public in general. If the answer is in the affirmative then the first part of the test is satisfied and the matter could be regarded as one of “exceptional public importance”. I find that this first part of the test is not satisfied in the instant case. The plaintiff is therefore entitled, pursuant to the provisions of Order 99 of the Rules of the Superior Courts only to costs relating to that part of her claim in respect of which she was successful and which did not concern any environmental impact assessment issue.
48. The applicant was granted leave to apply for certiorari by way of judicial review quashing the decision of the respondent, made on 11th February, 2011, to grant planning permission to the second notice party and, for other reliefs which did not include a claim for a permanent injunction or for damages. Essentially, her application was based on just two grounds: first, that a portion of her lands was wrongfully included in the application for and in the grant of permission by the respondent to the second notice party and second, that there had been multiple infringements by the respondent and the second notice party of the law of the State which gives effect to the Directives specified in s. 50B(1) of the Act of 2000, – environmental impact assessment matters. The court in its judgment did not quash the decision to grant planning permission to the second notice party or declare that it was ultra vires the powers of the respondent to grant that permission. It was submitted by the second notice party and, adopted by the respondent, that the applicant had therefore failed with respect to both aspects of her claim. I do not accept this submission. The court certainly declined to make an order of certiorari quashing the decision of the respondent to grant permission to the second notice party but held that in so far as, and to the extent that it purported to decide to grant planning permission in respect of or in any manner affecting the land of the applicant or any part of it the decision was void. I find that in the state of the law prior to the judgment of the court in the instant case it was reasonable for the applicant to have made her claim in the form of an application for certiorari by way of judicial review quashing the decision of the respondent in its entirety. I find that the applicant succeeded on the first but not on the second ground of her claim. The latter in any event falls within the provisions of s. 50B(2) of the Act of 2000, as inserted by s. 33 of the Act of 2010.
49. I am satisfied that it is reasonable and proportionate in such circumstances that the applicant should be awarded the costs of the planning issue, (non-environmental impact assessment issue), regarding what the court found was the wrongful inclusion without her consent of portion of her lands in the application for and in the subsequent grant of planning permission. I find that she is also entitled to the costs of the issue raised by the respondent and the second notice party, (in which they were unsuccessful), that as a consequence of the second condition attached by the respondent to the decision to grant permission for the proposed development, that the decision no longer affected any part of the applicant’s lands. I further find that the applicant is entitled to the costs of the issue raised by the respondent alone, (in which it was unsuccessful), that if its decision to grant permission for proposed development was declared invalid the decision of the first named notice party of 15th September, 2010, to grant permission for that development remained and became the effective decision. All of these issues are to be found addressed and decided at paras. 1 to 86 inclusive in the judgment of the court.
50. An order for costs in favour of the applicant will be made against the respondent solely as regards the latter issue, (revival of the decision of the first notice party), and, jointly and separately against the respondent and the second notice party as regards the first and second issues (first, the wrongful inclusion of part of her lands in the application for and in the planning permission and second, that this was irrelevant as the decision to grant permission did not affect any part of her lands). Whether or not the raising by the applicant of the environmental impact assessment issues, (considered and decided at paras. 80 – 120 inclusive of the judgment of the court), could reasonably be said to have increased the costs of the parties, (Re Skytours Travel Limited: Doyle v. Bergin [2011] 4 I.R. 676 at 679 per. Laffoy J.), is not a relevant consideration in the instant case by reason of the statutory provisions of s. 50B(2) of the Act of 2000 that as regards such issues each party and the notice party shall bear their own costs. There will be no order for costs made against or in favour of the first notice party. No relief was sought against the first notice party in the course of the hearing of the application and, the first notice party did not appear, was not represented and took no part whatsoever in the proceedings.
McCoy v Shillelagh Quarries Ltd
[2015] IECA 28
RESPONDENTS/APPELLANTS
JUDGMENT of the Court delivered by Mr. Justice Gerard Hogan on 19th February 2015
1. In the present proceedings the first applicant (and respondent to this appeal), Mr. McCoy (“the applicant”), contends that the defendants (and appellants in this appeal) (“the appellants”) are operating a quarry without the benefit of planning permission, contrary to the provisions of s. 32 of the Planning and Development Act 2000 (“the 2000 Act”). The applicant lives close to the quarry which is situated at Ballinscorney Upper, Brittas, Co. Dublin, immediately adjacent to the Dublin/Wicklow border. The applicant has now sought a planning injunction pursuant to s. 160 of the 2000 Act directed against the continued operation of the quarry.
2. The defendants (“the appellants”) admit that they have no such permission, but they maintain that is unnecessary in that they can show that the quarry has been in continuous operation prior to the coming into force of the immediate precursor to the 2000 Act, the Local Government (Planning and Development) Act 1963 and that there has been no intensification of use since that date. On the hearing of this appeal we were informed that this issue is scheduled to be heard by the High Court over a two week period commencing on April 15th, 2015.
3. While this issue also forms an important part of the background to this appeal, the immediate question for consideration by this Court is a more specific one, namely, whether the respondent could properly apply for and obtain what is known as a protective costs order under the combined provisions of ss. 3, 4 and 7 of the Environment (Miscellaneous Provisions) Act 2011 (“the 2011 Act”). A further question is the extent to which the interpretation of these provisions of the 2011 Act should be informed by the provisions of the Aarhus Convention, a topic to which we shall presently return. In her judgment in the High Court, Baker J. held that the present case came within the scope of the protective costs jurisdiction provided for by the 2011 Act and that it was appropriate to make such an order: see McCoy v. Shillelagh Quarries Ltd. [2014] IEHC 511.
4. As will be seen, the fundamental issue before the Court presents a question of statutory interpretation of no little difficulty. It is, however, first necessary to explain and to set out the relevant statutory provisions.
The relevant statutory provisions of the 2011 Act
5. The relevant statutory provisions are to be found in the Long Title and Part 2 of the 2011 Act. The Long Title recites that one of the objects of the 2011 Act is “to give effect to certain articles” of the Aarhus Convention and for judicial notice to be taken of the Convention. Sections 3 to 7 then modify in a significant fashion the traditional costs order regime. In effect, an applicant may apply by notice of motion seeking a declaration pursuant to s. 7 to the effect that s. 3 applies to the proceedings. Where it has been determined that s.3 applies to the proceedings, then the starting point is that, subject to the provisions of s. 3(2), s. 3(3) and s. 3(4), each party is required to abide their own costs: see s. 3(1). Where, however, the applicant obtains relief in the proceedings, then s. 3(2) provides that he or she may be awarded some or all of their costs which is to be borne by the respondent “to the extent that the acts or omissions of the respondent…contributed to the applicant…obtaining relief.” Section 3(3) empowers the courts to make an award of costs against any party (including an applicant) where it has been determined that the claim is frivolous or vexatious or by reference to the manner in which they have conducted proceedings or are in contempt of court. Section 3(4) empowers the court to make an order for costs in favour of a party “in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.”
6. Section 4 then deals with the scope of application of s. 3 and it is this section which presents the issue of statutory interpretation which is at the heart of this appeal. Section 4 provides:
“(1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (3), instituted by a person –
(a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement attached to a licence, permit, permission, lease or consent specified in subsection (4), or
(b) in respect of the contravention of, or the failure to comply with such licence, permit, permission, lease or consent,
and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment.”
7. The phrase “damage to the environment” in s. 4(1) is then defined as follows by s. 4(2):
“(2) Without prejudice to the generality of subsection (1), damage to the environment includes damage to all or any of the following:
(a) air and the atmosphere;
(b) water, including coastal and marine areas;
(c) soil;
(d) land;
(e) landscapes and natural sites;
(f) biological diversity, including any component of such diversity, and genetically modified organisms;
(g) health and safety of persons and conditions of human life;
(h) cultural sites and built environment;
(i) the interaction between all or any of the matters specified in paragraphs (a) to (h)”
9. Section 4(3) and s. 4(4) further clarify the scope of application of these provisions:
“(3) Section 3 shall not apply –
(a) to proceedings, or any part of proceedings, referred to in subsection (1) for which damages, arising from damage to persons or property, are sought, or
(b) to proceedings instituted by a statutory body or a Minister of the Government.
(4) For the purposes of subsection (1), this section applies to –
(a) a licence, or a revised licence, granted under section 83 of the Environmental Protection Agency Act 1992,
(b) a licence granted pursuant to section 32 of the Act of 1987,
(c) a licence granted under section 4 or 16 of the Local Government (Water Pollution) Act 1977,
(d) a licence granted under section 63, or a water services licence granted under section 81, of the Water Services Act 2007,
(e) a waste collection permit granted pursuant to section 34, or a waste licence granted pursuant to section 40, of the Act of 1996,
(f) a licence granted pursuant to section 23(6), 26 or 29 of the Wildlife Act 1976,
(g) a permit granted pursuant to section 5 of the Dumping at Sea Act 1996,
(h) a licence granted under section 40, or a general felling licence granted under section 49, of the Forestry Act 1946,
(i) a licence granted pursuant to section 30 of the Radiological Protection Act 1991,
(j) a lease made under section 2, or a licence granted under section 3 of the Foreshore Act 1933,
(k) a prospecting licence granted under section 8, a State acquired minerals licence granted under section 22 or an ancillary rights licence granted under section 40, of the Minerals Development Act 1940,
(l) an exploration licence granted under section 8, a petroleum prospecting licence granted under section 9, a reserved area licence granted under section 19, or a working facilities permit granted under section 26, of the Petroleum and Other Minerals Development Act 1960,
(m) a consent pursuant to section 40 of the Gas Act 1976,
(n) a permission or approval granted pursuant to the Planning and Development Act 2000.
(5) In this section –
“damage”, in relation to the environment, includes any adverse effect on any matter specified in paragraphs (a) to (i) of subsection (2);
“statutory body” means any of the following:
(a) a body established by or under statute;
(b) a county council within the meaning of the Local Government Act 2001;
(c) a city council within the meaning of the Local Government Act 2001.
(6) In this section a reference to a licence, revised licence, permit, permission, approval, lease or consent is a reference to such licence, permit, lease or consent and any conditions or other requirements attached to it and to any renewal or revision of such licence, permit, permission, approval, lease or consent.”
10. To complete the picture, s. 8 provides that judicial notice shall be taken of the Aarhus Convention.
11. The central issue which arises in the present appeal is whether the present proceedings properly come within the scope of s. 4(1) of the 2011 Act at all. In a most careful argument, counsel for the respondent, Mr. Connolly S.C., contended that they did not. His argument in essence was that s. 4(1) only applied to proceedings which involved the enforcement of an existing planning permission or planning condition or other similar requirement which was the subject of a positive decision by a planning authority or other similar body. He submitted that this argument was further buttressed by the terms of the Aarhus Convention itself, as it applied only to environmental decisions. Here there was admittedly no such decision, since the respondents’ case rests entirely upon the existence of an established pre-1964 user. This question is at the heart of the present appeal, but any detailed consideration of it must first be postponed pending an examination of the terms of the Aarhus Convention and its status in our domestic law. It is to that issue which we can now turn.
The Aarhus Convention and its status in Irish law
11. The Aarhus Convention (or, to give it its full title, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters) is an international agreement which was negotiated under the auspices of the UN Economic Committee for Europe. The relevant provisions of the Aarhus Convention so far as costs are concerned are those contained in Article 9(3) and Article 9(4):
“3. In addition…..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.”
12. Although the Convention is in strictness simply a regional agreement, as Hogan J. said in the High Court in Waterville Fisheries Development Association Ltd. v. Acquaculture Licensing Appeals Board (No.3) [2014] IEHC 522:
“…. it is quite possibly the most influential international agreement of its kind in the sphere of international environmental law. Perhaps one of the reasons that the Convention has proved to be so influential is that it has been ratified by the European Union and that it has been transposed into certain key areas of EU environmental law, on which the latest version of the Environmental Impact Assessment Directive (2011/92/EU) is only the most prominent example.”
13. As this passage hints at, one of the complications presented by the Aarhus Convention is that it has also been ratified by the European Union as well as by the individual Member States (including Ireland). As it is clear from Article 216(2) TFEU, the Union adopts a largely monist attitude to international agreements of this kind, so that such international agreements adopted by the Union bind its institutions and generally prevail over legislative and administrative acts adopted by those institutions: see generally EU:C:2008:312 Intertanko, paragraph 42 and EU:C:2015: 5 Council of the European Union v. Stichting Natuur en Milieu, paragraph 44. The Court of Justice has further held that the existence of such an international agreement can be invoked in support of an action for annulment of EU secondary legislation under certain conditions, chief among them that the agreement is unconditional and sufficiently precise: see, e.g., Intertanko, paragraph 45 and C-366/10 Air Transport Association of America, EU:C:2011:864, paragraph 54.
14. To the extent, therefore, that the Aarhus Convention has been subsumed into EU law (either by virtue of the fact that it is an international agreement adopted by the Union or its provisions have been incorporated into primary EU legislation such as new consolidated version of the Environmental Impact Assessment Directive 2011/92/EU), this Court would be obliged, in an appropriate case, to give effect to the terms of the Convention as part of these wider EU law obligations.
15. The question, however, of giving effect to the terms of the Convention as part of our EU law obligations simply does not arise here because it not in dispute that the present case is governed entirely by national law. As the Supreme Court recently confirmed in Sweeney v. Governor of Loughan House Open Prison [2014] IESC 42, [2014] 2 ILRM 401, in such cases the status of the international agreement in domestic law is governed entirely by Article 29.6 of the Constitution which provides:
“No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”
11. It is clear that the 2011 Act did not, as such, make the Aarhus Convention part of our domestic law. It is true that s. 8 of the 2011 Act provides that judicial notice shall be taken of the terms of the Convention, but this in itself could not suffice to require any “special meaning” to be given to the scope of application of s. 4 of the 2011 Act: see CLM Properties Ltd. v. Greenstar Holding Ltd. [2014] IEHC 288, per Finlay Geoghegan J.
12. It is equally true that the long title of the 2011 Act declares that one of its objects is “to give effect to certain articles” of the Aarhus Convention. Yet the Convention was not, as such, made part of our domestic law. As Hogan J. pointed out in the High Court in Kimpton Vale Developments Ltd. v. An Bord Pleanála [2013] IEHC 442 and, more recently, in Waterville Fisheries, it would, of course, have been open to the Oireachtas to do just that. A recent example is provided by s. 20B of the Jurisdiction of Courts and Enforcement of Judgments Act 1998 (which was inserted by s. 1 of the Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012) which provides that the Lugano Convention of 2007 “has force of law in the State.” Unlike, therefore, the treatment of the Aarhus Convention in the 2011 Act, in that latter example, the 2012 Act gave the Lugano Convention an autonomous, directly applicable status in Irish law, so that, for instance, the relevant provisions of the Convention could be invoked appropriately on a free standing basis in all categories of litigation without further ado.
13. The 2011 Act did not make the Aarhus Convention part of the law of the State in quite that sense. What happened instead was that the Oireachtas sought to approximate our domestic law to the requirements of Article 9(3) and Article 9(4) of the Aarhus Convention by providing in ss. 3 to 7 of the 2011 Act for the modified costs rule in the manner which has already been described. If, however, it were subsequently ever to transpire that, for example, these provisions of the 2011 Act did not sufficiently approximate to the requirements of Article 9(3) and Article 9(4) of the Aarhus Convention, then the only remedy in that situation would be for the Oireachtas to amend the law.
14. In any event, it must be recalled that these provisions of the Aarhus Convention envisaged that steps would be taken in national law (“…laid down in its national law…”) to prescribe the conditions by which members of the public could ensure access to judicial procedures “to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment” (Article (9(3)). A further requirement was that these procedures would not be “prohibitively expensive” (Article 9(4)).
15. Mr. Connolly SC sought to demonstrate that the Convention was principally concerned with access to environmental decision-making and that as there was in fact no decision of a planning authority (or other similar body) at issue in the present proceedings, the Convention should be deemed not to apply. This, in turn, he submitted was an important – perhaps even decisive – factor in the interpretation of the scope of the 2011 Act. We are not persuaded that this is so, given that Article 9(3) expressly refers to access to judicial procedures in respect of “acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.” (emphasis supplied). The gist of the claim here, after all, is that the respondent’s omission to obtain planning permission contravenes the planning permission requirements of the 2000 Act.
16. Quite apart from this, however, it is necessarily implicit in the respondent’s submission that the Aarhus Convention in general – and Article 9(3) and Article 9(4) in particular – has a fixed and unyielding meaning which could decisively govern our interpretation of the 2011 Act, at least in cases of doubt.
17. It is true, of course, that there is a general presumption that the Oireachtas intended to legislate in a manner consistent with the State’s treaty obligations: see, e.g., O’Domhnaill v. Merrick [1984] I.R. 151, 159 per Henchy J. It likewise follows that the courts should, where possible, seek to interpret such legislation in a manner which is consistent with our international obligations: see Sweeney v. Governor of Loughan House Open Prison [2014] IESC 42, [2014] 2 ILRM 401, 417, per Clarke J.
18. That must be especially so in the present case given that the long title of the 2011 Act declares that one of its objects is to give effect to the Aarhus Convention. Yet it must equally be observed that, as we have noted already, these critical provisions of the Aarhus Convention are themselves expressed to be contingent on the application of national law, so that, for example, within the sphere of application of EU law, these obligations are not regarded as sufficiently clear and unambiguous in themselves so as to create direct effects for the purposes of EU law. As the Court of Justice recently observed in Stichting Natuur en Milieu, para. 47
“With regard to Article 9(3) of the Aarhus Convention, that article does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore does not meet those conditions. Since only members of the public who ‘meet the criteria, if any, laid down in … national law’ are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure.”
19. All of this means that neither Article 9(3) or, for that matter, Article 9(4) can be regarded as prescribing firm criteria which would facilitate any judicial assessment of whether their objectives had actually been met by legislation (whether at EU or, as here, national level) designed to give effect to these provisions.
20. For all these reasons, therefore, it cannot be said that neither the existence of the Aarhus Convention in general or Article 9(3) or Article 9(4) in particular could or should decisively influence the interpretation of the 2011 Act. The situation might have been different had, for example, these provisions of the Convention contained firm criteria against which the new costs rules contained in the 2011 Act might have been measured, such that the presumption that the Oireachtas did not intend to depart from the terms of our international obligations would have more strongly come into play.
The interpretation of s. 4 of the 2011 Act
21. Turning now to the construction of s. 4 of the 2011 Act, the fundamental question is whether the language of the opening lines of s. 4(1)(a) (…“for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement attached to a licence, permit, permission, lease or consent specified in subsection (4)…”) should be read disjunctively. In other words, does it suffice for present purposes to bring the case within the scope of s. 4(1) that these proceedings concern the enforcement or compliance with a statutory requirement simpliciter? Or, alternatively, must the proceedings be concerned with the enforcement or compliance with “a statutory requirement or condition or other requirement” attached to a “licence, permit, permission, lease or consent” specified in s. 4(4)?
22. Mr. Connolly S.C. contended strongly for the latter proposition, arguing that the word “attached” was the critical one, as these proceedings had to be concerned with either a statutory requirement or condition or other requirement attached to a permission or other similar development consent. He sought to buttress this argument by drawing on the terms of the Aarhus Convention to demonstrate that as its provisions were solely concerned with positive decisions taken by planning authorities and similar bodies, it would be wrong to construe the 2011 Act as reaching a case such as the present one where it was contended that the respondent had simply failed to obtain a planning permission which (it was said) was objectively required.
23. A somewhat similar issue was presented in Montemunio v. Minister for Communications, Marine and Natural Resources [2013] IESC 40. Here the relevant words of certain fisheries legislation provided for the forfeiture of:
“all or any of the following found on the boat to which the offence relates:
(a) fish,
(b) any fishing gear.”
24. The Supreme Court held that the word “or” was plainly used in the disjunctive sense. As Hardiman J. put it:
“Where two things are separated in speech or writing by the word ‘or’ they are distinguished from each other or set in antithesis by or; they are set up as alternatives to the other word or words so separated. It follows that the words so separated are not identical, but are different in nature or meaning…..[As the legislation enacted by the Oireachtas provided that] the words ‘or any’ follow the word ‘all’. On the ordinary and natural meaning of words, the effect of this addition is to create an alternative to the forfeiture of ‘all’ of the gear and catch.”
25. The same reasoning can be applied by analogy to the present case, as the use of the word “or” in this context is clearly disjunctive. In other words, s. 4(1)(a) applies to proceedings designed to proceedings which are either designed to ensure compliance or enforcement with a statutory requirement or, alternatively, with a condition or other requirement attached to a licence or other form of development consent. It is true that s. 4(1)(a) would have made this clearer had the indefinite article “a” been used between the word “or” and the word “condition” so that the sub-section then read:
“…for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or [a] condition or other requirement attached to a licence, permit, permission, lease or consent specified in subsection (4)…”
26. In that example the disjunctive character of the first use of the word “or” is admittedly plainer. Yet any doubts regarding the true meaning of these words in s. 4(1)(a) is dispelled once the language of the final lines of the sub-section which come immediately after paragraph (b) is also considered:
“….and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment.” (emphasis supplied)
27. The italicised words make it clear that the Oireachtas understood that the references in s. 4(1)(a) were intended to be disjunctive.
28. For all of these reasons, therefore, we consider that Baker J. was correct in her conclusion that the reference to “statutory requirement” in s. 4(1)(a) is a free standing one which is distinct and separate from proceedings designed to ensure the compliance with or enforcement of a condition or other requirement of a licence, permit or other form of development consent. It follows, accordingly, the present s. 160 proceedings fall within the scope of s. 4(1) and, therefore, by extension, the High Court had jurisdiction to make the appropriate protective costs order under s. 7 of the 2011 Act.
Whether the making of the protective costs order was premature
29. The question of whether the High Court had a jurisdiction to make a protective costs order at this stage of the proceedings can next be considered. The appellants contend that many important factual and other issues remain to be determined in these proceedings. These include questions as to whether the appellants were in fact obliged to obtain planning permission in respect of the quarry and whether the operation of the quarry has caused or is likely to cause damage to the environment. In these circumstances they object to the granting of a protective costs order by what they submitted was a form of interlocutory order, since this was, in effect, to pre-judge the outcome of the proceedings.
30. It is, of course, perfectly correct to say that a court should not endeavour to resolve complex factual or legal issues by interlocutory order: see, e.g., Irish Shell Ltd. v. Elm Motors Ltd. [1984] I.R. 200, 224, per McCarthy J. Yet if the courts were to hold that a protective costs order could not be made until the outcome of the proceedings when all of these matters had been determined, it would effectively undermine and frustrate the object of Part II of the 2011 Act.
31. Part II of the 2011 Act sought to facilitate access to justice by persons who contended that certain acts or omissions of other parties were illegal and had caused or was likely to cause damage to the environment, a term which was itself generously defined. The way in which this was to be done was to modify the traditional costs rules, as these were thought to inhibit environmental litigation of this kind. Thus, the protective costs regime is designed to facilitate an early application to court so that the environmental litigant can know in advance whether the litigation can be safely continued from a costs perspective in advance of the resolution of issues, many of which will doubtless be complex and time-consuming.
32. This is why s. 7(1) provides that a party to proceedings to which s. 3 applies “may at any time before, or during the course of, those proceedings apply to the court for a determination that s. 3 applies to those proceedings.” (emphasis supplied) This sub-section moreover envisages that this matter will be finally determined by the court, even at this early stage of the proceedings. Given that any order of the court made under this sub-section determine the protective costs question, such an order should really be treated as being in the nature of a final order (subject only to appeal), much as the determination of a jurisdictional issue in the sphere of conflict of laws was held by the Supreme Court to be a final issue: see Minister for Agriculture and Food v. Alte Leipziger AG [2000] 4 I.R. 33. Just as in the case of ruling on a jurisdictional issue, a determination regarding protective costs can properly be described in the words of Barron J. in Alte Leipziger ([2000] 4 I.R. 33, 44) as an order “which disposes finally, subject to appeal, of a substantive right collateral to the main issue in the proceedings.”
33. This approach admittedly brings its own difficulties. The strength of the claim may be difficult to assess at the outset of the proceedings. Nor can the potential unfairness in some circumstances of such an protective costs order be overlooked, since the effect of a s. 7(1) order might well be to expose the defendant operator to potentially ruinous costs in circumstances where he or she had no hope of every effectively recovering them.
34. It is also true that the protections given by the s. 7 order may nonetheless be subsequently lost, because the court can still ultimately make a costs order against the beneficiary of a protective costs order should it ultimately transpire that, for example, the claim is “frivolous or vexatious”: see s. 7(3)(a). In this statutory context, this term does not simply mean a claim that discloses no cause of action or one which is not brought in a bona fide manner but it would also include a claim which is simply unsustainable in law: see, by analogy, Nowak v. Data Protection Commissioner [2012] IEHC 449, [2013] 1 ILRM 207 and Schrems v. Data Protection Commissioner [2014] IEHC 310, [2014] 2 ILRM 401.
35. These considerations notwithstanding, it is nonetheless clear from the terms of s. 7 of the 2011 Act that the Court has a jurisdiction to make a final determination regarding a protective costs order at this early stage of the proceedings. Any other conclusion would defeat one of the principal objects of the 2011 Act and would be at odds with the actual language (“…at any time before, or during the course of the proceedings…”) of s. 7(1).
Whether the Court ought to have made the protective costs order on the evidence before it
36. In view of these considerations and given that the making of such an order will potentially impact significantly on the rights of the other parties of the litigation, it is clear that a protective costs order should not be made lightly. It would be quite wrong to make an order of this kind ex parte, as this would amount to a grave breach of fair procedures: see, e.g., O’Connor v. Environmental Protection Agency [2012] IEHC 370, DK v. Crowley [2002] IESC 66, [2002] 2 IR 712. In the event that such an order is made, it is important that the costs protection thereby afforded is not abused. In this regard, courts should be particularly vigilant to ensure – if necessary of their own motion – that any subsequent litigation is pursued in a diligent and efficient manner.
37. The Court of Justice has equally been anxious to ensure that certain procedural and other safeguards are maintained in those Aarhus Convention cases coming within the rubric of EU law. Thus, in its judgment in Case C-260/11 Edwards v. Environmental Agency [2013] ECR I-000 the Court said (at para. 42) that any national court called upon to make a protective costs order of this kind could take into account:
“the situation of the parties concerned, whether the claimant has a reasonable prospects of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure and the potentially frivolous nature of the claim at its various stages…”
38. In his judgment in Hunter v. Nurendale Ltd. [2013] IEHC 430 Hedigan J. gave the following very helpful guidance regarding the manner in which in such an application should be brought. He held that any such application should be brought by notice of motion and that the grounding affidavit should address the following matters:
“The proceedings should be brought by motion on notice supported by an affidavit of the applicant which should set out, firstly, what broadly the expenses involved in such an application would be;
(b) secondly, the applicant should set out a broad statement of the claimant’s financial situation;
(c) thirdly, the applicant should set out the reasons why he believes that there is a reasonable prospect of success,
(d) fourthly, the applicant should set out clearly what is at stake for the claimant and for the protection of the environment;
(e) fifthly, the applicant should deal with any possible claim of frivolous proceedings, should that arise; and
(f) finally, the applicant should deal with the existence of any possible legal aid scheme or any contingency arrangement in relation to costs that may have been made with their solicitors.”
39. The test thus articulated by Hedigan J. – namely, whether the claim had a certain degree of substance and that had it a reasonable prospect of success – was then applied by Baker J. to the present case. She noted that as the respondent did not have planning permission in respect of the quarry, the question then was whether there had been an intensification of use since 1964. She further noted that in 1978 Costello J. had determined in Patterson v. Murphy [1978] I.L.R.M. 85 that these particular quarrying activities were ones which required planning permission. It was, however, true that this was an action in nuisance which was later resolved between the parties and these findings were thereafter formally vacated. Furthermore, An Bord Pleanála determined in 2010 that it should refuse to make an order in the respondent’s favour under s. 261 of the 2000 Act and in subsequent judicial review proceedings Hedigan J. accepted that there had been such an intensification of user since 1964 that planning permission was now required: see Shillelagh Quarries Ltd. v. An Bord Pleanála [2012] IEHC 257. In addition the Board had also ruled in s. 5 reference that that quarry did not constitute exempt development.
40. It was against that background and in view of “litigation history of the site” that Baker J. held that the applicant had, in fact, demonstrated that he had a reasonable prospect of success. We cannot disagree with that conclusion.
41. So far as the other factors enumerated by Hedigan J. in Hunter are concerned, the focus in the present appeal was that of the financial means of the applicant. It is true that the applicant’s statement of means was simply a lapidary statement in the affidavit grounding the application for a protective costs order to the effect that he was in full time education and that he was not a person of substantial means. As Baker J. noted, he did not even state whether he owned the house in which he was residing. It would certainly have been desirable had the applicant set out more precise details regarding his means in his grounding affidavit.
42. At the same time, it is of some importance that the respondents did not suggest that the applicant was not of limited means or that he was not in full-time education, as different considerations might well have arisen had such matters been in dispute. In these circumstances and given that the matter was not in controversy, we think that Baker J. was perfectly entitled to conclude that it would not require “any great analysis or debate” to accept in these circumstances that a full-time student would not be in a position to meet the costs of a complex and difficult witness action in the High Court which was scheduled to last for two weeks.
43. It is, admittedly, striking that the applicant in his affidavit did not address the final factor mentioned by Hedigan J. in Hunter, namely, “any contingency arrangement in relation to costs that may have been made with [his] solicitors.” While we consider that it would have been preferable if he had done so, we are not persuaded given the particular circumstances of this case that this would have been a decisive consideration. The biggest obstacle to environmental litigation of this kind is the risk of exposure to the costs of the other parties to the litigation. It is against this risk that a potential applicant needs practical assurance in advance. Accordingly, even if the applicant had secured a fee arrangement with his own lawyers of a satisfactory kind, this still would not have obviated the difficulties faced by an applicant of limited means. An adverse costs order in litigation of this complexity and likely duration would financially cripple all but the most affluent.
44. It follows, therefore, that while it would have preferable and more satisfactory had the applicant furnished additional details in advance in his grounding affidavit as to both his means and any fee arrangements with his own solicitor in the manner suggested by Hedigan J. in Hunter, in the circumstances of the present case these omissions cannot be regarded as critical for the reasons which we have just stated.
Conclusions
45. In summary, therefore, we would conclude as follows:
46. First, as the present proceedings involved an application for the enforcement of a statutory condition, the case came within the scope of s. 4(1) of the 2011 Act, such that the High Court had jurisdiction to make a protective costs order under s. 7 in a matter of this kind.
47. Second, the present application was not premature, given that the very language of s. 7(1) of the 2011 Act envisages that such an application can be brought even before the proceedings are actually commenced. Nor can a protective costs order made under s. 7 be properly regarded as an interlocutory matter: it is rather a final determination of the issue, subject only to an appeal.
48. Third, while it would have been preferable if the applicant had provided fuller details of his financial means and any arrangements which he made with his lawyers regarding contingent fee arrangements, given that the applicant’s financial status was not in dispute and the object of any protective costs order is to safeguard the litigant against exposure to the costs of the other side, these omissions were not fatal. We think that Baker J. was fully entitled to conclude that, having regard to the likely costs entailed in a lengthy and complex witness action of the kind envisaged in the present case, the risk of an adverse costs order was likely to prove daunting for all potential litigants save for the most affluent.
49. It follows, accordingly, that, for the reasons just stated, the Court would dismiss this appeal.
Rowan v Kerry County Council
[2016] IEHC 463
JUDGMENT of Mr. Justice Birmingham (ex tempore) delivered on the 28th day of July, 2016
1. The matter before the court sees the applicant/appellant seek a certificate pursuant to s. 50A(7) of the Planning and Development Act 2000, that a decision of mine of the 5th March, 2012, involves a point of law of exceptional public importance and that it is desirable that an appeal should be taken to the Court of Appeal.
2. The suggested formulation of the issue sought to be certified is as follows:-
“Does the question as to whether proceedings fall within the scope of ss. 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011, ss. 3 and 4 (sic) fall to be determined on an objective basis or on a subjective basis by reference to the motivation of the party bringing the proceedings.”
3. The background to this request for a certificate is an unusual one and indeed it might fairly be said a lengthy and convoluted one. In February 2012, I delivered judgment in respect of judicial review proceedings that had been instituted by the applicant seeking to challenge the decision of the respondent to confirm the satisfactory re-alignment of a local road at Doolahig, Glenbeigh, Co. Kerry. I refused the reliefs sought and there was then an application for costs by the successful respondent and by the notice party. That application was resisted by the unsuccessful applicant. Essentially, the respondent and notice party contended that it was a case where costs should follow the event in the ordinary way. The applicant however contended that the appropriate order was that each party should bear its own costs and in that regard the applicant places reliance on the terms of the Environment (Miscellaneous Provisions) Act 2011. The respondent and notice party did not accept that this statutory provision had any application.
4. There was no application for a certificate for leave to appeal the decision which was that the ordinary rules applied and that there should be an order for costs in favour of the successful respondent and notice party. Neither was there any request for a certificate for leave to appeal the substantive decision on the merits of the application.
5. The applicant did however proceed or purported to proceed to appeal the costs issue to the Supreme Court.
6. There was a highly relevant development on the 24th March, 2014, when the Supreme Court in an ex tempore decision entitled Brown v. Kerry County Council delivered by Murray C.J. stipulated that a certificate for leave to appeal was essential before the Supreme Court could entertain an appeal against a decision in relation to costs in a case to which s. 50A(7) applied. Shortly thereafter the respondent, by letter drew the attention of the applicant to the decision in Brown v. Kerry County Council. The respondents invited the applicant to consent to the appeal being withdrawn and indicated that failing that happening a motion would be brought to strike out the appeal. The applicant’s solicitors responded to this correspondence by indicating that the present case could be distinguished from that which prevailed in Brown because the proceedings there and the decision of the High Court there preceded the coming into the operation of the Act of 2011. There was no attempt at that stage, to bring the proceeding back before the High Court even on a belt and braces basis.
7. On the 23rd April, 2014, the respondent instituted a motion in the Supreme Court with a view to striking out the notice of appeal on the basis that the Supreme Court did not have jurisdiction to hear the appeal in a situation where the High Court had not certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court as required by s. 50A(7) of the Act of 2000.
8. The applicant responded to that motion by issuing a motion of its own seeking “a direction that the issue as to whether or not a certificate of leave in order to bring the within appeal is required from the learned trial judge be determined as a preliminary issue”. The motions were heard by a five judge Supreme Court and judgment was delivered on the 18th December in which the Supreme Court held that it did not have jurisdiction to hear the appeal and proceeded to dismiss the appeal.
9. The applicant was not prepared to let matters rest there and has brought the matter back before this Court seeking a certificate at this stage. There has been some further skirmishing since the judgment of the Supreme Court was delivered primarily addressed to the costs of the proceedings in the Supreme Court, but I do not feel it necessary to refer to these in any detail.
10. Detailed written submissions have been prepared by the applicant and by the respondent on the issue of whether a certificate should issue at this stage and I have also heard oral argument on this point. The notice party has supported the position taken by the respondent. The submissions have addressed the statutory criteria that have to be met if a certificate is to issue, referring to cases such as Glencré Teoranta v. Mayo County Council [2006] IEHC 250 and Arklow Holidays Limited v. An Bord Pleanála [2008] IEHC, the applicant as one would expect submits that the decision of March 2012 involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court and now to the Court of Appeal. The applicant is firm in submitting that both statutory criteria have been met.
11. Tellingly, the submissions on behalf of the respondent begin with the Latin maxim interest reipublicae ut sit finis litium. Moreover, the respondent with the support of the notice party contends that the ruling in relation to costs did not involve a point of law of exceptional public importance, but rather involved a determination that on the particular facts of the case the proceedings did not fall within the scope of ss. 3 and 4 of the Act of 2011. Alternatively they submit that if there is a point of law involved it is not one that can be categorised as of significant still less exceptional public importance and furthermore it is not desirable in the public interest that an appeal should be brought to the Court of Appeal.
12. In my view the focus of attention at this stage given the unusual route that has been followed is on the question of whether it is in the public interest that an appeal should now be brought to the Court of Appeal. There is no specific time within which an application for a certificate must be brought. However, the whole thrust of the planning code requires that litigation in relation to planning decisions and related matters should be conducted expeditiously. In the course of argument I raised the question at what point a court becomes functus. What would the position be ordinarily if some four and a half years after a decision issued, a certificate was sought for the first time? It was accepted by counsel for the applicant that in such a situation the party moving so late in the day might well find itself in difficulties. I am sure that is so, but the question arises whether the position of a would be appellant, who has embarked on the wrong route is a better one when it comes to initiating a late appeal. It seems to me that there is one respect at least in which an appellant who has followed the wrong route, but wants to change is in a more favourable position than others, in that such an appellant can establish that there was an intention formed at an early and appropriate stage to appeal the issue. However, on the other side of the coin is the fact that the other side has already been vexed once with the issue and it is suggested should now be vexed again. It can sometimes be the case that focusing on the rights of access to the courts of one party does not always pay sufficient attention to the fact that vindicating this will normally as a consequence involve bringing parties to the courts and involving them in litigation when they have no desire to be there whatever.
