Brownfield Restoration Ireland Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 16 May 2023
• Neutral Citation: [2023] IEHC 250
• Court: High Court
• Docket Number: [2008 No. 56 SP]

Brownfield Restoration Ireland Limited

Plaintiff

and

Wicklow County Council

Defendant

and

The Environmental Protection Agency and The Minister for Housing, Local Government and Heritage

Notice Parties

[2023] IEHC 250

[2008 No. 56 SP]

THE HIGH COURT

Costs – Remediation plan – Approval process – Plaintiff seeking costs – Whether costs should be reserved

Facts: The High Court (Humphreys J), in the No. 1 judgment, granted the application of the defendant, Wicklow County Council, for the modular trial of the proceedings. In the No. 2 judgment, he decided a number of preliminary issues including the rejection of certain allegations of misconduct against the council. In the No. 3 judgment, he decided in principle to order remediation. In the No. 4 judgment, he made the formal order directing remediation and set out indicative timelines for fifteen steps with a definite final date for completion of full remediation and handover to the landowner. In the No. 5 judgment, he decided on the question of costs. In the No. 6 judgment, he directed that the council was to complete the biodiversity surveys required for the preparation of a Natura Impact Statement by 17th December, 2021; and that the matter be listed for mention to deal with the subsequent steps. In the No. 7 judgment, he determined the agenda for the hearing on the remediation plan approval, and directed that any approval would be without prejudice to the previous orders. In the No. 8 judgment, he approved the remediation plan in part and determined that certain matters would be addressed at a later stage in a specified way. The one contentious issue raised arising from the No. 8 judgment to be resolved was the costs of the remediation plan approval process.

Held by Humphreys J that the plaintiff, Brownfield Restoration Ireland Ltd, should get its costs because the approval application followed from the order for remediation, and, in that context, disposition of costs of the former should be substantially guided by disposition of costs of the latter, which was in favour of the plaintiff. The council alternatively argued that costs should be reserved, but he held that this runs against the policy (O. 99 r. 2(3), first adopted in 2008 rules) that costs of applications should be addressed as they arise. He noted that the proceedings commenced on 22nd January, 2008, just two days before the Rules of the Superior Courts (Costs) 2008 (S.I. No. 12 of 2008) were approved on 24th January, 2008. He held that the current iteration of the rule was O. 99, r. 2(3) RSC as amended by the Rules of the Superior Courts (Costs) 2019 (S.I. No. 584 of 2019) with effect from 3rd December, 2019. He held that this rule is procedural rather than substantive – it does not say what the entitlement to costs should be but rather the procedure and timing for deciding that. He held that there is a presumption that, unlike substantive provisions, merely procedural changes apply to administrative or judicial processes already underway. He held that, insofar as they are merely procedural rules, the 2008 and 2019 rules should be applied to proceedings in being.

Humphreys J ordered that: (i) the plaintiff, defendant and first notice party, the Environmental Protection Agency, be at liberty to bring motions, the first notice party’s motion being returnable for 22nd May, 2023 and other motions to be listed as and when issued; (ii) the order on foot of the No. 8 judgment not be perfected until at least 22nd May, 2023 or further direction; (iii) the plaintiff be awarded costs for the period 28th September, 2022 to 21st March, 2023 as against the defendant, including costs associated with the No. 7 and No. 8 judgments and any costs reserved in relation to that period; and (iv) unless written submissions are lodged with the court within 7 days from the date of this judgment, the order on foot of the judgment will be perfected on the basis that the costs of the costs issue be awarded to the plaintiff as against the defendant including those associated with the No. 9 judgment, and the costs of written submissions and any other paperwork and any costs reserved in relation to the period from 22nd March, 2023 to the date of this judgment.

Costs awarded to plaintiff.

(No. 9)

JUDGMENT of Humphreys J. delivered on 16th day of May, 2023

1 . This is the sixteenth decision in the 44-year history of this matter, the previous ones being as follows:

• (i) In Wicklow County Council v. O'Reilly (No. 1) [2006] IEHC 265, [2006] 2 JIC 0803 (Unreported, High Court, Clarke J., 8th February, 2006), the court made orders as to the appropriate defendants in waste enforcement proceedings brought by the council.

