Court allows costs protection for motion against council but denies it for proceedings against respondents in judicial review.

[2023] IEHC 233

THE HIGH COURT

JUDICIAL REVIEW

[2022 No. 983 JR]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 50, 50A AND 50B OF THE

PLANNING AND DEVELOPMENT ACT 2000 AND IN THE MATTER OF SECTION 78 OF THE

HOUSING ACT 1966, AS AMENDED

BETWEEN:

JOHN CLANCY AND SHEENA CLANCY

APPLICANTS

AND

AN BORD PLEANÁLA, CLARE COUNTY COUNCIL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Humphreys J. delivered on the 5th day of May, 2023

1. In or about August, 2016, the council in this case proposed to carry out a road development

under Part XI of the Planning and Development Act 2000 and Part 8 of the Planning and Development

Regulations 2001 for a road in Ennistymon, Co. Clare. The road is to be an inner relief road for

Ennistymon, including a new vehicular bridge crossing the Inagh/Cullenagh River. The route is

located centrally in Ennistymon from approximately 180 metres west of Blake’s Corner on the N85

national road to a point approximately 180 metres east of Blake’s Corner on the N67 national road.

2. The board decided that a Natura Impact Statement (NIS) was not required and further

decided on 5th October, 2016 that an environmental impact assessment (EIA) report was not

required.

3. The development was advertised in early 2018 and the applicants made submissions on 23rd

February, 2018.

4. The elected members decided to approve the development in or about April, 2018, or

perhaps more formally they decided not to veto the development pursuant to s. 179(4) of the 2000

Act. The Chief Executive’s decision on foot of that constitutes the development consent; and it is

clearly far too late to challenge that now.

5. A compulsory purchase order (CPO) was made in light of that consent on 12th June, 2020,

entitled “Clare County Council Compulsory Purchase Order 2020 N67/N85 Inner Relief Road

Ennistymon (Blake’s Corner) N5”, providing for the acquisition of land on both sides of the Lahinch

Road, Bogbere Street, New Road, covering specified properties on Bridge Street including the

applicants’ dwelling house and business premises. The CPO was submitted to the board for approval.

6. In June, 2021, an oral hearing took place. The applicants argued that the members’ decision

wasn’t a development consent and that the decision didn’t comply with the EIA or habitats directives.

7. On 20th September, 2022, the board approved the CPO, and that decision is now challenged.

Relief sought

8. In the Amended Statement of Grounds, the applicants seek the following reliefs:

1. An Order of Certiorari quashing the decision of the First Named Respondent to confirm

a Compulsory Purchase Order authorising the compulsory acquisition of the Applicants’

lands entitled “N67/N85 Inner Relief Road Ennistymon (Blake’s Corner) Compulsory

Purchase Order 2020” which confirmation of the CPO was purported to be made by

decision dated 20th September 2022 and signed by Patricia Calleary, Board Member

under An Bord Pleanála reference ABP-307413-20 (the impugned decision).

2. Such Declaration(s) of the legal rights and/or legal position of the Applicant and/or

Respondents and/or persons similarly situated as the Court considers appropriate.

3. A Declaration, as against the Third and Fourth Named Respondents that insofar as the

procedures and test that was applied by the First Named Respondent complies with the

statutory provisions required to be complied with in a Compulsory Acquisition of land

and the confirmation of the impugned decision the said provisions are, in circumstances

where the Applicants’ property, family home and its business are the subject matter of

a Compulsory Acquisition, the said provisions and procedures are inconsistent with and

contrary to Articles 40.3, 41, 43 and 40.5 of the Constitution of Ireland.