13. If there is to be a further appeal the position of both the respondent and notice party will be worse and they will be more burdened than ought to be the case because they will be required to respond to and defend the same issue twice. To that extent the situation is clearly distinguishable from that which prevailed in Waterville Fisheries v. Aquaculture Licences Appeals Board and Dunmanus Bay Mussels v. Aquaculture Licences Appeals Board to which the applicant has drawn attention. Essentially in both those cases there were errors by the applicant when initiating the proceedings and the question was whether because of that error the applicant was to be prevented from litigating their concerns. However, the question of the respondents or notice parties having to meet the same case twice never arose.
14. I do not believe that the interests of justice and therefore the public interest would be served by issuing a certificate now which would permit a further appeal and thus the further prolongation of these proceedings. Interest reipublicae ut sit finis litium and for that reason I am not prepared to grant a certificate at this stage. I am fortified in my approach by the fact that I do not believe that in truth my decision of the 5th March, 2012, involves the point of law which it is sought to be certified. Rather it seems to me that my decision arose from a finding of fact that as a matter of reality and substance the proceedings were not designed to ensure compliance with a condition, because of concern that non compliance will result in damage to the environment in the sense of jeopardising the safety of people. That conclusion as to the facts was reached in a situation where the proceedings did not, in themselves, on their face purport to seek to secure compliance with the terms of the condition of a planning permission. Rather, as the judgment of March 2012, and the 17th February, 2012, made clear the proceedings were concerned with challenging the decision of Kerry County Council which concluded that re-alignment had taken place to its satisfaction. The applicant has drawn attention to and emphasised one sentence in my judgment of March 2012, where I said:-
“They [the proceedings] cannot, in my view, be said to be proceedings instituted for the purpose of securing compliance but were issued to advance the applicant’s private agenda to prevent a neighbouring landowner build a house.”
15. However, that sentence should not be taken in isolation and must be seen in the context that I was concluding that the proceedings were not, either in form or as a matter of substance, designed to secure compliance with a condition lest non compliance result in damage to the environment. I had not intended to suggest that the issue was to be determined by the motivation of one of the parties. In any litigation different parties may act by reference to different and indeed mixed motives.
16. In all the circumstances of the case in my view it would be neither just nor proper to grant a certificate at this stage and so I must refuse the application.
Dunnes Stores v An Bord Pleanála
[2016] IEHC 697
JUDGMENT of Mr Justice Max Barrett delivered on 6th December, 2016.
I. Introduction
1. There are ultimately three different scales upon which costs can be measured, viz. party and party costs, solicitor and client costs, and solicitor and own client costs. The typical measure of costs is on a party and party basis, but the court has a discretion to award costs on a higher scale where appropriate. Deerland Construction Limited comes now to court seeking costs on a solicitor and client basis following on the court’s judgments in Dunnes Stores v. An Bord Pleanála [2015] IEHC 716 (the main proceedings) and Dunnes Stores v. An Bord Pleanála [2016] IEHC 263 (the application for a certificate to appeal). An Bord Pleanála too is seeking its costs but on a party and party basis only.
II. Some Salient Elements of the Court’s Previous Judgments
(i) Overview
2. Before proceeding to consider the merits of the costs application, it is helpful to recall some salient observations from the court’s previous judgments.
(ii) The Judgment in the Main Proceedings
3. In its judgment in the main proceedings, the court, at para. 1, observed as follows:
“Dunnes Stores has brought this application ostensibly for one purpose; in truth the application serves a very different end. On its face, the application is concerned with the legality of a decision of An Bord Pleanála to grant certain retention permission to Deerland Construction. That permission concerns a shopping centre development at Ferrybank, in County Kilkenny. The ‘anchor store’ at that development is owned by Dunnes. The retention permission authorises five alterations which, individually and collectively, are minor and cosmetic in nature. In a twist worthy of Lewis Carroll, Dunnes in fact has no issue with the alterations that are the subject of the retention permission. So why have these proceedings been commenced? If truth be told, they have nothing to do with planning law and everything to do with Dunnes securing an advantage for itself in a long-running contractual dispute with Deerland and National Asset Loan Management Limited (‘NALM’).”
4. Later, at paras. 3 to 5 of its judgment, under the section heading “iii. Standard reliefs, minor alterations and strange proceedings”, the court observed as follows:
“a. The standard
3. On the face of it, this application aims at securing the following reliefs: (1) an order of certiorari quashing the decision of An Bord Pleanála to grant retention permission in respect of the Centre; (2) a declaration that the said grant of planning permission is ultra vires, invalid and/or of no legal effect; and (3) certain other ancillary reliefs.
b. The minor
4. On the face of it, the court is being asked, more particularly, to review a retention permission in respect of: (i) a lift motor room/staircase enclosure over-run on the east elevation of the shopping centre; (ii) an external landscaped area at the northern boundary of the sight, including omission of a permitted bridge; (iii) the placement of red glazing panels, instead of stone panels, at the ground floor main entrance lobby; and (iv) louvred screens on the shopping centre roof.
c. The strange
5. Now for the strange bit: Dunnes has no objection to the just-mentioned adjustments. So this is a judicial review of the granting of retention permission where the party that has brought the application (Dunnes) has no issue with the substance of the adjustments to which that permission relates. That must be something of a first, so far as planning-related judicial review applications are concerned. But whether it is or not, the fact that Dunnes has no issue with the substance of the adjustments to which the retention permission relates offers considerable support for the contention that Dunnes, in coming to court with the within application, has engaged in an ‘abuse of process’.”
5. Moving on, at para.75 of its judgment, the court identified the relevant factors in an abuse of process application, stating, inter alia, as follows:
“The court, before striking out for ‘abuse of process’, must…be satisfied by way of evidence that the plaintiff, in commencing these proceedings, (i) has an ulterior motive, (ii) seeks a collateral advantage beyond what the law offers, and (iii) has instituted the proceedings for a purpose which the law does not recognise as a legitimate use of the remedy sought…”.
6. The court was satisfied that all three of those criteria had been satisfied, i.e. that Dunnes had commenced the proceedings for an ulterior motive, was seeking a collateral advantage and had instituted proceedings for a purpose not recognised as legitimate.
7. Finally, at para. 81 of its judgment, the court summarised its conclusions as follows:
“For the reasons stated above, the court finds that the true object of this judicial review application is to enable Dunnes to delay or avoid compliance with its contractual obligations to fit-out and occupy the anchor store and/or to facilitate the creation of a contrived legal justification for Dunnes’ long-time failure to comply with those obligations. These purposes are entirely collateral to the remedies being sought in the within application and have no connection to the objects which the public law procedures now being invoked by Dunnes were designed to achieve. That this is the true purpose of Dunnes is not a matter of conjecture or surmise. It is the irresistible and logical conclusion to be drawn from the detailed consideration of the facts in which the court has engaged above. The court refuses the reliefs sought, declines to enter into any consideration of the purported planning-related issues raised by Dunnes, and dismisses the proceedings as involving an ‘abuse of process’.”
(iii) The Judgment in the Application for a Certificate to Appeal
8. In the context of Dunnes’ application for a certificate to appeal, the court had further occasion to make a number of observations in relation to the case that Dunnes had made. Thus, at para. 28 of its second judgment, when considering the decision in Quinn Group v. An Bord Pleanála [2001] 1 I.R. 505 and the extent to which the court’s initial judgment had involved some departure from those principles or some novel application of them, the court observed, inter alia, as follows:
“In the next section of its judgment below, the court considers how its judgment of last November conforms to the logic of Quirke J. in Quinn Group v. An Bord Pleanála [2001] 1 I.R. 505. The court mentions that judgment at this juncture because tellingly, despite trawling through precedents, counsel for Deerland have been unable to find a single reported judicial review application – not one – in which Quinn Group has been relied upon in the decade and a half since it was reported. It has been cited in several non-judicial review proceedings; however, it appears that Deerland is the first developer or respondent in the last 15 years or so to rely upon Quinn Group as an authority in judicial review proceedings. So, although the court is no soothsayer, the notion that developers will be rushing to court to rely on its judgment of last November, a judgment that (a) conforms to Quinn Group and (b) is so clearly rooted in its own particular and peculiar facts, seems to the court to be fanciful. That said, if Dunnes or other would-be anchor tenants are minded to bring judicial review proceedings in circumstances akin to those which presented last November – circumstances that are so peculiar it seems unlikely, albeit not impossible, that they would arise again -developers might, and might be right, to seek to pray in aid the decision in Quinn Group or even this Court’s judgment of last November. But they could not pray in aid some novel legal change; for the law is long established, and has gone unchanged by this Court.”
9. Later, at paras. 53-54 of its judgment, when considering the issue of transcendent importance, as referred to by McMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, the court observed, inter alia, as follows:
“53….Simply put, therefore, the court would have had to ask itself, had it found one or more of the points of law raised by Dunnes to be points of law of exceptional public importance (and the court has not so found), that the said point(s) of law went beyond the range or limits or – perhaps a better word – the ‘parameters’ of the present case. And the court’s answer to this question would have been ‘no’.
54. Why so? Why ‘no’? Because, as the court outlined in its judgment of last November, at paras. 33 to 44, the primary focus of Dunnes’ argument at that hearing was not the substance of the legal principles governing the dismissal of proceedings brought for a collateral purpose, but rather the application of those legal principles to the facts at hand. Dunnes disputed Deerland’s allegations about its motives. Indeed, despite the court’s judgment it continues to do so now, and therein perhaps lies a critical difficulty with the present application. For while Dunnes has sought to frame its would-be appeal as raising exceptional points of law arising, its true difficulty appears to be with the court’s unexceptional application of principle to the most exceptional of facts.”
10. Then, in para. 93 of its judgment, when considering, again by reference to the Glancré principles, whether there would be some affirmative public benefit to be derived from the proposed appeal, the court observed as follows:
“Insofar as identifying an ‘affirmative public benefit’ is concerned, Dunnes effectively suggests that the court in its judgment of last November has opened the floodgates to a deluge of developers who will descend upon the law-courts seeking dismissal of proceedings on the basis of motive alone. In this regard, the court would reiterate the points it has made at Section B, Part 2, Item II, above. Suffice it here to note the following:(i) it is a bald assertion, no more;(ii) there has been no suggestion that the appeal would bring any environmental or planning benefit to the public; (iii) despite its being a decade and a half since the High Court offered, in Quinn Group, a virtually identical statement of principle to that offered by the court in its judgment of last November, no deluge of developers has yet to arrive at the courts;(iv) the court’s findings in its judgment of last November were highly dependent on the particular and unique facts presenting.”
III. The Decision in Geaney
11. Order 99, rules 10(1) and (3) of the Rules of the Superior Courts (1986), as amended, provides as follows, under the heading “Amount of costs”:
“(1) This rule applies to costs which by or under these Rules or any order or direction of the Court are to be paid to a party to any proceedings either by another party to those proceedings or out of any fund…
(3) The Court in awarding costs to which this rule applies may in any case in which it thinks fit to do so, order or direct that the costs shall be taxed on the solicitor and client basis.”
12. There are few cases that deal with the question as to when it is appropriate to award costs on a basis other than a party-and-party basis. The principal authority appears to be the decision of the High Court (Kelly J.) in Geaney v. Elan Corporation plc [2005] IEHC 111, and even in that authority there is a relatively concise consideration of the question.
13. Geaney was a case on the Commercial List of the High Court and in the context of which an order for discovery had been made. An application was brought to strike out the defence and counterclaim on the basis that there had been a failure to make adequate discovery or, in the alternative, an order for further and better discovery. Kelly J. was satisfied, having reviewed the affidavit evidence and (unusually) heard oral evidence on the motion, that there had been significant shortcomings in how the defendant had discharged its discovery obligations. He declined to strike out the defence and counterclaim by reason of those shortcomings, but he made a series of detailed orders as to what was to happen by way of further and better discovery. After observing that he was “not impressed with the Defendant’s discharge of its Discovery obligations”, Kelly J. went on to “indicate the Court’s displeasure at the way in which the Defendant has [complied with] its obligations by way of a costs Order”, continuing as follows:
“In the Order for Discovery which I made on the contested [application]…I placed a stay on both execution and registration of that costs Order until the ultimate disposition of this action. That stay is now lifted and the costs of that application will have to be paid by the Defendant. In addition, I propose to make an order for the Plaintiff’s costs of this application, to include all reserved costs and those costs will have to be paid by the Defendant on a solicitor and client basis. I see no reason why the Plaintiff should find himself out of pocket as a result of having to bring this application which has occupied the time of the court over the last two days and during last week also. So the costs of this motion will be awarded to the Plaintiff, to include all reserved costs and to be taxed on a solicitor and client basis.”
14. In passing, the court notes that Dunnes sought to contend at the hearing of the within application that the misbehaviour on its part in the within proceedings has been of a lesser order than that which offended the court in Geaney. The court respectfully does not accept this contention. In Geaney, there was a defendant who was defending proceedings in a bona fide manner but which had failed to discharge properly its obligations in relation to discovery. In other words, although there was a failing on the part of the defendant in relation to one aspect of the proceedings alone, that proved sufficient to trigger the exercise by the court of its discretion to award costs on a solicitor-and-client basis. Here, by contrast, the entire proceedings are infected by the abuse of process that subtended their commencement and thus the case for costs to be awarded on a solicitor and client basis is commensurately greater.
IV. Identification and Application of Principle
15. It seems to the court that the principles applicable to making an order of costs on a solicitor and client basis might be summarised as follows. First, in making such an order the court departs from the normal measure of costs. Second, this being so, there has to be a reason why the court departs from the usual order. Third, as indicated in Geaney, and accepted by the court as correct, the court will order costs on a solicitor and client basis when the court wishes to mark its especial disapproval and/or displeasure at how proceedings have been conducted and/or the basis on which proceedings have been brought.
16. For obvious reasons, the courts have always been watchful as to the integrity of their own processes, and where proceedings are brought which involve an abuse of process the very integrity of the court system is attacked. That is what occurred here and for that to occur is a serious matter. Applying the above-identified principles in the context of the within proceedings, and having regard to its previous judgments and, in particular the observations in those judgments quoted above, the court would make the following observations:
– first, the court has previously found that the within proceedings involved an abuse of process. From start to finish, Dunnes pursued a collateral objective (ulterior motive) and abused the process of the court in an attempt to do so. These are circumstances in which it is appropriate for the court to mark its disapproval of the conduct of Dunnes by awarding costs on a solicitor and client basis.
– second, the case presents with certain unusual features that justify departing from the normal measure of costs. The court commented in its principal judgment about the strangeness of the fact that Dunnes had no complaint about the planning merits of the matters the subject of the retention application. And in its judgment on the certificate application, the court repeatedly emphasised the exceptional and peculiar facts of the case presenting.
17. The factors referred to above are very much outside the norm and bring one well into the sphere where it is appropriate for the court to exercise its discretion to award costs on a solicitor and client basis.
18. A further particular feature of the within proceedings, and one of which the court has been mindful in reaching its decision as to Deerland’s application, is the fact that Deerland is a company which, to use a colloquialism, is ‘in NAMA’, i.e. the National Asset Management Agency is now the developer under the development agreement in relation to Ferrybank Shopping Centre. It follows therefore that Deerland’s costs in the within proceedings will ultimately be borne by NAMA and the taxpayer. Recalling Kelly J.’s observation in Geaney that “I see no reason why the Plaintiff should find himself out of pocket as a result of having to bring this application”, a question arises as to why should Deerland, NAMA or the taxpayer find themselves in a position where they are out of pocket because Dunnes brought proceedings which were an abuse of the process of the court? To borrow from the phraseology of Kelly J. in Geaney, the court sees no reason why they should.
V. Conclusion
19. For the reasons identified above, the court will order costs to Deerland on the basis sought by Deerland. As An Bord Pleanála has, not ungenerously, sought its costs on a party and party basis only, the court will order costs to An Bord Pleanála on the basis sought by the Board.
20. As requested by the parties, it appears on a consent basis, the court will order that the word “now”, in para. 12 of its judgment in the certificate application, should read and be construed as reading “not”.
21. Finally, at the hearing of the within applications, counsel for Dunnes asked for a stay on the court’s order so that Dunnes could consider whether it wished to bring an appeal. The court does not know whether such a stay continues to be sought. However, as the court indicated the decision it was minded to make on the day of the hearing of the application, was clearly going to be writing a judgment that favoured the case urged upon it by counsel for Deerland, and the holiday period was then about to intervene (it has since passed), there did and does not appear to be any reason for granting a stay for the purpose for which it was sought.
Swords v Minister for Communications, Energy and Natural Resources
[2016] IEHC 503
JUDGMENT of Mr Justice Keane delivered on the 12th day of August 2016
Introduction
1. There are two applications before the Court. The first is the defendant’s motion to dismiss the plaintiff’s claim on grounds of delay. The second is the plaintiff’s motion seeking either a protective costs order, pursuant to the inherent jurisdiction of the Court, or an order pursuant to s. 7 of the Environmental (Miscellaneous Provisions) Act 2011 that s. 3 of that Act applies to these proceedings.
The proceedings
2. The plaintiff is a chemical engineer.
3. The first defendant is sued in his capacity as the Minister responsible for determining national policy on energy matters. The second defendant is the State and the third defendant is the law officer of the State, so designated by the Constitution of Ireland. For the purposes of the present application, I will refer to the defendants collectively as the State.
4. In the underlying proceedings, the plaintiff claims a number of declarations of right as against the State comprising: various declarations that the State has acted in contravention of the Aarhaus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention”); various declarations that the State has acted in breach of EU law; a declaration that the national renewable energy action plan (“NREAP”) submitted by the State to the Commission of the European Union pursuant to Article 4 of Directive 2009/28/EC on the promotion of the use of energy from renewable sources (“the 2009 Directive”) was adopted by the State in contravention of the Aarhus Convention and in breach of both EU law and the law of the State: an injunction restraining the State from relying upon the present NREAP for any practical purpose; and a mandatory injunction directing the State to comply with the requirements of the Aarhus Convention in the adoption or implementation of any future plan or programme equivalent to the present NREAP.
5. In seeking those reliefs, the plaintiff relies on two principal contentions. The first is that the State, in its development of the NREAP, has failed to properly comply with the provisions of the Aarhus Convention and, in particular, Articles 6 and 7 of that Convention, requiring signatory states to make provision for members of the public to participate in the development of their environmental policies.
6. The plaintiff’s second principal contention is that the State failed to carry out a strategic environmental assessment or an environmental impact assessment in respect of the NREAP, as required by the provisions of Directive 2001/42/EC (“the SEA Directive”) on the assessment of the effects of certain plans and programmes on the environment and of Directive 85/337/EEC, as amended by, in particular, Directive 2003/35/EC (“the EIA Directive”), as amended, on the assessment of the effects of certain public and private projects on the environment.
7. The State raises three significant preliminary pleas in response to the plaintiff’s claims. Those pleas are: first, that the plaintiff’s claims are out of time (hence, the present motion to dismiss the proceedings on grounds of delay); second, that, insofar as they relate to the Aarhus Convention, those claims are non-justiciable before the Courts of Ireland because, although Ireland has ratified the Convention, the particular provisions of the Convention at issue in these proceedings do not form part of the domestic law of the State; and third, that, insofar as they relate to State policy in the field of renewable energy, the plaintiff’s claims are not amenable to review by the Courts under the principle of the separation of powers.
8. On the merits of the plaintiff’s case and in response to the first of the two principal arguments advanced by him, the State pleads that the adoption of the State’s NREAP is not covered by Articles 6 or 7 of the Aarhus Convention or that, if it is, the public participation requirements of the Convention were met in the course of the adoption process.
9. In reply to the plaintiff’s second principal argument, the State acknowledges that it did not carry out a strategic environmental assessment or an environmental impact assessment in adopting the NREAP but contends, in essence, that the SEA Directive did not apply to the NREAP because the NREAP is a statement (or restatement) of existing State policy and, thus, was unlikely to have any new significant environmental effects, and that the EIA Directive did not apply to the NREAP because the NREAP does not set the framework for future development consents bringing it within the relevant annexes to that Directive; does not have likely effects on sites that would require it to be assessed under Directive 92/43/EEC; and is not in a category that would require an environmental impact assessment to be carried out under the EIA Directive.
Background
10. The Aarhus Convention was concluded between members of the United Nations Economic Commission for Europe (UNECE) on the 25th of June 1998. There are sixteen signatories to the Convention, including both Ireland and the European Union (“EU”), of which Ireland is a member.
11. The Convention entered into force on the 30th of October 2001. It was approved by the EU on the 17th of February 2005 and ratified by Ireland on the 20th of June 2012.
12. The 2009 Directive on the promotion of the use of energy from renewable sources was adopted by the European Parliament and Council on the 23rd of April 2009, which set a target for Ireland of meeting 16% of the her energy requirements from renewable sources by 2020.
13. Article 4(1) of the 2009 Directive requires national authorities to develop what is described as a national renewable energy action plan (“NREAP”) and Article 4(2) required member states to notify their NREAP to the Commission by the 30th of June 2010. Ireland notified its NREAP to the Commission in July 2010. Slight modifications were made to it and it was re-submitted in October 2010.
14. Article 6 of the Aarhus Convention deals with public participation in the environmental decision making procedure on specific activities. In material part, it provides as follows:
‘…
3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public …and for the public to prepare and participate effectively during the environmental decision making.
4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.
…
8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.’
15. Article 7 of the Aarhus Convention requires signatory states to provide for public participation concerning plans, programmes and policies relating to the environment. It provides:
‘Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public. Within this framework, article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment.’
16. In preparing its NREAP, the State consulted the public in two ways: first, it conducted a targeted consultation process, in which a large number of bodies, including government departments, regulatory authorities, public utility companies, business and environmental advocacy groups, and other organisations associated with the energy sector, participated. Second, it established a public consultation process. This latter process took place between the 11th and the 25th of June 2010. During that period fifty-eight submissions were received from various persons or parties. The plaintiff did not make a submission at that time.
17. On the 15th of October 2010, the plaintiff made a complaint to the United Nations Economic Commission for Europe (UNECE) Compliance Committee (“the Committee”). The Committee is a body established under Article 15 of the Convention. Its function is to monitor compliance with its provisions. The complaint submitted to the Committee by the plaintiff alleged that the EU had failed to comply with its obligation pursuant to, amongst others, Articles 6 and 7 of the Convention in relation to Ireland’s renewable energy policy. At the time the plaintiff made his complaint to the Committee, Ireland was not yet a party to the Convention.
18. On the 29th of June 2012, the Committee adopted certain findings and recommendations concerning the plaintiff’s complaints. In the section of that document entitled ‘Ireland’s NREAP’ the Committee found that the requirements of the EU’s legal framework for implementing Article 7 of the Aarhus Convention:
‘are of a very general nature and do not unequivocally point member States, including Ireland, in the direction of the requirements of the Convention when adopting plans or programmes relating to the environment based on EU law, in casu, plans related to renewable energy and, more in particular, NREAPs.’
19. The document continued:
‘80. A proper regulatory framework for the implementation of article 7 of the Convention would require Member States, including Ireland, to have in place proper participatory procedures in accordance with the Convention. It would also require Member States, including Ireland to report on how the arrangements for public participation made by a Member State were transparent and fair and how within those arrangements the necessary information was provided to the public. In addition, such a regulatory framework would have made reference to the requirements of article 6, paragraphs 3, 4 and 8, of the Convention, including reasonable time-frames, allowing for sufficient time for informing the public and for the public to prepare and participate effectively, allowing for participation when all questions are open and how due account is taken of the outcome of the public participation.’
20. The Committee concluded as follows:
‘83. Nevertheless, with respect to the consultation with the public conducted by Ireland the Committee finds that it was conducted within a very short time frame, namely two weeks. Public participation under article 7 of the Convention must meet the standards of the Convention, including article 6, paragraph 3, of the Convention, which requires reasonable time frames. A two week period is not a reasonable time frame for the “public to prepare and participate effectively”, taking into account the complexity of the plan or programme….The manner in which the public was informed of the fact that public consultation was going to take place remains unclear; neither the [EU] nor the [plaintiff] provided clarity on the matter. The Committee furthermore points out that a targeted consultation involving selected stakeholders, including NGOs, can usefully complement but not substitute for proper public participation, as required by the Convention.
84. Proper monitoring by the [EU] of the compatibility of Ireland’s NREAP with article 7 of the Convention would have entailed that the [EU] evaluate Ireland’s NREAP in terms of the elements mentioned in paragraph 80 above. The [EU] thus should have ascertained whether the targeted consultation and the public participation engaged in when Ireland adopted its NREAP met the standards of article 7 of the Convention, including whether reasonable time frames were employed and whether the public consultation was properly announced in Ireland. The [EU] cannot deploy its obligation to monitor the implementation of article 7 of the Convention in the development of Ireland’s NREAP by relying on complaints received from the public, as it is suggested it does during the public hearings conducted by the Committee.
85. Based on the above considerations, the Committee finds that the [EU] does not have in place a proper regulatory framework and/or other instructions to ensure implementation of article 7 of the Convention by its member States, including Ireland, with respect to the adoption of NREAPs. The Committee also finds that the [EU], in practice, by way of its monitoring responsibility, failed to ensure proper implementation of article 7 of the Convention by Ireland with respect to the adoption of its NREAP. The Committee thus finds that the [EU] in both these respects is in non-compliance with article 7 of the Convention.’
Judicial review proceedings
21. On the 12th of November 2012 the plaintiff initiated judicial review proceedings (“the judicial review proceedings”) against the State. The plaintiff initially acted as a litigant in person, but solicitors subsequently came on record for him on the 17th of February 2013.
22. In the statement of grounds filed in support of his application for leave to bring the judicial review proceedings, the applicant sought the following reliefs: an order of certiorari quashing Ireland’s NREAP on the grounds that it did not comply with various provisions of the Convention; an order of certiorari quashing an administrative scheme known as the ‘Renewable Energy Feed In Tariff’ (“REFIT”); a number of declarations that Ireland has contravened the provisions of the Convention (including a declaration that the State failed to comply with the provisions of the Convention which require public participation in the formulation of signatory states’ NREAPs); and a protective costs order.
23. On the 29th of January 2013 the defendants brought a motion to have the plaintiff’s claim in those proceedings dismissed in limine on the basis that it had not been brought within the three month time limit for the commencement of judicial review proceedings prescribed by Order 84, rule 21 of the Rules of the Superior Courts (“RSC”). That motion came on for hearing before Kearns P. on the 12th April 2013 and ran for a number of days, culminating in an Order made by the Court on the 16th April 2013 that the matter should proceed instead by way of plenary proceedings. Accordingly, Kearns P. made an order striking out the judicial review proceedings ‘for want of form’ and, at the same time, striking out the State’s motion to dismiss those proceedings.
The present proceedings
24. The plenary summons by which the present proceedings were initiated was issued on the 24th of April 2013. An appearance was entered on behalf of the State on the 10th of May 2013. The plaintiff’s statement of claim was delivered on the 17th of June 2013. The State raised a notice for particulars on the 15th of July 2013 and the plaintiff delivered the relevant replies on the 7th of October 2013. A defence to the plaintiff’s claim was delivered on the 18th of November 2013. With the consent of the State, the plaintiff delivered an amended statement of claim on the 30th of April 2014.
25. In his original statement of claim, the plaintiff impugned three specific aspects of the State’s environmental policy, to wit: the NREAP, the purpose and genesis of which have already been described; the Renewable Energy Feed In Tariff (“REFIT”) programme, which is a State financial support scheme for renewable energy suppliers (with state aid clearance from the European Commission); and the Energy Policy Framework 2007-2020 (“the EPF”), a departmental white paper, the purpose of which is to set out a policy for delivering a sustainable energy future for the State. In his amended statement of claim, delivered with the consent of the State on the 30th of April 2014, the plaintiff has, in effect, dropped any claim for relief in respect of the REFIT programme or the EPF.
26. Having set out in a very general way the nature and history of the underlying proceedings, I now come to the two applications that are before the Court.
Delay
27. The first of those applications in time is the State’s motion to have the present proceedings dismissed by reason of delay. That motion issued on the 21st of March 2014. While the relief it seeks is couched as an order dismissing the proceedings on grounds of laches or, in the alternative, the plaintiff’s inordinate and inexcusable delay in bringing both his application for judicial review and the present plenary proceedings, the real issue it raises is whether the plaintiff’s challenge to the lawfulness of the State’s NREAP is prohibited by operation of the time limits applicable to applications for judicial review.
28. The relevant facts, which I do not understand to be in dispute, are the following. Article 4(2) of Directive 2009/28/EC of 23 April 2009 required each Member State, including Ireland, to notify its NREAP to the Commission by the 30th June 2010. The State notified its NREAP to the Commission in July 2010. A slightly amended or modified version of that NREAP was notified to the Commission in October 2010. The plaintiff was certainly aware, no later than the 15th of October 2010, that the State had adopted the NREAP at issue, since that was the date upon which he made the relevant complaint to the Committee concerning the circumstances of its adoption. The plaintiff did not initiate judicial review proceedings until the 12th of November 2012. In those proceedings, the plaintiff sought, amongst other reliefs, an order quashing the State’s NREAP. Accordingly, depending on the view one takes of the significance of the State’s notification to the Commission of a slightly amended NREAP in October 2010, the plaintiff did not commence his challenge to the lawfulness of the State’s NREAP for a period of somewhere between 25 months and 28 months after its adoption was notified to the Commission.
29. On the 29th January 2013, the State issued a motion seeking to have the plaintiff’s proceedings struck out as outside the time limits prescribed for applications for judicial review under O. 84, r. 21 of the Rules of the Superior Courts (“RSC”). That motion came on for hearing on the 12th April 2013 and, on the 16th April 2013, Kearns P. struck out both the motion and the underlying judicial review proceedings, while at the same time granting the plaintiff liberty to proceed by way of plenary proceedings.
30. It seems to me appropriate to give the plaintiff the benefit of the doubt on this point and to assume, for the purposes of the present application, that, in striking out the plaintiff’s judicial review proceedings while granting him liberty to issue and serve a plenary summons, Kearns P. was invoking an inherent jurisdiction akin to that envisaged under O. 84, r. 27(5) of the RSC, whereby the Court, when hearing an application for judicial review in which the relief sought is a declaration or injunction, may, instead of refusing the application, order the proceedings to continue as if they had been begun by plenary summons. The Supreme Court recognised the existence of such an inherent jurisdiction in PCO Manufacturing Ltd v Irish Medicines Board [2001] IESC 46.
31. That being so, it is appropriate to identify the relevant period for the purposes of the present motion as that between the notification of the State’s NREAP to the Commission in July or October 2010 and the initiation of judicial review proceedings by the plaintiff on the 12th of November 2012, rather than that between the former event and the issue of the plenary summons in these proceedings on the 24th April 2013.
32. Equally, however, it does not seem to me correct to say that, in pursuing what must be considered, on any view, a public law remedy in a plenary action, the plaintiff is freed from the constraints of the time limit imposed by O. 84, r. 21 of the RSC. In O’Donnell v Dún Laoghaire Corporation [1991] I.L.R.M. 301, the Court considered the principles relating to delay which apply in cases in which the actions of a public authority are challenged by way of plenary action seeking declaratory relief, rather than by way of application for judicial review. Costello J. set out those principles as follows, at pp. 314-315 of the report:
‘A declaratory order is a discretionary order arising from the wording of statute which conferred jurisdiction on the courts to make such orders (see Wade, Administrative Law 5th ed., p. 523) and it is well established that a plaintiff’s delay in instituting plenary proceedings may, in the opinion of the court, disentitle the plaintiff to relief. It seems to me that in considering the effects of delay in a plenary action there are now persuasive reasons for adopting the principles enshrined in O. 84, r. 21 relating to delay in applications for judicial review, so that if the plenary action is not brought within three months from the date on which the cause of action arose the court would normally refuse relief unless it is satisfied that had the claim been brought under O. 84 time would have been extended. The rules committee considered that there were good reasons why public authorities should be protected in the manner afforded by O. 84, r. 21 when claims for declaratory relief were made in applications for judicial review and I think exactly the same considerations apply when the same form of relief is sought in a plenary action. Furthermore, it is not desirable that the form of action should determine the relief to be granted and this might well be the result in a significant number of cases if one set of principles on the question of delay was applied in applications for judicial review and another in plenary actions claiming the same remedy. And in plenary actions the effect of delay can in many cases be determined on the trial of a preliminary issue and as speedily as if the issue fell to be determined in an application for judicial review.’
33. At the time when the State’s NREAP was notified to the Commission in July or October 2010, Order. 84, rule. 21 of the RSC provided as follows:-
‘(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.’
34. With effect from the 1st January 2012, O. 84, r. 21 of the RSC was amended (by S.I. 691 of 2011) to provide instead, in relevant part:
‘(1) An application for leave to apply for judicial review shall be made within three months from the date when the grounds for the application first arose.
(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:-
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either –
(i) were outside the control of, or
(ii) could not reasonably have been anticipated by
the applicant for such extension.
(4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard to the effect which an extension of the period referred to in that sub-rule might have on a respondent or third party.’
35. Faced with the decision of Costello J. in O’Donnell, the plaintiff advances a range of different arguments to the effect that he should nonetheless be permitted to maintain a challenge commenced no less than 25 months from the date when the grounds for the application first arose. I will address each of those arguments in turn.
i. date when grounds first arose
36. Although not strictly relevant for the purpose of the plenary proceedings now at hand (and, hence, for the purpose of the present application), it is perhaps interesting to note that, in the affidavit that he swore on the 7th November 2012 to ground his application for leave to seek judicial review, the plaintiff averred that he considered that he was within time to bring that application ‘given that it is less than three months since grounds for application arose, namely the findings and recommendations of the UNECE Aarhus Convention Compliance Committee on the 16th August 2012.’ For the purpose of the present application, no attempt was made to argue on the plaintiff’s behalf that the grounds for the plaintiff’s challenge to the lawfulness of the State’s NREAP somehow arose, or arose only, in the context of the Committee’s findings and recommendations of the 16th August 2012.
37. The plaintiff’s written submissions instead asserted that ‘it is the plaintiff’s primary submission that [he] moved (on the 16th November 2012) to challenge the State’s actions at the first opportunity after he believed ratification had taken place by Ireland of the Aarhus Convention (29th of September 2012).’ Indeed, the plaintiff himself swore an affidavit on the 3rd June 2014 in response to the State’s motion in which he avers:
‘Had Ireland ratified the [Aarhus] Convention then I would have made an application for judicial review. I certainly wanted to.’
38. The plaintiff’s written submissions go on to note that Dail Éireann approved the Aarhus Convention in accordance with Article 29.5.2º of the Constitution of Ireland on the 14th June 2012; that Ireland deposited its formal instrument of ratification with the U.N. on the 20th June 2012; and that the Convention therefore entered into force for Ireland 90 days later on the 18th September 2012 . The plaintiff then submits: ‘The limitation period for the judicial review proceedings was three months from this date.’
39. That submission was abandoned in the course of oral argument. For the avoidance of any doubt, there are several reasons why I cannot accept that it is correct.
40. The first reason derives from the important distinction between Article 29.5.2º and Article 29.6 of the Constitution. The former deals with the requirement that any international agreement involving a charge upon public funds be approved by Dail Éireann if it is to bind the State. The latter makes clear that no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. It is the latter provision – and not, as the plaintiff’s submissions suggest, the former – to which the Court had regard in Klohn v An Bord Pleanála 2011 [IEHC] 196; NO2GM Ltd v Environmental Protection Agency & Anor [2012] IEHC 369; Waterville Fisheries Development Ltd v Aquaculture Licences Appeals Board [2014] IEHC 522.
41. Thus, and this is the second reason, the State’s ratification of the Aarhus Convention in accordance with the provisions of Article 29.5.2º of the Constitution could not have had the effect, in and of itself, of incorporating the Convention into domestic law. The date upon which the State’s ratification of the Aarhus Convention took effect against the State as a matter of international law has no relevance in relation to the application of the appropriate time limit under O.84, r. 21 of the RSC.