• (ii) In Wicklow County Council v. O'Reilly (No. 2) [2006] IEHC 273, [2006] 3 I.R. 623, [2006] 9 JIC 0801, the court declined to stay the proceedings pending prosecutions arising from the illegal dumping.

• (iii) In Wicklow County Council v. O'Reilly (No. 3) [2007] IEHC 71, [2007] 3 JIC 0203 (Unreported, High Court, Clarke J., 2nd March, 2007), the court directed the trial of a preliminary issue regarding the liability of a director.

• (iv) In Wicklow County Council v. O'Reilly (No. 4) [2010] IEHC 464, [2010] 12 JIC 0705 (Unreported, High Court, O'Keeffe J., 7th December, 2010), the court refused a mistrial application although it decided that the council had not made proper discovery.

• (v) In Wicklow County Council v. O'Reilly (No. 5) ( Ex tempore, Not circulated, O'Keeffe J., 20th December, 2011), after 23 days of hearing, the court decided to adjourn the remediation proceedings on the council's application, pending proposed remediation actions by the council. The proceedings so derailed never effectively restarted but were instead replaced by the present proceedings, which were waste enforcement proceedings brought by the landowner against the council, partly on the basis that the remediation actions carried out were inadequate or inappropriate.

• (vi) In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 1) [2017] IEHC 310, ( [2017] 4 JIC 2604 Unreported, High Court, 26th April, 2017) (noted Joseph Richardson BL (2017) 24(2) I.P.E.L.J. 56), I granted the council's application for the modular trial of the proceedings.

• (vii) In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 2) [2017] IEHC 397, ( [2017] 6 JIC 1201 Unreported, High Court, 12th May, 2017), I decided a number of preliminary issues including the rejection of certain allegations of misconduct against the council.

• (viii) In Brownfield Restoration Ireland Ltd. v. Wicklow County Council (No. 3) [2017] IEHC 456, ( [2017] 7 JIC 0706 Unreported, High Court, 7th July, 2017) (noted Estelle Feldman (2017) A. Rev. Ir. Law 95), I decided in principle to order remediation.

• (ix) In Brownfield Restoration Ireland Ltd. v. Wicklow County Council (No. 4) [2017] IEHC 486, ( [2017] 7 JIC 1907 Unreported, High Court, 19th July, 2017), I made the formal order directing remediation and set out indicative timelines for fifteen steps with a definite final date for completion of full remediation and handover to the landowner. That long-stop date was in effect 19th January, 2024.

• (x) In Brownfield Restoration Ireland Ltd. v. Wicklow County Council (No. 5) [2017] IEHC 487, ( [2017] 7 JIC 1908 Unreported, High Court, 19th July, 2017), I decided on the question of costs.

• (xi) In Wicklow County Council v. O'Reilly [2019] IECA 257, [2019] 10 JIC 1607 (Unreported, Court of Appeal, Costello J., 16th October, 2019), the Court of Appeal dismissed an appeal regarding the timeline allowed for remediation. It partly allowed an appeal regarding costs.

• (xii) In Brownfield Restoration Ireland Ltd. v. Wicklow County Council [2021] IESCDET 71 (Supreme Court Determination, Not yet circulated, 21st June, 2021, O'Donnell, MacMenamin and Woulfe JJ.), the Supreme Court refused leave to appeal in relation to the timeline issue.

• (xiii) In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 6) [2021] IEHC 599, ( [2021] 9 JIC 3007 Unreported, High Court, 30th September, 2021), I directed that (without prejudice to the long-stop date) the council was to complete the biodiversity surveys required for the preparation of a Natura Impact Statement by 17th December, 2021; and that the matter be listed for mention to deal with the subsequent steps.

• (xiv) In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 7) [2022] IEHC 662, ( [2022] 12 JIC 0201 Unreported, High Court, 2nd December, 2022), I determined the agenda for the hearing on the remediation plan approval, and directed that any approval would be without prejudice to the previous orders.

• (xv) In Brownfield Restoration Ireland Ltd v. Wicklow County...