4. A Declaration that the provisions of Section 76 of the Third Schedule of the Housing Act

1966 as extended by Section 10 of The Local Government (No.2) Act 1960 as

substituted by Section 86 of the Housing Act 1966 and as amended and extended by

Section 6 and the Second Schedule of the Roads Act 1993-2005 and Section 213 of the

Planning and Development Act 2000-2019 and all other Acts thereby enabling which

statutory scheme formed the basis of, making of and confirmation of a Compulsory

Purchase Order underlying Compulsory Purchase Order 2020 N67/N85 Inner Relief Road

Ennistymon (Blake’s Corner) N5, and the tests therein have not been satisfied, and that

such decision is contrary to and inconsistent with Articles 43, 40.3, 40.5 and 41

including all unspecified rights and including the to earn a livelihood, right to bodily

integrity and endangerment to health, both physical and psychological and to a clean

environment in the particular circumstances of this case.

5. A Declaration that the Applicants are entitled to costs protection in respect of the reliefs

set out at Paragraph D on the grounds set out at Paragraph E pursuant to Section 50B

of the Planning and Development Act 2000, the Environmental (Miscellaneous

Provisions) Act 2011 and the Aarhus Convention.

6. A Declaration that the policy in relation to a claim for costs as relied on by the First

Named Respondent in the consideration and determination of the Applicants’ claim for

costs is inconsistent with and contrary to with Articles 40.3, 43 and 40.5 of the 1937

Constitution and Council Directive 2011/92 EU (as amended).

7. An Order of Certiorari quashing the decision of the First Named Respondent not to award

the Applicants’ costs pursuant to a policy described as “An Bord Pleanala Policy in

relation to Costs 2016” and requiring that the matter be remitted to the First Named

Respondent so as to determine whether the Applicants are entitled to and the quantum

of costs in respect of their participation in the Application of the Compulsory Acquisition

the subject matter of application ABP307413/20.

8. A stay on the implementation of the said decision subject to application 307413/20, or

the taking of any steps in respect of the compulsory purchase of the Applicants’ lands

pending the determination of the proceedings.

9. Interim and/or interlocutory reliefs.

10. Further and other relief.

11. The costs of the application.

Procedural history

9. On 14th November, 2022 the matter was first mentioned in the List and adjourned for an

amended statement of grounds.

10. As papers were not in order it was adjourned again until 19th December, 2022.

11. There were further issues with the amendments as no MS Word version had been uploaded

to ShareFile.

12. In January, 2023, the List Registrar wrote to the applicants’ solicitor in this regard but there

was no immediate reply. The net result was that there were two unperfected orders on the system

(of 14th and 21st November, 2022, the principle being that an order allowing an amendment is not

perfected until the MS Word version of the amendment is submitted).

13. It emerged that an amended statement had been filed on 18th January, 2023 but was not

on ShareFile. It was eventually emailed to the court on the evening of 30th January, 2023. On foot

of that and of answers to the court’s checklist indicating that the matter was appropriate for

automatic admission to the list, leave was granted.

14. On 20th February, 2023 it emerged that the matter was not in fact one that could qualify for

automatic admission and so a motion to admit would have been required.

15. On that basis, on 27th February, 2023 I set aside the leave order by consent, allowed the

orders for amendment of pleadings to stand, without objection from the opposing parties, and

adjourned the matter for a motion to admit the case to the list.

16. On 13th March, 2023 on foot of such a motion I admitted the case to the List without

objection.

17. The council then applied for an order that leave be on notice. It submitted that the road

was important to the community and to the local authority, and that it would be submitting that

there were no substantial grounds for the proceedings. The action related to a function transferred

by Part XIV of the 2000 Act and so comes within s. 50(2)(b) of that Act. The respondents did not

apply for such an order.

18. I decided that the notice party council was entitled to make the application even though the

respondents were not seeking leave on notice. I stated that while one could be sceptical about

leave on notice as a generality, on balance it was appropriate here given all of the circumstances

including the history of the matter. However I stated that the position regarding costs protection

would have to be clarified first. The matter was adjourned for that purpose for a week, and then

again by consent on 20th March, 2023.

19. Normally, there would simply be a hearing on costs protection but that didn’t happen here,

because an issue broke out regarding the costs of the costs protection issue. On 27th March, 2023,

the board and the State accepted that there would be no order as to the costs of the costs protection

application. The council maintained its hard line on the application and would not so agree.

