High Court denies certification of points of law regarding costs division under Aarhus Convention and EIA Directive.

[2017] IEHC 763

THE HIGH COURT

2017 No. 201 JR

Between:

HELENA MERRIMAN, MICHAEL REDMOND, ADRIENNE MCDONNELL, PETER COLGAN, ELIZABETH MCDONNELL, TREVOR

REDMOND, PATRICIA DEIGHEN, MARGARET THOMAS, NOEL REILLY, HELEN GILLIGAN, JAMES SCULLY, FERGUS RICE, NOEL

DEEGAN, VALERIAN SALAGEAN, SIDNEY RYAN, GREG FARRELL, SHEELAGH MORRIS, JIMMY O’CONNELL, SILE HAND, DECLAN

MCDONNELL, ELIZABETH ROONEY & DESMOND O’CONNOR

Applicants

– AND –

FINGAL COUNTY COUNCIL

First Named Respondent

– AND –

IRELAND AND THE ATTORNEY GENERAL

Second & Third Named Respondents

– AND –

DUBLIN AIRPORT AUTHORITY PLC AND RYANAIR DAC

Notice Parties

JUDGMENT of Mr Justice Max Barrett delivered on 21st December, 2018.

1. The applicants claim that the court’s judgment on costs (Unreported, 17th May, 2018) involves points of law of exceptional public

importance meriting certification/leave under s.50A(7) of the Planning and Development Act 2000 (PADA). The law concerning such

certification/leave applications is well-settled; the court proceeds by reference to Glancré Teoranta v. An Bord Pleanála [2006] IEHC

250.

2. PROPOSED POINTS 1(a)/(b): “(a) Having regard to the provisions of Art.9 of the Aarhus Convention and the judgment of

the CJEU in Case C-470/16, was the court correct in its determination of costs to divide the issues in the case for the

purposes of costs protection?” “(b) If the court was entitled to make an issues-based determination in respect of costs was

the court correct in dividing these issues (as it saw them) into issues relating to EIA and non-EIA and only to apply costs

protection to the issues relating to EIA?”

3. There is no uncertainty presenting in the applicable law:

(1) it is settled case-law that a court should distinguish between (a) aspects of proceedings covered by the ‘not

prohibitively expensive’ (NPE) requirement in Art.11(4) of the EIA Directive and (b) aspects of proceedings outside that

Art.11 but possibly within Art.9(4) of the Aarhus Convention (Case C-470/16 North East Pylon Pressure Campaign Limited

(‘NE Pylon (EU)’)).

(2) the scope of Art.11 is confined to aspects of proceedings based on the public participation rules laid down in the EIA

Directive (see, e.g., NE Pylon (EU), paras.36-42).

(3) in identifying the applicable costs rules a court may divide up a case by reference to the issues raised (NE Pylon (EU),

para.43).

(4) it is clear from the preceding paragraphs in the judgment in NE Pylon (EU) that the reference, in para.43 of that

judgment, to “the rules on public participation” refers to the EIA Directive’s rules on public participation.

(5) the distinction previously made by the court between (a) EIA public participation arguments (Art.11(4), EIA Directive

applicable), (b) other European Union environmental law requirements (Art.9(4), Aarhus Convention applicable), and (c)

arguments not based on European Union or national environmental law, is consistent with the case-law of the European

Court of Justice (CJEU) and also with, e.g., SC SYM Fotovoltaic Energy SRL v. Mayo County Council [2018] IEHC 245.

(6) the notion that it is impossible, in these proceedings, to separate out constitutional/ECHR grounds from European

Union law grounds is belied by the fact that these respective grounds were (a) identified separately in the applicants’

statement of grounds, (b) argued separately at hearing by reference to different case-law, and (c) considered separately

by this Court in its initial judgment (which disaggregates the constitutional from the European).

4. It follows from the foregoing that, when it comes to proposed points (1)(a) and (b),the court does not consider that, to borrow

from s.50A(7), the court’s decision on costs “involves a point of law of exceptional public importance and that it is desirable in the

public interest that an appeal should be taken to the [Court of Appeal]”.