42. I am satisfied that the date when the grounds for the plaintiff’s challenge to the NREAP first arose cannot have been later than the end of October 2010. It follows that the plaintiff’s application for leave to seek judicial review in November 2012 occurred no fewer than 24 months after that date, rather than within the three months permitted under O. 84, r. 21, absent an extension of that period.
ii. Order 84 time limit contrary to EU law
43. At the hearing before me, the plaintiff most particularly relied upon the argument that the application of the O. 84 time limit is impermissible as contrary to EU law. That argument is advanced on three broad grounds: first, that the application of the time limit is contrary to the principle of legal certainty; second, that the application of any such time limit must be postponed until the incorporation of the relevant rights under the Aarhus Convention into the domestic of the State or a determination that those rights are directly effective; and third, that the application of the time limit is contrary to the right of the plaintiff to an effective remedy.
44. In support of the first ground, the plaintiff invokes the decision of the CJEU in Commission v Ireland (Case C-456/08)[2010] ECR I-859. There, the CJEU held that the three-month time limit then prescribed by O. 84A of the RSC, applicable to the review of the award of public contracts, was contrary to EU law on two distinct grounds.
45. First, the CJEU held that it was unclear to which decision that time limit applied. The decision-making process impugned in that case consisted of two separate stages, an interim stage and a final stage. The court held that the application of the time limit to decisions made at the interim stage could not have been foreseen and that its application at that stage deprived the right of persons to challenge administrative decisions of its practical effectiveness. The court said:
’55…the Irish courts may interpret that provision as applying not only to the final decision to award a public contract but also to interim decisions taken by a contracting authority during the course of that public procurement procedure. If the final decision to award a contract is taken after expiry of the period laid down for challenging the relevant interim decision, the possibility cannot be excluded that an interested candidate or tenderer might find itself out of time and thus prevented from bringing an action challenging the award of the contract in question.
56 According to the Court’s settled case-law, the application of a national limitation period must not lead to the exercise of the right to review of decisions to award public contracts being deprived of its practical effectiveness…
57 As observed by the Advocate General in point 51 of her Opinion, only if it is clear beyond doubt from the national legislation that even preparatory acts or interim decisions of contracting authorities at issue in public procurement cases start the limitation period running can tenderers and candidates take the necessary precautions to have possible breaches of procurement law reviewed effectively within the meaning of Article 1(1) of Directive 89/665 and to avoid their challenges being statute-barred.
58 Accordingly, it is not compatible with the requirements of Article 1(1) of that directive if the scope of the period laid down in Order 84A(4) of the RSC is extended to cover the review of interim decisions taken by contracting authorities in public procurement procedures without that being clearly expressed in the wording thereof.’
46. However, it seems to me that this holding cannot avail the plaintiff here since, on any view of the facts that are not in dispute, he is out of time to mount the present challenge. This is not a case in which the resolution in the plaintiff’s favour of any possible ambiguity concerning the date upon which the grounds for challenging the State’s NREAP arose could bring that challenge within the applicable time limits.
47. The second infirmity that the CJEU identified in O.84A, as it then stood, was the uncertainty in the language of the rule. It provided that challenges to decisions to which it applied ‘shall be made at the earliest opportunity and in any event within three months.’ The court stated, at para. 75:
‘75 It is not possible for parties concerned to predict what the limitation period will be if this is left to the discretion of the competent court. It follows that a national provision providing for such a period does not ensure effective transposition of Directive 89/665.’
48. The State in moving its motion for delay does not rely upon any such general language but, rather, on the simple proposition that the plaintiff’s claim was not brought within the three-month time limit prescribed under O. 84, r.21. Nor could the State rely on any such language since, as already described, O. 84 was amended not long after the decision of the CJEU in Commission v Ireland, to remove the requirement of promptness within the three month limitation period, equivalent to the requirement to move ‘at the earliest opportunity’ within three months under O. 84A, which requirement has also now been removed.
49. It therefore seems to me that the decision of the CJEU in Commission v. Ireland is of no assistance to the plaintiff in seeking to defeat the State’s motion.
50. It is plain that the imposition of time limits prescribed by national law to actions arising under EU law is permissible as a matter of general principle. In the case of Denkavit International BV v Kammer van KoophandelenFabriekenvoorMidden-gelderland (Case C-2/94) [1996] E.C.R. I-2827, Advocate General Jacobs made the following statement:
‘The imposition by a Member State of a reasonable time-limit for taking legal proceedings to challenge a decision cannot be considered to make reliance on Community law virtually impossible or excessively difficult. Such time-limits are an application of the principle of legal certainty protecting both individuals and administrations.’
51. The CJEU has expressed itself in similar terms. In the case of Rewe-ZentralfinanzEgand Rewe-Zentral AG v Landwirtschafskammer fur das Saarland (Case 33/76) [1976] ECR 1989 the court stated:
‘[a]pplying the principle of cooperation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law.
Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature…
In the absence of such measures of harmonisation the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules.
The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.
This is not the case where reasonable periods of limitation of actions are fixed.’
52. Indeed, it is perhaps worthy of note that Article 263 of the Treaty on the Functioning of the European Union (“TFEU”) itself prescribes a two-month time limit for bringing proceedings which seek to review the legality of acts of the institutions, bodies, offices, and agencies of the EU.
53. In this context, it is important to bear in mind the purpose served by the imposition of time limits on challenges to the decisions of public authorities. The authors of Wade and Forsyth, Administrative Law, 10thEd.,(Oxford, 2009) state, at p. 561, that:
‘[g]ood administration requires that important decisions, on which many other decisions and actions will depend, should not be able to be set aside long after the event by a successful application or claim for judicial review.’
54. In support of the second ground, the plaintiff relies upon the decisions of the CJEU in Emmott v Minister of Social Welfare (Case C-208/90) [1991] ECR I-4269 and in Commission v. Ireland (Case C-13/00) E.C.R I-2943 (“Berne Convention”) which, he contends, establish the broad proposition that, in circumstances where a Member State is obliged under EU law to provide protection to certain rights under its national law, time limits should only begin to run against litigants seeking to rely on those rights once they have been properly implemented in national law.
55. Emmott concerned the failure by the State to implement certain provisions of Directive 79/7 on equal treatment for men and women in matters of social security. The State sought to rely on certain time limits prescribed by national law in order to have the plaintiff’s claim dismissed. The High Court made a preliminary reference to the CJEU seeking its guidance on whether the national authorities were entitled to do so.
56. The CJEU stated:
‘until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual’s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.’
57. In the case of Denkavit International BV v Kammer van KoophandelenFabriekenvoorMidden-gelderland (Case C-2/94) [1996] E.C.R. I-2827, Advocate General Jacobs explained the holding of the CJEU in Emmott in the following terms:
‘It seems to me that the judgment in Emmott, notwithstanding its more general language, must be read as establishing the principle that a Member State may not rely on a limitation period where a Member State is in default both in failing to implement a directive and in obstructing the exercise of a judicial remedy in reliance upon it, or perhaps where the delay in exercising the remedy – and hence the failure to meet the time-limit -is in some other way due to the conduct of the national authorities. Seen in those terms the Emmott judgment may be regarded as an application of the well established principle that the exercise of Community rights must not be rendered ‘excessively difficult.’
58. I do not believe that the decision of the CJEU in Emmott, whatever its precise parameters, is on point here, since the present case does not concern an attempt by a Member State to rely upon time limits prescribed by national law in the context of the failure of that state to transpose a directive within a deadline prescribed under EU law.
59. The Berne Convention case concerned Ireland’s failure to implement the Berne Convention for the Protection of Literary and Artistic Works, in default of the requirement imposed by Article 5 of Protocol 28 to the Agreement on the European Economic Area (“the EEA Agreement”), upon all signatory states to the EEA to do so. The Commission addressed a reasoned opinion to Ireland on 17 December 1998 requesting compliance within two months.
60. In finding that Ireland had failed to adhere to the Berne Convention, as required by the EEA Agreement, the CJEU made the following statement:
‘Further, a Member State cannot plead provisions, practices or situations within its internal legal order in order to justify its failure to fulfil obligations under Community law.’
61. The plaintiff submits that Berne Convention establishes a broad general principle that Member States cannot rely upon non-ratification of an international agreement in order to have a plaintiff’s action struck out, on the basis of their delay in bringing proceedings, when the plaintiff’s delay in pursuing those proceedings was itself attributable to the State’s failure to ratify that agreement.
62. However, in my view the Berne Convention case did not concern the question of the extent to which a Member State may rely upon time limits prescribed by national law, in circumstances of alleged default in its obligations under EU law, at all. Rather, that case is concerned with the quite separate question of whether the State, in its failure to adhere to the Berne Convention, had breached the EEA agreement. For this reason, I do not consider that the decision of the CJEU in Berne Convention assists the plaintiff’s argument.
63. The third ground upon which the plaintiff seeks to rely is his contention that his right to an effective remedy, which is both a general principle of EU law (see, Johnston v Chief Constable of the Royal Ulster Constabulary (Case 222/84) [1986] ECR 1651),and a right latterly enshrined in Article 47 of the EU Charter of Fundamental Rights (“EUCFR”), would be violated if his proceedings were to be dismissed on grounds of delay.
64. The dicta I have cited above, however, make it plain that the application of reasonable time limits, prescribed in national legislation, to claims brought under EU law, is not inconsistent with the right to an effective remedy. Indeed, after recognising the right to an effective remedy, Article 47 of the EUCFR itself states that ‘[e]veryone is entitled to a fair and public hearing within a reasonable time…’ It is for the purpose of securing that entitlement that provisions such as O.84, r. 21 exist.
65. For these reasons, I can find no basis to conclude that the application of the O. 84 time limit is contrary to any identified principle of EU law.
iii. abuse of process
66. In the plaintiff’s written submissions, the argument is advanced that the present application is either misconceived or an abuse of process in that the plaintiff’s judicial review proceedings have been dismissed and the plaintiff has been given leave to issue and serve a plenary summons in relation to the cause concerned. I cannot accept either of those arguments.
67. As noted earlier, the decision of this Court in O’Donnell v Dún Laoghaire Corporation makes clear that there is no misconception in the application of the time limits under O. 84 of the RSC to plenary proceedings seeking declaratory relief in respect of a public law decision. Further, I do not accept that, in striking out the State’s application to dismiss the plaintiff’s judicial review proceedings when striking out those proceedings, Kearns P either intended or purported to dismiss that application on its merits. To my mind, the only sensible inference to be drawn from the terms of the Order made by Kearns P on 16th April 2013, in light of the circumstances in which it was made, is that the decision to strike out the State’s application to dismiss the plaintiff’s judicial review proceedings was a house-keeping measure consequent upon the Court’s decision to strike out those proceedings.
68. Further, I am satisfied that it was reasonable for the State to await the delivery of the plaintiff’s statement of claim before moving to have that claim dismissed as one covered by the principles identified in O’Donnell v Dún Laoghaire Corporation and that there is no basis for the assertion that, in doing so, the State was itself responsible for some culpable delay.
69. Finally, I do not accept the proposition that the present application has been brought in breach of the rule in Henderson v Henderson [1843] 3 Hare 100. There is no suggestion here of the plaintiff being oppressed by successive suits when one would do. It is the plaintiff who has been given permission to reconstitute his proceedings. The State is not raising a new point in seeking to rely on the O. 84 time limit in these reconstituted proceedings, since that is what it did in the original application for judicial review. The authorities cited by the plaintiff in this regard – Re Vantive Holdings [2009] IESC 69, AA v Medical Council [2003] 4 IR 302, Arklow Holidays Ltd v An Bord Pleanála [2012] 2 IR 95 and Ashcoin Ltd v Moriarty Holdings Ltd (No. 2) [2013] IEHC 8 – are readily distinguishable on their facts from this case.
iv. extension of time and prejudice
70. While the plaintiff focussed on the various arguments that I have just addressed in submitting that his challenge is not barred under the O. 84 time limit, the State, presumably in anticipation of the argument that the Court should extend that time limit in exercise of the jurisdiction conferred under O. 84, r. 21(3), directed a considerable part of its case to the potential prejudicial effect of such an extension on the interests of both the State and the public generally. The potential prejudicial effects asserted include: the impairment of the attainment of Ireland’s legally binding target (imposed by the 2009 Directive) of satisfying 16% of her energy needs from renewable sources by 2020, with significant cost implications for the State; loss of confidence and reduced investment in the renewable energy sector; damage to the development of renewable energy, together with a correlative increase in the use of fossil fuels within the State; and adverse effects on economic growth, employment, and energy costs. The plaintiff takes issue with these assertions on the basis that they are unsupported and uncorroborated for the purpose of the present application.
71. No application for an extension of time under O. 84, r. 21(3) has been made in this case. It follows that no attempt has been made to persuade the Court that there is good and sufficient reason for doing so or that the circumstances that resulted in the plaintiff’s failure to bring his challenge to the State’s NREAP within the three month period prescribed were outside his control or could not reasonably have been anticipated by him. Thus, it seems to me that no requirement arises under Order 84, r. 21(4) for the Court to have regard to the effect that an extension of time might have on the State or a third party.
72. If it were necessary to have regard to the possible effects of an extension of time on the State or a third party, it seems to me that I would have to approach this case as one affecting the public generally and the energy sector of the State’s economy in particular, with the result, in my view, that a more rather than less strict view of the applicable time limit would have to be adopted; see, for example, Noonan Services Ltd v Labour Court [2004] IEHC 42 (High Court) and 14th May 2004, unreported, ex temp. (Supreme Court).
Conclusion on delay
73. For the reasons I have set out in the preceding portion of this judgment, I have come to the conclusion that the State is entitled to succeed in its application for an order striking out these proceedings on grounds of delay.
Protective Costs Order
74. The question of the costs of the proceedings is, of course, already before the Court in the context of the plaintiff’s application for a protective costs order.
75. In that context there was much debate before me concerning the correct position in law. Yet it seems to me that, in the particular circumstances of this case, the issue is really one of fact.
76. In support of his claim for a protective costs order the plaintiff advances a number of arguments. First, he submits that he is entitled to rely on Article 9 of the Aarhus Convention, on the basis that it has been rendered directly effective by virtue of its adoption into EU law by EU Council Decision 2005/370/EC.
77. Second, the plaintiff relies upon the decision of the Court of Justice of European Union (“CJEU”) in the case of Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (Case C-240/09) [2011] E.C.R. I-1255 (“Brown Bear”) in support of the argument that the provisions of Article 9(4) have direct effect.
78. Third, he contends that he is, therefore, entitled to rely upon the requirement under Article 9(4) of the Aarhus Convention that the legal review procedures (whether administrative or judicial) that the State is required to make available to him must not be prohibitively expensive, as a directly effective provision of EU law.
79. In Brown Bear the CJEU discussed the circumstances in which an international agreement concluded between the EU and non-member countries would be deemed to have direct effect. The court made the following statement, at para. 46 of its judgment:
‘a provision in an agreement concluded by the European Union with a non-member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose of and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.’
80. The CJEU held that Article 9(3) of the Convention, which concerns the right of members of the public to have access to judicial and administrative procedures to enable them to challenge acts which contravene environmental law, did not have direct effect.
81. The plaintiff argues that Article 9(4) does satisfy the requirements for direct effect laid down in Brown Bear on the basis that it is clear and precise in requiring that proceedings to which it applies not be prohibitively expensive.
82. The plaintiff contends that, even though it is left to the Member States to determine what is or is not ‘prohibitively expensive,’ the obligation to fulfil that requirement falls to the courts in the event that the legislature has not adequately implemented Article 9(4).
83. In Brown Bear the CJEU made the following statement concerning the responsibilities of the Member States of the EU, and in particular of national courts, in ensuring the effective protection of rights deriving from EU law, at paras 47-51:
‘47 In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, in this case the Habitats Directive, since the Member States are responsible for ensuring that those rights are effectively protected in each case (see, in particular, Case C 268/06 Impact [2008] ECR I 2483, paragraphs 44 and 45).
48 On that basis, as is apparent from well-established case-law, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (Impact, paragraph 46 and the case-law cited).
49 Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law.
50 It follows 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.
51 Therefore, it is for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law, so as to enable an environmental protection organisation, such as the zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law (see, to that effect, Case C 432/05 Unibet [2007] ECR I 2271, paragraph 44, and Impact, paragraph 54).’
84. Applying these dicta, suitably adapted, to the facts of the present case the plaintiff submits that this court is required, as a matter of EU law, to interpret the domestic rules in relation to costs so as to ensure that it will not be prohibitively expensive to bring proceedings seeking to challenge decisions of national authorities in the area of environmental policy.
85. The plaintiff also invokes the EU law principles of effectiveness and equivalence in that regard. The principle of effectiveness requires that national law should provide effective remedies in respect of violations of rights conferred by EU law. The principle of equivalence requires that the remedies and actions available to ensure the observance of national law should be made available in the same way to ensure the observance of EU law. The plaintiff submits on the basis of these principles that the court should make a protective costs orders in his favour, in accordance with the principles applied by the CJEU in making such orders in the environmental context.
86. In making that submission the plaintiff relied upon the decisions of the CJEU in Edwards v Environment Agency (Case C-260/11) (CJEU, 11 April 2013) and in Commission v United Kingdom (Case C-530/11) (CJEU, 13 February 2014) and the decision of this court (per Hedigan J.) in Hunter v. Nurendale Ltd t/a Panda Waste [2013] IEHC 430), each of which concerned the requirement laid down by Article 9(4) of the Convention (and incorporated into certain discrete provisions of EU and national law) that environmental proceedings not be prohibitively expensive.
87. In replying to the plaintiff’s submission that Article 9(4) of the Convention should be held to be directly effective, the State relied upon the decision of the Court of Appeal in the case of McCoy v Shillelagh Quarries Ltd [2015] IECA 28. In that case, in the context of a discussion of the provisions of Article 9(3) and Article 9(4) of the Convention, the court (per Hogan J.) made the following statement:
‘18…it must equally be observed that, as we have noted already, these critical provisions of the Aarhus Convention are themselves expressed to be contingent on the application of national law, so that, for example, within the sphere of application of EU law, these obligations are not regarded as sufficiently clear and unambiguous in themselves so as to create direct effects for the purposes of EU law.’
88. I have concluded that it is unnecessary to express a view on the disputed contention of the plaintiff that he has an entitlement to a protective costs order in the circumstances of this case by operation of EU law.
89. I have reached that conclusion by reference to the facts of the present case and, in particular, by reference to the position concerning the plaintiff’s costs expressly adopted by the State.
90. The plaintiff’s application for a protective costs order issued on 4th April 2014. It was preceded by a letter to the State written on the 28th March 2014, just one week earlier. That letter invited the State to agree that the present proceedings are covered in their entirety by s. 50B of the Planning and Development Act 2000, as amended (“the 2000 Act”). S. 50B of that Act provides that, in relation to the categories of proceedings that it covers, each party shall bear its own costs.
91. The State replied to the plaintiff’s letter of the 28th March 2014 on the 4th April 2014. It seems that letter crossed with the plaintiff’s motion. In his motion, the plaintiff did not seek any relief referable to s. 50B of the 2000 Act. Rather, as has already been noted, he sought either a protective costs order, pursuant to the inherent jurisdiction of the Court, or an order pursuant to s. 7 of the Environmental (Miscellaneous Provisions) Act 2011 that s. 3 of that Act applies to these proceedings. Meanwhile, the State’s letter of reply included the unequivocal statement that the State defendants ‘take the view that s. 50B of [the 2000 Act] do (sic) apply to these proceedings.’
92. On the 17th of April 2014, an affidavit was sworn on behalf of the State in response to the plaintiff’s motion. It includes an averment confirming the State’s agreement that s. 3 of the Environmental (Miscellaneous Provisions) Act 2011 (“the 2011 Act”) and section 7 of that Act applies to these proceedings. S. 3 of the 2011 Act provides that, in the categories of proceedings to which it applies, each party shall bear its own costs. S. 7 allows a party to apply to the Court at any stage of proceedings for a determination that s. 3 applies but, more significantly for present purposes, it also permits the parties to proceedings to agree that s. 3 applies. In view of the terms of the correspondence between the parties’ legal representatives, it is clear that just such an agreement has been reached in this case.
93. Given the express and unequivocal concession of the State concerning the applicability of both s. 50B of the 2000 Act and ss. 3 and 7 of the 2011 Act to the present proceedings, it seems to me that the State must be taken as having agreed that it would not seek its costs of these proceedings from the plaintiff, a concession which seems to go as far in protecting the plaintiff from prohibitive expense in the conduct of the present action as any protective costs order could.
94. In those circumstances, it is superfluous to make a protective costs order in favour of the plaintiff and I do not propose to do so.
An Taisce v McTigue Quarries Ltd (No. 2)
[2016] IEHC 701
JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.
I. Overview
1. The respondents operate a quarry in County Galway. The total quarry area is about 12.1 hectares, with the extracted area comprising about 8.6 hectares. The quarrying involves a number of processes and activities. These include the blasting, crushing and grading of rock. There are also truck movements in and out of the quarry. It appears not to be disputed that the quarry is in an area of scenic beauty and some environmental significance.
2. Back in 2010, significant changes to planning law as it relates to quarries were effected by way of the Planning and Development (Amendment) Act 2010. The changes were necessary because of the decision of the Court of Justice in Commission of the European Communities v. Ireland(Case C-215/06). Among the changes made were the establishment of a substitute consent process whereby the legal position of quarry developments that had been done without an environmental impact assessment (EIA), screening for an EIA, or appropriate assessment (AA) could apply for a ‘substitute consent’.The key provision in this regard was a new s.261A of the Planning and Development Act 2000, as inserted by the Act of 2010. Notably, for reasons that will be identified later below, a substitute consent regularised what was done previous to the consent, and allowed the undertaking of certain remedial measures after the consent, but, save as regards the taking of those remedial measures, it did not allow for continuing or future development of a quarry; such continuing or future development required separate planning permission to be obtained following the issuance of the substitute consent. (That, at least, was the sequencing before certain further amendments were made to the planning code last year. Those amendments post-date the events in issue in this application and so, are of limited interest for the purpose of the within proceedings).
3. In the present case, An Taisce maintains that the respondents have obtained a substitute consent but have engaged in continuing development that is unauthorised. As a result, An Taisce has come to court seeking injunctive relief pursuant to s.160 of the Act of 2000. The granting of such relief is a discretionary remedy.
II. What is the Effect of a Substitute Consent at Law?
4. Section 177O (“Enforcement”) of the Planning and Development Act 2000 provides as follows:
“(1) A grant of substitute consent shall have effect as if it were a permission granted under section 34 of the Act and where a development is being carried out in compliance with a substitute consent or any condition to which the consent is subject it shall be deemed to be authorised development.
(2) Where a development has not been or is being carried out in compliance with a grant of substitute consent or any condition to which the substitute consent is subject it shall, notwithstanding any other provision in this Act, be unauthorised development.”
5. At first glance, a reading of s.177O(1) would suggest that the grant of a substitute consent, such as that issued by An Bord Pleanála on 5th January, 2015, is to be treated as if it were a grant of permission under s.34. A substitute consent is not a permission granted under s.34. However, the Oireachtas has given the same effect to both, and clearly intends that, for all intents and purposes, a consent, insofar as it applies, is to have the same effect as a permission.
6. Of course, it is dangerous to read any statutory provision without regard to the wider context in which it was enacted. A literal reading of one statutory provision may make perfect sense as a stand-alone reading of that provision but no sense when one has regard to the wider picture pertaining. And s.177O is something of an example par excellence in this regard. The literal reading of s.177O referred to above makes perfect sense if one reads s.177O in isolation. But it makes no sense when one has regard to the wider picture pertaining.
7. As An Taisce has noted, and as the court indicated in its overview, the substitute consent process was established, following the decision of the Court of Justice in Case C-215/06, to allow the retrospective regularisation of a quarrying development which had been carried out in the absence of an EIA, screening for an EIA, or AA, as applicable. A substitute consent application was required to be accompanied by a remedial EIA or a remedial Natura Impact Statement (where applicable). Such remedial statement was required to include a statement of the significant effects, if any, on the environment (which either had occurred or were occurring or which could reasonably be expected to occur because the relevant development was carried out). The effect of a substitute consent, An Taisce contends, was that where remedial measures were identified in the course of the application process, these and these alone, thanks to s.177O(1), could be done prospectively without falling foul of the planning code, unless of course there was a breach of s.177O(2).
8. In support of its reading of s.177O, An Taisce points to s.177K(2)(d) of the Act of 2000, as inserted by S. 57 of the Act of 2010 (and as applicable when the substitute consent at issue in these proceedings was granted), and s.177K(2)(d) as since amended by reg.6(b) of the European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2015. As enacted, s.177K(2)(d) required An Bord Pleanála, when making its decision in relation to an application for substitute consent to consider, inter alia, “the significant effects on the environment, or on a European site, which have occurred or which are occurring or could reasonably be expected to occur because the development concerned was carried out”. (Emphasis added). As amended, s.177K(2)(d) requires An Bord Pleanála to consider, inter alia, “the significant effects on the environment, or on a European site, which have occurred or which are occurring or could reasonably be expected to occur because the development concerned was or is proposed to be carried out”. (Emphasis added). The change in wording, An Taisce contends, makes clear that prospective authorisation of a development was only contemplated in the legislation, as extant, after the substitute consent in issue in these proceedings was granted.
9. The court accepts that this last contention is the correct reading of matters. However, in fairness, the argument might perhaps be made that Government simply decided to make express in the amended s.177K(2)(d) what it already considered was apparent in s.177K(2)(d), as enacted. And one does enter rather odd territory in seeking to construe the meaning of legislation by reference to legislation that did not exist when either the legislation that one is seeking to construe was enacted, or when a particular action (here the granting of the substitute consent) was done. Much more persuasive, therefore, to the court’s mind, is An Taisce’s correct contention that s.177O must be interpreted in the light of Ireland’s obligations under European law. After all, the substitute consent procedure arose out of the State’s obligation to comply with European law, in particular the problems identified by the Court of Justice in Case C-215/06. In that judgment, the Court of Justice observed, inter alia, as follows:
“…Findings of the Court
49 Member States must implement Directive 85/337 as amended in a manner which fully corresponds to its requirements, having regard to its fundamental objective which, as is clear from Article 2(1), is that, before development 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 a requirement for development consent and an assessment with regard to their effects (see, to that effect, Case C 287/98 Linster [2004] ECR I 723, paragraph 52, and Case C 486/04 Commission v Italy [2006] ECR I 11025, paragraph 36).
50 Further, development consent, under Article 1(2) of Directive 85/337 as amended, is the decision of the competent authority or authorities which entitles the developer to proceed with the project.
51 Given that this wording regarding the acquisition of entitlement is entirely unambiguous, Article 2(1) of that directive must necessarily be understood as meaning that, unless the applicant has applied for and obtained the required development consent and has first carried out the environmental impact assessment when it is required, he cannot commence the works relating to the project in question, if the requirements of the directive are not to be disregarded.
52 That analysis is valid for all projects within the scope of Directive 85/337 as amended, whether they fall under Annex I and must therefore systematically be subject to an assessment pursuant to Articles 2(1) and 4(1), or whether they fall under Annex II and, as such, and in accordance with Article 4(2), are subject to an impact assessment only if, in the light of thresholds or criteria set by the Member State and/or on the basis of a case by case examination, they are likely to have significant effects on the environment.
53 A literal analysis of that kind of Article 2(1) is moreover consonant with the objective pursued by Directive 85/337 as amended, set out in particular in recital 5 of the preamble to Directive 97/11, according to which ‘projects for which an assessment is required should be subject to a requirement for development consent [and] the assessment should be carried out before such consent is granted’.
54 As the Irish legislation stands, it is undisputed that environmental impact assessments and planning permissions must, as a general rule, be respectively carried out and obtained, when required, prior to the execution of works. Failure to comply with those obligations constitutes under Irish law a contravention of the planning rules.
55 However, it is also undisputed that the Irish legislation establishes retention permission and equates its effects to those of the ordinary planning permission which precedes the carrying out of works and development. The former can be granted even though the project to which it relates and for which an environmental impact assessment is required pursuant to Articles 2 and 4 of Directive 85/337 as amended has been executed.
56 In addition, the grant of such a retention permission, use of which Ireland recognises to be common in planning matters lacking any exceptional circumstances, has the result, under Irish law, that the obligations imposed by Directive 85/337 as amended are considered to have in fact been satisfied.
57 While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.
58 A system of regularisation, such as that in force in Ireland, may have the effect of encouraging developers to forgo ascertaining whether intended projects satisfy the criteria of Article 2(1) of Directive 85/337 as amended, and consequently, not to undertake the action required for identification of the effects of those projects on the environment and for their prior assessment. The first recital of the preamble to Directive 85/337 however states that it is necessary for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than subsequently trying to counteract their effects.”
10. Having regard to the above-quoted findings, it does not appear to this Court that it can sustainably be argued, consistent with European law, as identified by the Court of Justice, that a substitute consent, such as the one at issue in the within proceedings, could authorise works that would require an EIA, without such an EIA being undertaken in advance of the works being carried out. Put plainly, a substitute consent regularises what was done previous to the consent, and allows the undertaking of certain remedial measures after the consent, but does not otherwise allow continuing or future development of a quarry: such continuing or future development requires separate planning permission. So when the respondents contend, as they have contended, that (a) the substitute consent is not retrospective or historical only, and (b) a development that complies with a substitute consent is deemed (in every respect) to be authorised development, it appears to the court that contention (a) is misdirected and both contentions are, with respect, wrong. Contention (a) is misdirected because that is not what An Taisce has argued. And both contentions are wrong because, for the reasons identified in this judgment, the court has found that the more nuanced interpretation offered by An Taisce is the correct interpretation of statute when one looks beyond the wording of s.177O to the legal back-drop to that provision, most notably to Case C-215/06, and the deficiencies in Irish law which that judgment identified and which the relevant provisions of the Act of 2010 were intended to cure.
11. Notably, in the present case, no evaluation or examination of future works (as opposed to remedial or restorative works) has been undertaken, none of the assessments required under s.172 or s.177S and s.177T of the Act of 2000 are recorded as having been undertaken on the works now being carried out, and current and future site-development is not regulated by any conditions. The only conditions in the substitute consent relate to remedial or restorative works. There are none of the conditions that one would expect in a permission for a prospective quarry development, e.g., as to ultimate quarry depth, opening hours, blasting, emissions limits or extraction rate limits. Indeed the court is left with the abiding impression that these are matters that would have been addressed in any permission that might have issued pursuant to any such s.34 application as followed the issuance of the substitute consent. In short, An Taisce appears to the court to be correct in its assertion that the respondents, through their ongoing acts of excavation, are presently engaging in “unauthorised development” within the meaning of section 2(1) of the Act of 2000 [1]. Given this finding, it does not appear to the court to be necessary to consider whether the respondents have acted in breach of the substitute consent, though it does not see on the evidence before it that they have. The only question arising for the court therefore is whether to grant the injunctive relief sought.
[1] “Unauthorised development” is defined in s.2(1) of the Act of 2000 as meaning “in relation to land, the carrying out of any unauthorised works (including the construction, erection or making of any unauthorised structure) or the making of any unauthorised use”. The word “development”, as defined in s.2(1) includes “the carrying out of any works on, in, over or under land”. And the word “works”, also defined in s.2(1), includes “any act or operation of…excavation”.
III. Section 160 proceedings
12. AnTaisce has brought these proceedings pursuant to s.160 of the Act of 2000. So far as relevant to the within proceedings, s.160 provides as follows:
“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court…may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with –
(i) in the case of a permission granted under this Act, the permission pertaining to that development or any condition to which the permission is subject…
(2) In making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature….
(6)…
(ab) Notwithstanding paragraph (a) or (aa) an application to the High Court…may be made at any time for an order under this section to cease unauthorised quarry development…
(b) Notwithstanding paragraph (a), an application for an order under this section may be made at any time in respect of any condition to which the development is subject concerning the ongoing use of land.”
13. The respondents maintain that the complaints made in these proceedings ‘engage’ three prior decisions of the planning authorities and represent an impermissible attempt to impeach those decisions through the medium of s.160. Those three decisions are (1) a decision by Galway County Council of 27th April, 2007, to register the quarry pursuant to s.261 of the Act of 2000, (2) a decision of the planning authority on 3rd August, 2012, that the quarry commenced operation prior to 1st October, 1964, and was therefore eligible to apply for substitute consent, and (3) a decision of An BordPleanála of 5th January, 2015, pursuant to s.261A, to grant a substitute consent. It is not clear to the court, from the argument before it, how assiduously An Taisce contends that the quarry that is the subject of the within application did not commence in operation prior to 1st October, 1964. Equally, however, it does not appear to the court that the true purport of the within proceedings is concerned with the substitute consent process that was undertaken or which resulted in the just-mentioned decisions. The true purport and focus of these proceedings is that the respondents, it is alleged by An Taisce and accepted by the court, are engaged in activities which are not covered by the substitute consent. So the substitute consent process and all that goes with it sit to one side. This application is concerned with continuing development that sits outside the scope of the substitute consent. Of course, one cannot tell what is outside the scope of the substitute consent without having regard to what is within its scope. However, if the respondents are contending, and the court does not understand them to contend, that even this limited exercise is impermissible, then they are, with respect, mistaken. Such an approach would have the effect that no section 160 application could be brought in respect of a development thought to be within the scope of a planning permission or substitute consent, no matter how genuinely a party believed the contrary to present, and that would be absurd. Nor does the court consider that the involvement of An Taisce or any connected person in the process that yielded the substitute consent precludes An Taisce from later contending in a s.160 application, and as it contends here, that there are elements of ongoing development that are not caught by the substitute consent and which represent, in the circumstances presenting, unauthorised development.
IV. Some Case-Law Applicable to Section 160 Proceedings
14. Section 160 has been construed on numerous occasions by the Superior Courts and the respondents contend that the below-mentioned propositions of principle can be identified in the relevant case-law. The court accepts propositions 1 to 3, as identified by the respondents, to be established law. For the reasons given below, the court does not accept that principles 4 and 5, as posited by the respondents, are correct as a matter of law.
Proposition #1
Section 160 must be strictly construed.
15. That this is so follows from the observation of Denham J. in Mahon v. Butler [1997] 3 I.R. 369, at 376 that “The planning code should be construed strictly. Actions can and do have grave financial and social repercussions.”
Proposition #2
The applicant bears the onus of proof in a s.160 application.
16. That this is so is apparent, inter alia, from the judgment of the Supreme Court in Fingal County Council v. Kennedy [2015] IESC 72.
Proposition #3
An applicant must adduce evidence to discharge the said onus of proof.
17. That this is so follows from the observation of Hedigan J. in Smyth v. Dan Morrissey Ireland Ltd (Unreported, High Court, 25th January, 2012), at para.6.3, that “It seems to me that in circumstances where the applicant wishes to alter the status quo…it is for the applicant to adduce evidence proving that what he asserts is true…”.
Proposition #4
Any assertion on affidavit which is not contradicted is deemed to have been established on the balance of probabilities.
18. In this regard, the court has been referred to the decision of O’Donovan J. in Ryan v. Roadstone [2006] IEHC 53. However, the court does not see that this case is authority for what, in truth, would seem a quite unusual principle. Although the court’s attention was not drawn to the specific element of the Ryan judgment that is considered to be authority for this fourth principle, it seems likely that it is derived from O’Donovan J.’s second conclusion under the heading “Conclusions” that “In the light of the uncontroverted assertion by Patrick Martin that the Western Quarry permission was not operational at any material time hereto, I am not persuaded that the respondent contravened condition 13 of that permission whereby all vehicles carrying quarried or other dust producing materials to or from the site of the permission were required to be sheeted”. However, all this observation conveys to this Court is that given a particular uncontroverted assertion, O’Donovan J. was not persuaded of the contrary. However, O’Donovan J. (rightly) does not close his mind to the possibility that he might have been persuaded of the contrary. For the principle as espoused by the respondents would have as its result that a patently wrong assertion could be made in affidavit and fall thereafter, thanks perhaps to mere oversight on the part of opposing counsel, to be deemed to have been established on the balance of probabilities.
Proposition #5
The High Court, under s.160, does not have jurisdiction to entertain a contention that a development is unauthorised development.
19. In this regard, the respondents have pointed to Cantwell v. McCarthy [2005] IEHC 351. However, it does not appear to the court that Cantwell is authority for such a sweeping proposition. Indeed it would seem odd that in an application for an injunction in relation to an unauthorised development, the court would not have jurisdiction to entertain a contention that the development in issue was an unauthorised development. Rather, Murphy J. concludes in this regard in Cantwell, at para. 9.3, that “[A]n application for an order pursuant to s.160 must fail so long as the permission remains unrevoked.” The distinction between this proposition and the wider proposition proffered by the respondents in this case appears to the court to be of some significance. For Cantwell was a case in which planning permission had issued and had not been revoked; here, by contrast, the central plank of An Taisce’s case is that no planning permission has ever issued. That An Taisce would be allowed to contend that no planning permission has ever issued but that the court would not have jurisdiction to entertain the unavoidably linked contention that the development in issue is not an unauthorised development would make no sense in practice or in law. Thus, the court considers that it does have jurisdiction to entertain the contention that planning permission has never been granted and must therefore, as a matter of logic, have jurisdiction to entertain the inextricably linked contention that the development which would have been the subject of such planning permission, had it been granted, is an unauthorised development.