20. On 17th April 2023, the various options were discussed, specifically that there be a summary

hearing on costs protection for the costs protection motion; that the issue about costs of the costs

would be rolled into a single hearing, possibly together with the leave hearing, or that the applicants

would withdraw the proceedings without incurring further costs. The applicants stated a preference

for dealing with costs protection for the costs protection on a summary basis.

21. That issue was then heard (in as summary a manner as circumstances permitted, although

not as summarily as I might ideally have liked) across two short hearings on 24th and 25th April,

2023.

Are costs protection applications themselves costs-protected?

22. In An Taisce – The National Trust for Ireland v. Minister for Agriculture Food and Marine

Ireland and The Attorney General [2022] IEHC 96, [2022] 2 JIC 2801 (Unreported, High Court, 28th

February, 2022) Simons J. said as follows at para. 31:

“I am satisfied, therefore, that on its correct interpretation section 7 of the

Environment (Miscellaneous Provisions) Act 2011 does not envisage that a costs order would

be made against an unsuccessful applicant under that section. The ordinary rule will be that

each party bears its own costs of the application. In an exceptional case, where an applicant

has demonstrated bad faith or has otherwise engaged in litigation misconduct, then it might

be open to the court to mark its disapproval by the making of a costs order. This would,

however, be very much the exception.”

23. While that was a case under the 2011 Act, a similar logic could apply to s. 50B of the 2000

Act.

24. Simons J. went on to say at para. 33:

“I am fortified in my interpretation by reference to the judgment of the High Court

(Humphreys J.) in Enniskerry Alliance v. An Bord Pleanála [2022] IEHC 6. There, the court

held that the right to an effective remedy implies that a party seeking to assert a right

to costs protection must be entitled to rely on costs protection in making that assertion.

The matter is put as follows (at paragraph 76 of the judgment):

‘Following this issue being raised in the applicants’ submissions, it was

accepted by the board and agreed to by the notice parties that the applicants

having raised an arguable point as to their entitlement in each case to not

prohibitively expensive costs, should, therefore, be entitled to the application

of the not-prohibitively-expensive costs rule in relation to the costs of the costs

argument, even if the applicants are ultimately unsuccessful in that argument. That

is an illustration in its own way of the point that the right to an effective remedy

is really the most fundamental of all rights. Rights are meaningless unless they

can be enforced, so to enforce the right to argue for not-prohibitively-

expensive costs, one needs the protection of a not-prohibitively-expensive

procedure in order to even make the argument’.”

25. The potential clarification or nuance here is that, in Enniskerry, I did envisage that an

applicant’s point regarding costs protection would have to be “arguable” for the costs protection

issue to be itself costs-protected. However there cannot be an infinite regress – hence if an applicant

sought a summary determination of whether there was an arguable basis for costs protection then

that should be costs-protected irrespective of the outcome. The council (again in keeping with its

hardline approach to these applicants, an approach it is perfectly entitled to take whether rightly or

wrongly) objected to anything going an inch further than the strict literal wording of s. 50B; but this

narrow approach ignores the point that costs protection is there for a purpose, namely to provide

special safeguards for the right of access to justice. That could be defeated if a party did not have

a route into court, however narrow, that it could exercise without running a costs risk.

26. Thus the correct sequence is as follows:

(i) The parties should endeavour to agree whether costs protection applies.

(ii) If there is no agreement, the parties should endeavour to agree on whether there

should be costs protection to argue the costs protection issue.

(iii) If that point isn’t agreed, the applicant should be required to summarily demonstrate

that she has an “arguable” point to advance in the costs protection context. She

doesn’t need to demonstrate an actual entitlement to costs protection but merely

that has an arguable claim to such protection.

(iv) If no arguable point can be identified, then the costs protection claim is going no

further, but there would be no order as to costs of the summary hearing (absent

abuse of process and the like).

(v) If an arguable point can be identified, then the applicant gets full costs protection

for the hearing of whether cost protection applies to the proceedings. However in

that hearing, the applicant would have to demonstrate a legal entitlement to such

protection rather than just arguable grounds for that. If she failed to do that, there

would be no order as to costs in general on this scenario (again, absent factors such

as abuse of process).