5. PROPOSED POINT (2): “Was the Court correct in law in concluding that the issues raised by the applicants in the

proceedings, and in particular the constitutional issues were not EIA issues and therefore did not have the benefit of costs

protection?”

6. This proposed point overlaps with proposed points 1(a) and (b). There is no uncertainty presenting in the applicable law. The

applicants contend, in effect, that their constitutional law arguments (which (a) rested on their constitutional property rights and

largely on the decision of the Supreme Court in Dellway Investments v. NAMA [2011] 4 IR 1 and (b) did not embody/contain any

environmental point) ought to enjoy full costs protection under Art.11 and s.50B/PADA. Three points might usefully be made:

(1) the applicants contend that this Court, by referring at para.6 of its costs judgment to “the rules on public

participation [laid down by the Directive]” – the italicised words being those of the CJEU in NE Pylon (EU), para.44, and

the square bracketed words being those of this Court – qualified the impact of para.44. This overlooks the fact that the

CJEU, in NE Pylon (EU), uses similar terms in paras 36 (“the public’s right to participate in decision-making in accordance

with the detailed rules laid down by the directive”) and 42 (“the public participation process defined by that directive”)

[Emphasis added]. Simply put, the CJEU, in NE Pylon (EU), confined the benefit of costs protection under Art.11 to those

parts of a challenge which allege infringement of the public participation provisions of the EIA Directive. The applicants’

Dellway-related contentions, which alleged a breach of their constitutional property rights, do not allege infringement of

the public participation provisions of the EIA Directive.

(2) the applicants contend that an alleged impairment of constitutional rights in the circumstances presenting is an

“impairment of a right” within the meaning of Art.11 and so the costs protection under that Article applies. However:

impairment of a right need not equate in any one instance to an effect on Dellway rights; in Ireland sufficient interest

yields locus standi under Art.11; the necessary standing (a) to access an Art.11 review and (b) to be heard on a decision

that may affect one’s property rights, are discrete and different.

(3) again, the court notes the consistency of its approach with, e.g., Fotovoltaic.

7. It follows from the foregoing that, when it comes to proposed point (2), the court does not consider that, to borrow from s.50A(7),

the court’s decision on costs “involves a point of law of exceptional public importance and that it is desirable in the public interest

that an appeal should be taken to the [Court of Appeal]”.

8. PROPOSED POINTS 3(a) and (b). “Is a court obliged in considering the NPE Rule, and its application to a particular case, to

take into account the costs incurred by an applicant?” “Is a court so obliged, how is that obligation to be met, and in

particular, what happens if the costs incurred by the applicant itself are already prohibitively expensive?”

9. The court did not apply or seek to apply the NPE rule in respect of any aspect of its costs order. So the question of how that rule

is to be applied is entirely moot and cannot form the basis of a grant of leave to appeal in these proceedings.

10. The Decision in NE Pylon (IRL). The applicants made much a-do at hearing about perceived divergences between the court’s costs

judgment and the judgment in North East Pylon Pressure Campaign Ltd. & anor v. An Bord Pleanála & ors (No.5) [2018] IEHC 622 (‘NE

Pylon (IRL)’), a case where notably (and unlike here) the “vast bulk of the application [at issue] related to EU law points” (para.39).

Leaving aside the issue of whether the observations in NE Pylon (IRL) considered hereafter are obiter, for the reasons identified

hereafter the claimed divergences are, in any event, more apparent than real:

(1) NE Pylon (IRL) acknowledges (para.37) that an “award of costs on…non-EU law points…should only be considered if the points

really added anything significant to the length of hearing”. Well-known to all the parties to this case (and not known to the court in

NE Pylon (IRL)) is the very considerable extent to which oral submissions in this case were devoted to the Dellway/constitutional

points, thus “adding…significant[ly] to the length of hearing”. So, no divergence there.