V. Nature of Section 160 Procedure
20. The respondents contend that s.160 establishes a ‘summary type’ procedure that is not an appropriate vehicle through which to resolve novel questions of law or complex questions of fact. In this regard, they point to dicta concerning s.27 of the Local Government (Planning & Development) Act 1976, as amended which referred to s.27 as a “fire brigade section” (Dublin Corporation v. McGowan [1993] 1 I.R. 405, 411) and suggested that “novel questions of law and complex questions of fact…could not be dealt with readily in summary proceedings” (Waterford County Council v. John A Woods [1999] 1 IR 556 at 563). A number of points might be made in this regard. First, the court is not bound by dicta concerning a repealed provision that has been succeeded by a provision which establishes a much-amended and streamlined procedure, though such dicta may, of course, provide illuminating guidance as regards the proper interpretation of the later provision. Second, the Rules of the Superior Courts anticipate that oral evidence may be given in s.160 proceedings. The notion that novel questions of law and complex questions of fact cannot be decided in proceedings where oral and affidavit evidence may be given, albeit that such proceedings typically proceed by way of affidavit evidence, and where parties/counsel may put such arguments as they will does not hold true. If that were the case then, in truth, there would be no case in which such questions could be decided. Third, if it were true that s.160 proceedings were not an appropriate vehicle through which to resolve cases presenting novel questions of law or complex questions of fact, then injunctive relief by way of s.160 would be impossible to obtain in such cases. There is nothing in s.160 to suggest that the Oireachtas thought that in such cases, injunctive relief by way of s.160 should be unavailable. And it ill-behoves the courts to impose constraints that our elected lawmakers did not envision and which the law does not otherwise require. Fourth, it is not beyond the wit of counsel learned in the law to identify in likely every s.160 application some putative question of law or fact which would purportedly take such application outside the scope of s.160, even though, again, there is nothing in s.160 to suggest that our elected lawmakers aimed at such an end where such a question presents. Fifth, even if the respondents were correct that s.160 establishes a ‘summary type’ procedure that is not an appropriate vehicle through which to resolve novel questions of law or complex questions of fact (and the court does not consider that the respondents are correct in this regard) the court does not consider any novel question of law or complex question of fact to present in the within application in any event.
VI. Discretionary Nature of Section 160 Relief
21. It is clear from the use of the word “may” in s.160(1) that the nature of the relief to be granted pursuant thereto is discretionary. And though the discretionary nature of the relief does not flow from the absence of locus standi requirements in s.160, it is undoubtedly true, as Barrington J. opined, in respect of the since repealed s.27 of the Act of 1976, in Avenue Properties Ltd v. Farrell Homes Ltd [1982] I.L.R.M. 21 that the absence of such requirements makes it “all the more important that the Court should have a wide discretion as when it should and when it should not intervene”. The court has been referred to a number of helpful cases in which this discretionary power has previously been exercised, and the factors considered to be of relevance in the exercise of same:
(i) Public Interest
– in Leen v. Aer Rianta (Unreported, High Court, 31st July 2003), as recently cited with approval by the Supreme Court in Derrybrien v. Saorgas Energy Limited [2015] IESC 77, McKechnie J. took into account the public interest in ensuring that an airport was not closed down and noted that in general any element or feature of public interest which arises from the particular circumstances can be taken into account.
(ii) Commercial Impact
– in AmphitheatreIreland Ltd. v. HSS Developments [2009] IEHC 464, Hedigan J., at para. 41, took into account the “beneficial impact in terms of employment, the influx of people to related facilities at Citywest including the hotel, and the long-term viability of the hotel and the Citywest complex”.
(iii) Undue Hardship
– in Wicklow County Council v. Jessup & Smith (Unreported, High Court, 8th March, 2011), Edwards J. declined to make an order where “the consequences would be devasting for the respondents”; this attentiveness to the issue of undue hardship that may present for the respondents is also evident in the earlier line of case-law concerning the since repealed s.27 of the Act of 1976 (see, for example, Avenue Properties).
(iv) Opinion of planning authority
– the opinion of the planning authority is relevant (see, for example, Grimes v. Punchestown Developments Company Ltd. [2002] 1 I.L.R.M. 409 and Smyth v. Dan Morrissey Ireland Ltd., op. cit.).
(v) Behaviour of Parties
– Clearly when it comes to the granting of discretionary relief, indeed likely when it comes to the fashioning generally of reliefs, the court, as a court of conscience, will have regard to the previous conduct of the parties. Here certain references have been made to the behaviour of a Mr Sweetman with whom An Taisce appears to have liaised. However, he does not appear to be an agent or employee of An Taisce, the applicant in these proceedings, and thus his actions cannot be attributed to An Taisce. There is also a general assertion that An Taisce has adopted contradictory positions in its submissions in this application and during the substitute consent process. This, the court presumes, is a reference to what seems to be An Taisce’s varying position (as described by Mr McTigue in his affidavit evidence) as regards whether there was quarrying before 1964. However, this historical detail seems to the court to be very much an issue on which a party, based on the information to hand at any one time, could, quite legitimately, take a varying position.
VII. Conclusion as to Injunctive Relief Sought
22. The court is loath to grant an injunction that would effectively halt a viable and, it would seem, long-standing business from continuing in operation, with all the adverse consequences that this could bring for the owners and any employees. However, for the reasons identified above, the court considers that the respondents are engaged in unauthorised development that ought to be the subject of planning permission and which is not covered by the substitute consent that has been obtained. There is clearly a public interest in the promotion of legitimate commercial enterprise. However, there is also a public interest on the part of those now living, and those yet to come, in the protection of our natural environment to the level, and in the manner, contemplated by law. So what is the court to do?
23. Notwithstanding the potential for injunctive relief via s.160, the primary enforcers of planning and development law are planning authorities. And in this regard, a particularly striking feature of the case at hand, and a factor that has largely driven the court to the conclusion that it has reached as to how to exercise its discretion under s.160 in this instance, is that no enforcement action has been taken to this time; indeed the court does not see in the papers before it that any such action has even been threatened at any time. So if there is, and there is, when it comes to the respondents’ quarrying business, a difficulty presenting as regards planning permission, there does not seem to be that type of imminent and serious threat to the environment that the court considers would justify it in supplanting the planning authority in its apparent view of matters and electing, from a remove, to wield the sledgehammer of injunctive relief.
24. Having regard to all of the foregoing, the court has decided, on balance, not to grant the injunctive relief now sought. Of course, the court’s decision does not preclude the planning authority from taking enforcement action now or at some future time, a factor which the respondents may wish most earnestly to consider when resolving how best to proceed after the court delivers the within judgment.
VIII. Application for Protective Costs Order
25. Separate to the principal motion in these proceedings, An Taisce has made application for an order pursuant to s.7 of the Environment (Miscellaneous Provisions) Act 2011 declaring that s.3 of that Act applies to the within proceedings. It did not appear that this was a matter of much contention between the parties; neither was it a matter of agreement between them. So the court will adjudicate on the point. These are civil proceedings within the meaning of s.4(1)(a) and (b) of the Act of 2011 and that do not come within s.4(3) of that Act. They are therefore proceedings to which s.3 of the Act of 2011 applies. They are also proceedings in which An Taisce has succeeded in its contentions as to the true legal purport of a substitute consent, albeit that the court has elected, in its discretion, not to grant the injunction sought. Having succeeded on the law, An Taisce may consider that an order of costs in its favour, pursuant to s.3(4) of the Act of 2011, is merited. As the court has not heard any argument on this aspect of matters, it will refrain from making any order as to costs until it has heard the parties further in this regard.
JC Savage Ltd v An Bord Pleanála
[2011] IEHC 488
Judgment of Mr Justice Charleton delivered on the 22nd day of November 2011
1.0 This application by a notice party for costs in a judicial review application that has been withdrawn hinges on s.50B of the Planning and Development Act 2000, as amended. In turn, how that is to be applied by this Court depends upon the principles of statutory interpretation.
Background
1.1 On the 11th of April 2011, An Bord Pleanála granted planning permission on appeal to the notice party Lidl Ireland GmbH (“Lidl”) for the development of a supermarket, of a kind with which we are all increasingly familiar, at Rathbeale Road, Swords, County Dublin. The applicants, who are a neighbour and the owner of a nearby existing supermarket, commenced judicial review proceedings claiming that this decision was beyond the powers of the Board. The focus of the judicial review was on the condition attached to the permission which required a revised car park layout and a revised landscaping scheme to be “agreed in writing with the planning authority prior to commencement of development.” Section 34(5) of the Planning and Development Act 2000 as amended (“the Act of 2000”), allows a condition that points of detail relating to the grant of a planning permission be agreed between the planning authority and the person carrying out the development. It might be commented that the point at issue in the case was always going to be difficult to bring home.
1.2 Leave to commence proceedings was given by Peart J. on the 30th of May; on the 11th of July the case was admitted to the commercial list by order of Kelly J.; Lidl, as notice party, filed opposition papers on the 14th of July; the Board did likewise on the 8th of August; all affidavits were to be completed by the first week in August; and on the 9th of September the solicitors for the applicants wrote to the other parties indicating that they were withdrawing the case. A trial date had already been scheduled for the case and set for October 25th. On receiving that letter, the Board as respondent did not seek costs or any other order apart from the striking out of the case. Lidl took a different view as notice party. Lidl seeks its costs pursuant to Order 99 rule 1 of the Rules of the Superior Courts which provides that costs should follow the event, in this case a dismissal of the proceedings by consent, absent a special reason to the contrary which must be stated in the court order. The applicants counter argue that this rule does not apply by virtue of a particular amendment of the Act of 2000; and they further claim that even if it does that costs should be limited to opposition papers and should not extend to the trial costs.
Amendment as to costs
2.0 The original form of s. 50 of the Act of 2000 has been subject to many amendments. As originally cast, it provided for the swift disposal by way of judicial review of challenges to planning decisions and said nothing about costs. On amendment by s. 12 of the Planning and Development (Amendment) Act 2002, slight changes to the original wording were made which are not relevant here and nothing was done as to costs. With the Planning and Development (Strategic Infrastructure) Act 2006 (“the Act of 2006”), there was a tightening of the conditions for application, a requirement that every step be challenged in time, and not just the ultimate decision, and the time limit wording was altered; see Mac Mahon v An Bord Pleanála [2010] IEHC 431 (Unreported, High Court, Charleton J, 8 December 2010). It is to be noted that this change was generally applied to all planning procedures and not just to the gas and electricity strategic infrastructure projects which are at the core of the legislation through the incorporation of new sections 182 A, B, C and D with ancillary changes into the original legislation by s. 4 of the Act of 2006. Again, there was no provision as to costs. By s. 33 of the Planning and Development (Amendment) Act 2010 a new section was inserted that for the first time established special rules for costs in particular cases. This is the new s. 50B of the Act of 2000. It is necessary to quote the section in full:-
“(1) This section applies to proceedings of the following kinds:
(a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of—
(i) any decision or purported decision made or purportedly made,
(ii) any action taken or purportedly taken, or
(iii) any failure to take any action,
pursuant to a law of the State that gives effect to—
(I) a provision of Council Directive 85/337/EEC of 27 June 1985 to which Article 10a (inserted by Directive 2003/35/EC 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 Directive 85/337/EEC and 96/61/EC) of that Council Directive applies,
(II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, or
(III) a provision of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control to which Article 16 of that Directive applies; or
(b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a);
(c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in relation to a proceeding referred to in paragraph (a) or (b).
(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts and subject to subsections (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.
(3) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so—
(a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious,
(b) because of the manner in which the party has conducted the proceedings, or
(c) where the party is in contempt of the Court.
(4) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.
(5) In this section a reference to ‘the Court’ shall be construed as, in relation to particular proceedings to which this section applies, a reference to the High Court or the Supreme Court, as may be appropriate”.
2.1 This new section was necessitated by Ireland’s obligations under European law. In particular, Article 10a of Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC) as inserted by Article 7 of Council Directive 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. Article 10a 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”.
2.2 Council Directives 85/337/EEC and 96/61/EC (2003/35/EC) thus impose an obligation on the State to provide for swift and cost effective judicial review of development consent decisions to which the Directive applies. Under Article 4.1 of the Directive, projects listed in Annex I must automatically be the subject of an environmental assessment by the deciding authority before development consent is granted. Projects listed under Annex II are, pursuant to Article 4.2, to be decided on a case by case basis. Turning to Annex I, the projects listed include oil refineries, nuclear power stations, major pipeline projects and the larger type of airports. Turning to Annex II, there is nothing there which could encompass the small development that would have been in issue in this case, that of a local supermarket. It is clear from the Directive that the obligation to carry out such an assessment as to the effect on the environment of a proposed development is confined to certain projects, that the obligation arose for the first time in Irish law as a result of the Directive and was expressed nationally in Part X of the Act of 2000, and that it does not apply to ordinary permissions granted in the usual way under s. 34 of that Act. Public notice and public participation through observation are central to environmental assessment under the Directive. The same principles apply to ordinary planning applications which do not require an assessment as to their environmental impact but there the central focus is proper planning and sustainable development. Of course that is at the core of every development application, planning law is pointless without that focus, but it is only in some instances that the further process of assessing the effect of a proposed development arises. Further, it is clear that Article 10a by its own terms within the context of the Directive does not oblige the State to provide for swift and cost-effective remedies by way of judicial review of projects that are not included in Annex I of the Directive or that are incorporated on a case by case basis by the relevant authorities under Annex II.
2.3 The applicants argue that s. 50B of the Act of 2000 is an amplification of what was required under Article 10a of the Directive; that the section provides for more in Irish law than the State’s obligations under European law require. In case C-427/07, Commission v Ireland 16th July 2009, the European Court of Justice ruled that Article 10a of the Directive was not implemented merely through the ordinary form of judicial discretion in the award, or denial, of costs to a successful party or the exceptional jurisdiction sometimes to award a proportion of costs to an unsuccessful party. This is the ordinary jurisdiction as to costs under Order 99 of the Rules of the Superior Courts. It is of general application to all cases. But the applicants contend that such jurisdiction does apply anymore to planning cases because of s. 50B. In rejecting Ireland’s argument that judicial discretion was sufficient as a national measure implementing Article 10a, the Court stated at paragraphs 92-94:-
“92. As regards the fourth argument concerning the costs of proceedings, it is clear from Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, that the procedures established in the context of those provisions must not be prohibitively expensive. That covers only the costs arising from participation in such procedures. Such a condition does not prevent the courts from making an order for costs provided that the amount of those costs complies with that requirement.
93. Although it is common ground that the Irish courts may decline to order an unsuccessful party to pay the costs and can, in addition, order expenditure incurred by the unsuccessful party to be borne by the other party, that is merely a discretionary practice on the part of the courts.
94. That mere practice which cannot, by definition, be certain, in the light of the requirements laid down by the settled case-law of the Court, cited in paragraphs 54 and 55 of this judgment, cannot be regarded as valid implementation of the obligations arising from Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35.”
2.4 The applicants assert that the Oireachtas was very careful in amending the Act of 2000 so as to remedy the defect identified in that case and they contend that the law went further and amended the entirety of Irish planning law whereby s. 50B is now the costs provision for every planning judicial review. I note that a further special provision as to costs was introduced by s.3 of the Environment (Miscellaneous Provisions) Act 2011 whereby the default provision as to costs becomes that each party bears its own costs. That applies by s. 4 of the Act of 2011 to enforcement provisions relating to certain licences. This is a special and exceptional provision. The argument for the applicants is that the Act of 2011 did not amend the planning code as to costs because s. 50B had already done so.
2.5 In order to properly deal with these arguments, a short restatement of the principles of statutory construction is necessary.
Statutory interpretation
3. 0 The applicable rules of statutory interpretation may be concisely stated. Since the publication of Dodd, Statutory Interpretation in Ireland (Dublin: Tottel Publishing, 2008) access has been usefully given to the leading authorities, from Irish and many other sources, in a most helpful way. Bennion’s detailed text Bennion on Statutory Interpretation (London: Lexis Nexis, 5th Ed., 2008) is also to be consulted. The first rule of statutory interpretation is that the words of a statute should be given the literal meaning which those words bear; Health Service Executive v Brookshore Ltd [2010] IEHC 165 (High Court, unreported, Charleton J., 19 May 2010). Broom describes the literal approach as follows in Broom’s Legal Maxims (1st Ed., 1845) at p. 268, as cited in Bennion on Statutory Interpretation at p. 865:-
“A court of law will not make any interpretation contrary to the express letter of a statute; for nothing can so well explain the meaning of the makers of the act as their own direct words, since index animi sermo (language conveys the intention of the mind), and maledicta expositio quae corrumpit textum (an exposition which corrupts the text is bad), it would be dangerous to give scope for making a construction in any case against the express words, where the meaning of the makers is not opposed to them, and when no inconvenience will follow from a literal interpretation”.
In D.B. v. Minister for Health and Children [2003] 3 IR 12, Denham J. said at p. 21:
“In construing statutes, words should be given their natural and ordinary meaning. The approach taken by the courts to the construction of statutes was described by Blayney J. in Howard v. Commissioners of Public Works [1994] 1 I.R. 101. He emphasised that the cardinal rule for the construction of statutes was that they be construed according to the intention expressed in the acts themselves. If the words of the statute are precise and unambiguous then no more is necessary than to give them their ordinary sense. When the words are clear and unambiguous they declare best the intention of the legislature. If the meaning of the statute is not plain, then a court may move on to apply other rules of construction; it is not the role of the court to speculate as to the intention of the legislature. In that case I held also that statutes should be construed according to the intention expressed in the legislation and that the words used in the statute declare best the intent of the Act”.
3.1 In legislation words may be technical in origin or statutes may draw on words which are in common use. Legislation may be directed towards a specialist body or towards the general public. Henchy J. in Inspector of Taxes v. Kiernan [1981] I.R. 117 at p. 122 concisely delineated the proper approach to the construction of these various classes of legislation:-
“The statutory provisions we are concerned with here are plainly addressed to the public generally, rather than to a selected section thereof who might be expected to use words in a specialised sense. Accordingly, the word “cattle” should be given the meaning which an ordinary member of the public would intend it to have when using it ordinarily.
Secondly, if a word or expression is used in a statute creating a penal or taxation liability, and there is looseness or ambiguity attaching to it, the word should be construed strictly so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language: see Lord Esher M.R. in Tuck & Sons v. Priester [(1887) 19 Q.B.D. 629] (at p. 638); Lord Reid in Director of Public Prosecutions v. Ottewell [[1970] A.C. 642] (at p. 649) and Lord Denning M.R. in Farrell v. Alexander [[1975] 3 W.L.R. 642] (at pp. 650-1). As used in the statutory provisions in question here, the word “cattle” calls for such a strict construction.
Thirdly, when the word which requires to be given its natural and ordinary meaning is a simple word which has a widespread and unambiguous currency, the judge construing it should draw primarily on his own experience of its use. Dictionaries or other literary sources should be looked at only when alternative meanings, regional usages or other obliquities are shown to cast doubt on the singularity of its ordinary meaning, or when there are grounds for suggesting that the meaning of the word has changed since the statute in question was passed. In regard to “cattle”, which is an ordinary and widely used word, one’s experience is that in its modern usage the word, as it would fall from the lips of the man in the street, would be intended to mean and would be taken to mean no more than bovine animals. To the ordinary person, cattle, sheep and pigs are distinct forms of livestock”.
3.2 If an ambiguity clouds the meaning of a statutory provision so that it is obscure or ambiguous, at common law a provision is required to be given a construction that reflects the intention of the legislator from the context and purpose of the legislation. This rule is preserved in s. 5 of the Interpretation Act 2005. In addition, it is declared that if a literal interpretation causes an absurdity or an apparent meaning which undermines the intention that is clear from the context of the legislation, such a result is to be avoided in favour of one which reflects the plain intention of the legislation. Section 5 of the Act provides as follows:–
“(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)-
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.
(2) In construing a provision of a statutory instrument (other than a provision that relates to the imposition of a penal or other sanction) –
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made,
the provision shall be given a construction that reflects the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment.”
3.3 The language of the Interpretation Act 2005 was derived from the recommendations of the Law Reform Commission Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61-2000). The wording follows the judgment of Keane J. in Mulcahy v. Minister for the Marine (Unreported, High Court , Keane J., 4th November 1994,), which the Law Reform Commission described as adopting a “moderately purposive approach” at p. 19 of its Report. In that case, Keane J. stated the law thus at p. 23:-
“While the Court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an enactment in order to avoid an unjust or anom(a)lous consequence, that does not preclude the Court from departing from the literal construction of an enactment and adopting in its place a teleological or purposive approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole.”
3.4 The correct construction of the statute is thus derived from the wording of the section seen within its appropriate context. In that regard the long title to an Act may be of some limited use and may be an aid to construction. This can be part of the necessary context required to give effect to the intention of the legislator, as illustrated in the case of Minister for Agriculture and Food v. The Information Commissioner [2000] 1 I.R. 309 at 312. The long title to a statute cannot be invoked in order to modify the interpretation of a section where the language is clear and unequivocal; The People (D.P.P.) v. Quilligan [1986] 1 I.R. 495, in that instance s. 30 of the Offences Against the State Act, 1939 as amended.
3.5 The legislative history of an enactment can illuminate its meaning. If a section is grafted into an enactment in order to deal with a situation that may not have been provided for in earlier version of an Act, or if a section is amended, it can become clear that the legislature is defining statute law in a particular way so as to make up for what was missing or to change the wording in order to facilitate a new situation or eliminate an old mischief. This approach emerges from the judgment of Fennelly J. in Iarnród Éireann v. Hallbrooke [2001] 1 IR 237, which concerned the amendment of the Trade Union Act 1941, by the Trade Union Act 1942, in order to facilitate negotiations in-house. That principle is of equal application where an amendment is necessitated by the decision of a court which the legislation is designed to overturn or to modify.
3.6 Words used in a statute are not to be approached as if they are rhetorical or reiterative. Where possible, each word must be given a meaning because it is only by that approach that effect is given to the intention of the legislature. The use, for instance, of different words in the same context, implies that a variation in meaning is required to be taken by a judge construing the statute. As Egan J. remarked in Cork County Council v. Whillock [1993] 1 I.R. 231 at p. 239:-
“There is abundant authority for the presumption that words are not used in the statute without a meaning and are not tautologous or superfluous, and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste its words or to say anything in vain”.
It follows also that the express inclusion of a situation within a statute, or the express inclusion of several situations, can imply that what is not included is to be excluded from the scope of an enactment. This is sometimes expressed in the Latin maxim expressio unius est exclusio alterius. The expression of a general principle in a section of an enactment that is followed by an illustrative list is different and will not attract that rule.
3.7 Where two interpretations of a statute are possible, one of which is in conformity with the Constitution and the other of which is not, the courts must opt for the constitutional interpretation; McDonald v. Bord na gCon [1965] 1 I.R. 217 at p. 239. A strained interpretation is not to be forced onto the wording of a statute, however, in order to keep its effect within constitutional boundaries: Colgan v Independent Radio and Television Commission [2000] 2 IR 490. A partial severance of words from an enactment in order to bestow constitutional conformity on it, should not be undertaken where the result is that the courts are in effect legislating – bringing into force a provision that the Oireachtas never intended; Maher v. Attorney General [1973] I.R. 140 at p. 147.
3.8 Moving on the legislation necessitated by the State’s duty of effective cooperation with the institutions of the European Union, similar rules arise to those which apply in construing legislation where there is a challenge to its constitutionality. Where a national measure is passed in order to give effect to an obligation of the State which arises from European law, such national legislation must be construed so as conform to that legislative purpose. In Marleasing SA v. La Commercial Internacional de Alimentacion SA [1990] 4 E.C.R I-4135 (C-106/89), the European Court of Justice held:-
“6. With regard to the question whether an individual may rely on the directive against a national law, it should be observed that, as the Court has consistently held, a directive may not of itself impose obligations on an individual and, consequently, a provision of a directive may not be relied upon as such against such a person (judgment in Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723).
7. However, it is apparent from the documents before the Court that the national court seeks in substance to ascertain whether a national court hearing a case which falls within the scope of Directive 68/151 is required to interpret its national law in the light of the wording and the purpose of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11 of the directive.
8. In order to reply to that question, it should be observed that, as the Court pointed out in its judgment in Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.
9. It follows that the requirement that national law must be interpreted in conformity with Article 11 of Directive 68/151 precludes the interpretation of provisions of national law relating to public limited companies in such a manner that the nullity of a public limited company may be ordered on grounds other than those exhaustively listed in Article 11 of the directive in question.”
3.9 Even where litigation is between domestic undertakings as to the correct interpretation of national legislation necessitated by European law, the obligation still applies. This is apparent from the decision of the European Court of Justice in the joined cases of Pfeiffer and Others v. Deutsches Rotes Kreuz [2004] E.C.R. I-08835 (C-397/01 to C-403/01), where the following observations were made by the Court:-
“111. It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective.
112. That is a fortiori the case when the national court is seised of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must, in the light of the third paragraph of Article 249 EC, presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned (see Case C-334/92 Wagner Miret [1993] ECR I-6911, paragraph 20).
113. Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC (see to that effect, inter alia, the judgments cited above in Von Colson and Kamann, paragraph 26; Marleasing , paragraph 8, and Faccini Dori , paragraph 26; see also Case C-63/97 BMW [1999] ECR I-905, paragraph 22; Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraph 30; and Case C-408/01 Adidas-Salomon and Adidas Benelux [2003] ECR I-2537, paragraph 21).”
3.10 This principle of conforming interpretation between Irish statute law and the European legislation which necessitated that measure cannot be used beyond the scope of its proper purpose so as to impose a solution which contradicts the plain terms of national law, even though such a strained interpretation may be in conformity with an obligation under a Directive. The limit of the duty of the national courts is to interpret national law in the light of any European law obligation as far as this is possible. This cannot lead to results which are a distortion of what the enactment means or, as the European Court of Justice has put it, contra legem. In C-105/03 Pupino [2005] E.C.R. 1-05285 this was made clear:-
“47. The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”
3.11 Having stated the principles of statutory interpretation applicable to this issue, I return to the proper interpretation of s. 50B of the Act of 2000.
Application of the principles
4.0 The legislative history of s. 50B includes the prior forms of s. 50 of the Act of 2000 and the amendments thereto before that new section was introduced and the decision of the European Court of Justice of 16th July 2009 in case C-427/07, Commission v Ireland. Nothing in that legislative history shows any intention by the Oireachtas to provide that all planning cases were to become the exception to the ordinary rules as to costs which apply to every kind of judicial review and to every other form of litigation before the courts. The immediate spur to legislative action was the decision of the European Court of Justice in case C-427/07. Nothing in the judgment would have precipitated the Oireachtas into an intention to change the rules as to the award of costs beyond removing the ordinary discretion as to costs from the trial judge in one particular type of case. Specified, instead, was litigation that was concerned with the subject matter set out in s. 50B (1)(a) in three sub-paragraphs: environmental assessment cases, development plans which included projects that could change the nature of a local environment, and projects which required an integrated pollution prevention and control licence. By expressing these three, the Oireachtas was not inevitably to be construed as excluding litigation concerned with anything else. Rather, the new default rule set out in section 50B (2) that each party bear its own costs is expressed solely in the context of a challenge under any “law of the State that gives effect to” the three specified categories: these three and no more. There is nothing in the obligations of Ireland under European law which would have demanded a wholesale change on the rules as to judicial discretion in costs in planning cases.
4.1 The circumstances whereby the State by legislation grants rights beyond those required in a Directive are rare indeed. Rather, experience indicates that the default approach of the Oireachtas seems to be ‘thus far and no further’. There can be exceptions, but where there are those exceptions same will emerge clearly on a comparison of national legislation and the precipitating European obligation. Further, the ordinary words of the section make it clear that only three categories of case are to be covered by the new default costs rule. I cannot do violence to the intention of the legislature. Any such interference would breach the separation of powers between the judicial and legislative branches of government. The intention of the Oireachtas is clear from the plain wording of s. 50B and the context reinforces the meaning in the same way. The new rule is an exception. The default provision by special enactment applicable to defined categories of planning cases is that each party bear its own costs but only in such cases. That special rule may exceptionally be overcome through the abuse by an applicant, or notice party supporting an applicant, of litigation as set out in s. 50B (3). Another exception set out in s. 50B (4) provides for the continuance of the rule that a losing party may be awarded some portion of their costs “in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.”
4.2 The Court must therefore conclude that as this litigation did not concern a project which required an environmental assessment, costs must be adjudged according to the ordinary default rule that costs should follow the event unless there are exceptional circumstances.
Decision
5.0 The chronology indicates a desirable development in judicial review. The applicants, on consideration of the full papers, realised that they were wrong in bringing the case. In the exceptional circumstances whereby they immediately informed the respondent and the notice party more than six weeks before the trial date, in the exercise of the Court’s discretion, the Court will award the notice party Lidl one third of its costs, including the costs of this motion.
Hunter v Nurendale Ltd
[2013] IEHC 430
Judgment of Mr. Justice Hedigan delivered on 17th of September 2013.
1. The respondent operates a commercial waste facility at Rathdrinagh, Beauparc, Navan, County Meath, which is located approximately seventy metres away from the applicant’s family home. In the main s.160 proceedings herein commenced by way of originating notice of motion dated 21st December, 2012, the applicant seeks the following orders pursuant to s. 160 of the Planning and Development Act 2000:
(1) an order restraining the respondent, its servants or agents, or any persons acting in concert with them, from carrying out or continuing to carry out any unauthorised development of lands at Rathdrinagh, Beauparc, Navan, County Meath; and
(2) an order requiring the respondent, its servants or agents, to return and restore the lands at Rathdrinagh, Beauparc, Navan, County Meath, to their condition prior to the commencement of the unauthorised development.
2. The respondent operates a waste facility on lands which are located approximately seventy metres away from a house in which the applicant lives with her husband and children. It is this facility which is the subject of the s. 160 proceedings. The applicant alleges the facility is not being carried on in accordance with the planning permission granted.
3. In judicial review proceedings commenced by notice of motion dated the 22nd October, 2012, the applicant sought an order of certiorari quashing the decision of the Environmental Protection Agency (EPA) dated the 11th July, 2012, whereby it purported to grant a technical amendment to a waste licence WO 140-03 granted by the EPA in respect of this facility. The applicant’s home adjacent to this facility is in the legal ownership of her husband, Richard Hunter. The applicant contends that the site has not been operated in accordance with the planning permission granted or with the conditions laid down in the waste licence. She argues that the respondent has persistently exceeded the tonnages permitted at the facility and has operated the facility outside the permitted hours. Consequently she submits that she has experienced severe nuisance arising from the facility and that it has given rise to serious local nuisance generally.
4. The licence was originally issued to the respondent on the 26th March, 2009. In 2011 the office of Environmental Enforcement drew the respondent’s attention to the terms of Schedule A of the waste licence and indicated that there was an incompatibility between the waste actually accepted at the facility and the terms of Schedule A of the licence insofar as the same appeared to limit the respondent to receiving “dry recyclable household” waste rather than “household” waste. The inspector appointed by the EPA indicated in her report that the restriction on the types of waste to be accepted was inserted by way of “oversight”, i.e. it was done in error.
5. The respondent subsequently applied to the EPA for a technical amendment to the terms of a licence to change the reference to “dry recyclable house waste” in Schedule A to “household” waste. By decision of the EPA taken on the 11th July, 2012, it substituted “household” waste for “dry recyclable household” waste. The technical amendment changes the household waste stream permitted at the facility from green bin dry recyclable waste to black bin household putrescible waste and increases the tonnages permitted.
6. A new shed (known as Shed 3) was built to accommodate increased capacity at the facility. The applicant argues that the shed is only suitable for dry recyclable waste. The shed was destroyed by fire on the 13th June, 2012. The applicant contends that the respondent initiated demolition and reconstruction of the shed in the absence of a grant of planning permission and this forms part of her proceedings under s. 160 of the Planning and Development Act 2000.
7. The applicant is a Chinese national and has no assets. The respondent has alleged that she may have been appointed sole applicant in these proceedings since she has no assets, whereas her husband does. The respondent originally sought an order directing the applicant to provide security for its costs in the proceedings. Now, however, as an alternative it wishes the Court to direct that the applicant’s husband be joined as a notice party to the proceedings in order to fix him with responsibility for any costs order made in favour of the respondent. The applicant denies that she is the sole applicant for the purposes of avoiding a costs order against her husband and she contends that in any event no such costs order can be made in the within proceedings having regard to the 2011 Act. In response to the respondent’s application to add Mr. Hunter as a notice party, the applicant seeks an order pursuant to s. 7 of the Environmental (Miscellaneous Provisions) Act 2011 declaring that s. 3 of that Act applies to the within proceedings. This application is commonly known as a protective costs application. This particular application is the first such that has come before the Irish courts. It is with these two preliminary applications that the Court is concerned today.
The application to join Richard Hunter as a notice party
8. With regard to this application, the respondent primarily relies upon the judgment of Mr. Justice Clarke in Mooreview Developments Ltd. v. First Active Plc [2011] IEHC 117 where he considered the question as to whether the Court had jurisdiction to add a party to proceedings after hearing the substantial action, either under Order 15, rule 13 of the Rules of the Superior Courts 1986 or pursuant to s. 53 of the Judicature (Ireland) Act 1877, for the purposes of making that party liable for the costs of the proceedings. In Mooreview, Clarke J. found that persons cannot be made to sue if they do not wish to and, therefore, cannot be added as plaintiffs against their will. However, the respondent argues that the plaintiff’s husband could be joined as a notice party to the proceedings. In this regard it relies on Clarke J.’s finding that where proceedings are initiated and controlled by a person who, although not a party to the proceedings, has a direct personal financial interest in their result, it would not be just for such a person pursing his own interests to be able to do so with no risk to himself should the proceedings fail or be discontinued. Clarke J. held that the key factors to be taken into account by a court when deciding whether to exercise its jurisdiction to make a non-party liable for costs are: –
(1) The extent to which it might have been reasonable to think that the party, who was primarily liable for the costs for which the non-party was to be made liable, could meet any costs if it failed in the proceedings;
(2) the degree of possible benefit of the proceedings to the non-party concerned;
(3) any factors touching on whether the proceedings were pursued reasonably and in a reasonable fashion.
The Court also was referred to Cullen v. Wicklow County Manager [2010] IESC 49 and to Thema International Fund Plc v. HSBC Institution Trust Services (Ireland) Ltd. [2008] 10983P.
The application for a protective costs order
9. Section 7 of the 2011 Act provides:-
“7 – (1) A party to proceedings to which section 3 applies may at any time before, or during the course of, the proceedings apply to the court for a determination that section 3 applies to those proceedings.
(2) Where an application is made under subsection (1), the court may make a determination that section 3 applies to those proceedings.
(3) Without prejudice to subsection (1), the parties to proceedings referred to in subsection (1), may, at any time, agree that section 3 applies to those proceedings.
(4) Before proceedings referred to in section 3 are instituted, the persons who would be the parties to those proceedings if those proceedings were instituted, may, before the institution of those proceedings and without prejudice to subsection (1), agree that section 3 applies to those proceedings.
(5) An application under subsection (1) shall be by motion on notice to the parties concerned.”
Section 3 of the Act states:-
“3- (1) Notwithstanding anything contained in any other enactment or in-
(a) Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986),
(b) Order 66 of the Circuit Court Rules (S.I. No. 510 of 2001), or
(c) Order 51 of the District Court Rules (S.I. No. 93 of 1997), and subject to subsections (2), (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.
(2) The costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant, or as the case may be, the plaintiff, to the extent that he or she succeeds in obtaining relief and any of those costs shall be borne by the respondent, or as the case may be, defendant or any notice party, to the extent that the acts or omissions of the respondent, or as the case may be, defendant or any notice party, contributed to the applicant, or as the case may be, plaintiff obtaining relief.
(3) A court may award costs against a party in proceedings to which this section applies if the court considers it appropriate to do so –
(a) where the court considers that a claim or counter-claim by the party is frivolous or vexatious,
(b) by reason of the manner in which the party has conducted the proceedings, or
(c) where the party is in contempt of the court.
(4) Subsection (1) does not affect the court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.
(5) In this section a reference to ‘court’ shall be construed as, in relation to particular proceedings to which this section applies, a reference to the District Court, the Circuit Court, the High Court or the Supreme Court, as may be appropriate.