Headings of costs protection

27. There are only a finite number of potential bases for costs protection that could apply in a

case like this:

(i) Some alleged constitutional right – but no such right was identified here.

(ii) Some possible ECHR right – but again no such right was identified.

(iii) Section 50B of the 2000 Act – that doesn’t apply because this isn’t a decision under

a law giving effect to the EIA, habitats or strategic infrastructure assessment (SEA)

directives.

(iv) The Environment (Miscellaneous Provisions) Act 2011 – but no particular argument

was advanced in that regard.

(v) The EIA directive 2011/92/EU – that only applies to “decisions acts or omissions

subject to public participation” under the directive. This isn’t such a decision.

(vi) The habitats directive 92/43/EEC – that doesn’t have a similar express clause but

costs protection applies under the directive as read in the light of the Aarhus

convention (see generally Case C-432/21 European Commission v Republic of

Poland, Judgment of the CJEU (Second Chamber) of 2nd March, 2023,

ECLI:EU:C:2023:139) and is therefore best considered under that heading.

(vii) The Aarhus convention as part of EU law. However, the requirement that

proceedings not be prohibitively expensive (art. 9(4)) applies to challenges to

decisions subject to public participation, other articles of the convention where

provided for under national law, and “administrative or judicial procedures to

challenge acts and omissions by private persons and public authorities which

contravene provisions of ... national law relating to the environment”. A procedure

to compulsorily acquire land doesn’t become part of national law relating to the

environment merely because a particular participant in the process makes a

submission relying (relevantly or otherwise) on environmental points. On that logic

any part of domestic law could become law relating to the environment, which is

unlikely to be what the Aarhus convention was intended to mean.

The EU law grounds

28. The relevant EU law grounds pleaded by the applicants are:

1. The First Named Respondent erred in law in relying on Section 179 of the Planning and

Development Act 2000 and Part 8 of the Planning and Development Regulations 2001

in excluding the Applicants from raising submissions in respect of Directive 92/43EEC,

predetermined the issue and where part of the scheme was located adjoining and/or

within a European site.

2. Section 78 of the Housing Act 1966 (as amended) is inconsistent with and/or fails to

transpose Council Directive 92/43EEC and/or with Section 50, 50A, 50B of the Planning

and Development Act 2000.

3. Section 50(1) of the 1993 Roads Act is inconsistent with the Statutory Scheme

underlying the making of a Compulsory Purchase Order insofar as it excludes, and did

in fact exclude the making of and the consideration of a scheme which is a specified

and/or sub threshold development for matters relevant to Council Directive 2011/92EU.

4. The Third and Fourth Named Respondents failed to transpose their requirements of

Council Directives 92/43EC and/or 2011/92EU into the Statutory Scheme underlying

the making of a Compulsory Purchase Order and as applied in application number

ABP/307413-20 whereby Council Directive 92/43 EEC and/or 2011/92EU were excluded

in the determination made of application 307413/20.

5. The Statutory Scheme underlying the making of and determination of a Compulsory

Purchase Order and/or in application 307413-20 which excluded any consideration of

environmental issues either under Council Directive 92/43EEC, 2001/42EU or

2011/92EU is inconsistent with and contrary to and/or fails to transpose the provisions

of the aforesaid Directives.

29. The problem for the applicants is that legislation allowing for compulsory acquisition is not

legislation giving effect to EIA, appropriate assessment (AA) or SEA (therefore s. 50B doesn’t apply)

and nor is it national law relating to the environment (therefore Aarhus doesn’t apply). The

applicants haven’t shown anything arguable to the contrary. The claim that in deciding on

compulsory acquisition the decision-maker should (if that be the case) as a matter of domestic law

consider the suitability of the land for particular works, doesn’t in itself make the decision one giving

effect to EU law, and certainly not where the development consent is a done deal already and was

never challenged. Any given process has to be allowed to move on to the next stage. The fact that

a further procedure is commenced following a previous substantive final decision is not a basis to

re-open that earlier substantive decision or to extend time for doing so (obviously that doesn’t apply

if the earlier decision is a potentially amendable one made at a preliminary stage of an ongoing

single process).

