Clancy and Another v an Bord Pleanala and Others (No.2)
|28 July 2023
| IEHC 464
|[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
 IEHC 464
[2022 No. 983 JR]
THE HIGH COURT
Costs protection – Compulsory purchase order – Judicial review – Applicants seeking costs protection – Whether the extinguishment of rights of way at the compulsory purchase order stage as envisaged by the compulsory purchase order legislation could constitute a project for habitats purposes
Facts: The applicants, Mr and Ms Clancy, claimed costs protection as against the respondents, An Bord Pleanála, Clare County Council, Ireland and the Attorney General, in the context of a challenge to a compulsory purchase order (CPO). On 8th May, 2023, the High Court (Humphreys J) refused the application for costs protection as against the county council: Clancy v An Bord Pleanála (No. 1)  IEHC 233. Humphreys J then dealt with the applicants’ claim for costs protection as against the other parties. The applicants applied for costs protection in respect of the CPO challenge, in relation to the challenge to the refusal of costs, and in relation to the challenge to measures of general application.
Held by Humphreys J that, having considered the question of whether the extinguishment of rights of way at the CPO stage as envisaged by the CPO legislation could constitute a project for habitats purposes, he thought that was arguable, based on what the applicants had put forward, which created a procedural complication which had the effect that he should not go on from there to determine the actual merits of that point in the absence of the council. He held that the procedural complication arose because in the No. 1 judgment he did not think that the applicants had an arguable point against the council, save insofar as they managed to establish such a point against the board or State. He held that they had done that to the level of arguability, which meant that there should be a costs-protected hearing on whether they were correct substantively on that (as opposed to having merely established that the point was arguable so as to warrant costs protection for the argument as to whether the point was actually correct), involving all opposing parties. He held that costs protection including against the council must apply to that hearing because the applicants had managed to surmount the threshold of having an arguable ground for that point, as discussed more fully in the No. 1 judgment. He noted that the board decided under s. 219 of the Planning and Development Act 2000 that the applicants should not get their costs of the CPO objections. He held that if the CPO process was not domestic law related to the environment, or law giving effect to EU environmental law, such that costs protection applied to that process, then an ancillary application regarding costs of that process was not going to attract costs protection either. He held that this point falls, subject to the rights of way issue. While not particularly addressed in submissions, he also considered whether costs protection applied to the constitutional challenge and the challenge to the board’s policy document. He held that there was no basis for costs protection for those challenges, subject to the rights of way issue.
Humphreys J ordered that: (i) the relief sought in the notice of motion as against the board and the State be refused other than in relation to the issue arising from rights of way extinguishment; (ii) the matter be listed for mention on 9th October, 2023, with a view to fixing a date for a costs protection hearing against all opposing parties on that issue, which would be costs-protected as against all opposing parties including the council; and (iii) absent any submission to the contrary within 7 days, the foregoing order be perfected forthwith on the basis of the applicants’ costs being reserved.
Relief refused in part.
JUDGMENT of Humphreys J. delivered on the 28th day of July, 2023
. In ( An Bord Pleanála (No. 1) Unreported, High Court, 8th May, 2023) I refused an application for costs protection as against the county council in the context of a challenge to a compulsory purchase order (CPO).
. I am now dealing with the applicants' claim for costs protection as against the other parties.
. In or about August, 2016, the council proposed to carry out a development under Part XI of the Planning and Development Act 2000 and Part 8 of the Planning and Development Regulations 2001 for 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.
. 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.
. The development was advertised in early 2018 and the applicants made submissions on 23rd February, 2018.
. The elected members decided to approve the development on 9th April, 2018, or 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.
. A CPO was made in light of that consent on 12th June, 2020, entitled N67 /N85 Inner Relief Road Ennistymon (Blake's Corner) Compulsory Purchase Order 2020, 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 main operative provisions of the CPO are as follows:
“WHEREAS in pursuance of the provisions of section 76 of and the Third Schedule to 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 as amended) and as amended and extended by section 6 and the Second Schedule to the Roads Acts, 1993 – 2015 and the Planning and Development Acts, 2000–2019 and in particular by section 222 of the Planning and Development Act, 2000 and in exercise of the powers conferred upon it by the above mentioned legislation and in particular section 213 of the Planning and Development Act, 2000 (as amended), Clare County Council (hereinafter referred to as ‘the Local Authority’) has decided to effect the acquisition of the land to which this order relates:
NOW THEREFORE IT IS HEREBY ORDERED THAT:-
1. Subject to the provisions of this order, the Local Authority is hereby authorised—
a) to permanently acquire compulsorily, for the purposes of road construction and improvement comprising of development of an Inner Relief Road in Ennistymon including a new vehicular bridge crossing of the Inagh/Cullenagh river approximately 80 metres upstream of the existing bridge crossing. The overall route runs from a point located approximately 170 metres south east of Blake's Corner on the NBS national road to a point located approximately 180 metres west of Blake's Corner on the N67 national road, via Bogbere Street. The development includes the pedestrianisation of the existing bridge, the inclusion of a roundabout at the western end of the proposed new bridge crossing on the L-1084, the relocation of the existing public car park adjacent to New Road (NBS) and all associated site works through the townlands of Deerpark West, Ardnacullia North and Ennistymon in the County of Clare, the land described in the First Schedule hereto which land is shown on the map marked: Drawing no. EIRR-RODA- LCA-SW_AE-DR-LN-400001 marked Clare County Council N67/N85 Inner Relief Road Ennistymon (Blake's Corner) Deposit Map for Compulsory Purchase Order 2020 and sealed with the seal of the Local Authority and deposited at:
• Clare County Council, West Clare Municipal District Offices, Ennis Road, Deerpark Lower, Ennistymon, Co. Clare V95 YX81
• Clare County Council, Aras Contae an Chlair, New Road, Ennis, Co. Clare V95 DXP2 (hereinafter referred to as ‘the deposit map’),
b) to extinguish the public and private rights of way described in the Second Schedule hereto, by order made relating to the public rights of way after the acquisition of the land, where the said rights of way are over the land so acquired or any part thereof, or over land adjacent to or associated with the land so acquired or any part thereof.
2. The land described in the First Schedule hereto, coloured grey, and outlined in red on the said deposited map is land other than land consisting of a house or houses unfit for human habitation and not capable of being rendered fit for human habitation at reasonable expense.
3. Subject to any necessary adaptations, the provisions of—
(a) the Lands Clauses Acts (except sections 127 to 132 of the Lands Clauses Consolidation Act, 1845, and article 20 of the Second Schedule to the Housing of the Working Classes Act, 1890), and
(b) the Acquisition of Land (Assessment of Compensation) Act, 1919, as amended by the Acquisition of land (Reference Committee) Act, 1925, the Property Values (Arbitrations and Appeals) Act, 1960, and the local Government (Planning and Development) Act, 1963 (as amended) (as applied by section 265(3) of the Planning and Development Act, 2000) and the Planning and Development Acts 2000–2019
as modified by the Third Schedule to the Housing Act, 1966 are hereby incorporated in this order and the provisions of those Acts shall apply accordingly.
4. This order may be cited...
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