An Taisce - The National Trust for Ireland v McTigue Quarries Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 06 December 2016
• Neutral Citation: [2016] IEHC 701
• Court: High Court
• Docket Number: [2015 No. 302 MCA]
• Date: 06 December 2016

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2011 AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

AN TAISCE – THE NATIONAL TRUST FOR IRELAND

APPLICANT

– AND–

McTIGUE QUARRIES LIMITED

and

GARRY MCTIGUE

and

CAROLINE McTIGUE

RESPONDENTS

[2016] IEHC 701

[2015 No. 302 MCA]

THE HIGH COURT

Planning & Development – S. 1770 of the Planning and Development Act 2000 – Substitute consent – S. 3(4)of the Environmental (Miscellaneous Provisions) Act 2011 – Award of costs

Facts: The applicant sought costs in relation to the substantive proceedings and its application for protective costs order under s. 3 (4) of the Environmental (Miscellaneous Provisions) Act 2011. The applicant, who was unsuccessful in getting the injunctive relief in those substantive proceedings, contended that he was successful in getting an important point of law raised and addressed in relation to the substitute consent and thus, he was entitled to costs.

Mr. Justice Max Barrett held that the applicant was entitled to its costs in relation to the substantive proceedings and its application for protective costs order. The Court observed that s. 3 (4) of the Act of 2011 had been the devises to award costs to a party in case the matter was of exceptional public importance and contained special circumstances. The Court found that the applicant's contentions had helped in clarifying the law in relation to the nature and effect of substitute consent, which was desirable in public interest and which had since caused misinterpretation of the statutory provisions.

JUDGMENT of Mr Justice Max Barrett delivered on 6th December, 2016.

I. Introduction

1 In its recent judgment in An Taisce – The National Trust for Ireland v. McTigue Quarries Ltd & ors [2016] IEHC 620, the court had to address, by reference, inter alia, to s.177O of the Planning and Development Act 2000, the novel question of the precise effect of a substitute consent, and whether the Oireachtas, in enacting, inter alia, s.177O, meant that, for all intents and purposes, such a consent should have the same effect as a planning permission.

2 It would be fair to say that on almost all counts and in almost every respect, the court in its previous judgment in these proceedings accepted the reasoning of An Taisce as regards the precise purport of the applicable legislation and the consequent import of a substitute consent. Mindful, however, that it was sitting at a remove from where the events at issue in the proceedings had transpired, and concerned not to use the sledgehammer of injunctive relief in circumstances where it would, thanks to the judgment of the court, now clearly be open to the local authority to commence enforcement proceedings under the planning code, if and as the authority deemed appropriate, the court declined to grant the injunctive relief sought in the proceedings, “passing the baton” instead to the local authority as the party best placed to decide how best to proceed by reference to the facts “on the ground”.

3 Following separate application at the hearing, the court also granted a protective costs order to An Taisce in circumstances where, to borrow from para. 25 of the court's judgment, ‘ It did not appear that [the availability of such order]… was a matter of much contention between the parties; [but] neither was it a matter of agreement between them.’

4 In all the circumstances presenting, the court indicated at the end of its written judgment that it would hear the parties as to any submissions they might wish to make regarding the issue of costs, in light particularly of s.3(4) of the Environmental ( Miscellaneous Provisions) Act 2011, the costs in issue being those of the main proceedings and also the application for the protective costs order. An Taisce has now applied for its costs in the within proceedings, pursuant to s.3(4), and in circumstances where, notwithstanding that the injunctive relief sought at the proceedings was declined, An Taisce succeeded in respect of the nuanced and novel issues of statutory interpretation arising and the respondents failed in respect of all legal arguments advanced.

II. Applicable Law

5 It is useful to quote s.3 of the Act of 2011 at this juncture:

‘(1) Notwithstanding anything contained in any other enactment or in –

(a) Order 99 of the Rules of the Superior Courts ( S.I. No. 15 of 1986)…

and subject to subsections (2), (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.

(2) The costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant, or as the case may be, the plaintiff, to the extent that he or she succeeds in obtaining relief and any of those costs shall be borne by the respondent, or as the case may be, defendant or any notice party, to the extent that the acts or omissions of the respondent, or as the case may be, defendant or any notice party, contributed to the applicant, or as the case may be, plaintiff obtaining relief.

(3) A court may award costs against a party in proceedings to which this section applies if the court considers it appropriate to do so –

(a) where the court considers that a claim or counter-claim by the party is...