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RECORD NO: 2014/647JR
BETWEEN:
JOHN CALLAGHAN
APPLICANT
AND
AN BORD PLEANLA AND IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND
NOTICE PARTIES
permission for the proposed development will be made directly to the Board and not
to a planning authority. This is specifically envisaged in the schema of s.37A-s.37E
of the PDA. This is what was before the Board to determine. In more technical
terms, the Board had to determine whether the condition in s.37A(2) was met:
That condition is that, following consultations under section 37B, the Board
serves on the prospective applicant a notice in writing under that section
stating that, in the opinion of the Board, the proposed development would, if
carried out, fall within one or more of the following paragraphs, namely
(a) the development would be of strategic economic or social importance
to the state or the region in which it would be situate,
(b) the development would contribute substantially to the fulfilment of any
of he objectives in the National Spatial Strategy or in any regional spatial
and economic strategy in force in respect of the area or areas in which it
would be situate,
(c) the development would have a significant effect on the area of more
than one planning authority
4. Whereas it is appreciated that the Applicant maintains a direct challenge to these
provisions the above is what the Board considered and applied.
If the Boards
not
normally
be
regarded
as
necessary
if
this. Thus, one cannot avoid EIA by splitting a project into small portions which each
would avoid thresholds for EIA (salami slicing, as it is sometimes known). This
arises largely because in many cases the EIA obligation is triggered by thresholds
whether in acreage, size, unit capacity or some other equivalent objective
measurement.
themselves not requiring EIA or not being such, of themselves, as would be likely to
have significant environmental effects, the purpose of the EIA Directive and Part X of
the PDA would be frustrated.
18. The Applicants case misses the fundamental point that nothing the Board determined
had anything to do with EIA.
argument in this respect because the EIA Directive is concerned with the process of
EIA being part and parcel of the development consent process.
provisions in domestic law (i.e. in Part X of the PDA) are geared towards the specific
and clear inclusion of EIA obligations on the Board during the development consent
process. What the Board has decided is not the development consent process it is
the question of which development consent process will apply. This is an entirely
separate and preliminary determination, in the strictest sense of that word: it is a
determination made before the developer even reaches the doorstep of the
development consent process. Thus, nothing has arisen yet that engages EIA.
19. Indeed, this leads to a wider point. Even if one rejects the Boards contention that
project splitting cannot arise at this point, this is a legal characterization of matters.
One can make a project-splitting argument as a matter of law. Either project-splitting
exists or it does not and not a scintilla of evidence has been put before the Court to
suggest that there is any difficulty with the information which is publically available on
the other cases the Applicant now impugns. Thus, the Applicants case is triply illfounded. First, project-splitting cannot arise at this point. Second, even if it does, it is
a matter of law. Third, if facts are relevant, there is no reason why the information
publicly available in relation to the matters alleged to have been split is inadequate
to pursue this point.
20. Thus, there is no obvious reason at all as to why discovery is relevant or necessary
or, indeed, proportionate in respect of the issues between the parties. This is not
because judicial review is special because the issues in judicial review are
necessarily different to that in other civil cases (such as, for example, the
reasonableness of precautions taken to avoid injury etc). Insofar as the Applicant
cites a need for discovery it is an entirely created need by reference to suppositions
about the legal character of the Boards determination herein which are simply not
borne out by the legislative scheme.
th
accordance with the normal rules contained in Order 99(1)(e) of the Rules of the
Superior Courts, 1986 as amended; The costs of every action, question, or issue
tried by a jury shall follow the event unless the Court, for special cause, to be
mentioned in the order, shall otherwise direct.
22. The 28
th
September 2010 is the date on which Section 50B of the Planning and
provided for a rule that each party should bear their own costs in particular cases.
The special exceptions relate to the Applicants conduct of the proceedings, or the
frivolity and vexatious nature of the case. These are important exceptions and have
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been applied by the Courts and will be referred to below. In short, the Court should
simply note, it is respectfully submitted, that even if s.50B applies the Court retains
a discretion and power under s.50B(3) to award costs against an Applicant on these
grounds.
interlocutory application and then award costs against an Applicant at the conclusion
of a case (to include reserved costs) if the circumstances so warranted.
23. This provision was amended with effect from the 23
rd
24. For the convenience of the Court some background as to the pedigree of these
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amendments can be set out as follows. This begins with the Convention on Access
to Information, Public Participation in Decision-Making and Access to Justice in
Environmental Matters more commonly known as the Aarhus Convention. The
relevant provisions of the Aarhus Convention so far as costs are concerned are those
contained in Article 9(3) and Article 9(4):
Planning and Development (Amendment) Act 2010 (Commencement) (No. 2) Order 2010
(SI 451 of 2010) which commenced ss. 32 and 33 of the Planning and Development
(Amendment) Act 2010 Act, and where s.33 introduced s.50B.
2
Indaver Ireland v. An Bord Pleanla [2013] IEHC 11;
3
The amendment was made by s.21 of the Environment (Miscellaneous Provisions) Act 2011
takes effect from the 23rd August 2011 Environment (Miscellaneous Provisions) Act 2011
(Commencement of Certain Provisions) Order 2011 (SI 433 of 2011).
4
Detailed considerations are found in JC Savage Supermarket Limited & Des Becton v An
Bord Pleanla [2011] IEHC 488; Kimpton Vale Developments Ltd. v. An Bord Pleanla [2013]
IEHC 442 and Waterville Fisheries Development Limited -v- Aquaculture Licenses Appeals
Board & Ors [2014] IEHC 522
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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.
