Balbriggan Community Council v an Bord Pleanala
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] IEHC 387 |
| Court | High Court |
| Docket Number | [2022 No. 67 JR] |
In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016
and
[2022] IEHC 387
[2022 No. 67 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Humphreys J. delivered on Friday the 1st day of July, 2022
The developer in this case engaged in pre-application consultations with Fingal County Council and the board on 7th May, 2021. The outcome of that process was that the inspector reported that the application required amendment, and the board ordered to that effect on 17th May, 2021 (reference ABP-308916-21).
The formal planning application under the strategic housing development procedure was made on 11th August, 2021.
Following a site visit, the inspector issued a report running to 157 pages, on 22nd November, 2021, recommending that permission be granted subject to 30 conditions.
The board generally adopted the inspector's report and granted permission for the construction of 101 build to rent apartments at Balbriggan, County Dublin (reference ABP-311095-21) by direction dated 23rd November, 2021 with the formal decision being made on 30th November, 2021.
The applicant filed a statement of grounds in which the primary relief sought was an order of certiorari of that decision. I granted leave on 7th February, 2022. The originating notice of motion (notice of motion No. 1) was filed on 10th February, 2022.
In response, the notice party developer filed a notice of motion on 16th March, 2022 (notice of motion No. 2) seeking an order pursuant to the inherent jurisdiction of the court setting aside the grant of leave.
The grounding affidavit complains among other things of the applicant's failure to address various matters relating to its standing and also seeks to make the legal point that it is now too late to provide further information on these matters.
The question of costs of the motion was raised and the notice party wrote on 23rd March, 2022 stating that there would be no order for costs against the applicant if the motion was successful.
The applicant then replied on 25th March, 2022 asking for confirmation that this assurance would cover any appeals or any preliminary reference to the CJEU.
The notice party replied on 30th March, 2022 indicating that there would be no order for costs in relation to the High Court, but that the question of costs protection for appeals or a preliminary reference was premature at this point.
On 28th April, 2022, the applicant filed another notice of motion (notice of motion No. 3) seeking costs protection declarations under s. 50B of the Planning and Development Act 2000, the Environment (Miscellaneous Provisions) Act 2011 and in effect the Aarhus convention interpretative obligation under EU law as implemented through the court's general costs discretion.
The matter was listed for directions on 16th May, 2022, at which point I gave the parties liberty to file submissions on the preliminary question of whether the applicant should be required to address the standing motion at this point notwithstanding definitive clarity on costs in relation to any appeal.
That preliminary question was heard on 20th June, 2022.
The fundamental problem for the applicant is that at the particular stage we are at in the proceedings, namely merely the issue of the notice party's motion, the applicant is not in any jeopardy as to costs, at least until such time as that motion is listed for hearing.
I appreciate that once there is a hearing on any given matter, there will be a judgment or ruling or order, and at that point the matter is out of the hands of the trial court because any party may appeal to the Court of Appeal, unless leave of the trial court is necessary, or seek leave to appeal to the Supreme Court from that court. So, in circumstances such as these (where there is some comfort as to the High Court costs but not any further than that), any uncertainty about costs really crystallises at the point when the matter is listed for hearing. We are not at that point yet.
The appropriate and normal course at this stage would be for the applicant to actually deliver a detailed replying affidavit to the notice party's motion, the notice party could then reply and there could then be an exchange of written submissions at which point the question would properly arise as to whether the applicant could be subjected to a hearing of the motion without more extensive costs protection.
What the applicant should do is actually address in writing such of the points raised by the notice party as call for a response. The costs assurances that it has already provide full and complete protection for that exercise. Conceivably, in the light of full particulars of the applicant's case regarding standing being put on affidavit and in submissions, the notice party could be persuaded that such a case might have merit. Even...
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