10. Section 4 of the Act applies (among other things) to a licence granted under s. 40 of the Waste Management Act 1996. The section stipulates when s. 3 of the Act may apply and sets out the circumstances under which an order may be granted. The section is applicable where it is sought to ensure compliance with or enforcement of a statutory requirement or condition attached to a licence permit or permission when failure to comply with such permission has caused, is causing, or is likely to cause environmental damage. Such damage encompasses harm to air, water, soil, land, biological diversity and the interaction between all or any of those things. It also pertains to harm caused to the health and safety of humans. The section further stipulates that an order shall not be granted in circumstances where the applicant seeks damages arising from damaged property/persons or where the proceedings are instituted by a statutory body (being a County/City Council or a body established by statute) or the Minister.
11. The respondent submits that it is clear from a reading of s. 4(1) of the Act that s. 3 will only apply (and as a consequence the Court may only make a protective costs order) where the applicant is seeking to force compliance with an extant planning permission or licence or where it is alleged that there has been a contravention of or failure to comply with conditions attaching to a planning permission or licence. The benefit of the Act, the respondent asserts, is not available in cases where it is argued that development is carried out in the absence of a licence or planning permission, i.e. in the case of wholly unauthorised development. Thus the respondent argues that the applicant’s complaint that it is operating certain aspects of its facility with no planning permission whatsoever removes the proceedings from the scope of s. 4(1) of the 2011 Act and means that the Court does not have jurisdiction to grant the costs order sought.
The applicant, however, argues that the reference to “statutory requirement or condition or other requirement” in s. 4(1) is disjunctive, and argues thus that the section is referring to compliance with a statutory provision, on the one hand, or a condition or requirement attaching to a licence/permission, on the other hand. The applicant argues that since there is a statutory requirement to obtain planning permission for development, the section is sufficiently broad to cover situations where no planning permission has been obtained and does not alone relate to situations where the applicant complains of a contravention of an existing planning permission. It contends that it is clear that it is a provision of national law that planning permission is required and failure to obtain the same where necessary renders persons in breach of a provision of national law. The applicant contends that it could not be the intention of ss. 3 and 4 of the Act to permit an artificial distinction between development that has planning permission and development that does not.
12. The respondent refers the Court to the Queen, on the application of David Edwards & Anor. v. Environment Agency & Ors. (C- 260/11), 11th April, 2013. In this request for a preliminary ruling under Article 267 TFEU, the European Court held that the costs in environmental cases should not be prohibitively expensive and this meant that persons should not be prevented from pursuing a claim for review by reason of the financial burden that might arise as a result. (See paras. 38 – 48 thereof). The Court ruled that national courts in determining the issue of costs must carry out an objective analysis of the amount of costs and whether on an objective analysis it might be considered excessive. The courts in doing such an analysis must consider the situation of the parties, whether the claimant had a reasonable prospect of success, the importance of the environmental issues in question, the complexity of the law and procedures and the existence of a protective costs regime. The respondent argues that the applicant does not in fact have a reasonable prospect of success. It concedes the test in regard to this is less than the classic test as set out in McNamara v. An Bord Pleanála (No. 1) [1995] 2 ILRM 125, i.e. reasonable, arguable, weighty, not trivial or tenuous. It does claim that the applicant must put forward a case that has a certain element of substance to it. The probability of success, it concedes, is not a test but the applicant must stand a good chance of getting over the threshold in respect of the argument raised. The respondent also claims that there is not sufficient evidence of potential damage to the environment nor that any emissions are occurring at the site in a manner which breaches conditions attaching to the planning permission. It urges the Court should be slow to conclude that damage to the environment as envisaged in s. 4 of the Act arises. It refers to an inequality of arms in that the respondent cannot return to Court to request that the 2011 provisions should not apply if the Court now makes a declaration that they do. On the other hand, the applicant, if the Court rejects its application for a costs protection order at this stage, may apply again on the basis that she was bringing it under s. 3(4) as being a matter of exceptional public importance. The respondent notes that the applicant has also instituted a damages claim, albeit in different proceedings.
The decision of the Court
13. The application to add Richard Hunter as a notice party for the purpose of fixing him with an order for costs in the event the applications fail:-
Is there a jurisdiction to do this? I am satisfied that in certain circumstances there is. See Mooreview, where having reviewed the law in relation to this matter, Clarke J. held that the key factors to be taken into account by a court when deciding its jurisdiction to make a non-party liable for costs are –
(1) the extent to which it might have been reasonable to think that the party, who was primarily liable for the costs for which the non-party was to be made liable, could meet any costs if it failed in the proceedings;
(2) the degree of possible benefit of the proceedings to the non-party concerned;
(3) any factors touching on whether the proceedings were pursued reasonably and in a reasonable fashion.
Applying these factors to this case, the following appears clear from the evidence before the Court.
(1) The applicant is impecunious and the house adjacent to the waste facility is in the legal ownership of Mr. Hunter. It is therefore reasonable to believe that she would be unable to meet any order for costs that might be awarded against her.
(2) As the proposed notice party is owner of the property which it is alleged is subject to the effects of the complaint made by the applicant, he clearly has at least a half share in any benefit that might accrue from successful proceedings.
(3) It appears that the real complainant throughout has in fact been Mr. Hunter. All the complaints made concerning the facility have in fact come from him. In the circumstances it appears clear that the applicant was put forward in that capacity in order to protect Mr. Hunter from any liability for costs.
In order to do justice to the parties and in accordance with the principles set out in Mooreview, it is appropriate that an order be made joining Richard Hunter as a notice party in this case for the purpose of fixing him with liability for costs in the event that that was appropriate.
The application for a protective costs order
14. In response to the above application by the respondent, the applicant seeks an order pursuant to s. 7 of the Environmental (Miscellaneous Provisions) Act 2011 declaring that s. 3 of that Act applies. See paragraph 3.1 above. This statutory provision is intended to give effect to the Aarhus Convention of the 1ih February, 2005 which provides as follows:
“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.”
Article 9(4) states that: –
“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.”
Article 9(5) provides:-
“In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”
On an application for a preliminary ruling by the courts of the United Kingdom in the Queen on the application of David Edwards & Anor. v. Environment Agency & Anor. The European Court considered the provisions of this Convention. Paragraphs 38-48 are particularly instructive in relation to this application. In those paragraphs of its judgment, the Court sets out the criteria for making a costs protection order such as is sought here. Those criteria are summed up in para. 46 of the judgment as follows: –
“46. It must therefore be held that, where the national court is required to determine, in the context referred to in paragraph 41 of the present judgment, whether judicial proceedings on environmental matters are prohibitively expensive for a claimant, it cannot act solely on the basis of that claimant’s financial situation but must also carry out an objective analysis of the amount of the costs. It may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim at its various stages, and the existence of a national legal aid scheme or a costs protection regime.”
Applying these criteria to the circumstances herein, the first question relates to the likely costs of the proceedings herein. The affidavits of Holly Hunter and Eamon Waters sworn herein do not deal specifically with the amount of costs likely to be incurred in bringing these proceedings and/or defending them. Mr. Waters simply states in his affidavit sworn on the 15th February, 2013 that the company will be obliged to expend significant amounts of money on defending the case. The applicant does not take issue with this statement. It seems to me that affidavits sworn supporting a case for a costs protection order should give some broad indication of what the costs of those proceedings are likely to be in the event that an applicant was to be made liable for them. I understand that this is the first application for such an order and a certain measure of uncertainty as to what is required to ground the application exists. I have been asked to indicate what I think the requirements of the Court are in dealing with such an application and I will deal with that at the end of this judgment. However, for the present moment it appears as a matter of common knowledge that the costs of defending this matter will be of a very high order indeed. What are the resources of the applicant? The Court must not act solely on the basis of the applicant’s financial situation but also take into account the amount of the costs involved. It seems to me again that in future applications an applicant for a costs protection order ought to set out broadly what their financial situation is so as to assist the Court to make an assessment in this regard. In the circumstances of this case though, it being common case and a matter of general knowledge that the costs will be of an extremely high nature, I think I may take it that the costs will be of a very high level and therefore something that the applicant is unlikely to be capable of meeting without very serious and prejudicial financial consequences. Does the claimant have a reasonable prospect of success? It is conceded that the McNamara standard is one that would be too high in the circumstances of this type of application. I agree with this. I think that when the European Court refers to a reasonable prospect of success, it requires that an applicant should be pressing a case that does have a certain measure of substance to it. It is not required that there be a probability of success but there must be, it seems to me, a least a good chance of success. It is always hard to judge at this early stage of a case just what the chances of success are and as to whether there is some substance to the application. Nonetheless, it seems to me that bearing in mind the EPA do not intend to defend the judicial review proceedings, and bearing in mind the extent of the issues between the parties as identified in the schedule of relevant information, i.e. questions such as intensification, noise levels, hours of operation, night lighting on site, the building of a large construction adjacent to Shed 3, the demolition of the skip repair building, the two composting tunnels, the internal structures in Shed 3, and the demolition and reconstruction and cladding of Shed 3, all suggest that there is at the very least some substance to the claim made herein and, thus, it appears to satisfy the requirement of a reasonable prospect of success. It is also clear to the Court that the issues at stake are of very considerable importance to the applicant. The complaints she makes go to the very heart of her ability to lead a peaceful life in her home. Moreover, questions relating to intensification of use of a waste disposal facility per se together with the presence of odiferous municipal waste, noise level, out of hours operation, night lights, failure to build a reed bed system, unauthorised composting tunnels as alleged, all are matters which appear to be ones involving the protection of the environment. The complexity of the relevant law and procedure goes without saying. Cases such as of this nature are notoriously difficult and complex cases. I do not believe that it has been seriously argued that the claim in question is frivolous. It is clearly brought very seriously and involves serious issues. No information has been provided to the Court as to the existence of legal aid in relation to this matter. I must assume that legal aid is not available for an application such as is being brought by the applicant.
15. Taking into account all the above, it seems to me that this is a case to which s. 3 applies. I do not accept the argument put forward on the part of the respondent that the application is in respect of a development which has no planning permission or is a hybrid. In the first place, it is clear that the development does in fact have planning permission. The issue is whether that planning permission covers the various developments that have occurred and/or whether all the conditions of that planning permission have been complied with. The fact that the applicant claims both the failure to comply with planning permission and the absence of planning permission in the same set of proceedings does not appear to me to take the case out of s. 3. In any event, because s.4 refers to the enforcement of a statutory requirement, it appears to me that s. 3 would cover a situation where there was no planning permission in existence because that would be a situation where there had been a failure to comply with the statutory requirement. The respondent further claims that the applicant is seeking damages in other proceedings and that this disqualifies these proceedings from being covered by s. 3. This does not appear to me to be correct. No s. 3 costs protection order is sought in respect of these completely separate proceedings, i.e. nuisance proceedings which seek damages. Clearly, none would be granted in such a case because s. 3 would not apply. That does not mean that these proceedings are disqualified from s. 3 protection. Moreover, it seems to me that the very nature of the reliefs sought by the applicant herein are reliefs that, whilst certainly in the private interests of the applicant and her family, are also of considerable public interest. Thus, in my view, the applicant is entitled to a protective costs order pursuant to s. 3 as sought.
16. It seems to me that the procedure that should be followed in bringing an application such as this in future ought to be at least as follows: –
(a) The proceedings should be brought by motion on notice supported by an affidavit of the applicant which should set out firstly what broadly the expenses involved in such an application would be;
(b) secondly, the applicant should set out a broad statement of the claimant’s financial situation;
(c) thirdly, the applicant should set out the reasons why he believes that there is a reasonable prospect of success,
(d) fourthly, the applicant should set out clearly what is at stake for the claimant and for the protection of the environment;
(e) fifthly, the applicant should deal with any possible claim of frivolous proceedings, should that arise; and
(f) finally, the applicant should deal with the existence of any possible legal aid scheme or any contingency arrangement in relation to costs that may have been made with their solicitors.
The respondent in any replying affidavit that it wished to make should set out its broad view of the potential costs involved in the case, should express its view in relation to the situation of the parties concerned in the application, and also whether the claimant has a reasonable prospect of success and why it does not, if that is to be claimed. It should also deal with the importance of the issues at stake for the protection of the environment and set out the full reasoning as to why the claim in question is a frivolous one if that is to be claimed and should also deal, if necessary, with the question of legal aid or any contingency arrangement. Prior to the application, both parties should agree a schedule of relevant information (or so-called Scott Schedule) as was provided for the benefit of the Court in these proceedings, setting out the gist of each claim and the response that is made thereto.
McArdle & ors v Carroll
[2019] IEHC 850 (03 December 2019)
JUDGMENT of Mr.Justice MacGrath delivered on the 3rd day of December, 2019.1. These proceedings were commenced by way of notice of motion dated the 8th June,2018. The applicants, inter alia, sought an order pursuant to s. 160(1) of the Planningand Development Act 2000 as amended (“the Act of 2000”) to restrain the respondentfrom carrying out an unauthorised development on his lands, being a boundary wall. Itwas contended that the wall was of such a height as required planning permission inaccordance with the provisions the Act of 2000 and Regulations made thereunder. Anorder was also sought for inspection of the respondents’ property. In circumstancesoutlined hereunder, it is accepted that proceedings have now become moot and the soleremaining issue requiring the court’s determination is in relation to costs.2. The applicants and the respondent are neighbours and reside at Rock Road, Blackrock,Co. Louth. Before the emergence of this dispute in April, 2018, there is nothing to suggestthat they were on anything but good terms. The respondent has described his family’srelationship with the applicants as cordial and friendly. This situation pertained before therespondent decided to build a boundary wall. The wall was constructed to the rear of theapplicant’s dwelling house and behind an existing boundary wall thereon. The lands of therespondent are zoned for residential use. The respondent, in an affidavit sworn inopposition avers that he built the wall to improve and secure his own boundary. Theapplicants objected.3. In circumstances outlined hereunder, the respondent applied to the local planningauthority for permission to retain the wall and in the events which have transpired, AnBord Pleanála confirmed the local authority’s decision to grant retention permission. Thedecision of the Board was made on 17th December, 2018. Thus, it is agreed that theproceedings became moot at this time.4. The application for retention was lodged with the planning authority on 12th June, 2018.Some days prior to that, a site notice was erected. On the evidence, this occurred on themorning of the 7th June, 2018, being the day on which the first applicant swore heraffidavit grounding the proceedings and one day prior to the institution of theseproceedings. It appears, nevertheless, that the preparation of the proceedings was intrain prior to the 7th June, 2018. This is evident from the supporting affidavit of Mr. J.P.Murphy, engineer, which was sworn on 6th June, 2018. He deposed to having inspectedthe planning register and he addressed the planning status of the property in his affidavit.He confirmed that the lands are zoned residential, that no applications had beenPage 2 ⇓submitted for planning permission and that a warning letter had been issued to therespondent by the local planning authority.5. In her affidavit, the first named applicant also complained that the wall had been erectedover pipes servicing the dwelling house of the second and third named applicants and thata gap had been left between the two walls which was considered by the applicants to bedangerous and hazardous, particularly to children. The court was informed that separateproceedings had been commenced in respect of an alleged trespass. These also issued on8th June, 2018. Apart from being served on the respondent, they have not beenprogressed to date.6. The applicants maintain that the wall was built at such a pace that it was substantiallycompleted by the morning of the 9th April, 2018, despite conversations which had takenplace on site and the sending of a letter written on the 5th April, 2018 in which theapplicant had expressed concerns. They maintain that they sought to avoid proceedings.7. On the evidence, I am satisfied that the works commenced without prior consultation bythe respondent with the applicants. I accept, on the evidence, that Mr. Carroll engaged acontractor on Wednesday 4th April, who in turn commenced excavation and poured thefoundations for the wall.8. I am also satisfied that there was communication on that day when the third applicant,Ms. Olivia McArdle, who leaned over the rear wall of her home and queried what washappening. She maintains that certain assurances were given to her as to the pace atwhich the works might take place. In his affidavit, para. 10, the respondent avers thatshe enquired of him as to when he proposed to construct a wall and he responded that itwould probably be Monday or the following week. Ms. McArdle queried why he had notinformed her that he was building a wall and Mr. Carroll states that he had intended toinform her sister, Ms. Shirley McArdle, in short course. On enquiry as to the height of thewall, Mr. Carroll avers that he confirmed that the wall would be the same height as thewall to the east, which bounded the property of another neighbour, approximately 1.8mabove her garden level but that it would not be as high as a wooden partition fencedividing the applicant’s garden into two sections. He also states that Ms. Olivia McArdlesaid to him “[w]hat about my view?”. She inquired about the sewage pipe passing fromher property to a council sewer running under and through her own property and heconfirmed that he was aware of the council pipe and that he would not be encounteringany pipe work in the course of excavating the foundation for the wall. This was becausethe pipe was approximately 2.6m underneath the ground.9. Mr. Carroll also accepts that on the 5th April, at approximately 8:30a.m., Ms. OliviaMcArdle once again leaned over the wall and requested that he cease all worksimmediately. A discussion ensued about the height of the wall and the respondent aversthat he informed her that he understood that it was permissible to build a wall up to 2min height without planning permission and that the finished wall would be less than 2mabove ground level on her side. He states that Ms. McArdle informed him that she wishedto have her engineer inspect the works to which he replied that he had no difficulty withPage 3 ⇓such course of action. Ms. McArdle also expressed concerns regarding the foundation ofher boundary wall and Mr. Carroll states that he put her mind at ease about this.However, Mr. Carroll maintains that Ms. McArdle again demanded, in what he describedas a very pointed and aggressive fashion that all works cease immediately, to which heresponded that the works were in progress with men and all materials on site and advisedher that he had a delivery of concrete arriving to fill the foundations which was “arrivingimminently”.10. Mr. Carroll also confirms at para. 13 of his affidavit that the construction of the wallcommenced on the 7th April, 2018 and that he was approached at approximatelylunchtime by Ms. Sharon McArdle and Ms. Olivia McArdle who he says were quiteaggressive towards the blocklayers and who demanded that they immediately ceaselaying blocks otherwise they would call the Gardaí. Mr. Carroll states that he believes theimport of this communication to the workers in question was that they were in some waycommitting a criminal offence. Later that afternoon, Saturday 7th April, Ms. Olivia McArdlecalled to his front door. He was not there and his daughter informed Ms. McArdle that shewas unaware of his whereabouts. Once again Mr. Carroll complains about the demeanour,tone and what he describes as the aggressive and oppressive nature of that demeanour,which made his daughter feel uncomfortable.11. Mr. Carroll avers that on Sunday 8th April, 2018, he was present in the garden with anumber of blocklayers and was confronted again. He informed Ms. Sharon McArdle thatthis was not a party wall, it was built entirely on his property, that the blocklayers wereindependent contractors who started on Saturday as they had another job waiting andbecause the weather was forecast to deteriorate. However, he confirmed that engineersretained by the applicants were welcome to inspect the works and could liaise with hisengineer, Mr. McMahon, of Messrs. Padraig Herr and Associates who, he states, hadalready inspected the works the previous day and found that there was nothing wrongwith either the wall or the foundations. He forwarded a copy of the engineer’s report tothem on Monday, 9th April, 2018. However, he states that Ms. Sharon McArdle dismissedthis immediately and indicated that the report would not stand up in court. Heacknowledges that Ms. Olivia McArdle accused him of deliberately misleading her becausethe workers had started on site on Saturday and not on the following Monday. Thatapparently was the last verbal communication between the parties.12. I am satisfied that while there may have been no legal obligation to do so, the actions ofthe respondent in not communicating with the applicants in advance and the haste withwhich the wall was thereafter constructed significantly contributed to the colouring of theattitude of the applicants and to what subsequently transpired.13. On Monday 9th April, 2018, Mr. Padraig Herr called on the respondent with Mr. J.P.Murphy, an engineer representing the applicants. It is evident that the primary concern atthat time was the safety of the wall. Mr. Carroll confirms that at that time the wall wassubstantially completed by Wednesday the 11th April, 2018. He also avers that certainother work was put on hold because of the correspondence between the parties.Page 4 ⇓14. On the 17th April, 2018 the respondent received a warning letter issued by the localauthority pursuant to s. 152 of the Act of 2000, advising that the wall was or may beunauthorised. This issued on foot of a complaint made by the applicants to the localauthority on the 13th April, 2018.15. In early May, 2018, the respondent advised the local authority that he intended to makean application for retention permission. This appears to have been in response to thewarning letter and on the advice of his engineer. On the 2nd May, 2018, Ms. SharonMcArdle made a formal complaint to the local authority that the wall was a dangerousstructure. This was not accepted by the local authority and on the 2nd May, 2018 Mr.Fergus Fox, council engineer who inspected the wall, recommended that the file beclosed.16. It would also seem that on the same day, Mr. Herr wrote to the local authority, informingthem that he had been instructed by Mr. Carroll to prepare and submit a planningapplication for retention of the wall. In the meantime, communications were taking placebetween the parties regarding inspection facilities and an issue arose concerning whethersuch inspection facilities would be permitted in the absence of an indemnity (presumablyto indemnify the respondent in respect of anything that might happen while the plaintiff’sengineer was on the property). Mr. Carroll makes the complaint that this was notprogressed before the proceedings issued on the 8th June, 2018. He also points to thefact that in the letter of 10th May, 2018, prior to the institution of proceedings, thesolicitors on behalf of the plaintiff stated that they wished to have confirmation that notalone would the wall be removed but trees recently planted would also be removed andthat there no reference request was made that the planning status of the wall beregularised by way of a grant of permission. The demand was one for removal of the wall.17. Mr. Carroll also says that on the 7th June, 2018 being the date on which Ms. McArdleswore her affidavit, at approximately 8:30 a.m., a site notice was placed directly at hisentrance gate (the main access road of Rock Road where all of the parties live) statingthat the respondent was applying for retention permission for the wall. It is submittedthat this site notice was clearly visible to all passers-by but that despite this, theapplicants nevertheless went ahead with this application. The site notice stated:-“LOUTH COUNTY COUNCILSITE NOTICEWE DONAL & CAROLINE CARROLLINTEND TO APPLY FOR:-RETENTION PERMISSIONFOR DEVELOPMENT AT THIS SITE:-THE ROCK ROAD, HAGGARDSTOWN, BLACKROCK, DUNDALK, COUNTY LOUTH.Page 5 ⇓THE DEVELOPMENT WILL CONSIST OF:-RETENTION OF A BOUNDARY WALL BETWEEN ACGRICULTURAL LANDS ANDNEIGHBOURING DWELLINGS AND ASSOCIATED SITE DEVELOPMENT WORKS.The planning application may be inspected, or purchased at a fee not exceeding thereasonable costs of making a copy, at the offices of the planning authority duringits public opening hours.A submission or observation in relation to the application may be made in writing tothe planning authority on payment of the prescribed fee, €20, within the period of 5weeks beginning on the date of receipt by the authority of the application, and suchsubmissions or observations will be considered by the planning authority in makinga decision on the application. The planning authority may grant permission subjectto or without conditions, or may refuse to grant permission.SIGNED:- (agent) Padraig HerrDATE OF ERECTION OF SITE NOTICE:- 07TH JUNE 2018.”18. The application for retention was made on the 12th June, 2018 and the applicants andothers objected. A report was prepared by representatives of the local authority’splanning department. This was based on a site visit which occurred on 28th June, 2018.The authors described the height of wall as ranging between 2.4 m and 2.8 m. Theyobserved that while:-“…no application for residential has been submitted, the provision of such a wall ofthis nature would not be an uncommon feature/requirement as part of a planningapplication and is a requirement under s.6.7.13.[of the development plan].”The principle of the development was considered acceptable and it was recommendedthat retention permission be granted.19. On the 26th July, 2018, the planning authority issued a decision to grant retentionpermission. A number of conditions were attached, including that the developmentcomply with certain requirements of Irish Water. An appeal was lodged to An BordPleanála by the applicants and the Board of Management of the local school. On the 17thDecember, 2018, the Board granted retention permission on terms in accord with thosespecified by the planning authority on the 26th July, 2018.20. By letter of the 7th August, 2018 the respondent’s solicitors wrote to the applicantsproposing that in order to avoid further legal costs, the proceedings should be adjournedpending the issue of a grant of planning permission or a final determination. This and afurther letter of reminder were not responded to at that time. The applicants changedtheir solicitor at that time. While complaint is made that these letters were not respondedto, nevertheless, it appears that no further substantial step was taken by the applicants.The respondent filed a replying affidavit. The respondent also filed and delivered anPage 6 ⇓affidavit sworn by a chartered engineer, Mr. Roger Cagney. This followed a number ofinspections of the wall, including a joint inspection which occurred on 19th July, 2018 andwhich concerned the structure and the safety of the wall. In the affidavit he responded toa letter which had been sent by the applicants dated 4th May, 2018, in which concernsregarding the design, safety and structure of the wall were expressed. He refuted thoseconcerns.21. Mr. Connolly S.C., on behalf of the respondent points out that a court order was extantrequiring the filing of a replying affidavit within a specified time and that in the absence ofagreement to defer further proceedings pending the outcome of the appeal to An BordPleanála, the respondent was obliged to file that affidavit, thereby incurring costs.22. Thereafter, it may be said that little occurred until after the application for retention wasgranted by An Bord Pleanala and before the issue of costs became a significant matterbetween the parties. It appears that the proceedings were adjourned on at least oneoccasion while the appeal was pending before the Board. No further affidavits wereexchanged until early 2019. These included a supplemental affidavit sworn by therespondent on 17th January, 2019 in which he updated the situation regarding thegranting of retention permission. A further affidavit was sworn by the first applicant on10th April, 2019 to respond to and refute the contentions outlined in the respondent’sfirst affidavit. She denied that the applicants were being unreasonable and reiterated herconcern about the safety of the wall. She refuted any suggestion that the applicants werethemselves in breach of the planning laws. She expressed her belief that the constructionof the wall was in anticipation of an application for planning permission for a housingdevelopment and raised doubts as to the respondent’s belief that the development wasexempt. Reference was made to the fact that the respondent, in response to anotherwarning letter under s. 152 in respect of another wall, had made application for retentionpermission for that wall which was also granted; and an issue was raised regardingcompliance with the condition attached to the retention permission. She also stated herbelief that the open market value of the lands exceeded €3,000,000 and that they hadbeen acquired in 2006 for in excess of €5,000,000.23. Mr Kavanagh, engineer, swore an affidavit on 29th April 2019. This was submitted onbehalf of the applicants. He refuted certain assertions contained in Mr. Cagney’s affidavitand reiterated his concern that the design of the wall was fundamentally flawed.24. Mr. Gunne, auctioneer, in an affidavit sworn in support of the land valuation, stated thathis valuation of the property was based on a valuation of €300,000 per acre, giving agross value of €3,111,000. He avers that the residence was valued at €425,000 and giventhat it may be necessary to sacrifice the residence or to pay a premium for access, thenet value of the land was, in his opinion, just over €3 million. Mr. Gunne avers that sincethe date of his first valuation, he learned that the respondents also have additionaladjoining landholding which was not included in his initial evaluation. Reference is alsomade to a right of way which the respondent benefits over adjoining property. Inconclusion, Mr. Gunne confirmed his valuation of €3,111,000.Page 7 ⇓25. These affidavits led to a further extensive affidavit in reply from Mr. Carroll. He referredto the meeting of engineers on 9th April, 2018. He rejected the suggestion that theapplication for retention was provoked by the institution of these proceedings. Heexhibited a report from valuers, Sherry Fitzgerald Carroll, in relation to the valuation ofhis lands. It is fair to observe that this is more detailed than Mr. Gunne’s.26. The provisions of O. 99 of the Rules of the Superior Courts provide that, althoughultimately it is a matter for the discretion of the court, an award of costs follow the event.If the court is minded to dis-apply this rule then, in accordance with dicta in Godsil v.Ireland [2015] 4 IR 535, it can only do so on a reasoned basis and one which isrationally connected to the facts of the case to include the conduct of the participants.The court has also been referred to a passage from Delaney and McGrath on CivilProcedure, (4th ed., 2018) that it enjoys a wide discretion not to award costs or to reducethe costs awarded where it disapproves of how the proceedings were conducted by thesuccessful party.27. The parties now essentially agree that the proceedings have become moot, and that theonly issue which is now outstanding is that of costs. Both parties seek their costs.28. Mr. O’Donnell B.L, counsel for the applicant, in reliance on the decision of Clarke J. (as hethen was) in Telefonica O2 Ireland Ltd v. Commission for Communications Regulationand Others [2011] IEHC 380, a decision which shall be discussed in more detail below,submits that the generally accepted principle that where proceedings become moot as aresult of an external event that the parties should bear their own costs does not applybecause these proceedings were rendered moot by the actions of the respondent inapplying for retention permission. The decision of An Bord Pleanála, which had the effectof rendering the proceedings moot, therefore, was not an event which was trulyindependent of the actions of the parties. It is submitted, that the court should exerciseits discretion to award costs in favour of the applicants. To this end, significant emphasiswas placed by counsel on the conduct of the respondent in constructing a wall at a heightwhich attracted the requirement for permission under the Act of 2000, without priornotification to the applicants and which, despite their concerns and objections, hecompleted in a hasty manner. Emphasis is placed on certain assurances orrepresentations made by respondent when the matter first arose on 4th April, 2018, thatthe wall would not be constructed until the following Monday but that the work wassubstantially completed earlier, over the weekend, and in spite of correspondencebetween the parties. It is submitted that the wall was built at a height which wasconsiderably in excess of that for which permission is required under the Planning andDevelopment Regulations. On 17th April, 2018 the planning authority issued a warningletter which indicated that unauthorised development may have been carried out and theapplicants were unaware that the respondent intended to apply for retention permissionbefore these proceedings were instituted. It is contended that the application for retentionwas made in response to the proceedings. Mr. O’Donnell B.L. submitted but for theproceedings being brought, the unauthorised structure would have remained in situ andPage 8 ⇓that it was only the subsequent decision of the Board that the structure obtain the benefitof planning permission that render that which was unauthorised, authorised.29. Significant emphasis is placed on s. 162(3) of the Act of 2000 which provides that noenforcement action, including an application under s. 160 shall be stayed or withdrawn byreason of an application for permission or retention of unauthorised development under s.34(12) or the grant of that permission. Counsel submits that this provision applies in asituation such as this, and that it was designed to avoid the type of scenario which isrelied upon by the respondent and for which the provisions of s. 162(3) were enacted. Itis submitted that the respondent waited for a considerable time before taking actiondespite having been notified of the applicants’ concerns both verbally and in writing.Further, it is submitted that the respondent refused to allow inspection notwithstandingconcerns raised about the structural stability of the wall.30. The respondent’s position is that he did not make the application for retention in responseto the institution of these proceedings. It was made in consequence of the warning letterand on the basis of the advice which he received from his engineer. He believed that hedid not require planning permission, as the construction of the wall to the height intendedwas exempt from the requirement to obtain planning permission. He states that hisapproach has been to limit the cost of the proceedings at an early stage, but that theapplicants have added to the costs by the submission of further affidavits in April, 2019.This had the effect of significantly enlarging the case subsequent to the granting of theretention permission. The respondent also maintains that the filing of the affidavits mustbe viewed in the context of the respondent having made proposals to avoid escalatinglegal costs with particular regard to the letter of the 7th August, 2018, which wentunanswered.31. Mr. Connolly S.C., counsel for the respondent, submits that s. 162(3) of the Act of 2000does not preclude the court from exercising its discretion in relation to costs in favour ofthe respondent. He points to several matters which, he submits, had the case gone to afull hearing, in accordance with the principles in Morris v. Garvey [1983] I.R. 319, asapplied in Meath County Council v. Murray [2018] 1 I.R. 189, may have resulted in thecourt, in the exercise of its discretion, refraining from making the order. Counselconfirmed that it was not being suggested that, if deciding the case, the court might takeanother view i.e. that it was at all times an exempted development. Nevertheless, headvanced these matters such that the court may take into account in concluding thatthere was a plausible view that the respondent, or any other person might take, that thiswas an exempted development; and that his mistaken belief in that regard is alsoplausible.32. In Murray, Mc Kechnie J. stated:-“90. What, then, are the factors which play into the exercise of the Court’s discretion?From a consideration of the case law, one can readily identify, inter alia, thefollowing considerations:Page 9 ⇓(i) The nature of the breach: ranging from minor, technical, and inconsequentialup to material, significant and gross;(ii) The conduct of the infringer: his attitude to planning control and hisengagement or lack thereof with that process:• Acting in good faith, whilst important, will not necessarily excuse himfrom a s. 160 order,• Acting mala fides may presumptively subject him to such an order;(iii) The reason for the infringement: this may range from general mistake,through to indifference, and up to culpable disregard;(iv) The attitude of planning authority: whilst important, this factor will notnecessarily be decisive;(v) The public interest in upholding the integrity of the planning anddevelopment system;(vi) The public interest, such as:•Employment for those beyond the individual transgressors, or•The importance of the underlying structure/activity, for example,infrastructural facilities or services.(vii) The conduct and, if appropriate, personal circumstances of the applicant;(viii) The issue of delay, even within the statutory period, and of acquiescence;(ix) The personal circumstances of the respondent; and(x) The consequences of any such order, including the hardship and financialimpact on the respondent and third parties,91. The weight to be attributed to each factor will be determined by the circumstancesof a given case. Some, because of their importance, may influence whether anorder is or is not in fact made: others, the scope, nature or effect of that order.This list is not in any way intended to be exhaustive, and it may well be that othermatters might require consideration in an appropriate case. For example, in Piersonv. Keegan Quarries Ltd. [2010] IEHC 404, Irvine J took account of the hardshipwhich demolition might cause to third parties, and referred also to the possibleeffect of the developer having relied in good faith on professional advisers. The jobsof non-related members of the public, mentioned at para. 90(iv), above, featured inStafford v. Roadstone Ltd and Dublin County Council v. Sellwood Quarries Ltd[1981] I.L.R.M. 23. There are many other examples. However, the above list isgenerally representative of the type of factors which the judge will normally becalled upon to consider. It is thus an appropriate framework within which to analysethe High Court’s exercise of discretion in this case, conducted, as it only could be,by reference to the traditional or customary approach (see paras. 