(2) NE Pylon (IRL) acknowledges (para.38) that “it is counterproductive and potentially creates further costs for a court to award

not prohibitively expensive costs against an applicant given that there will then be further significant costs incurred in determining

what those costs are”. As noted above, this Court has never applied or sought to apply the NPE rule in respect of any aspect of its

costs order. (A sense that the contrary pertains appears to permeate NE Pylon (IRL)). Alive, however, to the potential for spiralling

costs to which the court in NE Pylon (IRL) was similarly alive, the court invited Fingal County Council and the DAA not to pursue their

Habitats Directive-related costs (and they have agreed not to do so). So, no divergence there.

(3) NE Pylon (IRL) suggests, at para.36, that a rigid distinction should not be drawn between fair procedures and rights points that

arise from European Union law and the “same points” arising from constitutional/national law. (And they must, of course, be the same

points, not, e.g., the very different EIA public participation points and Dellway points at play in these proceedings, driving – as with

all the arguments made by the applicants – to a common end, in terms of securing the reliefs sought, but still very different points).

The cautionary note sounded in NE Pylon (IRL) regarding rigid distinctions rightly points to the need for care in this regard, and

everyone can agree on that. But most notably, and this point appears not fully to have been appreciated by the applicants, though

making the ‘anti-rigid distinction’ observation, NE Pylon (IRL) follows Fotovoltaic (in which, inter alia, an alleged breach of fair

procedures under Irish law was classified as coming within neither the scope of costs protection in Art.11 or s.50B, nor the scope of

national environmental law such that NE Pylon (EU)’s interpretive obligation became applicable). This Court has also faithfully followed,

inter alia, Fotovoltaic, as the rules of precedent require. So, no divergence there.

11. As can be seen, when it comes to the judgment at issue in this application and the judgment in NE Pylon (IRL) (whether or not

the relevant points made therein, and considered above, are obiter) there is, in truth, little or nothing separating the two, certainly

nothing that would alter the court’s conclusions as regards the proposed points of law, and certainly not two opposing judgments

which require resolution by an appellate court. All of (a) Fotovoltaic, (b) this Court’s costs judgment, and (c) the judgment in NE

Pylon (IRL), speak to the same line, and that line is this: when it comes to proceedings impacted by NE Pylon (EU) a court can draw a

distinction, on the basis of NE Pylon (EU), between matters that are European and matters which are domestic and, in doing so, a

court can take into account the amount of time the said matters occupied within those proceedings.

12. Miscellaneous. Four final points might usefully be made. (1) The applicants complain that a division of issues for the purposes of

costs orders may yield complicated costs arguments. However, NE Pylon (EU) clearly provides for such a division (and the court

cannot but note that the making of costs orders did not consume much time in these proceedings). (2) The court does not consider

that a decision by the CJEU on any point of European Union law is necessary to enable the court to give judgment on the within

certification/leave application and so declines to make a reference under Art.267 TFEU. (The court notes in passing that there is the

possibility of appeal of this judgment to the Supreme Court, so this Court is not a court against whose decision there is no judicial

remedy). (3) The applicants mention in their submissions that they had sought that the issue of their own costs would be left over

until the judgment of the CJEU in Case C-167/17 Klohn v. An Bord Pleanála. No application was made to leave over the issue of the

applicants’ own costs or to file evidence as to the extent of their costs. The applicants made their costs application, they are not

entitled to make it again and this Court is functus officio in this regard. (4) Persons minded to bring certification/leave applications

pursuant to s.50A(7)/PADA are respectfully reminded that they need to establish, inter alia, “that it is desirable in the public interest

that an appeal should be taken to the [Court of Appeal]”. Here, the outcome of any appeal rests on the application of the NE Pylon

(EU) costs rules to the facts/arguments at hand. The applicants have a clear personal interest in bringing an appeal on costs; that

personal interest does not equate to a public interest; nor does the court see the requisite public interest otherwise to present.

13. Conclusion. For the reasons stated, the court declines to grant the certification/leave sought.