Sweetman v Shell E&P Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 17 October 2016
• Neutral Citation: [2016] IESC 58
• Court: Supreme Court
• Docket Number: High Court record number: 2005/17 MCA Supreme Court appeal number: 167/2006 [2016] IESC,[S.C. No. 167 of 2006]
• Date: 17 October 2016

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000

AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

Between

Peter Sweetman

Applicant/Appellant

- and -

Shell E&P Ireland Limited, Lennon Quarries

and

TJ Lennon

Appellant/Respondent/Defendant

[2016] IESC 58

Charleton J.

Laffoy J.

Dunne J.

Charleton J.

High Court record number: 2005/17 MCA

Supreme Court appeal number: 167/2006

[2016] IESC

An Chuirt Uachtarach

The Supreme Court

Practice & procedure – Costs – Losing party – Costs in environmental cases – Environmental (Miscellaneous Provisions) Act 2011

Facts: The appellant had sought to prevent works on the Shell natural gas pipeline in Mayo, which led to long running litigation. This culminated in the Supreme Court in 2016, with the appellant losing. An issue arose regarding the costs in the case, and the effect of the Environmental (Miscellaneous Provisions) Act 2011 which had changed the rules on costs in certain limited circumstances. The Supreme Court now considered the effect of the 2011 Act and if the legislation was retrospective in effect.

Held by Mr Justice Charleton, the other Justices concurring, that costs were to be awarded against the appellant. The provisions of the 2011 Act did not apply to litigation begun before the bringing into force of that Act. Even if it had, the Court was mindful of the way the appellant had conducted the litigation and costs were an appropriate award to make.

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 18 ^th 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 21 ^st 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...