134-139, infra)…”Page 10 ⇓33. Adopting the above approach, Mr. Connolly S.C. points to the following factors:a. The reasonable belief of the respondent, objectively verified, that the constructionof the wall was an exempt development, or that he held a plausible view that thedevelopment was exempt. Particular emphasis is placed on his belief that it waspermissible to measure the height of the wall from the perspective of the landswhose amenities were said to be affected;b. The concern about the hazard allegedly created by the wall brought a sense ofurgency into the proceedings was nihil ad rem and unrelated to planning matters;c. The failure of the applicants to bring to the court’s attention in the groundingaffidavit the events and communications which occurred between the time of theconstruction of the wall and the date of the application before the court, particularlythose in relation to the safety of the wall. The correspondence and a report on thesafety of the wall which had been commissioned by the respondent and furnishedto the applicant in April, 2018 was not exhibited or referred to in the groundingaffidavit. The report of the engineer which had been furnished to the applicants on9th April, 2018 was not exhibited in the grounding affidavit of Ms. McArdle,something which is described as significant omission particularly where it was Mr.McMahon’s opinion that the wall would not adversely impact any existing drains orother services. In passing, it is to be noted however, that this letter did not addressthe planning status of the wall or whether permission was required for adevelopment of such a nature and height. It is contended that by failing to refer tothe available information unfairly coloured the urgency of the case from a safetyperspective. Further, an application to the local authority under the dangerousstructure legislation was not notified;d. The absence of concern by other neighbours;e. That the respondent applied for retention in response to the warning letter, ratherthan the proceedings and that in so doing he acted on the advice of his engineer;f. At the time of the institution of the proceedings, the applicants were aware that thecouncil had been investigating the issue, because they had made the complaint anda s. 152 warning letter had issued;g. The applicants must be presumed to have been on notice of the making by therespondent of the application for retention, something which had been triggered bythe Council’s planning enforcement process but nevertheless, these proceedingswere brought. Emphasis is placed on the site notice and the planning officers reporton the 28th June, 2018 that the site notice was displayed and was in accordancewith regulations and therefore, it was submitted that notices were validly in placeand that the applicants ought to have been on notice of them. The respondentrelies on what it describes as the presumption that the public notificationPage 11 ⇓requirement in relation to the making of their retention application was compliedwith;h. The applicant’s initial demand for the removal of the wall, rather than itsregularisation;i. The unreasonable failure on the part of the applicant to furnish the respondent anengineering report and the exchange between the parties in relation to the engineerand the basis upon which an inspection might take place. It is emphasised in thisregard that the applicants’ engineer was not refused inspection facilities;j. The respondent also maintains that the applicants’ purported structural concerns inrelation to the wall are unsustainable given the expert evidence which has beenadduced. While the respondent maintains that this was a matter of agreementbetween the engineers, Mr. Murphy in his affidavit disputes this. The wall isstructurally sound and has been built within the respondent’s private property andwithin the curtilage of his dwelling.k. It is suggested that the breach of the planning code in this case was undoubtedly“minor, technical and inconsequential”, as discussed in Murray and that it wastherefore wholly inappropriate for the applicants to seek to invoke the jurisdictionof the court under s. 160 in pursuit of what is described as a personal advantage,being the preservation of a view to the rear of their property, and a view which isbeyond the rear garden boundary wall. No such general right exists;l. The attitude of the planning authority – reliance was placed on the fact that noenforcement notice was ever issued.m. It is also submitted it cannot be plausibly be argued that the public interest inupholding the integrity of the planning and development system necessitated thebringing of the proceedings.34. The court has been referred to a number of authorities including the decision of SimonsJ. in Tanager DAC v. Ryan [2019] IEHC 649 as authority for the proposition that accountis to be taken of factors such as:-“whether the proceedings were seeking a private personal advantage, and whetherthe legal issues raised were of special and general public importance and potentiallyrelevant but not necessarily determinative.”35. Reference is made to the conduct of the applicants, that they have constructed out officebuildings on a common boundary and that they have been in breach of the planning laws.The respondent also makes the point that following this a number of affidavits which weredelivered on behalf of the applicants, including a supplemental affidavit from Ms. SharonMcArdle of the 29th April, 2019, Mr. Stephen Gunne, auctioneer, of 26th April, 2019 andMr. Kavanagh, chartered engineer on the 29th April, 2019, that this necessitated the filingof further affidavits by both the respondent and by an engineer on his behalf.Page 12 ⇓36. In so far as the respondent’s application for costs is concerned, the court has also beenaddressed in relation to the provisions of the Environment (Miscellaneous Provisions) Act2011 (“the Act of 2011”). In North East Pylon Pressure Campaign Limited v. An BordPleanála No. 5 [2016] IEHC 490, Humphreys J. observed at para. 32:-“The upshot is that the not-prohibitively-expensive rule applies (to the fullestextent that it is possible to read national law to that effect) to challenges based onnational environmental law within the field of EU environmental law even if thechallenges do not relate to the public participation rules. Thus there is no need toget unduly caught up in classifying challenges as relating to public participation onlyas opposed to national environmental law within the EU law field more generallybecause ultimately both come to the same thing. As regards the rider that nationallaw should be read to this effect ‘to the fullest extent possible’, this is not a problemfor Ireland as the discretion arising from O. 99 is sufficiently flexible that it canalways be read in an EU law-compatible manner.”37. In essence, the respondent maintains that if the court should determine that s. 3 of theAct of 2011 applies, the respondent is entitled to seek its costs pursuant to s. 3(3)(b) ofthe Act of 2011.38. In response to these particular submissions, Mr. O’Donnell B.L. emphasises the statutorybasis for an application under s.160 of the Act. He submits that the wall was built at aheight which ought not to be regarded as a minor and technical or inconsequentialbreach, given that the height to which it was constructed was well in excess of that inrespect of which permission is required. There was no acquiescence over a long periodnor has there been shown gross and disproportionate hardship such as might haveinfluenced the court to exercise its discretion to refuse any relief. Counsel relies on thedecision of Morris v. Garvey in this regard. There, Henchy J. stated:-“When s. 27(2) is invoked, the Court becomes the guardian and supervisor of thecarrying out of the permitted development according to its limitations, and incarrying out that function it must balance the duty and benefit of the developerunder the permission as granted against the environmental and ecological rightsand amenities of the public, present and future, particularly those closely orimmediately affected by the contravention of the permission. It would requireexceptional circumstances (such as genuine mistake, acquiescence over a longperiod, the triviality or mere technicality of the infraction, gross or disproportionatehardship, or such like extenuating or excusing factors) before the Court shouldrefrain from making whatever order (including an order of attachment for contemptin default of compliance) as is “necessary to ensure that the development is carriedout in conformity with the permission”. An order merely restraining the developerfrom proceeding with the unpermitted work would not alone fail to achieve that aimbut would often make matters worse by producing a part completed structure whichwould be offensive to the eye as well as having the effect of devaluing neighbouringproperty.”Page 13 ⇓Further, he submits that the respondent has displayed in his affidavits a knowledge ofplanning laws and that if he was confident that it was an exempted development, heshould have had no difficulty in approaching his neighbours in advance. He submits thatthe making of the retention application was, in effect, an acceptance that planningpermission was required and that at the when the application was lodged, the wall wasan unauthorised structure and the proceedings were in being. If a genuine mistake wasmade by the respondent, Mr O’Donnell B.L. observes that no remorse for such a mistakewas expressed in the replying affidavit.39. I have taken into account the above submissions and the responses thereto, all of which Ihave considered in balancing how the discretion of the court ought to be exercised.40. These proceedings were instituted on the 8th June, 2018 seeking an order pursuant to s.160 of the Act of 2000 to restrain the unauthorised development being the boundary wallwhich as it transpires and despite the respondent’s belief, was one to which the planninginspector, Mr. Niall Haverty, concluded that because of its height dimensions, requiredpermission.41. It must also be considered, nevertheless, that certainly in the initial stages, theapplicants’ concerns centred on the safety and stability of the wall. Letters were issued byand on behalf of the applicants on 5th April, 2018 and 11th April, 2018. The letter of 5thApril was sent by the third named applicant who requested that he refrain from takingany further steps to construct any wall, foundation or other structure next to or near thewall at the rear of their property:-“so as to allow us the opportunity to be appraised of the extent of the proposedworks and ascertain whether or not they would affect the structure, stability,amenity, or otherwise of our property and/or the connection small property to andfrom the public main services.”She felt that the request was reasonable in circumstances where the applicants had noprior notification of the proposed works such as would have afforded them an opportunityto ascertain the position. The letter concluded: “we trust you will appreciate our concernsherein and would hope that this matter might be resolved amicably in due course”.42. Unfortunately the response of the respondent was to persist with the works and while itmay be that engineers were retained to look at the structure and stability of the wall, thefact remains that the wall was constructed despite the request of the applicants that it notbe. In his replying affidavit, Mr. Carroll states that he built the wall to improve thesecurity zone boundary because the boundary arrangements in place at that timeconsisted of a broken down concrete post and chain link fence. In the same affidavit, heavers that he had a number of concerns with respect to the applicants’ low level gardenwall. He states that these did not meet the appropriate standards for a wall retaining somany cubic tonnes of soil, it had no piers or expansion joints and was built with a singlecourse of block laid on its edge. He also expressed concern about the lack of privacy andsecurity. Nowhere is it suggested, that prior to his decision to construct this wall had hePage 14 ⇓raised any such concerns with the applicants. It is also evident from the respondent’saffidavit, that he accepts that the third named applicant, Ms. Olivia McArdle, when sheapproached him on 4th April, enquired as to when he proposed to construct the wall andthat he responded to her that it would probably be Monday of the following week. Theworks continued. He accepts that on 5th April, Ms Olivia McArdle once again leaned overthe wall and requested that he cease all works. She queried the height of the wallbecause she thought the wall should only be six foot high. The respondent avers that heindicated to Ms. McArdle that it was his understanding that it was permissible to build thewall of up to 2m in height without planning permission, and that such measurement betaken from the ground level point on his side of the boundary line. This was above herfoundation level before the pre-existing soil was stripped away. He informed her that thefinished wall would be less than 2m above ground level on her side. It is clear, therefore,on the respondent’s own evidence that the issue of the requirement for planningpermission, or the lack of such requirement, was discussed as early as 5th April, 2018. Itis also clear that when the wall was being constructed over the weekend, despite theprotestations of the applicants, the respondent continued with the work and it is also ofnote that in his affidavit sworn on 6th September, 2018, he accepts that on Sunday, 8thApril, 2018, Ms Olivia McArdle stated “… that I had deliberately misled her because theworkers had started on site on Saturday and not on Monday.” Mr. Carroll does not, in thisaffidavit, suggest that he made any response to this.43. While the applicants maintain that the works were substantially completed by Sunday, 8thApril, the respondent maintains that it was not until the 11th April that works weresubstantially completed, but other works including backfilling, repointing, drainage weepinstallation and closing of cavities were put on hold because of the threats incorrespondence “and the present proceedings which issued from the applicants’ solicitor.”It is also evident from the respondent’s affidavit and in particular para. 19, that he gavesome consideration to planning requirements. He avers that he interpreted theregulations to mean that the wall was an exempted development up to 2m in heightmeasured from the pre-existing ground level before any foundation excavation tookplace. This corresponds with the averment regarding the discussion which he says that hehad with Ms. McArdle on site on 5th April, 2018.44. It appears that the focus of the meeting which occurred between the parties’ engineers onMonday 9th April 2018 was on the structural integrity and safety of the wall, rather thanon planning considerations. This is also evident from the letter of 11th April, 2018,written on notepaper of Messrs. McArdle and Co., a firm of solicitors in which the namestwo of the three applicants appear on the letterhead, in which the principal expressedconcern relating to the structural impact of the works on the applicants’ property.Proceedings were threatened. A request was also made for all planning permissionsrelating to the subject works together with the engineer’s certificate of compliance inrespect of same. Thus, it appears to me to be evident that planning issues were underconsideration. Further, it emerges from para. 6 of the respondent’s affidavit sworn on11th June, 2019, that the respondent was aware that the warning letter had issued inresponse to a complaint to the planning enforcement section of the local authority, byPage 15 ⇓way of submission of an enforcement complaints form dated 13th April, 2018, on behalfof the applicants. He also avers that an official in the council planning enforcementsection confirmed to him on 22nd May, 2018, in advance of the institution of theseproceedings, that:-“whilst rightly respecting the anonymity of the complainant, that receipt of thecomplaint… was officially acknowledged in writing to the complainant, together withconfirmation that the council were investigating the matter”.The respondent further accepts that the issuing of the warning letter was a matter whichhe considered to be of the utmost seriousness.45. The letter of 4th May, 2018 from the applicants’ solicitors, while heavily emphasising theissue of trespass and safety, advised that the applicants reserved the right to apply forany necessary orders to ensure that the danger was removed.46. In all the circumstances, I am satisfied that prior to the institution of the proceedings,while the principal focus was on the safety of the structure and issues relating totrespass, the respondent ought to have been aware that the applicants were concerned,inter alia, about the planning status of the wall. There is no evidence of an attempt beingmade prior to the proceedings to expressly or directly communicate with the applicants orotherwise inform them that an application for retention was in contemplation or was inthe process of being made, save for the erection of a site notice which I address below .47. While the respondent maintains that he was of the belief that he did not require planningpermission, nevertheless, he does not appear to have made appropriate inquires eitherbefore construction or when objection was raised.48. With regard to issues relating to engineering inspection prior to proceedings, any disputebetween the parties as to the basis on which such inspection might take place or therequirement for an indemnity, was removed when the parties consented to an order forinspection on 2nd July, 2018. It also seems to me that the issue of the planning status ofthe applicants’ premises was unlikely to have been raised but for these proceedings.49. It seems to me that in balancing all matters to which Mr. Connolly S.C. and Mr. O’DonnellB.L. have referred and which, had this case gone to a conclusion, a court might have hadregard to in determining whether to exercise its discretion to grant the relief claimedunder s. 160, significant weight must be attached to the actions of the respondent fromthe outset, without which this dispute might never have arisen. While prior consultationwith the applicants may not have been required as a matter of law, one would havethought that in order to maintain good neighbourly relations, matters ought to have beenapproached differently by the respondent, particularly when objection was raised. Perhapshad that been done, matters may have turned out differently.Decision50. Having considered the applicable legislation and the authorities, I am satisfied that itremains the position, in a planning law context, but with particular regard to the facts ofPage 16 ⇓this case, that this Court retains a discretion in relation to costs as specified in O. 99 ofthe Rules of the Superior Court. Therefore, had there been an event, on the basis of therules and on the authorities, costs ought to follow that event unless there is good,expressed and stated reason to the contrary. Where proceedings become moot, differentconsiderations may apply to the exercise by the court of its discretion. Cunningham v.The President of the Circuit Court [2012] 3 I.R. 222 and Telefonica O2 Ireland Ltd indicatethat the default position is that there should be no order as to costs where theproceedings have been rendered moot by the happening of an external and independentevent or occurrence, over which the parties have no control. This was addressed byClarke J. (as he then was) in Telefonica O2 Ireland Ltd at para 2.6.1 of his judgementwhere he observed:-“2 6.1A question can become moot for a whole range of reasons. It is impossible to beoverly prescriptive as to the proper approach which the court should adopt for therange of factors that may be relevant are wide, However, it seems to me that afactor which is at least of some significance is an analysis of how it came about thatproceedings had become moot. Sometimes (as was the case in Eircom), externalfactors over which the parties have no control render proceedings moot. In manysuch cases there may at least be an argument for the court making no order as tocosts. It clearly would, at least in the vast majority of cases, be an unacceptableuse of scarce court resources for a hearing to have to go ahead to decide a mootissue simply for the purposes of deciding who should pay the costs. Indeed, giventhat all that will be at issue are the costs up to the time when the proceedingsbecome moot, it would seem particularly foolish for parties to have to incur muchmore costs solely for the purposes of deciding who should bear the costs up to thepoint when the case became moot.” (emphasis added).Having analysed the position of both parties in such a situation, he continued:-“That analysis seems to me to lead to a view that a court should favour making noorder as to costs in proceedings which became moot in the absence of othersignificant countervailing factors. However, that analysis is based on a situationwhere the case becomes moot by reason of factors entirely outside the control ofthe parties. It seems to me that somewhat different considerations apply where thereason (or at least a significant contributory reason) to the proceedings becomingmoot derives from the actions of some but not all of the parties to the case.”(emphasis added)Referring to the decision of the Supreme Court in Murray & Anor v. Commission to Inquireinto Child Abuse [2004] 2 I.R. 222, he observed at para 6.6.5:-“It seems to me, therefore, that a significant factor to be taken into account in theexercise of the court’s discretion as to costs in proceedings which have becomemoot is to analyse whether it can reasonably be said that the actions of anyrelevant party have rendered the proceedings moot. If that be so, then that is asignificant factor to be taken into account in the award of costs. The situation withPage 17 ⇓which the court is then faced remains one where, in the absence of trying a mootcase, the court will not know who would have won. However, the situation of anyparty who was not involved in rendering the issue moot, in not being able toestablish that their side of the case was right, has resulted not from any actionwhich that party took or, indeed, from some entirely external event over which noone had any control, but rather from actions taken by their opponent. That is afactor which ought weigh significantly in favour of the grant of costs to the partywho was not involved in the action which led to the proceedings being moot. Thisremains the case even where, as here, there were entirely understandable reasonswhy the parties took the actions – settling the case – which they did.”51. On the facts, I am satisfied that a decision was made by the respondent to seek retentionsome weeks prior to the institution of these proceedings. This is evident from the letterwritten by Mr. Herr on the 2nd May, 2018 which confirmed that the application forretention would be made within two weeks. Nevertheless, while that decision may nothave been made in response to the institution of proceedings, it was significantlyprompted by what had occurred up to that time. There is no evidence, however, that theintention of the respondent to apply for retention was expressly communicated to theapplicant in advance of the institution of the proceedings. The respondent maintains,however, that the applicant ought to have been aware of the application because it wasmade in response to a warning letter which he had received from the local authority andwhich warning letter had been precipitated by the applicant’s complaint. In essence, theclaim of the respondent in this regard is that the applicant was precipitous in seeking therelief sought in these proceedings.52. In consideration of why the proceedings became moot, the applicants submit that thedecision of the Board is not a truly independent event, but one to which the respondentcontributed. The respondent maintains that it does not follow that by engaging in thestatutory process that one has or assumes control over the outcome of that process orthat it is or becomes a unilateral act; and that the process of application and grantingretention is one in which an independent decision is made by an independent body.53. It is difficult to accept that where a person a) who is subject to enforcement proceedings,or where he or she has been in receipt of a warning letter; and b) where at the time ofthe institution of the proceedings he or she may have been in default of his or herplanning obligations; and c) is subsequently successful in his or her application for aretention permission thus thereby bringing the proceedings to a stage of mootness, thathe or she can thereafter maintain that this is a truly independent event over which he orshe has no control. Here the granting of the retention permission could not have comeabout without the application by, and participation of, the respondent in that process. Therespondent contributed significantly to that process.54. While each case must be considered on its merits and within its own factual and legalcontext, it seems to me that the court’s conclusion in this regard is reinforced in theparticular context of planning enforcement legislation. In my view the propositionPage 18 ⇓advanced by the respondent is difficult to reconcile with the provisions of s. 162 (3) ofthe Act of 2000, which expressly provides that no enforcement action, including anapplication under s.160, shall be stayed or withdrawn by reason of an application forretention of permission under s. 34(12) or the grant of that permission (emphasis added).To hold that the granting of permission in respect of the subject matter of theenforcement action thereby renders those proceedings moot would appear to beinconsistent with the express provisions of that subsection. I am therefore not satisfiedthat it has been established that, as a matter of principle, because the proceedings arenow moot that the generally stated proposition that there should be no order as to costsapplies. Thus, I am not satisfied that the circumstances which arise in this case requirethe application of any general principle that each party should be required to bear its owncosts on the grounds of mootness of proceedings.55. Nevertheless, there continues to remain the issue of the manner in which the court oughtto exercise its discretion in the light of the necessity, timing or circumstances surroundingthe commencement of proceedings. On this issue, it appears to me that, on theauthorities, the court is required to assess the overall circumstances including the conductof the parties. Further, it is also relevant to consider the criteria to which this Court hasbeen referred and as outlined in Morris v. Garvey and as discussed in Murray in thecontext of planning injunctions.56. In my view, the failure of the respondent to engage with the applicants in advance of theworks, and the expedition with which such works took place contrary to certainrepresentations made as to when they might commence, contributed significantly to thesubsequent course of events and to the institution of these proceedings. While it mayhave been, and on the facts I am satisfied that it was, decided that an application forretention was to be made considerably in advance of the institution of the proceedings, itis clear that this intention was not communicated to the applicants. The fact that a sitenotice may have been in place at 8a.m. on the morning on which the grounding affidavitwas sworn does not appear to me to be of great significance. Such notices are required tobe put in place for particular periods of time to give the public a reasonable opportunity tobe aware of the application in respect of a proposed development. That someone does notsee that notice immediately when it is erected is not, in my view, a matter for which he orshe ought to be criticised, and this is particularly so when a letter in advance of actionhad been served. Again, a simple communication would have removed any mystery aboutwhat was intended. Further, placing the site notice in position did not alter the planningstatus of the wall or render authorised that which may have been unauthorised.57. In all the circumstance, I am satisfied that in so far as the timing of the proceedings isconcerned, the applicant is not to be criticised, particularly in the light of the threat ofproceedings, the conduct of the respondent in the hasty construction of the structure,which on all the evidence, was unauthorised because of its height and in the absence ofcommunication in advance that retention would be sought. That the respondent may haveharboured a subjective belief that planning permission was not required must be viewedin the context of the immediate objection by the applicants to what was taking place.Page 19 ⇓58. The respondent, however, also raises issues concerning the failure of the applicants todisclose the course of dealings between the parties and communications with the localauthority, together with that authority’s response, relating to the safety of the wall. Mr.O’Donnell B.L., counsel for the applicants, submits that the applicants could not to becriticised for their failure to inform the court about these matters. He submits that this isparticularly so where no interim or interlocutory relief is sought and where it is anticipatedthat after the commencement of proceedings a further exchange of affidavits, and thejoining of the issues between the parties, is to be anticipated.59. In applications under s. 160 it is accepted that even where a prima facie case for relief isestablished, the court retains a discretion to refuse relief, to be exercised in accordancewith principle. In my view, if a position is stated on affidavit which does not provide acomplete and fair picture of the circumstances leading up to and surrounding theapplication, this may be taken into consideration by the court in determining how it mightexercise its discretion. The weight to be attached to this must relate to the nature of theapplication and the relief, statutory or non-statutory which is sought. Here, the mattersthat were not fully expressed to the court concerned issues relating to the safety of astructure, rather than its planning status, nevertheless it is a factor which in the particularcircumstances of the case I ought to take into consideration.60. It also appears to me that I should consider, and take into account, the conduct of theparties while the proceedings were ongoing including, in this case, the lack of response tothe respondent’s invitation in August, 2018 that matters might be stayed pending thedecision of An Bord Pleanála on appeal. In view of the provisions of s. 162(3), it may besaid that there was no obligation on the applicants to desist from pursuing theproceedings, and further, it may also be contended that had the respondent applied for astay on the proceedings it is likely to have been refused in the light of the expresswording of s. 162(3). Nevertheless, I do not believe it is appropriate, when consideringthe question of costs, that the reply to communications or the failure to do so should beignored by the court.61. The contents of the affidavits which followed subsequent to August, 2018, on both sides,far from lowering the temperature served only to increase the tension with allegations ofa hate campaign, breach of the Act of 2000 by the applicants – a matter which appearednot to concern the respondent up to this time – and the introduction of matters regardingother planning issues concerning the respondent, and his regularisation thereof; againsomething which does not appear to have exercised the minds of the applicants beforenow.62. The parties are neighbours and may continue to be long after these proceedings haveconcluded. Taking everything into account, in my view, any inclination of the court toaward costs of the application, up to the time of the proceedings becoming moot, must beconsidered in the light of the absence of constructive communication thereafter, to whichboth parties have contributed.Page 20 ⇓63. I have come to the conclusion that in all the circumstances and weighing all matters inthe balance including the respective conduct of the parties, the applicant should beentitled to their costs up to the date on which an event occurred which rendered theproceedings moot, namely the 12th December, 2018 and that the court should make noorder as to costs incurred by the parties arising thereafter. It seems to me that theprimary precipitating factor giving rise to the dispute between the parties and thesubsequent institution of the proceedings was the conduct of the respondent in erecting awall of a height, which was shown in the events which transpired, required planningpermission and which was constructed in a hasty fashion without prior consultation andcommunication with the respondents, his near neighbours.64. As to the level of those costs, I have considered the affidavits of the parties including thesupporting affidavit of Mr. Gunne and in particular the reports of Sherry Fitzgerald Carrollwhich have been exhibited to the respondent’s affidavits. There is no issue but that thiscourt has jurisdiction to entertain this application. Rather the issue is whether, given thejurisdictional limits, the proceedings ought to have been brought in the Circuit Court. Inmy view, the onus of proof lies on the applicants to establish that which was alleged inthe initiating grounding affidavit, that the value of the respondent’s lands on the openmarket was in excess of €3 million. On the basis of the affidavits and evidence before thecourt, I am not satisfied that the applicants have discharged the onus of proof on thisissue. In view of the description of the property outlined in the application and groundingaffidavit, and the evidence and contents of the reports of the valuers, I am not, andcannot, be satisfied that it is more likely than not that the lands the subject matter ofthese proceedings exceed €3 million in value. I find the report of Sherry FitzgeraldCarroll, dated 21st May, 2019, which is detailed in its description of the lands and has hadregard to comparators, more convincing in this regard. Some emphasis was placed duringthe course of argument on the description of the land outlined in the grounding affidavit,which were confined to the property comprising one folio of land owned by therespondent. In my view, on the basis of the analysis conducted in each of the reports andin the affidavit of Mr. Gunne, even if one were to consider the land as comprising thosecontained in four rather than one folio and extending to 13.08 acres, rather than 4.27, Iremain more convinced of the respondent’s valuation.65. For similar reasons as outlined above I am not satisfied that the respondent is entitled toa costs order. Thus, issues which may have arisen pursuant to the Act of 2011, do notrequire to be considered.66. Therefore the applicants are entitled to their costs up to the time of the decision of AnBord Pleanála on 12th December, 2018, but not thereafter, costs to be adjudicated on theCircuit Court scale. Each party must bear the costs incurred by them after that date.
Result: Costs to the applicant up to 12th December, 2018, but not thereafter, costs to be adjudicated on the Circuit Court scale.
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URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC850.html
Sweetman v Shell E & P Ireland Ltd (No. 2) SC
[2016] IESC 58
Judgment of Mr Justice Peter Charleton, delivered on Monday 17th October 2016
1. This appeal concerns an award of litigation costs against a losing party; in this case the unsuccessful appellant Peter Sweetman. Order 99 rule 1 of the Rules of the Superior Courts provides that while the “costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those courts”, the default position is that the successful party should recover costs from the unsuccessful party. Peter Sweetman commenced this case by originating motion of 9th March 2005. It was an application for an injunction to stop works on the Shell natural gas pipeline at Ballinaboy in County Mayo. Smyth J in the High Court refused the relief sought on 14th March 2006 and awarded costs against the losing party; [2007] 3 IR 13. Peter Sweetman lodged a notice of appeal on 30th April 2006. In consequence of the commencement on 23rd August 2011 of the relevant sections of the Environmental (Miscellaneous Provisions) Act 2011, the ordinary rule pertaining to costs changed, but only in defined cases, those brought for the purpose of protecting the environment. This Court first heard an application in relation to costs on 25th February on this appeal. This followed the judgment of Dunne J on 3rd February 2016 in this Court dismissing the appeal, [2016] IESC 2, There were then three points raised on behalf of Peter Sweetman as to costs. Two points were rejected by ruling dated 18th March and the matter was adjourned to consider the last, which was if the Act of 2011 had changed the usual rule as to costs. The Court then set two points on the statutory question for 21st June, 2016. These two issues were defined thus:
(1) Whether the Act of 2011 is retrospective, so as to apply to Peter Sweetman’s application in the High Court on this appeal, or both?
(2) If the Act of 2011 is retrospective, so as to apply to Peter Sweetman’s application to the High Court or to this appeal or to both, what is the effect of the provisions of the Act of 2011 in relation to the costs of the application or the appeal or both?
Background
2. The Corrib gas field is situated about 80km off Erris Head in County Mayo. Apparently, it is the most substantial gas find in Irish waters since the discovery of the Kinsale deposit in the 1970s. That find resulted in the laying of piping which brought natural gas to a large section of the Irish population for use in industrial and domestic settings. The hope nationally is that the Corrib gas find will supplant the Kinsale energy resource. The area of County Mayo that was logistically best for bringing the Corrib gas ashore and processing it is an area of outstanding beauty. With any such enterprise there are potential dangers as well as disruption to local communities as the necessarily huge infrastructure is put in place. This led to both protests and litigation. Most of the court applications centred on the various permissions, including planning, environmental and foreshore, which this complex project required. This particular case commenced on 9th March 2005 and had as its overall objective to stop the development taking place. The means used was an application for an injunction under s. 160 of the Planning and Development Act, which enables the courts to “require any person to do or not to do, or to cease to do … anything that the court considers necessary” to prevent an unauthorised development or to ensure that it is “carried out in conformity with the planning permission pertaining to that development or any condition to which the permission is subject.” On this case coming on for hearing before Smyth J in the High Court in March 2006, the diffuse nature of the proceedings brought by Peter Sweetman became apparent. The trial judge was unimpressed by the plethora of allegations made by Peter Sweetman, namely that Shell was not complying with the terms of its planning permission and other permissions and by other allegations which were not backed up by any evidence. Despite the fact that Peter Sweetman had initially sought such a large number of diverse reliefs, by the time of the commencement of the hearing he decided to pursue only two issues: whether Shell had achieved compliance with condition 1 and condition 37 of the planning permission granted by An Bord Pleanála on 22nd October 2004. This change of tactics was only notified to Shell on the eve of the hearing. The challenge to condition 1 concerned the deposit of road excavation materials and was held by the High Court to have not been infringed. This complaint was less substantial than condition 37 which was focused on most closely; An Bord Pleanála had required Shell to lodge, with the planning authority in Mayo, a cash deposit, backed by insurance, for the restoration of the site on the exhaustion of the resource. Smyth J held that there had been substantial compliance with that condition, albeit that certain formalities remained to be fulfilled. Hence, the challenge was rejected in the High Court. Some of the conditions of the planning permission required Shell as developer and Mayo County Council as the local planning authority to agree the various complex steps that the conditions entailed. Condition 37 was one of these. In his notice of appeal to this Court dated 30th April 2006 from the dismissal of his case by the High Court, Peter Sweetman focused on an alleged failure to have in place the bond and the insurance as required by condition 37.
3. As the judgment of Dunne J on behalf of this Court dismissing the appeal makes clear, [2016] IESC 2, after his failure before the High Court Peter Sweetman did nothing to expedite this appeal. In the intervening 10 years, the infrastructure for bringing the gas from the Corrib field ashore and processing it had been put in place. This took enormous expense and effort. Gas was successfully brought ashore for the first time in December 2015. Yet, even still, what was sought on the appeal was injunctive relief under s. 160 of the Act of 2000 which would potentially have nullified that decade of effort. By letter of 10th December 2004, Shell had notified Mayo County Council of the assets of the parent company, how that company intended to fund the reinstatement required by condition 37 and how the necessary formal agreements would be put in place. Of itself, the acceptance of the offer as to the manner of compliance with condition 37 by Mayo County Council in its replying letter of 10th December 2004 may in itself be contractually binding on Shell, but this does not arise for decision on this appeal. What matters is that in accordance with the planning permission, the local planning authority had agreed the substance and form in which compliance with condition 37 would take place. That is what the planning permission required. Smyth J found in the High Court that this constituted substantial compliance. In this Court, the judgment of Dunne J upheld this finding and further ruled that it was not open to Peter Sweetman to challenge the decision of Mayo County Council to accept the assurance of Shell. In the meanwhile, between the ruling in the High Court and the hearing of this appeal, the solicitors for Shell had contacted the local authority with a view to finalising the security arrangements. As noted by Dunne J, this resulted in a formal agreement of 16th August 2011 and Mayo County Council confirmed, by letter of 22nd August 2011, its satisfaction with the terms thereof and with the arrangements and supports that Shell had put in place. Nonetheless, this appeal proceeded. This Court held that the appeal was moot since no live controversy continued between the parties and that the stated unhappiness of Peter Sweetman as appellant with the form of the agreement could not result in a judicial rewriting of its terms.
4. It was in the aftermath of the loss of that appeal that counsel for Shell applied for the costs of the appeal. The response of counsel for the unsuccessful appellant was that the award of costs by the High Court should be changed to an order that each party bear its own costs and that the same order should be made in this Court. That submission was based on the terms of the Environmental (Miscellaneous Provisions) Act 2011 to which reference should now be made.
The Act of 2011
5. The long title of the Act of 2011 announces it as legislation to “make provision for costs of certain proceedings” and to give effect to “certain articles of the Aarhus [Convention]” of 25th June 1998 and for “judicial notice to be taken” of that convention. The long title of an Act can provide “a legislative statement of the purpose and scope of” the legislation” and may set the “key-note for the interpretation of the powers that are given”, for instance, to a subordinate law-making power; see Minister for Industry and Commerce v Hales [1967] IR 50 at 57 and see Bederev v Ireland and the Attorney General [2016] IESC 34 at para. 29. As always, this is a matter of the interpretation of the intention of the legislature as expressed in the legislation in question. The Aarhus convention provides for “access to information, public participation in decision-making and access to justice in environmental matters.” The text thereof requires the signatories to enable public participation in plans that have a serious effect on the environment (Article 3) and to ensure that relevant information is made available to the public (Article 4) in order to render such participation real as opposed to illusory (Articles 5 and 6). The public must have an entitlement to challenge decisions by bodies charged with the grant of licences and permissions relevant to environmental protection. Article 9 of the Convention provides:
Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.
In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.
6. These principles are reflected in Directive 2003/35/EC providing for public participation in the drawing up of certain plans and programmes in relation to the environment and amending with regard to public participation and access to justice Council Directive 85/337/EEC and 96/61/EC. Article 10a of Directive 85/337 EEC, as inserted by Article 3(7) of Directive 2003/35 EC, now part of article 11 of Directive 2011/92 EU, requires Member States to ensure that those members of the public who have a “sufficient interest” in certain environmental plans and projects for which permission is to be granted should have “access to a review procedure before a court of law” in order to “challenge the substantive or procedural legality of decisions”. The relevant procedures are to be “fair, equitable, timely and not prohibitively expensive.” The implementation by Ireland of the relevant rules is the subject of the ruling of the Court of Justice of the European Union in Case C-427/07 Commission v Ireland., judgment of 16th July 2009, wherein it was determined that Ireland had failed to properly transpose certain provisions of those Directives into national law. There followed the insertion of a new section 50B into the Act of 2000 through s. 33 of the Planning and Development (Amendment) Act 2010. According to the submissions by counsel for Shell on this appeal, however, the obligation of the State to provide for such a “not prohibitively expensive” form of court procedure was only fully fulfilled by the passing of sections 3, 4 and 6 of the Act of 2011. To an extent, this is borne out by the long title to that Act. Section 50B of the Act of 2000 was separately further amended by s. 21 of the Act of 2011 in order to provide for the overruling of the ordinary rule that costs follow the event, as in Order 99 of the Rules of the Superior Courts, thus providing for a default position that each party bear its own costs, and also to provide that an applicant in an environmental case might recover costs from a losing party, be it respondent or notice party, “to the extent that the applicant succeeds in obtaining relief”. That latter section might have to be considered here, save for the fact that Peter Sweetman has not succeeded to any extent in his appeal to this Court and did not succeed in the High Court.
7. Section 4 of the Act of 2011 applies a new costs regime to civil proceedings concerned with a “licence, permit, permission, lease or consent” where the contravention of which “is causing, or is likely to cause, damage to the environment.” While this concept of environmental damage is fully defined, the words used add nothing to the ordinary implication of that term. Specifically, perhaps out of an abundance of caution, breaches of planning permissions and conditions attached thereto are included in the kinds of actions to which the costs rules are to apply. This is set out at s. 3, the first part of which provides:
(1) Notwithstanding anything contained in any other enactment or in—
(a) Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986),
(b) Order 66 of the Circuit Court Rules (S.I. No. 510 of 2001), or
(c) Order 51 of the District Court Rules (S.I. No. 93 of 1997), and subject to subsections (2), (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.
(2) The costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant, or as the case may be, the plaintiff, to the extent that he or she succeeds in obtaining relief and any of those costs shall be borne by the respondent, or as the case may be, defendant or any notice party, to the extent that the acts or omissions of the respondent, or as the case may be, defendant or any notice party, contributed to the applicant, or as the case may be, plaintiff obtaining relief.
Retrospective and retroactive legislation
8. Since the appeal was lost, neither s. 3(2) nor s. 21 of the Act of 2011 can assist Peter Sweetman. His counsel argue, instead, that any order of costs made against him is prohibited. It is contended that the Act of 2011 looks backwards since s. 3(1) is merely a procedural rule and that consequently it applies to all proceedings then in train, changing the rule that costs are always awarded against a losing party to litigation, subject only to the court’s discretion, into a rule that costs must be borne by each party. It is urged, further, that since the Aarhus Convention was “done on the 25th June 1998”, a date “well before these proceedings commenced”, there is an obligation to ascertain the purpose of the legislation from that background and to interpret any provision that may be ambiguous in accordance with the international obligations of the State. It is contended to be an obligation of European law “to interpret, to the fullest extent possible, the procedural rules in relation to the conditions to be met” for actions brought in conformity with the Aarhus Convention; see para 52 of case C-240/09 judgment of the Court (Grand Chamber) of 8 March 2011, Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky. Of course, no such interpretation can be contrary to law, that would be for the courts wrongfully to distort the meaning of the enactment and so overturn the obligation of the legislature under Article 15.2 of the Constitution to exercise the “sole and exclusive power of making laws for the State”; see Pfeiffer and Others v. Deutsches Rotes Kreuz [2004] E.C.R. I-08835 (C-397/01 to C-403/01) paras 111 to 113. This is sometimes called the contra legem rule. That obligation of interpretation is central. The text of the Act of 2011 is key. In considering that text, it should be noted that it would have been simple for the Oireachtas to have included words that made the operation of the Act of 2011 retrospective in effect. That was not done.
9. Counsel for Shell counter the contentions on behalf of Peter Sweetman in terms that are best reproduced from their written submissions:
It is [Shell]’s position that the Act of 2011 cannot be applied retrospectively to either the Appellant’s application in the High Court or to this appeal on the basis that the costs provisions contained in the Act of 2011 amount to a substantive change in the law, affecting the vested rights of parties, as opposed to a procedural change and/or that to allow the provisions to be applied retrospectively would be “so unfair” that it cannot have been the intention of the Oireachtas that the provisions would be applied retrospectively. If, however, the Court accepts that the Act of 2011 can be applied retrospectively, it is submitted that the within proceedings do not fall within the scope of section 4 of the Act of 2011 or, in the alternative, that the Court should award costs against the Appellant due to the manner in which he has conducted the proceedings.
