Supreme Court dismisses appeal as moot because the underlying development plan challenge has naturally concluded.

THE SUPREME COURT

[Appeal No: 451/2010]

Denham C.J.

O’Donnell J.

Clarke J.

Dunne J.

Charleton J.

Between/

McCaughey Developments Limited

Applicant

and

Dundalk Town Council

Respondent

and

Louth Environmental Group

Moving Party/Appellant

and

Ireland and the Attorney General

Respondents to the Application

Judgment of Mr. Justice Clarke delivered the 24th February, 2017.

1. Introduction

1.1 The somewhat unusual description of the parties in the title of this case stems from the unusual nature of the application which

gives rise to this judgment. In these proceedings generally the applicant (“McCaughey Developments”) sought to challenge a provision

in the Dundalk and Environs Development Plan which provided for rezoning of lands apparently owned by McCaughey Developments.

When the matter was before the High Court, a Mr. John Conway, acting on behalf of the moving party/appellant (“L.E.G.”), sought to

be joined in the proceedings. On the 6th December, 2010 the High Court (Hanna J.) refused to make the order sought. L.E.G.

appealed to this Court against that refusal. However, very little was done to progress the appeal. In the context of measures adopted

by the Court to seek to progress stale appeals the matter was listed before the Court. Mr. Conway indicated that he wished to bring

an application both in this appeal and in another appeal in which he was personally the appellant (Conway v. Ireland & ors Appeal No.

374/2010) for the purposes of seeking an order which would require the respondents (“the State”) to make provision for legal aid for

both appeals. In that regard reliance was placed on the provisions of the Aarhus Convention.

1.2 Subsequently, motions seeking that relief were brought in both this appeal and the Conway appeal. Both applications were listed

for hearing on the same day. The Court is also giving judgment today on the application in the Conway appeal.

1.3 However, at the commencement of the hearing, it was suggested by counsel on behalf of the State that these proceedings were

moot and were not of a type where the Court ought, exceptionally, entertain an appeal in moot proceedings. Having heard counsel for

the State and counsel for L.E.G. on that question, the Court ruled that the appeal was indeed moot and that there were no

exceptional circumstances which would justify a hearing of the appeal itself. In those circumstances the Court ruled that no useful

purpose could be served by considering whether L.E.G. might, theoretically, be entitled to some form of order relating to the provision

of legal aid in the context of an appeal which was not going to proceed.

1.4 However, the Court indicated that it would give its reasons for coming to that conclusion at a later stage. This judgment is

directed to the reasons why I supported the Court’s findings on mootness and the consequences thereof.

2. Background

2.1 The underlying proceedings were commenced on the 29th April, 2010 by McCaughey Developments in which they sought to

challenge, by judicial review, the zoning of certain lands by the respondent (“Dundalk Town Council”) in the Dundalk and Environs

Development Plan 2009-2015. McCaughey Developments claimed that aspects of that development plan had been adopted in breach

of fair procedures which contention was disputed in a statement of opposition filed by Dundalk Town Council.

2.2 On the 28th October, 2010 L.E.G. issued a motion seeking to be joined as a party in the proceedings. As already noted that

application was refused by Hanna J. on the 6th December, 2010. L.E.G. filed an appeal to this Court on the 22nd December, 2010.

However, L.E.G. did not seek either to postpone the hearing of the underlying proceedings in the High Court pending the determination

of this appeal nor did L.E.G. apply to this Court either for a form of stay or other order which would have had the same effect or for

an order or direction seeking to have this appeal expedited so that it could be decided in time for L.E.G. to participate in the

proceedings in the High Court should it be successful on its appeal.

2.3 It, therefore, followed that the trial of the underlying proceedings progressed in the ordinary way and was the subject of a so-

called telescoped hearing before Hedigan J. in the High Court. By virtue of the somewhat complex procedures introduced in respect of

judicial review challenges in many types of environmental cases the courts were faced with often difficult situations where there was

a risk of a substantive leave application followed by a substantive hearing. In such circumstances the courts often, normally with the

agreement of the parties, adopted the procedure of conducting a telescoped hearing in which both leave and substantive issues were

dealt with sequentially at the same hearing. In any event Hedigan J. rejected some of the grounds relied on by McCaughey

Developments but did accept that there had been a denial of fair procedures in the particular circumstances of the case. It followed

that the decision of Dundalk Town Council in respect of the relevant zoning was quashed and the zoning issue in question was

remitted back to the local authority for further consideration. Neither side sought to appeal the decision of Hedigan J. so that the

decision concerned has now stood for a period of in excess of five years.

2.4 Furthermore, as a result of the decision of Hedigan J., Dundalk Town Council was required to carry out the statutory process

applicable to the zoning issues which had been remitted to it. That process does, of course, provide for full public participation. The

relevant process was conducted in accordance with law with the relevant zoning proposal put on public display between the 20th

July, 2011 and the 17th August of that year. L.E.G. participated in that public consultation or participation process. At the end of

that process a final plan was made and no challenge has ever been brought to the validity of the plan in the form adopted after that

second court directed process.

2.5 Furthermore, by the time the matter came before this Court in the manner just described, the relevant Dundalk and Environs

Development Plan was coming to its natural end and was in the course of being replaced by a new plan which in turn required a full

process of public participation. It was in those circumstances that counsel for the State argued that the appeal was moot.