25. The Aarhus Convention is not domestic law.
Court on several occasions.
how it has been implemented in Irish law which, in turn, has been the product of the
transposition of European directives. This arose by reason of 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 Directives 85/337/EEC and 96/61/EC (the Public Participation
Directive).
Directives 85/337/EEC and 96/61/EC which are more commonly known as the EIA
Directive and the IPPC Directive respectively.
Directives which required Member states to adopt special rules regarding the costs of
certain challenges arising under those regimes i.e. EIA and IPPC.
26. Section 50B is part of the Irish transposition of this.
As Charleton J said in JC
Savage Supermarket Limited & Des Becton v An Bord Pleanla [2011] IEHC 488:5
See Kimpton Vale Developments Ltd. v. An Bord Pleanla [2013] IEHC 442; Waterville
Fisheries Development Limited -v- Aquaculture Licenses Appeals Board & Ors [2014] IEHC
522. In the latter case Hogan J held:Save for the special case of where the Aarhus Convention has been transposed into
EU law (which I will consider presently) and, by that process, has become part of Irish
domestic law as a result, it is clear that, having regard to the provisions of Article 29.6
of the Constitution, the Convention is otherwise only part of domestic law to the
extent to which such either has been or may be determined by the Oireachtas.
6
In this respect, it is noted that Applicants often refer (unsuccessfully) to s.8 of the
Environment (Miscellaneous Provisions) Act, 2011 which provides that judicial notice can be
taken of the Aarhus Convention. Clearly, this does not mean that reckonable judicial
cognisance can be taken of the Aarhus Convention in any sense that gives it an otherwise
unconstitutional domestic force. Rather, it simply means that the evidential doctrine of judicial
notice applies to same and the Aarhus Convention does not require formal evidentiary proof
in Court.
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(II)
(III)
integrated
pollution
prevention
and
own
costs.
[Replaced
since
the
23
rd
August
2011
with:
rd
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(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".
28. In interpreting the section, in JC Savage Supermarket Limited & Des Becton v An
Bord Pleanla [2011] IEHC 488 Charleton J noted that
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.
29. And he held: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.
30. He concluded: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
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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.
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'.
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.
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31. Hedigan J considered the provision in Shillelagh Quarries Limited v An Bord Pleanla
[2012] IEHC 402 wherein he referred to Charleton Js analysis in JC Savage and
held, at para. 5 that I gratefully adopt this very helpful interpretation of these new
provisions in relation to costs. Both these decisions were cited with approval and
followed by Kearns P in Indaver Ireland v. An Bord Pleanla [2013] IEHC 11. They
have been cited or followed on numerous occasions since.
32. It is absolutely crystal clear that s.50B does not apply to these proceedings. Indeed,
insofar as there is absolutely nothing about IPPC in this case, nothing more will be
said about same.
33. It is certainly the case that these proceedings concern a challenge to a decision of the
Board. However, the decision of the Court does not arise under the banner of EIA,
SEA or IPPC. It is simply a determination of the Board under the special provisions
introduced by the Planning and Development (Strategic Infrastructure) Act, 2006.
It
was a determination by the Board that the proposed development referred to therein,
if carried out, would be fall within s.37A(2)(a) and (b) i.e. was strategic
infrastructure.
As set out above the Board had to determine whether the condition in
compelling argument in this respect. It is well known that s.50B constitutes part of the
Irish transposition of provisions of various Directives which make requirements
regarding public participation and the cost of same. Initially insofar as EIA was
concerned this was found in Article 10a which is now Article 11 in the EIA
Directives latest consolidated iteration. This provides:1. 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.
2. Member States shall determine at what stage the decisions, acts or
omissions may be challenged.
3. What constitutes a sufficient interest and impairment of a right shall be
determined by the Member States, consistently with the objective of giving
the public concerned wide access to justice. To that end, the interest of any
non-governmental organisation meeting the requirements referred to in
Article 1(2) shall be deemed sufficient for the purpose of point (a) of
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15
38. Thus, there is simply no rational case to be made that s.50B applies. Indeed, this
makes some sense. The provision is clearly designed to ensure that as per the EIA
Directive parties can challenge decisions to grant development consent to projects
on a costs-friendly basis.
Prematurity
39. Again, as matters stand, the Board only understands the Applicant to now argue that
s.50B applies to the discovery motion. If it does not apply to the proceedings, it
cannot apply to the motion and it does not apply to the proceedings so it does not
apply to the motion. If, however, the Applicant seeks to advance anything more than
this and ask the Court to determine that s.50B applies writ large to the proceedings,
there are serious practical problems and, indeed, jurisdictional difficulties with this.
40. First, the Court may, however, also note that there is recent authority for the relatively
sensible proposition that s.50B is divisible.
Pleanala [2014] IEHC 353: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 I.R. 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
8
16
17
44. Finally, as the Applicant points out a point has been certified to the Supreme Court as
to whether s.50B applies to all planning cases or not. In this respect, it would seem
far more appropriate that in the normal course and, as was the practice in this Court,
that costs are costs in the case pending conclusion of the case at which point a
determination on costs is made. If the Applicant believes that to be incorrect then, a
certificate for leave to appeal same can be sought.
BRIAN FOLEY BL
EMILY EGAN SC
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