Part 2 of the Act of 2011 was commenced on the 23rd August 2011, long after the High Court proceedings had been instituted (9th March 2005) and the delivery of judgment (14th March 2006) and the Notice of Appeal filed (30th April 2006). At common law there is a general presumption against the retrospective operation of law. However the courts have held that where the change to the law is procedural or evidential and makes no substantive change to vested rights then it can be applied retrospectively. The Appellants seek to argue that the changes brought about to the costs regime by Part 2 of the 2011 Act are procedural changes which do not affect vested rights and accordingly apply to proceedings instituted prior to the commencement of the provision.
10. The relevant canons of statutory interpretation operate a clear distinction between legislation which affects existing rights and legislation which merely enables the enforcement of such rights through court action. Bennion on Statutory Interpretation (1st edition, London, 1984, and see also to the same effect the current edition) at para 131 states the general rule in the following form:
It is the principle of legal policy that, except in relation to procedural matters, changes in the law should not take effect retrospectively. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle.
11. While a multitude of cases have helpfully been cited, it is clear that the presumption in interpreting legislation is that, unless there are clear words affecting existing rights, then the provisions of an enactment apply prospectively; that is from the time of enactment and not retroactively. It seems that there are two principles that guide this position. Firstly, there is certainty of law. Where a citizen adopts a particular position, whether it be as to the sale of goods or the formation of a contract or the obtaining of the necessary permission for the building of an extension to a family home, he or she will ascertain the law as it stands on that day and will be expected to obey that law. If today a person does not need planning permission to repair the roof on a family home and repairs the roof, a law passed the next day should not upset the certainty of compliance by imposing civil consequences or criminal penalties. That much is expressed in Article 15.5.1º of the Constitution in stating that the legislature is not to “declare acts to be infringements of the law which were not so at the date of their commission.” Consequential laws as to activities that were always a crime, such as profiting from crime and the removal of the proceeds of crime, are not covered by that prohibition; Murphy v Criminal Assets Bureau [2001] 4 IR 113. Hence, there is no absolute prohibition on the retrospection of legislation; McKee v Culligan [1992] 1 IR 223. But, and this is the second point, legislation passed within a democratic society is intended for the betterment of citizens and not for the imposition of unfair consequence to lawful actions. Thus Maxwell on the Interpretation of Statutes (12th edition, Langan editor, London, 1969) states the rule at 214:
Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.
12. Why rules of procedure, how cases are presented in court, or evidence, how cases are proven in court, are an exception to this rule is explained in Bennion at 314:
Rules of legal procedure are taken to be intended to facilitate the proper settlement of civil or, as the case may be, criminal disputes. Changes in such rules are assumed to be for the better. They are also assumed to be neutral as between the parties, merely holding the ring. Accordingly the presumption against retrospective penalization does not apply to them, since they are supposed not to possess any penal character. Indeed if they have any substantial penal effect they cannot be merely procedural.
That this rule applies to civil cases is beyond doubt, since the presumption is against legislation altering vested rights or obligations. In Hamilton v Hamilton [1982] IR 466 at 480-81, the remarks of Henchy J make that clear:
From a wide range of judicial decisions I find the relevant canon of interpretation at common law to be this. When an Act changes the substantive, as distinct from procedural law then, regardless of whether the Act is otherwise prospective or retrospective in its operation, it is not to be deemed to affect proceedings brought under the pre-Act law and pending at the date of the coming into operation of the Act,
Of course, legislation cannot just look forward; see the remarks of Lord Denning in Attorney General v Vernazza [1960] AC 965. It must also deal with existing situations and, as O’Higgins CJ explained at 473 in Hamilton, legislation can be validly interpreted by necessary implication or in accordance with the terms of its text as applying to existing situations:
Many statutes are passed to deal with events which are over and which necessarily have a retrospective effect. Examples of such statutes, often described as ex post facto statutes, are to be found in Acts of immunity or pardon. Other statutes having a retroactive effect are statutes dealing with the practice and procedure of the Courts and applying to causes of action arising before the operation of the statute. Such statutes do not and are not intended to impair or affect vested rights and are not within the type of statute with which, it seems to me, this case is concerned. For the purpose of stating what I mean by retrospectivity in a statute, I adopt a definition taken from Craies on Statute Law (7th ed., p. 387) which is, I am satisfied, based on sound authority. It is to the effect that a statute is to be deemed to be retrospective in effect when it “takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past.”
13. When the substantive, as opposed to the procedural, law is changed during the currency of litigation, meaning after a case has been commenced and is still ongoing, the entitlements of the parties must be determined according to the law when the case was commenced. The exception is where the legislation shows a clear intention to the contrary. Some authorities support the proposition that the more extensive the variation of existing rights is, the more clearly the intention of the legislature must be made manifest in order to make that change. Alterations to forms of procedure or the admission of evidence, however, do not involve vested rights. Such changes are to enable people to better present their case. It is thus presumed that legislation is passed for the improvement of the law. On this appeal, the award of costs at the conclusion of litigation is said by counsel for Peter Sweetman to be merely a procedural matter. This is claimed to be a principle of long standing. Indeed, it is expressed in Maxwell on the Interpretation of Statutes at 224 as:
Statutes affecting costs are of a procedural nature for the purposes of the rules about retrospectivity. Section 34 of the Common Law Procedure Act 1860, which deprived a plaintiff in an action for a wrong of costs if he recovered by the verdict of a jury less than £5, unless the judge certified in his favour, was held to apply to actions begun before the Act had come into operation but tried afterwards, and a similar effect was given to section 10 of the County Courts Act 1867 which dealt with orders for security for costs in county court actions.
14. In Halsbury’s Laws of England (4th edition, 1995), it is stated at para 1287 as a general rule that legislation regarding procedures is retrospective:
The general presumption against retrospection does not apply to legislation concerned merely with matters of procedure; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament. For this purpose ‘procedure’ includes matters relating to remedies, defences, penalties, evidence and restrictions on vexatious litigants. Procedural enactments thus affect proceedings pending at their commencement unless the contrary intention appears, whilst the applicability to pending proceedings of a provision altering the structure of appeals may depend on whether it increases or reduces rights of appeal.
The origin of the rule that matters of costs are mere procedure and are not substantive rights is to be found in Wright v Hale (1860) 6 H & N 227, where Pollock CB stated at 230-31 that putting costs into the category of procedure would not interfere with any “great constitutional principle”. He reasoned that “service of proceedings, or what evidence must be produced to prove particular facts” were outside the realm of substantive law. He instanced something that could easily serve as a modern example: an enactment cutting down on the number of witness that might be called on each side. He held that such a rule could not be regarded as more than “a mere regulation of practice.” He added: “Rules as to the costs to be awarded in an action are of that description, and are not matters in which there can be vested rights.” That may be doubted. The case was followed in Kimbray v Draper (1868) LR, 3 QB 160 and AG v Theobold (1890) 24 QBD 557. Cockburn CJ in Kimbray v. Draper expressed “great doubts” as to the correctness of the judgment in Wright v Hale. Of note are Blackburn J’s comments at 222:
Whether the Court of Exchequer applied that test properly, in holding it was a matter of procedure where a statute enabled a judge to deprive a plaintiff of costs in a case where but for the statute he would have been absolutely entitled to them, may be questionable; but for the decision in that case I certainly should have been inclined to think this was taking away a right.
15. There had been an earlier decision in Freeman and Others: Executors of Freeman v. Moyes (1834) 1 AD&E 339, where the executors as plaintiffs commenced proceedings when costs would have gone in their favour, but an intervening statute had provided for executors to pay costs “unless the Court … shall otherwise order”. Littledale J dissented from the decision of Denman CJ and Taunton J, stating at 341 that he would “have thought differently”. He thought it “a strange consequence of the Act that a party should commence a suit and find only on the eve of the trial that he is liable to costs; which, if he had known before, he probably would not have brought the action.” Slynn J, in a more modern case about legal aid costs entitlements, R. v. Dunwoodie [1978] 1 All ER 923, considered himself bound by the prior decisions. His view, however was to doubt as to “whether what is said to be a change in the amount of costs to be awarded was truly a matter of procedure or a remedy. It is certainly not one which in the words of Lord Denning in Blyth v Blyth, ‘only alter the form of procedure’”. In this jurisdiction, the decision of Finlay Geoghegan J in O’Riordan v O’Connor [2005] 1 IR 551, while referring to these decisions, does not endorse the proposition that a change to the rules relating to costs is a matter of procedure which can only be applied retrospectively.
16. The overarching principle must be that of fairness. How can it be inferred that the legislature intended an unjust result? This principle, after all, is at the heart of the control of subsidiary legislative bodies in terms of what powers might be considered as a matter of proper construction to have been delegated by the National Parliament and can operate as a tool in the judicial review of subordinate authority to fix prices under delegated law-making powers; see Island Ferries v Minister for Communication, Island Ferries v Galway County Council [2015] IESC 95. It would be easy, but productive of a potentially facile error, to describe a change in the regime as to the award of costs as ‘procedural’ when in reality the rights that were there would be taken away. The question of costs is a matter not just as to calling witnesses, or how many of them, or what evidence might be admitted, or how an action was to proceed through the system, but as to funding litigation. Liability as to costs is more than merely procedural. Indeed, in Yew Bon Tew v Kenderaan Bas Mara [1983] AC 553 at 558H – 559A Lord Brightman cautioned against the potential dangers lurking in the description of costs as procedural merely. In support of the overarching principle of a presumption that a legislature in a democratic system cannot have intended to produce unfair consequences by means of retrospective legislation is the speech of Lord Mustill in L’Office Cherifien v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486 at 527-8:
Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by parliament cannot have been intended to mean what they might appear to say.
17. One notes also the view taken by Herbert J in McCallig v An Bord Pleanála [2014] IEHC 353. He thought the application of s. 50B(2) of the Act of 2000, as amended by s. 21 of the Act of 2011, to pending proceedings, as of the operative date of the commencement of the legislation, would be unfair. This would overturn expectations and litigation planning as to the costs expected rationally by any litigant commencing or facing such an action. To change the rule as to costs in the middle of litigation means that money expended in the reasonable expectation of recovering it through succeeding in an action or in defending it would thereby become irrecoverable.
18. This has to be correct. There is nothing in the Act of 2011 which requires, or even enables, a retrospective application. There is nothing to suggest that the Oireachtas intended to alter the rule as to costs for litigation that had already commenced. It is not within the purview of the legislation that a High Court order from 10 years previously should be altered by statutory intervention, even supposing that the doctrine of separation of powers did not outrule such a step. There is nothing to indicate that the legislature intended any such result or were obliged to provide for it through European obligations. If the latter were the case, parliamentary draftsmen are well aware that there is an obligation to make any such position clear and explicit. In any event, any such change would be unfair. Anyone who commences litigation, as every practitioner will know, is interested in how a case will be funded. In our system, a case which has merit and meets with success will almost invariably be funded through an award of costs from the losing party. Litigants tie their expectations to the certainty that while costs are at the discretion of the court, the default rule of recovering costs from the unsuccessful party will facilitate their access to the court. In many cases, it is a question of necessity. Thus, those considering commencing an action ask not just whether they have a good case but what the expenses are likely to be and also the prospects of recovery of costs. This is only sense. It would be unfair to distort that expectation through intervening legislation which would deprive a litigant of an expectation which they are perfectly entitled to feel is a fundamental building block of the decision to launch an action. Clients perhaps interest themselves in matters of evidence or of procedure, but experience shows such interest to be to a much lesser extent than the recovery of costs. Changes to the mechanics of presenting a case do not impact on recovering the expenses of litigating. Further, the true distinction to be drawn between statutes regulating procedure and those changing an existing entitlement to costs is that drawn in Bennion, quoted above, which is that procedural rules merely hold the ring and “facilitate the proper settlement of civil” procedures while being “neutral as between the parties”. Removing an entitlement to costs that was secure on the commencement of an action, or on defending a case, is far from neutral but would in many cases entirely change a potential litigant’s attitude.
19. Of course, for future cases, rules as to costs can be changed by legislation. It is so changed by the Act of 2011 as and from the commencement of the relevant sections. As of now, people know where they stand in commencing or defending an action relating to the environment. Their decisions as to initiation of a case or as to defence can be taken in the knowledge that the outcome is defined by law. This is an aspect of the core principle of certainty of law. As a matter of course, rules as to how a case is to be processed or what evidence may be admitted change over time but substantive rules as to costs are more in the nature of vested rights. At the least, they are ones properly beyond neutral consideration. Were there clear words in this statutory scheme making the award of costs retrospective, the matter might be different. Were there any ambiguity, that would have to be considered. The opposite is the case. Everything in the relevant sections of the Act of 2011 look forward.
Discretion in the Act of 2011
20. Even if this were a case where the Court were required as a matter of European law to directly apply the Aarhus Convention, it seems clear that there is enough flexibility within that text, for example article 3(8) granting national courts the power to “award reasonable costs in judicial proceedings”, to ensure that wholly unmeritorious actions do not attract the neutral rules as to costs. Litigants must conduct their actions for a fair purpose of the protection of the environment. They cannot scatter unfounded allegations around without any indication of proof or potential proof. They should discontinue cases where the subject matter has altered so that there no longer remains any prospect of obtaining a court order which meaningfully affects the core interest of the litigation in the protection of the environment. Even if s. 3(3) of the Act of 2011 did operate retrospectively, it nonetheless enables a court to assess how genuine an action as to the environment is. It provides for the award of costs where an action is without merit or where the proceedings are conducted improperly:
(3) A court may award costs against a party in proceedings to which this section applies if the court considers it appropriate to do so—
(a) where the court considers that a claim or counter-claim by the party is frivolous or vexatious,
(b) by reason of the manner in which the party has conducted the proceedings, or
(c) where the party is in contempt of the court.
(4) Subsection (1) does not affect the court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.
(5) In this section a reference to “court” shall be construed as, in relation to -particular proceedings to which this section applies, a reference to the District Court, the Circuit Court, the High Court or the Supreme Court, as may be appropriate.
21. In this regard, it is only necessary to recall the remarks of Smyth J in the High Court as to the demonstrable lack of merit in this case. There were strong criticisms made by the judge which have not been demonstrated on appeal to be incorrect. These emerge from the High Court judgment, [2007] 3 IR 13 at 19:
The applicant’s affidavit and that of his adviser … grounding the application allege, assert or suggest widespread non-compliance by [Shell] with a number of conditions of the planning permission and further that [Shell] has engaged in unauthorised development. The order of Quirke J. of the 16th March, 2005, permitted inspection of the terminal site to ascertain whether unauthorised works were being carried out thereon. Notwithstanding this facility and the applicant’s liberty to file any replying affidavit(s) to those filed on behalf of [Shell] so as to put before the court any real firm evidence of non-compliance or the carrying out of any alleged unauthorised development, no such affidavit evidence has been put before the court. This is a notable feature of this case as the affidavits filed on behalf of [Shell] identify many inaccuracies in the applicant’s assertions.
22. Smyth J recorded, in addition, that many of the reliefs sought, namely those claimed under the Local Government (Water Pollution) Acts 1977 to 1990 and the Waste Management Acts 1996 to 2003 were abandoned at the hearing as not having been properly brought. The proceedings were replete with inaccuracies, he held. While those who genuinely pursue a concern for the environment may not have perfect knowledge of infringements, licences or permissions and the conditions attached thereto when they assert a challenge to a particular development in good faith, proof remains the cornerstone of our system of justice. One can grant a measure of appreciation, but these criticisms go far beyond that. Further, in adversarial proceedings, orders such as that made by Smyth J to enable inspection, and orders for discovery of documents, elucidate the public nature of the planning process together what can be observed on the ground offer sufficient in the way of court procedures for the gathering of appropriate evidence in environmental proceedings. There was no want of information. There is no warrant for disturbing the order of the High Court as to costs made in consequence of that judgment. There is nothing in the Act of 2011 to indicate any intention by the legislature to look backwards to 2006 and to alter existing rights. Thereafter, the appeal to this Court was warehoused by Peter Sweetman. There was no movement over most of a decade despite Shell facing an action which could have resulted in an order to reverse a huge infrastructural project. This is not a fair way to conduct litigation. In terms of the pursuit of an appeal, the trenchant comment in this Court by Dunne J ought to be recalled:
It goes without saying that a person invoking the jurisdiction of the courts in proceedings of this kind has a responsibility in relation to the assertions being made in the proceedings. Assertions have to be supported by evidence. Equally, such a person has a responsibility to ensure that the proceedings are managed appropriately and speedily. Delay in the conduct of the proceedings may cause hardship to the party entitled to develop a particular project and in cases of excessive delay, the delay may disentitle the applicant to the relief sought in the proceedings.
Result
23. The relevant section as to costs of the Environmental (Miscellaneous Provisions) Act 2011 is not retrospective. It does not apply to litigation already issued prior to the commencement of the Act. It applies to all future litigation started after the commencement date of the Act of 2011. This is because the award of costs is not essentially procedural. An expectation as to the recovery of costs affects both the decision to commence a case and the necessary and legitimate prediction that it would be funded if successfully prosecuted or successfully defended by the party required to answer a legal action.
24. Even if the Act of 2011 applied retrospectively, the legislative provisions providing for an exception to the neutral rule as to costs in environmental protection cases requires this Court leave in place the order of the High Court as to costs. On this appeal, this Court cannot but award costs against the appellant Peter Sweetman in circumstances where an action has languished on appeal for 10 years and was effectively rendered moot by that delay. The costs of this appeal are awarded to Shell as against the appellant Peter Sweetman.
Spencer Place Development Company Limited v Dublin City Council
2019 No. 239 J.R.
High Court
6 September 2019
unreported
[2019] IEHC 631
Mr Justice Garrett Simons
September 06, 2019
JUDGMENT
Introduction
1. This judgment addresses the question of which party should bear the costs of the within judicial review proceedings. The proceedings were dismissed in their entirety for the reasons set out in a reserved judgment dated 30 May 2019, Spencer Place Development Ltd. v. Dublin City Council (No. 1) [2019] IEHC 384 (“ the principal judgment ”).
2. There is significant disagreement between the parties as to which of them should bear the costs of the proceedings. The parties are not even in agreement as to the jurisdictional basis on which costs should be awarded. The Applicant contends that the proceedings are subject to the special costs rules applicable to environmental litigation under section 50B of the Planning and Development Act 2000 (“ the PDA 2000 ”), whereas Dublin City Council maintains that the conventional costs rules under Order 99 of the Rules of the Superior Courts apply.
Structure of this Judgment
3. The dispute between the parties centres primarily on whether the proceedings are subject to the costs rules under section 50B of the PDA 2000. In order to put this dispute in context, it is necessary (i) to rehearse briefly the procedural history of the case in order to identify the nature of the “decision” or “action” being challenged; and (ii) to consider the provisions of section 50B. The detailed discussion of the issues then commences at page 11, paragraph 29 below.
4. I will use the shorthand “ the special costs rules ” or “ costs protection ” when referring to the costs rules under section 50B of the PDA 2000.
Procedural History
5. The underlying dispute between the parties had concerned the interpretation of a set of statutory guidelines issued by the Minister for Housing, Planning and Local Government. The guidelines were issued pursuant to section 28 of the PDA 2000 and have a particular legal status. The guidelines are entitled “Urban Development and Building Heights” and were issued in December 2018 (“ the building height guidelines ”). The dispute centred on the interaction between the guidelines and statutory planning schemes adopted in respect of strategic development zones (“SDZs”).
6. The judicial review proceedings were nominally directed to a document prepared by the Dublin City Planning Officer on 31 January 2019. This document was entitled “Briefing Note on City Development Plan and Height Guidelines” (“ the briefing note ”). The briefing note was presented to the elected members of Dublin City Council at a meeting on 4 March 2019.
7. In truth, the application for judicial review was anchored upon two planning applications made by the Applicant which were then pending before the Local Authority. These two planning applications provided the context for the judicial review proceedings. But for the existence of these planning applications, the Applicant might not have had the requisite “sufficient interest” to maintain the proceedings. Moreover, the fact that the statutory deadline for determining the two planning applications was set to expire on 31 May 2019 was expressly relied upon by the Applicant for the purposes of securing an expedited hearing and determination of the proceedings. (The proceedings were instituted on 23 April 2019 and were brought to a conclusion some five weeks later, with the delivery of the principal judgment on 30 May 2019).
8. The relief sought in the Statement of Grounds was somewhat unusual in that an order of certiorari setting aside the briefing note had not been sought. Instead, a declaration was sought to the effect that the legal interpretation in the briefing note was ultra vires and/or incorrect as a matter of law. Two other declarations were sought in respect of the interaction between statutory guidelines and the determination of planning applications for development within the area of any SDZ planning scheme.
9. The gravamen of the Applicant’s complaint had been that Dublin City Council had committed itself to an allegedly erroneous interpretation of the building height guidelines, and that this error would adversely affect the outcome of the two planning applications.
10. The thrust of the proceedings was thus directed to the future outcome of the two pending planning applications. The Applicant had sought to obtain declaratory reliefs from the High Court as to the interaction between the building height guidelines and existing planning schemes. Had the declarations sought by the Applicant been obtained, then this would have had the legal consequence that Dublin City Council would be required to apply the building heights guidelines in a manner beneficial to the Applicant in determining the two planning applications in futuro.
11. The Applicant had been careful, in advancing its proceedings, to emphasise that the briefing note had not been issued pursuant to any “provision” of the PDA 2000. The Applicant’s position in this regard is summarised as follows in its written legal submissions of May 2019.
“20. The Briefing Note itself does not invoke any provision of the 2000 Act nor does the Council plead that the Briefing Note was prepared under the 2000 Act. As such there is no basis for contending that the application for leave to apply for judicial review is governed by the procedures contained in section 50 of the 2000 Act. Furthermore, it cannot be said that Section 50(2) is clearly and definitively capable of being construed as applying to acts of the planning authority which are not contemplated by any statutory provision under the planning code.
[…]
22. This rationale does not apply to the issuing of a Briefing Note purporting to provide a legal interpretation of Ministerial Guidelines which is not issued pursuant to any statutory provision of the 2000 Act. It is submitted that where a restriction is being imposed upon the exercise of a right in a statute, it should be capable of being construed in a clear and definite fashion. It cannot be said that Section 50(2) is clearly and definitively capable of being construed as applying to acts of the planning authority which are not contemplated by any statutory provision under the planning code.”
*Footnotes omitted.
12. On this basis, the Applicant contended that it was unnecessary for it to comply with the procedural requirements under section 50 and 50A of the PDA 2000. Thus, for example, the application for leave to apply for judicial review was made on an ex parte basis. Similarly, a subsequent appeal against the principal judgment has been filed with the Court of Appeal without seeking a certificate for leave to appeal pursuant to section 50A(7) of the PDA 2000. As discussed presently, the absence of a challenge to an identified “decision” or “action” under the PDA 2000 is relevant in determining whether the special costs rules apply to the proceedings.
Strategic Environmental Assessment Directive
13. There is one other aspect of the procedural history which should be highlighted at this stage. As appears from the principal judgment, the proceedings gave rise to an issue of EU law. More specifically, an issue arose as to whether, in interpreting the building height guidelines, it would be legitimate to have regard to the outcome of the strategic environmental assessment carried out as part of the process leading up to the issuing of the guidelines in December 2018. One of the steps required as part of the assessment of draft guidelines is the publication of a document referred to as an “SEA Statement”. As explained at paragraphs [98] to [107] of the principal judgment, the SEA Statement published in respect of the building height guidelines was directly relevant to the disputed interpretation of the guidelines.
14. The obligation to carry out a strategic environmental assessment (“SEA”) arises as a matter of EU law under Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (“ the SEA Directive ”). The requirement to subject planning guidelines to an SEA has been transposed into domestic law by way of an amendment to section 28 of PDA 2000 introduced under the Planning and Development (Amendment) Act 2018.
15. The relevance of all of this to the within costs application is as follows. It is a prerequisite to the availability of the special costs rules that the proceedings entail a challenge to a decision or action made or taken pursuant to a statutory provision which gives effect to one or more of four specified EU Directives. The SEA Directive is one of the four.
16. It has to be said that the Applicant’s reliance on the SEA Directive for the purposes of the within costs application is somewhat opportunistic. The Applicant had maintained the position throughout the substantive hearing in May 2019 that regard should not be had to the SEA Statement when interpreting the guidelines. In particular, counsel on behalf of the Applicant had submitted that the building height guidelines must be interpreted on their own terms, and that it was not permissible to have regard to an “extraneous” document, such as the SEA Statement, as an aid to interpretation. None of the grounds of challenge pleaded by the Applicant in its Statement of Grounds had sought to invoke the SEA Directive.
17. Put shortly, the Applicant had adopted the position in May 2019 that the SEA Statement and the SEA Directive were irrelevant to the issues in dispute in the proceedings. In no sense can the Applicant be said, therefore, to have brought these proceedings in order to vindicate an alleged infringement of the SEA Directive. It represents a volte-face for the Applicant now to champion the SEA Directive.
18. It would seem anomalous that a developer who, far from alleging a breach of EU law, had steadfastly maintained the position that the SEA Directive was irrelevant should seek to avail of costs protection. Certainly, as a matter of EU law, it is arguable that costs protection is principally intended for “members of the public concerned” (as defined) who allege an infringement of the public participation provisions of EU environmental law or a contravention of national environmental law in a field covered by EU law. As discussed below, however, the costs protection provided for under national law is more widely available than strictly required by EU law. This is as a result of the manner in which the Oireachtas has framed the special costs rules under section 50B of the PDA 2000.
Section 50B of the PDA 2000
19. Insofar as relevant to these proceedings, the key provisions of section 50B (as most recently amended in October 2018) are as follows.
“50B.(1) This section applies to proceedings of the following kinds:
(a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of —
(i) any decision or purported decision made or purportedly made,
(ii) any action taken or purportedly taken,
(iii) any failure to take any action,
pursuant to a statutory provision that gives effect to—
[…]
(II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, or
[…]
(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986 ) and subject to subsections (2A), (3) and (4), in proceedings to which this section applies, each party to the proceedings (including any notice party) shall bear its own costs.
(2A) The costs of proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the actions or omissions of the respondent or notice party, or both of them, contributed to the applicant obtaining relief.”
20. As appears, the normal rule under Order 99 of the Rules of the Superior Courts is disapplied. Instead, the default position is that each party bears its own costs. An applicant who has been successful in the proceedings may be awarded all or part of their costs.
21. The interpretation and application of section 50B has proved controversial, and has given rise to a significant number of High Court judgments, not all of which are consistent with each other. This controversy has resulted in an undesirable situation whereby a separate lengthy hearing in respect of costs is often required subsequent to the delivery of judgment on the substantive issues in judicial review proceedings. The parties thus incur further costs in determining the incidence of the original costs. It is to the credit of the parties in the present case that they adopted the pragmatic approach of having the issue of costs determined solely on the basis of written legal submissions. This obviated the need for a separate hearing in respect of costs, and thus reduced the amount of additional costs incurred.
Heather Hill Management Company CLG v. An Bord Pleanála (No. 1)
22. For the reasons set out in my judgment in Heather Hill Management Company CLG v. An Bord Pleanála (No. 1) [2019] IEHC 186 (“Heather Hill”), I am satisfied that it follows from the language of section 50B (as amended) that the qualifying criteria for costs protection under the section are directed to the type of decision or action which is the subject of the judicial review proceedings. The decision or action must be one made or taken pursuant to a “statutory provision” which gives effect to one or other of four EU Directives enumerated under section 50B. If the proceedings come within section 50B, then costs protection applies to the “proceedings” in their entirety. There is no requirement to apportion costs as between different grounds of challenge. This follows from the fact that there is no reference whatsoever in section 50B to the “grounds” of challenge.
23. Notwithstanding that the special costs rules are located within the PDA 2000, the benefit of the rules is not necessarily confined to decisions or actions made or taken under the planning legislation. The term “statutory provision” is defined under section 50B(6) as meaning a provision of an enactment or instrument under an enactment. It follows that a challenge to a decision made under an Act other than the PDA 2000 will be subject to the special costs rules where that decision can properly be characterised as having been made pursuant to a “statutory provision” which gives effect to one of the enumerated EU Directives. Thus, for example, judicial review proceedings which challenge a decision to grant an industrial emissions licence under the Environmental Protection Agency Act 1992 (as amended) would, in principle, be subject to the special costs rules.
24. Whereas neither party in the present case has strenuously argued that Heather Hill was incorrectly decided, it should be noted that that judgment is under appeal to the Court of Appeal (Court of Appeal 2019 No. 204). There is an alternative analysis of section 50B abroad which insists that the special costs rules only apply to those grounds of challenge which allege an infringement of the provisions of one or other of the four EU Directives enumerated under section 50B. On this analysis, costs have to be apportioned between different grounds of challenge, with some grounds attracting costs protection but others being subject to the conventional costs rules under Order 99.
25. Were this alternative analysis to be applied to the present case, then the Applicant would undoubtedly be disqualified from benefiting from costs protection. As explained earlier at paragraphs 13 and onwards, far from seeking to vindicate an alleged infringement of the SEA Directive, the Applicant asserted that the Directive had no relevance to the proceedings. None of the Applicant’s grounds of challenge related to the SEA Directive.
26. For the purposes of the present judgment, I propose to proceed on the working assumption that the principles in Heather Hill should be applied. Thereafter, the parties would appear to have an unrestricted right of appeal against any costs order made. The parties would be entitled, in the context of such an appeal, to dispute the correctness of the judgment in Heather Hill.
27. The Applicant has already filed an appeal in respect of the principal judgment in the present case (Court of Appeal 2019 No. 309). If there is to be an appeal on the costs issue, then, presumably, it can be listed together with the substantive appeal.
28. In the event that either party considers that this costs ruling is subject to a requirement for leave to appeal under section 50A(7) of the PDA 2000, then my initial tentative view would be that leave should probably be granted. The correct interpretation of section 50B is uncertain given inconsistencies in the case law from the High Court, and an authoritative judgment from the Court of Appeal would appear to be in the public interest. Of course, any decision on whether to grant leave to appeal must await an application to the court. I reiterate that the view expressed above is tentative only, and expressed without the court having had the benefit of argument from both parties on this issue.
Detailed Discussion
Jurisdictional Basis for Cost Order
29. The first issue to be addressed is to identify the jurisdictional basis for the making of any costs order. More specifically, it is necessary to determine whether the special costs rules under section 50B of the PDA 2000 apply or those under Order 99 of the Rules of the Superior Courts.
30. The qualifying criteria for costs protection under section 50B are directed to the type of decision or action which is the subject of the judicial review proceedings. The decision or action must be one made or taken pursuant to a “statutory provision” which gives effect to one or other of four EU Directives enumerated under section 50B.
31. In order to determine whether the special costs rules apply, therefore, it is necessary first to identify the “statutory provision” pursuant to which the decision or action impugned in the proceedings was made or taken. The administrative measure challenged in the present case consisted of the issuing of a briefing note to the elected members of Dublin City Council. The briefing note had been prepared by the City Planning Officer and addressed the interpretation of building height guidelines issued by the Minister for Housing, Planning and Local Government. There is no obvious statutory basis for the issuing of such a briefing note by a planning authority.
32. The Applicant had advanced these proceedings on the explicit basis that the briefing note had not been issued pursuant to any “provision” of the PDA 2000. On this basis, the Applicant contended that it was unnecessary for it to comply with the procedural requirements under sections 50 and 50A of the PDA 2000.
33. The consistent position of the Applicant throughout the hearing before this court in May 2019 had been that the briefing note was not itself a measure taken pursuant to any “provision” of the PDA 2000. It was not a “decision” or “action” for the purposes of sections 50 and 50A. Rather, the Applicant’s case was premised on a concern that Dublin City Council would, by relying upon an allegedly erroneous interpretation of the guidelines, contravene its obligation to comply with the building height guidelines when it came to adjudicate on the two planning applications then pending before it. Put shortly, the case was directed to the future outcome of the planning applications.
34. Having consciously chosen to frame the case as one which did not seek to challenge an extant planning decision, the Applicant cannot now invoke section 50B on the basis that the PDA 2000 was, in fact, engaged all along. The Applicant is not entitled to approbate and reprobate.
35. For the purposes of the costs application, the Applicant now adopts a more nuanced approach. The Applicant puts forward two related contentions as follows.
(i). The proceedings concerned the correct interpretation of the building height guidelines. The making of statutory guidelines under section 28 of the PDA 2000 is now—as a result of amendments introduced under the Planning and Development (Amendment) Act 2018—subject to assessment for the purposes of the SEA Directive. The SEA Directive is one of the four EU Directives enumerated under section 50B. On this basis, it is contended that section 28 represents a “statutory provision” which gives effect to the SEA Directive and thus the special costs rules under section 50B are triggered.
(ii). The Applicant seeks to characterise the case as one which had been concerned in substance with a “threatened” contravention of section 28(1C) of the PDA 2000. That subsection provides that planning authorities shall, in the performance of their functions, comply with specific planning policy requirements. The argument runs to the effect that were Dublin City Council to fail to interpret the building height guidelines correctly when adjudicating on the two planning applications pending before it, then this would have contravened section 28(1C). On this argument, the proceedings fall within the scope of section 50B as interpreted in the light of article 9(3) of the Aarhus Convention. (See, in particular, paragraphs 26 and 32 of the supplemental written legal submissions).
36. The first of these two contentions can be disposed of shortly. It is a prerequisite to the triggering of section 50B that the judicial review proceedings seek to challenge a “decision” or “action” made or taken pursuant to a statutory provision which gives effect to one or other of the four enumerated EU Directives. This prerequisite is simply ignored in the Applicant’s first contention. It is not sufficient that proceedings concern the “interpretation” of a statutory provision which gives effect to one of the four EU Directives. Rather, there must be an identified “decision” or “action”.
37. There is more substance to the second of the Applicant’s two contentions. Certainly, had the Applicant awaited the outcome of the decision-making process in respect of the two planning applications before instituting proceedings, an attractive argument could then have been made to the effect that judicial review proceedings—which challenge a decision to refuse planning permission on the basis that the decision does not comply with the building height guidelines—might, in principle, fall within section 50B. It could be argued, for example, that the decision to refuse planning permission is a “decision” made pursuant to section 34, section 170 and section 28(1C) of the PDA 2000. Alternatively, it could be argued that a failure to properly interpret and apply the building height guidelines represents a failure to take “action” pursuant to section 28(1C). It might then be said that these sections represent “statutory provisions” which give effect to the SEA Directive.
38. It is unnecessary for the purposes of this judgment to attempt to resolve any of these interesting issues of statutory interpretation. This is because there is a fundamental obstacle to the Applicant relying on section 50B. The fact that the judicial review proceedings had been brought on a quia timet basis, i.e. in anticipation of a decision being reached in contravention of section 28(1C), precludes any reliance on the special costs rules. It is clear from the express language of section 50B that for the special costs rules to apply it must be possible to identify a decision, action or omission which had been made or taken prior to the institution of the judicial review proceedings.
39. It follows, therefore, that on its ordinary and natural meaning, section 50B does not apply to proceedings which merely allege an apprehended contravention of section 28(1C). If an applicant wishes to avail of costs protection, they must await an actual “decision” or “action”.
40. It is necessary next to consider whether the ordinary and natural meaning must be departed from in favour of a purposive interpretation of section 50B. This is addressed under the heading below.
Aaarhus Convention
41. The Applicant has sought to call in aid the provisions of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“ the Aarhus Convention ”) in support of its interpretation of section 50B of the PDA 2000. Relevantly, the Aarhus Convention provides that certain proceedings must meet a “not prohibitively expensive” requirement. This requirement is replicated in certain EU environmental legislation, e.g. the Environmental Impact Assessment Directive (2011/92/EU) (“ the EIA Directive ”) and the Industrial Emissions Directive (2010/75/EU).
42. The Aarhus Convention identifies two types of proceedings to which the “not prohibitively expensive” requirement applies. The first concerns challenges to decisions, acts or omissions in respect of development consent (“permits”). These requirements are reflected in EU environmental legislation such as, for example, the EIA Directive and the Industrial Emissions Directive. The structure of section 50B of the PDA 2000 is broadly similar, save for the important distinction that costs protection under the section is directed to the type of proceedings rather than to the grounds of challenge.
43. The second type of proceedings which attract costs protection under the Aarhus Convention are proceedings which challenge acts and omissions which contravene provisions of national law relating to the environment. This is provided for under article 9(3) as follows.
“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.”
44. The provisions of article 9(3) are not directly applicable within the domestic legal order. A national court is, however, under an obligation to interpret national procedural law, to the fullest extent possible, in a manner which is consistent with its provisions. See Case C 470/16 North East Pylon, [58]. This interpretative obligation is subject to the contra legem principle.