3. Reasons

3.1 It seemed to me that the appeal in which L.E.G.’s application in respect of legal aid was brought was moot for at least two

reasons. First the purpose of the appeal was to overturn the decision of Hanna J. refusing L.E.G. leave to participate in the underlying

proceedings and thus its only object could have been to secure that L.E.G. would be able to so participate. However, those

proceedings had come to a conclusion over five years before L.E.G.’s application to this Court for legal aid. No useful purpose could

possibly have been served by hearing the substantive appeal, for even if L.E.G. were correct in its view that it should have been

permitted to participate (and I would wish clearly to emphasise that I am expressing no view one way or the other on that potentially

important question), there was no practical way in which L.E.G. could now actually participate in these proceedings. It would have

been, of course, wholly inappropriate to attempt to undo the result of the proceedings in the High Court not least because that result

led to a further public participation process and a zoning decision which no-one has suggested was unlawfully arrived at. All of those

events happened five years ago and it would be not only inappropriate but also impractical to even attempt to undo that process at

this remove. The proceedings have been concluded and legal certainty requires that the result of those proceedings now be

respected.

3.2 It also has to be noted that much of the reason for that state of affairs lies with L.E.G. itself. It did not suggest that the High

Court proceedings should be delayed in order to allow it to progress its appeal. It did not suggest to the Supreme Court that the

appeal might be expedited so that a decision could be taken prior to the anticipated hearing date in the High Court. Indeed it took no

steps to progress its appeal to this Court.

3.3 It might, of course, be said that the very point which L.E.G. now wishes to argue, concerning the absence of legal aid, placed it

at a disadvantage in being able to make an appropriate application to either the High Court or this Court which might have led to a

determination of this appeal prior to the High Court case going ahead. But there was surely nothing to prevent L.E.G. bringing this

application in respect of legal aid immediately after it had filed its appeal. If that had been done it was at least realistic to expect

that the Court would have given that application an early hearing and would also have been prepared to consider expediting the

substantive appeal irrespective of the result of the legal aid hearing. It follows that there was no practical reason why arrangements

could not have been put in place which might have allowed this appeal to be determined in advance of the High Court hearing. The

reason why that did not happen was that L.E.G. did not seek to invoke any of the procedural measures which might have facilitated

such a situation and, perhaps equally if not more importantly, did not seek to bring the legal aid type application which it has now

brought until so long after the High Court proceedings had concluded that there was no longer any conceivable basis for re-opening

them.

3.4 There is, however, a second and even more fundamental reason why I considered that this appeal was moot. Even if there might

have been some circumstances where a court might have been prepared to consider re-opening the underlying proceedings, the

particular delay which occurred by reason of LEG’s inaction on this appeal led to a situation where the very development plan which it

sought to uphold (by opposing McCaughey Developments challenge) had in any event come to a natural conclusion. The zoning of all

lands of the planning authority concerned will henceforth be determined by a new development plan which will stand or fall on its own

merits. The appeal was, therefore, in my view, doubly moot and I fully supported the Court’s view to that effect.

3.5 Counsel for L.E.G. did accept that there were considerable difficulties with the situation in which he found himself. However, in

the legal submissions filed it was indicated that the application for legal aid type relief raised important questions which should be

answered even if the proceedings were moot. There is no doubt that there are certain circumstances where a court may properly

consider a moot question which is important and likely to arise again. However, it is also important to emphasise that courts are often

properly reluctant to determine important issues outside the context of a particular live case. For the reasons set out in the judgment

of this Court given today in the Conway appeal, the question of whether a party may be entitled, in some circumstances, to legal aid,

in the context of proceedings potentially involving issues under either the Aarhus Convention or the Public Participation Directives, by

which the European Union gave effect to its obligations as a subscribing party to that Convention, gives rise to issues which are

important, complex and difficult. In those circumstances it is appropriate that they should only be determined in a concrete case

where those issues have the potential to actually affect the outcome. For that reason it did not appear to me that this appeal would

be an appropriate case for the Court to consider those difficult and important issues notwithstanding that L.E.G.’s appeal was clearly

very moot, so that no useful end could be served by making provision for legal aid.

3.6 For those reasons I fully supported the view of the Court that this appeal itself was moot and that, therefore, no useful purpose

would be served by considering whether L.E.G. might have been entitled to any form of order concerning legal aid to assist it in

pursuing what has become a moot appeal.

4. Conclusions

4.1 For the reasons set out in this judgment I supported the view of the Court, already enunciated, that the appeal brought by L.E.G.

against the refusal of Hanna J. to permit them to participate in the underlying proceedings was moot. I have also set out the reasons

why I supported the Court’s view that this was not one of those exceptional cases where it might be appropriate for the Court to

entertain an appeal even though it was moot.

4.2 Given that there was no basis, therefore, on which this underlying appeal could proceed, I agreed with the view of the Court that

no useful purpose would be served by entertaining an application in respect of possible legal aid which related to an appeal which

could not go on in any event. In those circumstances I agreed that it was appropriate both to refuse the application then before the

Court and also to treat the substantive appeal as moot with the result that the appeal should be dismissed.