30. Technically perhaps the application is not for costs protection for the proceedings themselves

(just for the costs protection application), but the finding that there is no arguable grounds for such

costs protection means that that issue just ends here. To say anything else would be pointless

formalism.

31. However, all that still leaves us with the applicants’ case against the respondents generally

and the State specifically, in respect of which the respondents have accepted that there will be costs

protection for the costs protection issue. While the council doesn’t agree to that, I don’t think that

is determinative in the circumstances because apart from anything else there isn’t otherwise any

practicable way to resolve the costs protection issue as between the applicants and the respondents.

32. The interests of the council are potentially (albeit perhaps not necessarily) indirectly affected

by an application for costs protection against the respondents, and the State in particular, but in the

circumstances it would be unfair to the applicants to let that alone create a costs liability for the

costs protection hearing where the respondents are not raising such an issue. Hence if the council

wish to (and are permitted by the court to) get involved in that issue, that would have to be on a

bearing-their-own-costs basis.

33. In the event that the applicants establish costs protection for the case against the

respondents, we may have to return to the final part of the issue as between the applicants and the

council, namely the case for relief against the council insofar as it is dependent on the case against

the other parties, particularly the State. Again unless the parties change their positions in the

meantime I would envisage doing that on a summary basis.

34. We then go on to the leave application at which point we can hear from the council again

(and at that point the applicants will have to decide whether and to what extent to proceed given

that there could be a potential liability for the council’s costs from that point forward, to say nothing

of the other parties, depending on what issues are pursued).

35. The case against the board seems to be in part independent of any conclusion as to the

validity of the CPO (insofar as it relates to the costs of the CPO process).

36. If all of that seems elaborate, I agree that it is, but that is mainly a function of the stances

adopted by the parties. Those polar opposite positions mean that in order for the court to facilitate

a route to determine costs protection without incurring significant costs exposure in the process for

parties claiming such protection, the issue must proceed in a series of small steps rather than in a

single full hearing. People can like that or not; but to proceed in that step-wise manner seems to

be the inevitable logic of the collision between the right to have costs protection determined

inexpensively on the one hand and the not-an-inch posture that is (perfectly legitimately, whether

it is fully upheld ultimately or not) adopted by the council on the other. In a more normal case there

can simply be agreement on whether costs protection applies, or some equally pragmatic approach.

But parties are entitled to their positions within reason.

Order

37. For the foregoing reasons, the order will be as follows:

(i) there will be a declaration that the applicants’ application for costs protection

regarding proceedings against the council (save insofar as that is dependent on

succeeding in the case against the respondents) is not covered by any rule of costs

protection;

(ii) the applicants will have liberty to issue a motion regarding costs protection against

the respondents, returnable for a date to be notified by the List Registrar, which will

be dealt with in advance of the hearing of the leave application on notice or of any

other further costs-generating business in the case;

(iii) any issue as to costs protection against the council insofar as that allegedly follows

from the case against the respondents will be considered in a summary manner in

the event that the applicants secure an order for costs protection on foot of the

proposed motion against the respondents, forthwith following the determination of

that motion and prior to the leave hearing or other further costs-generating business

in the case; and

(iv) unless any written legal submission is lodged to the contrary within the next 7 days

(in which case the matter will be listed on the following convenient Monday), the

foregoing order will be perfected on the basis of the following order as to costs:

(a) there will be no order as to costs of the present application against the

council for costs protection regarding the costs protection issue;

(b) the applicant will enjoy costs protection for the proposed motion

against the respondents; and

(c) if and insofar as the council chooses to get involved in the applicants’

proposed motion against the respondents regarding costs protection

(and if it is permitted by the court to do so, on a de bene esse approach

or otherwise), it will do so on a bearing-its-own-costs basis.