45. The Applicant contends that the term “contravene” under article 9(3) must be interpreted as including not only actual contraventions of national law but also threatened contraventions. In support of this contention, the Applicant cites the following passage from the “Aarhus Convention: An Implementation Guide” (2nd ed., 2014) at page 194.
“What can be reviewed? Under the Convention, members of the public have the right to challenge acts and omissions by private persons and public authorities which contravene provisions of national law relating to the environment. First, as regards ‘contravening national law relating to the environment’, it does not have to be established prima facie, i.e., before the review, that there has been a violation. Rather, there must have been an allegation by the member of the public that there has been an act or omission violating national law relating to the environment (see ACCC/C/2006/18 (Denmark) discussed above). * Second, national laws relating to the environment are neither limited to the information or public participation rights guaranteed by the Convention, nor to legislation where the environment is mentioned in the title or heading. Rather, the decisive issue is if the provision in question somehow relates to the environment. Thus, also acts and omissions that may contravene provisions on, among other things, city planning, environmental taxes, control of chemicals or wastes, exploitation of natural resources and pollution from ships are covered by paragraph 3, regardless of whether the provisions in question are found in planning laws, taxation laws or maritime laws. This was illustrated in the Compliance Committee’s findings on communication ACCC/C/2005/11 (Belgium),424 where the Committee assessed Belgian planning laws under article 9, paragraph 3, and in its findings on Bulgarian planning law in communication ACCC/C/2011/58.425.”
*Emphasis (italics) added.
46. With respect, I do not think that the sentence emphasised above bears the interpretation contended for by the Applicant. The sentence merely indicates that a contravention of national law relating to the environment does not have to be proved or established before proceedings can be instituted. It is sufficient that a contravention is alleged. The sentence does not address the separate issue of the timing of a contravention. It certainly does not indicate that costs protection must be available in the case of a threatened or apprehended contravention, i.e. on a quia timet basis. Such an interpretation cannot be reconciled with the express reference to “acts” or “omissions” in the qualifying words “acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”. The wording of the Aarhus Convention indicates that some event—an act or omission—must have occurred which involves a contravention of national environmental law.
47. The Applicant had advanced its case at the substantive hearing in May 2019 on the explicit basis that the issuing of the briefing note per se did not breach any provision of the PDA 2000. On the Applicant’s case, a contravention of national environmental law would only crystallise if the (allegedly mistaken) interpretation of the building height guidelines set out in the briefing note were to be relied upon in determining the two planning applications. No “act” or “omission” had yet occurred as of the date the proceedings were instituted. The Applicant cannot therefore rely on the special costs rules under section 50B.
48. There is no inconsistency between an interpretation of section 50B which requires an applicant to await the making of a “decision” or “act” before qualifying for costs protection and the provisions of the Aarhus Convention. The wording of section 50B is consistent with that of article 9(3) of the Aarhus Convention insofar as it refers to “actions” or omissions”. This language can only be understood as referring to actual decisions, i.e. it does not authorise pre-emptive challenges.
49. Moreover, the interpretation does not preclude an applicant from ever relying on the special costs rules to challenge an alleged failure to comply with statutory guidelines by reference to the requirements of the SEA Directive. Rather, it simply indicates that the special costs rules cannot be relied upon in the case of proceedings which are premature . This is consistent with the proper administration of justice.
50. For the reasons set out at paragraphs [30] to [37] of the principal judgment, an application for judicial review on this basis was premature. The Applicant should, instead, have awaited the outcome of the planning process before having recourse to the courts by way of judicial review.
51. Had the Applicant awaited the outcome of the planning process, and instituted judicial review proceedings at that stage, it could have argued that the special costs rules applied. Dublin City Council would, at that stage, have made a “decision” pursuant to section 34 and section 170 of the PDA 2000. This “decision” would in principle be subject to the requirements of section 28(1C) of the PDA 2000. The Applicant could then argue that any or all of these three sections represented a “statutory provision” which gave effect to the SEA Directive.
52. Finally, for the sake of completeness, it should be noted that the approach of the Applicant in the present case is distinguishable from the applicant company in North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála (No. 5). In the latter case, the applicant company had expressly sought to characterise certain administrative measures taken by An Bord Pleanála in advance of an oral hearing on a planning application as constituting “decisions”, “actions” or “omissions” for the purposes of section 50 of the PDA 2000. There was then a dispute as to whether the legislation clearly defined these concepts. By contrast, the Applicant in the present case has been consistent in saying that the briefing note had not been issued pursuant to any provision of the PDA 2000.
Findings of Court on Jurisdictional basis for Costs Order
53. For all of the reasons set out above, I am satisfied that the special costs rules under section 50B do not apply to these proceedings.
Order 99
54. These proceedings are subject to the conventional costs rules under Order 99 of the Rules of the Superior Courts. The Supreme Court has recently confirmed in its judgment in Godsil v. Ireland [2015] IESC 103; [2015] 4 I.R. 535, [52] that the general rule that costs follow the event represents the starting point for any costs application. No special reason has been advanced as to why the Applicant, as the unsuccessful party in the proceedings, should not be liable to pay Dublin City Council’s costs. In circumstances where the Applicant was unsuccessful and the judicial review proceedings were dismissed in their entirety, the Applicant is liable to pay the costs incurred by Dublin City Council in respect of the proceedings.
Conclusion and Form of Order
55. The special costs rules under section 50B do not apply on a quia timet basis, i.e. in anticipation of a decision being reached in contravention of a “statutory provision” which gives effect to one or other of the four EU Directives enumerated under the section. Rather, for the special costs rules to apply it must be possible to identify a decision, act or omission which had been made or taken prior to the institution of the judicial review proceedings.
56. The within proceedings are subject to the costs rules under Order 99 of the Rules of the Superior Courts. The costs thus follow the event.
57. I propose to make an order directing that the Applicant do pay the costs of Dublin City Council in respect of and incidental to the within proceedings, such costs to be taxed in default of agreement. The costs are to include the costs of the two sets of written legal submissions and all reserved costs.
Dunne v Minister for the Environment, Heritage and Local Government (No. 3)
([2007] I.E.S.C. 60;
JUDGMENT of Murray C.J. on the question of costs delivered on the 6th day of December 2007
In its substantive judgment on the merits in this case the Court unanimously upheld the judgment of the High Court Judge and dismissed the appeal. The appeal was concerned with questions as to whether s. 8 of the National Monuments (Amendment) Act, 2004 offended Articles 5, 10, 15 and 40 of the Constitution and whether it breached the law of the European Communities and in particular the provisions of Council Directive 85/337/EEC of 27th June, 1985 as amended by Council Directive 97/11/EC of 3rd March, 1997. Although the appellant lost his case in the High Court, the learned High Court Judge awarded him costs against the first named respondent notwithstanding the normal rule that the losing party should pay the costs of the proceedings.
The third named respondent has appealed against the High Court Order awarding costs of the High Court proceedings to the appellant. When judgment was delivered on the substance of the appeal the issue concerning the costs of the High Court and the costs of the appeal to this Court was adjourned for submissions on a later date.
The appellant seeks to uphold the Order awarding him costs and, as regards the appeal to this Court, asks the Court to exercise its discretion by awarding him his costs of the appeal or in the alternative making no Order as to costs.
The High Court costs
The appellant first of all relied on the terms of the judgment of the High Court delivered on 18th March, 2005 on the question of costs.
In her separate written decision on the question of costs the learned High Court Judge referred to the submission made by the parties and in particular considered two decisions of the High Court, namely McEvoy -v- Meath County Council 2003 1 IR 208 and Sinnott -v- Martin 2004 1 IR 121 relied upon by the appellant. Having considered those authorities, both of which she noted cited a decision of the English High Court in R -v- Lord Chancellor, ex parte Child Poverty Action Group (1991) 1 WLR 347, the learned High Court Judge concluded stating “I am satisfied that Counsel for the Plaintiff has correctly identified the principles established in the recent jurisprudence of this Court in accordance with which the Court should exercise its discretion in considering an application for costs by an unsuccessful plaintiff or applicant in public law litigation, at any rate, against a protagonist which is a public body. I now propose applying those principles to the instant case.”
The two principles identified by the learned High Court Judge were:
“(1) That the Plaintiff was acting in the public interest in a matter which involved no private personal advantage; and
(2) That the issues raised by the proceedings are of sufficient general public importance to warrant an order for costs being made in his favour.”
These were described as the principles which governed the Court’s discretion to depart from the normal rule that costs follow the event. The fact that the respondent or defendant was a public body was also considered relevant.
In reaching her conclusion the learned High Court Judge also stated that
“However, as a matter of principle I do not consider that the Court’s discretion as to costs in this type of public law litigation is in any way dependant on one or more of the issues of fact or law raised being decided in favour of the Plaintiff or the Applicant. Accordingly, there will be an order for costs in favour of the Plaintiff against all the Defendants.”
Counsel for the respondent submitted that the learned High Court Judge was incorrect in applying these two principles as determinative factors and in effect was establishing a category of cases in which the normal rule of costs following the event would not apply. It was submitted that in any event the learned High Court Judge did not exercise her discretion correctly in placing excessive reliance on the two principles referred to the exclusion of all the circumstances, including the fact that the respondent had won the case.
A second aspect of the respondent’s argument was the submission that the learned trial Judge wrongly considered as relevant the fact that the Plaintiff had been successful in obtaining an interlocutory injunction halting the road project in question in earlier and separate proceedings referred to as “Dunne No. 1”, and also that this had in turn led to a successful challenge by another party in other proceedings to a Ministerial Order concerning the same road project. The passage in the decision on costs to which Counsel for the Respondent referred reads as follows:
“Of particular significance on the issue of costs, in my view, is the fact that the plaintiff was successful in obtaining an interlocutory injunction in Dunne No. 1, which effectively halted road works at Carrigmines Castle without a valid consent under s. 14 of the National Monuments Act, 1930, as amended. This led to the making on 3rd July, 2003 of the joint consent and the Ministerial Order which were subsequently successfully challenged in Mulcreevy -v- Minister for the Environment, Heritage and Local Government and Dun Laoghaire County Council 2004 1 ILRM 419. That successful challenge, in turn, provoked the enactment of a special provision in s. 8 of the Act of 2004 in relation to the south eastern route, which I have concluded was given by a policy designed to ensure the completion of the motorway without any input in relation to national monument protection implications from any external party to the first and fourth defendants and their respective advisors. Against that background, I consider that the issues raised in these proceedings, adopting the words of Dyson J. in the CPAG case at p. 358, were “truly ones of general public importance”. They were difficult issues of public law. It was in the public interest that they be clarified.”
In the course of the appeal Counsel for the respondent submitted that the previous proceedings were not factors which the learned trial Judge should have taken into account in determining that the issues in this particular case were of general public importance.
Counsel for the appellant submitted that firstly the learned High Court Judge was correct in the approach which she adopted and secondly she was, in any event, exercising her discretion in the ordinary way having regard to all the circumstances of the case and that this Court should not interfere with the exercise of that discretion.
As regards the second aspect of the respondent’s submission Counsel for the appellant submitted that on a correct interpretation of the learned trial Judge’s decision she did not rely on the previous proceedings as a material fact in her decision to award costs. In any event it was submitted that the decision which she made was within the ambit of her discretion.
At least on one view of the learned trial Judge’s judgment the question of costs was decided on the basis that this case fell into a particular category of cases in which a discretion to depart from the normal rule would invariably be governed by the two principles identified by Counsel on the basis of the case-law cited as establishing two determining principles. In the course of her decision the learned High Court Judge stated “that the Plaintiff was within that rare category of litigants who truly have no private interest in the outcome of the proceedings.” I am not sure that it is such a rare category but if the alternative view advanced by Counsel for the appellant were taken, namely that the learned trial Judge’s decision was within the normal ambit of her discretion to depart from the general rule the question still arises as to whether any undue weight was given to the two principles relied upon.
The basic law governing the question of costs in civil proceedings may be found in s. 14(2) of the Courts (Supplemental Provisions) Act 1961 which provides that the jurisdiction of the High Court “shall be exercised so far as regards pleading, practice and procedure, generally, including liability to costs, in the manner provided by the Rules of Court…” Order 99 of the Rules of the Superior Courts provides that the costs of and incidental to every proceeding shall be in the discretion of the Superior Courts and in particular, at sub-rule 4, that costs shall follow the event unless the Court otherwise orders. Moreover the Act of 1961 and the Rules of the Superior Courts adopt and incorporate the procedure and practice which applied in our courts for a very long time. There has been no fixed rule or principle determining the ambit of that discretion and in particular no overriding principle which determines that it must be exercised in favour of an unsuccessful plaintiff in specified circumstances or in a particular class of case. In Hewthorn & Company -v- Heathcott 39 ILT 248 (1905) Kenny J. stated “It is well settled law, as is shown by the authorities cited to me, that when costs are in the discretion of a judge he must exercise that discretion upon the special facts and circumstances of the case before him and not be content to apply some hard and fast rule.”
Undoubtedly the fact that a plaintiff is not seeking a private personal advantage and that the issues raised are of special and general public importance are factors which may be taken into account, along with all other circumstances of the case, in deciding whether there is sufficient reason to exercise a discretion to depart from the general rule that costs follow the event. However, insofar as the learned High Court Judge may have considered that the two principles to which she referred are in themselves the determining factors in a category of cases which may be described as public interest litigation, I do not find that the authorities cited support such an approach.
In the first of those authorities, McEvoy -v- Meath County Council, Quirke J. in his ruling on costs took into account the fact that the proceedings in that case fell into a category which he described as “public interest challenges.” He relied on a description of a “public law challenge” as set out in an English case by Dyson J. in R -v- Lord Chancellor, Ex Parte Child Poverty Action Group. The only passage cited from that judgment by Quirke J. was one in which Dyson J. set out what he saw to be the essential characteristics of a public law challenge. The passage cited was as follows: “The essential characteristics of a public law challenge are that it raises public law issues which are of general importance, where the applicant has no private interest in the outcome of the case. It is obvious that many, indeed most judicial review challenges, do not fall into the category of public interest challenges so defined. This is because even if they do raise issues of general importance, they are cases in which the applicant is seeking to protect some private interests of his or her own.”
The description is a succinct and useful one. Its descriptive nature does not involve the statement of any principle of law. Neither do I consider the description to be definitive or exhaustive of what might generally be referred to as public interest litigation where an applicant does not seek to protect some private interest of his or her own. Such proceedings may be brought for a whole range of reasons and may be motivated by the most altruistic objectives in the community interest, the pursuit of a political agenda of a pressure group or a speculative strategy to at least delay the proposed project of a public body. I do not think it necessary to hypothesise further, suffice is to say that each case would need to be assessed according to its own context, facts and circumstances. Indeed Quirke J. cited a dictum from the judgment of Denham J. in Lancefort Limited -v- An Bord Pleanala (No. 2) 1999 2 IR 270 to the effect that a contention by an applicant in proceedings that he is acting in the public interest must be analysed in the circumstances of each case. The Lancefort case was concerned with locus standi rather than an issue as to costs.
In any event, apart from the descriptive passage referred to, Quirke J. did not rely further on any other aspect of the English case which is perfectly understandable since it concerned an application under English law for a pre-emptive costs order where an applicant sought an order awarding him costs of the proceedings prior to any hearing on the merits. The parties in that case agreed that the English Court had jurisdiction to make such an order on the basis of English law, including statute law and practice. Furthermore, decisions of other common law jurisdictions concerning matters of their practice and procedure, must, because of their very nature be considered with caution. (See observations of Kennedy C.J. in Little -v- Dublin Tram Co. & Anor. 1929 I.R. 642 at 657).
However, it is the case that Quirke J. took into account, in deciding to award costs to the unsuccessful applicants in judicial review proceedings, that neither of them were seeking to protect some private interest of their own and that they acted solely by way of furtherance of a public interest in the environment. These are of course legitimate factors which a Court may take into account in exercising its discretion pursuant to Order 99 of the Rules. But Quirke J. did not hold them to be determinative factors. On the contrary he went on to say that in exercising his discretion as to costs he was also taking into account certain findings of fact which he had made. These included his finding that “the trial of these proceedings was unnecessarily prolonged by reason of the fact that a vast amount of documentation had to be analysed and considered in order to determine questions of fact which could have been readily determined by agreement between the parties. The overwhelming majority of those issues of fact were determined in favour of the Applicants …” He also added “Furthermore, the contention on behalf of the Respondent, that zoning decisions which were inconsistent with the guidelines could be explained by the fact that the guidelines contained “long term” objectives, was not supported by any credible evidence and required a complete examination of the minutes of the various meetings at which decisions were made. This examination disclosed no record which would support the contention.” Quirke J. in conclusion stated “In all of the circumstances, I am satisfied that the appropriate exercise of my discretion requires that the Respondent pay 100% of the costs of an associated daily transcript of the proceedings and 50% of the Applicant’s costs of and incidental to the proceedings.” Furthermore there was not a simple award of costs to the losing party but an apportionment of costs.
In short it is clear that Quirke J. was exercising his discretion pursuant to Order 99 having regard to all the circumstances of the case and that he did not award costs on the basis that the public interest aspect of the litigation put it into a special category which determined the manner in which he could exercise his discretion.
The second authority relied upon was Sinnott -v- Martin. In that case Kelly J., who cited Quirke J. in the McEvoy case with approval, refused to award costs to petitioners in an election petition for a range of reasons which included a finding that the petitioners had a private interest in the outcome of the proceedings and did not fall within the ambit of public interest litigation and that the issues, important as they were, did not raise “public law issues of such importance as to entitle me, as a matter of discretion to award costs in favour of the unsuccessful petitioner or other parties claiming costs against the Minister.” In that light any observations of Kelly J. on the awarding of costs in so-called public interest litigation could be considered obiter but in any event I did not find there is anything in the judgment of Kelly J. in that case which would support the contention that the public interest element coupled with issues of general public importance govern or determine the exercise of a Court’s discretion on the issue of costs. On the contrary, his judgment indicates, there are other factors which may also have to be taken into account according to the circumstances of the case.
As previously indicated these elements are, of course, relevant factors which may be taken into account in the circumstances of a case as a whole. Because these elements are found to be present it does not necessarily follow that an award of costs must invariably be made in favour of an unsuccessful plaintiff or applicant. Equally the absence of those elements does not, for that reason alone, exclude a Court exercising its discretion to award an unsuccessful applicant his or her costs if in all the circumstances of the case the Court is satisfied that there are other special circumstances that justify a departure from the normal rule.
The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party has an obvious equitable basis. As a counterpoint to that general rule of law the Court has a discretionary jurisdiction to vary or depart from that rule of law if, in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to which the general rule of law on costs did not apply that would be a matter for legislation since it is not for the Courts to establish a cohesive code according to which costs would always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs.
Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs it is not completely at large but must do so on a reasoned basis indicating the factors which in the circumstances of the case warrant such a departure. It would neither be possible or desirable to attempt to list or define what all those factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of factors in the context of the individual case which determine the issue.
Accordingly any departure from the general rule is one which must be decided by a Court in the circumstances of each case. In Curtin -v- Clerk of Dail Eireann & Others (6th April 2006) this Court stated:
“The general rule is that costs follow the event subject to the Court having a discretion, for a special reason, to make a different order. It is a discretion to be exercised in the circumstances and context of each case and is one which is so exercised from time to time.”
Counsel for all parties referred to previous decisions of this Court and the High Court, in which a discretion was exercised to make an order concerning costs which did not follow the general rule. It would neither be possible nor desirable to lay down one definitive rule according to which exceptions are to be made to the general rule. The discretionary function of the Court to be exercised in the context of each case militates against such a definitive rule of exception and it is also the reason why previous decisions of such a question are always of limited value.”
Even accepting the submission of Counsel for the appellant that the learned trial Judge did not approach the question of costs on the basis that there was a category of cases which, by reference to the two principles in question, costs should invariably be awarded to unsuccessful applicants or plaintiffs, I do feel nonetheless that there was undue weight given to those principles as determining factors. I think it goes too far to say that
“… the Court’s discretion as to costs in this type of public law litigation” is not “in any way dependant on one or more of the issues of fact or law raised being decided in favour of the plaintiff or applicant.”
Such an approach seems to discount excessively, if not altogether exclude from consideration, the normal rule that if the issues in the case have been decided in favour of one party that normally means that the successful party is entitled to his or her costs.
I now turn to the question of the learned trial Judge’s reference to previous proceedings brought by the appellant in this case and the Mulcreevy proceedings to which the learned trial Judge also referred. I think it is evident that these proceedings were a material part of the learned trial Judge’s conclusion that the issues raised in this particular case fell within the second principle which she announced namely that they were of sufficient general public importance. This is clear from her statement where it is said “of particular significance on the issue of costs, in my view, is …” and she went on to refer to the plaintiff’s earlier proceedings and then to the other successful proceedings. She concluded by stating immediately after the reference to those proceedings “Against that background, I consider that the issues raised in these proceedings … were “ truly ones of general public importance””.
While one could not say that earlier litigation was never relevant from some contextual point of view on an issue of costs, in the circumstances of this case I find it difficult to see how the earlier proceedings referred to could have a material bearing on whether the issues in this particular case could be considered to be of such general public importance to justify an exceptional departure from the ordinary rule that costs follow the event. I think the learned trial Judge was incorrect in taking either one of those cases into account for the purpose of determining whether issues in this particular case fell into that category.
In the circumstances I feel that this Court is required to review the decision of the costs awarded in the High Court and exercise its own discretion on the issue as appealed by the respondent.
Turning to the substantive question of costs of the High Court the appellant argued that, in dealing with the issue in the exercise of its discretion, this Court should nonetheless conclude that the particular circumstances of this case does indeed warrant a departure from the normal rule in awarding costs to the appellant of the proceedings in the High Court. The appellant relied, as the factors to be taken into account, on the fact that he was not defending any personal interest in bringing these proceedings and was seeking to ensure that the project in question, and particularly insofar as it affected a national monument, was carried out in accordance with law. He reiterated that the case involved issues of such public importance that this factor should also be weighed in the balance in deciding to award him his costs.
Accepting that the appellant brought the proceedings in the interests of promoting compliance with the law and without any private interest in the matter I do not consider that the issues raised in the proceedings were of such special and general importance as to warrant a departure from the general rule. Undoubtedly it could be said that issues concerning subject matters such as the environment or national monuments have an importance in the public mind but a further factor for the Court is whether the legal issues raised, rather than the subject matter itself, were of special and general public importance. In this case nothing exceptional was raised in the issues of law which were before the Court so as to warrant a departure from the general rule.
In my view, having regard to all the circumstances of the case, the ordinary rule should apply to the costs of the High Court proceedings and that costs should follow the event.
Accordingly I would allow the appeal against the order for costs made in favour of the plaintiff in the High Court and substitute an order awarding costs to the State of the High Court proceedings.
Costs of the Appeal
The appellant appealed the decision of the High Court dismissing these proceedings. This Court having upheld the decision of the learned High Court Judge the appellant was unsuccessful. Costs should follow the event there being, in my view, no circumstances arising in the appeal which would justify departure from the normal rule. Accordingly the appellant must pay the costs of the respondents of his unsuccessful appeal.
Sweetman v An Bord Pleanála (No. 2) HC
([2007] I.E.H.C. 361
udgment of Mr. Justice Clarke delivered 25th October, 2007.
Introduction
1.1 I have already delivered judgment on an application for leave to seek judicial review brought by the applicant (“Mr. Sweetman”) in which he sought leave to challenge a decision made by the first named respondent (“An Bord Pleanála”) concerning the approval of a road scheme which had been proposed by the notice party (“Clare Council”). As appears from that judgment, (2007) IEHC 153 (“the substantive judgment”), in addition to the issues arising under that direct challenge, Mr. Sweetman also raised questions concerning an alleged failure on the part of the State to comply with its obligations under Council Directive 2003 / 35 / E.C. (“the Directive”).
1.2 Subsequent to the delivery to that judgment a number of issues were left over for further consideration. These are:-
a. The appropriate order for costs to be made in the light of the result of that application;
b. Whether a certificate should be given so as to permit Mr. Sweetman, under the provisions of Section 50 of the Planning and Development Act 2000 (“The 2000 Act”), to appeal to the Supreme Court; and/or
c. Whether it is appropriate to make a reference, under article 234 of the E.U. Treaty, to the Court of Justice concerning the interpretation of the Directive and its application in Ireland.
1.3 However it was agreed by all parties that the question of the determination of the appropriate order as to costs, in accordance with domestic law, should be dealt with first. It is my understanding that Mr. Sweetman no longer wishes to seek a certificate which would enable an appeal to be brought to the Supreme Court in this matter. He does so while reserving his position to the effect that certain aspects of the matters which were the subject of the leave application (in substance those aspects which were concerned with the transposition of the Directive into Irish law) are matters not caught by Section 50 of the 2000 Act and not, therefore, matters in respect of which a certificate is required. It should also be noted that counsel on behalf of Ireland indicated that it was the State’s position that all such matters were caught by Section 50 and that an appeal could not, therefore, be brought without a certificate. I came to the view that it was not appropriate for me to determine that matter. Mr. Sweetman has indicated that he does not wish to seek a certificate and that, further, he may proceed by way of an appeal, without a certificate, to the Supreme Court. If he does so then it will be a matter for the Supreme Court to determine whether the appeal is properly before that court and, at any hearing directed to that end, Mr. Sweetman and the State will be entitled to make whatever submissions they consider appropriate in relation to that issue.
1.4 It was also agreed between the parties that it would be appropriate to postpone the question of whether a reference should be made, until the question of costs had been determined in accordance with domestic law. Clearly the result of that determination in relation to costs has the potential to effect not only the judgment which the parties may exercise as to whether they would wish to seek a reference, but also, potentially, whether a reference might be necessary in order to determine at least some of the issues of European law which arise, insofar as some of the potential questions of EU Law which might, in theory, be the subject of a reference, involve questions concerning Mr. Sweetman’s exposure to costs.
1.5 This judgment is, therefore, directed solely to the question of the appropriate order for costs which I should make in accordance with domestic law and I now turn to that question.
2. Public Interest Challenges – The Issues
2.1 Mr. Sweetman accepts, as he must, that he has, at least so far as this court is concerned, lost the proceedings and that an application of the prima facie rule, to the effect that costs follow the event, would inevitably lead to each of the respondents and Clare Council obtaining an order for costs against him.
2.2 However Mr. Sweetman argues that this case comes within the identified exception to the ordinary rule to the effect that costs follow the event, which arises in circumstances where the proceedings can legitimately be described as involving a “public interest challenge”. The jurisprudence in this area has been considered by this court on a number of recent occasions. See for example Harrington v. An Bord Pleanála (Unreported, High Court, Macken J., 11th July 2006), Dubsky v. Ireland (Unreported, High Court, Macken J., 13th December 2005), Dunne v. The Minister for the Environment Heritage and Local Government and Others (Unreported, High Court, Laffoy J., 18th March 2005), McEvoy v. Meath County Council [2003] 1 I.R. 203 and Sinnott v. Martin [2004] 1 IR 121.
2.3 From those authorities it is clear that the exercise of the courts discretion to depart from the normal rule that costs follow the event is governed by two principles:-
1. That the plaintiff or applicant concerned was acting in the public interest in a matter which involved no private personal advantage; and
2. That the issues raised by the proceedings are of sufficient general public importance to warrant an order for costs being made in his favour.
2.4 As an additional point it should be noted that, in Harrington, Macken J. had to analyse the interaction between the requirement under the first of the above principles to the effect that the plaintiff should not be acting to private personal advantage and the requirement specified in section 50 of the 2000 Act to the effect that, in order to challenge most decisions in the environmental field, an applicant is required to establish a “substantial interest” in the matter at issue (even though that interest does not, necessarily, have to amount to a property type interest). Macken J. determined that the fact that an applicant may have established a substantial interest in the proceedings did not, of itself, mean that such a party was debarred, under the first principle, from qualifying on the basis of having some degree of private personal interest in the litigation. I respectfully agree with the conclusions reached by Macken J. in that regard.
2.5 Neither of the respondents nor Clare Council argued that Mr. Sweetman was acting for private personal advantage in such a manner as would debar him from meeting the first test. The real debate centred upon whether the second test was met. The true question was, therefore, as to whether the proceedings could properly be characterised as being of sufficient general public importance to warrant a departure from the ordinary rule as to costs.
2.6 There were, however, some additional issues which were raised at the hearing. Firstly attention was drawn to the fact that there were, in substance, two separate and, it was said, discreet, sets of issues involved in the application (being those which were directly concerned with the challenge to the approval by An Bord Pleanála of the roads plan concerned on the one hand and those which were principally concerned with the transposition of the Directive on the other hand). Each of the respondents and Clare Council made submissions as to the proper approach to a consideration of whether these proceedings or part of these proceedings could properly be said to be characterised as a public interest challenge in the light of such a division.
2.7 In addition reliance was placed upon the fact that, for reasons which I set out in the substantive judgment, I was satisfied that some important issues, relating to the process which is mandated in a review of an environmental decision by provisions of the Directive, had not been raised in the pleadings although those issues were, nonetheless, argued and determined on the basis set out in that judgment.
3 Application to this Case
3.1 However it seems to me that the appropriate starting point has to be to consider whether the proceedings have the appropriate characteristics of being of sufficient general public importance to warrant a departure from the ordinary rule as to costs. If they have not, then costs must follow the event. If they have then it will be necessary to give consideration to the additional submissions, to which I have referred, in order to determine what the appropriate order as to costs should be.
3.2 It does not seem to me that the issues which were raised in relation to the direct challenge to the decision of An Bord Pleanála are issues of such sufficient general public importance as would warrant characterising the proceedings, insofar as same relate to those issues, as a public interest challenge. Mr. Sweetman had made a very generalised submission to An Bord Pleanála as to the inappropriateness of approving the road scheme concerned. His complaint in these proceedings related to a question as to whether the relevant permission of An Bord Pleanála was invalid by virtue of same not including a condition directed towards remediation in the event that monitoring (which was the subject of a condition) revealed a worse than expected consequence on a sensitive environment. It does not seem to me that that issue bears the characteristics of being one of general public importance and that aspect of the case does not, therefore, seem to me to qualify under the tests which have been identified by reference to the cases which I have cited.
3.3 I am not satisfied that the mere fact that the development of the road in question has the potential to have some possible effect on a Candidate Special Area of Conservation would, of itself, make issues arising in a challenge to a permission for such a development, necessarily, come within the category of public interest challenge. That does not, of course, mean that the sensitivity of the development concerned and its location may not be a factor which, when coupled with the important, general, and difficult legal issues arising, might properly lead a court to reach a conclusion that proceedings involve issues of general public importance. However the legal issues which arose in respect of the challenge itself (as opposed to those which were relevant to the transposition issue) cannot, it seems to me, be so characterised.
3.4 However, I have taken a different view in respect of the issues which arose in relation to the transposition issue. There are important questions concerning the precise manner in which article 10a of the Directive is to be interpreted and as to how the Directive should be implemented in Ireland. Some of those issues arose on this application. The issues concerned are of wide public importance, in that they have the potential to affect very many court proceedings involving challenges in the environmental field. The resolution of those issues has the potential to effect the interests and entitlements not only of those who may have the benefit of the decisions under challenge but also authorities charged with giving permissions and the rights of persons who may seek to raise such challenges. In simple terms the issues raised concerned both the provisions of the Directive concerning costs and also questions concerning whether the process available to challenge certain environmental decisions in Ireland was adequate to meet the requirements imposed by the Directive. Both sets of issues flow from new and potentially far reaching European legislation which has only been the subject of limited judicial consideration to date.
3.5 It is important to note in that regard that, while not being satisfied that Mr. Sweetman had made out substantial grounds for his challenge, I did note that it might well be necessary for the existing jurisprudence of the Irish courts in judicial review challenges in the environmental field, to be adjusted so as to meet the obligations imposed by the Directive in at least two respects. For the reasons which I set out in the substantive judgment, I was satisfied that it might well be necessary to have regard to the requirement of the Directive that there be “wide access to justice” when interpreting the “substantial interest” threshold which an applicant needs to establish under s.50 of the 2000 Act. In addition I was satisfied that it might well be necessary for a court, in such proceedings, to apply a standard of challenge which might go beyond that identified in the existing jurisprudence, so as to provide a means of reviewing the substantive legality of the environmental decision under challenge with a greater degree of scrutiny. Even though, therefore, Mr. Sweetman has failed in his challenge, it seems to me that the proceedings have led to a potential evolution in the jurisprudence in at least those two important respects. Those matters are of general public importance and seem to me to meet the criteria set out in the jurisprudence.
3.6 I am, therefore, satisfied that, in principle, I should consider exercising a discretion in this case to depart from the general rule that costs should follow the event. In that context the two issues, to which I have earlier referred, need to be considered for the purposes of determining the precise order that would be appropriate in all the circumstances of the case.
4. Two Separate Cases?
4.1 While I fully appreciate and accept that, to quite an extent, these were almost two separate cases tried in these one proceedings, it does not seem to me that it is appropriate to place any blame on Mr. Sweetman for that state of affairs. If Mr. Sweetman had sought to raise the same questions concerning the transposition of the Directive in the abstract he would, doubtless, have been met with serious issues as to whether he had the standing to mount such a challenge.
4.2 Therefore, the fact that Mr. Sweetman was seeking to challenge an actual decision by An Bord Pleanála which was relevant to Clare Council was, at least arguably, a necessary part of his standing to raise the transposition issues. It does not, therefore, it seems to me, follow that the costs should be divided in some way to reflect the two separate sets of issues.
4.3 It does, however, it seems to me, follow that it would be inappropriate to consider making any order against An Bord Pleanála, because the issues which involved An Bord Pleanála were not those issues of general public importance which give rise to the exercise of the discretionary jurisdiction in the first place.
4.4 So far as the State is concerned the issues which I have indicated were such as to satisfy me that the case was one of general public importance, were, of course, directed to those respondents. However, there does seem to me to be some merit in the point made by counsel on behalf of the State to the effect that some of the very issues which lead to that conclusion were not pleaded.
5. Part of the Case not pleaded
5.1 For the reasons which I set out in the substantive judgment, I was not satisfied that those aspects of the argument developed in the written submission filed on behalf of Mr. Sweetman, which were concerned with whether the process available to challenge, by judicial review, certain decisions in the environmental field, met the requirements of the Directive, were adequately pleaded. On that basis, and having regard to the jurisprudence concerning the addition of significant substantial grounds in a leave application after the expiry of the period during which such a challenge is required, by s. 50 of the 2000 Act, to be commenced, I took the view that I would, in all the circumstances, nonetheless, consider those issues and, if I was satisfied that they had merit, afford Mr. Sweetman an opportunity to persuade me that time should be extended.
5.2 It is fair to say, therefore, that at least a material part of the issues which led to the conclusion that this case involved important questions of “general public importance”, were not pleaded and were only raised, for the first time, in written submissions filed close to the date of hearing.
5.3 Were it not for that factor, I would have come to the view that Mr. Sweetman was entitled to his costs against the State. For the reasons which I have already analysed I would not have been satisfied to reduce those costs by reference to the fact that there were, in substance, two separate sets of issues at hearing, one of which did not meet the “general public importance” test. However it seems to me that, in circumstances where a material aspect of the case, which contributed significantly to the case being properly regarded as one of “general public importance”, was not pleaded, it is impossible to ignore that factor. I would, therefore, propose awarding Mr. Sweetman half his costs against the State only. It is my understanding that McKechnie J. has already marked the fact that the written submissions filed on behalf of Mr. Sweetman were very late, by directing that no costs at all should be awarded in respect of those submissions. My order, therefore, is concerned with half of the costs, other than those relating to the written submissions.
5.4 I also propose to make no order in respect of the costs of An Bord Pleanála or Clare Council. Given the conclusions which I have reached to the effect that the proceedings cannot properly be divided for costs purposes and involve a public interest challenge in accordance with the established jurisprudence of this court, it seems to me to follow that it would be inappropriate to award costs against an applicant and in favour of a public body, even though such public body was necessarily involved in the proceedings. In the absence of special circumstances, to do so would negate the overall intent of the jurisprudence of allowing a plaintiff or applicant costs against a State Authority in such litigation. I would leave over to consideration to a case in which the issue specifically arose, the more difficult question which might arise if a private body was also necessarily a party in such proceedings and would, in the ordinary way, be entitled to its costs. In such a case it would be necessary to give consideration to balancing the proper entitlement of such a person or body to obtain the costs of having successfully defended proceedings with the reasons behind the jurisprudence in respect of public interest challenges. However no such considerations arise in this case as the “developer” is, itself, a public body.
6 Conclusion
6.1 I, therefore, propose making no order in respect of the costs of An Bord Pleanála and Clare Council. I propose awarding Mr. Sweetman half of his costs (excluding the costs of written submissions) against the State.