Diamrem Ltd v Cliffs of Moher Visitors Centre Ltd and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Woulfe
• Judgment Date: 04 October 2023
• Neutral Citation: [2023] IECA 235
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2019/53

In the Matter of the Planning and Development Act, 2000 (As Amended), And in the Matter of An Application Pursuant to Section 160 of the Planning and Development Act, 2000

Between

Diamrem Limited

Applicant/Appellant

and

Cliffs of Moher Visitors Centre Limited and Clare County Council

Respondents

[2023] IECA 235

Woulfe J.

Whelan J.

Pilkington J.

Court of Appeal Record No. 2019/53

THE COURT OF APPEAL

JUDGMENT (No.2) of Mr. Justice Woulfe delivered on the 4 ^th day of October, 2023

Introduction

1 . This is a judgment in relation to costs arising from the judgment of the Court (Woulfe J.; Whelan J. and Pilkington J. concurring) delivered on the 5 ^th November, 2021 (“the principal judgment”): see [2021] IECA 291. The Court dismissed the appellant's appeal against the decision of the High Court to refuse to make orders under s. 160 of the Planning and Development Act 2000 (“the 2000 Act”), in respect of the relocation of a public car park operated by the respondents at the Cliffs of Moher Visitor Centre (the “Visitor Centre”) in County Clare, on the ground that the application was not commenced within the statutory time period.

2 . With regard to costs, as the appellant had been entirely unsuccessful in this appeal, the provisional view expressed by the Court in our judgment was that the respondents were entitled to their costs of the appeal. The parties were, however, given liberty to contend for an alternative order, and given liberty to apply for a supplemental hearing on the issue of costs.

3 . By letter dated the 18 ^th November, 2021, the solicitors for the appellant sought a supplemental hearing on the issue of costs, and suggested that it would be appropriate to deliver written submissions in advance of any such hearing. Detailed written submissions as to costs were subsequently delivered by the parties, and following same the Court indicated in May, 2022 that it did not propose to schedule a supplemental hearing on costs, but would deliver a written ruling in the light of the written submissions. The Court subsequently became aware that the Supreme Court was due to hear an appeal dealing with potentially relevant costs issues in the case of Heather Hill Management Company CLG v. An Bord Pleanála in July, 2022, (“ Heather Hill”) and in those circumstances the Court notified the parties that it felt it appropriate to await the judgment of the Supreme Court in that case before delivering any costs ruling in this matter. The Supreme Court delivered judgment in the Heather Hill appeal on the 10 ^th November, 2022: see [2022] IESC 43. The parties were then given liberty to make supplemental written submissions in the light of that judgment, and the respondents availed of that opportunity. The solicitors for the appellant indicated that they had not received any instructions to deliver supplemental submissions.

Submissions of the Appellant

4 . In its written submissions dated the 9 ^th December, 2021, the appellant submits that these s. 160 proceedings fall within the terms of s. 4(1) of the Environment (Miscellaneous Provisions) Act 2011 (“the Act”), and accordingly s. 3 of the Act applies to these proceedings to displace the usual rule that costs follow the event.

5 . Section 3(1) of the Act provides that, subject to certain exceptions, in proceedings to which s. 3 applies, each party shall bear its own costs. Section 4 then specifies the proceedings to which s. 3 applies, and provides inter alia as follows:

• (1) Section 3 applies to civil proceedings…instituted by a person –

  • (a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement specified in or attached to a…permission…specified in subsection (4), or

  • (b) in respect of the contravention of, or the failure to comply with such …permission…,

  and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause damage to the environment.

• (2) Without prejudice to the generality of subsection (1), damage to the environment includes damage to all or any of the following:

  …

  (c) soil;

  (d) land;

  (e) landscapes and natural sites;

  (f) biological diversity, including any component of such diversity,…

  (h) cultural sites and built environment…

6 . Section 4(4) specifies that section 4 applies to a permission granted pursuant to the 2000 Act.

7 . The appellant refers to various authorities which have held that proceedings under s. 160 of the 2000 Act are civil proceedings within the terms of s. 4(1)(a) and/or (b) of the 2011 Act. It refers also to the Court of Appeal judgment in O'Connor v. Offaly County Council [2021] 1 I.R 1 (“ O'Connor”), where Murray J. held that an unsuccessful claimant in proceedings who merely relies on s. 3 of the Act at the conclusion of his case does not have to establish that his claim enjoyed a reasonable prospect of success; the only requirement as to the merits of the case is that it not be frivolous or vexatious, as per s. 3(3)(a) of the Act.

8 . The appellant submits that these s. 160 proceedings come within both of the categories of proceedings specified in s. 4(1) of the Act. As regards s. 4(1)(a), the appellant sought both (i) to ensure compliance with a “statutory requirement”, namely a requirement to obtain planning permission for the relocated car parking area, and (ii) to ensure compliance with conditions 1, 3 and 7 of the planning permission for the Visitor Centre which was granted in 2002 (“the 2002 permission”). As regards s. 4(1)(b), these proceedings were also proceedings instituted by the appellant in respect of the contravention of, or the failure to comply with, the 2002 permission.

9 . The appellant notes the “damage to the environment” requirement in s. 4(1) of the Act. Section 4(1) states that s. 3 applies to the specified proceedings where the failure to ensure such compliance with, or enforcement of, the statutory requirement, condition or requirement referred to in para. (a), or the contravention or failure to comply referred to in para. (b), has caused, is causing, or is likely to cause, damage to the environment. It cites Callaghan v. An Bord Pleanála (No.2) [2015] IEHC 357, where the High Court held that this provision required there to be a causative link between the failure to ensure compliance with, or the enforcement of, a statutory requirement and damage to the environment, which may have been caused, is continuing, or is likely to be caused in the future.

10 . It is submitted that the respondent's failure to obtain permission for the relocated car park and/or its failure to comply with the conditions attached to the 2002 permission “has caused, is causing, or is likely to cause, damage to the environment”. In O'Connor v. Offaly County Council [2017] IEHC 606, Baker J. held, at para. 65, that the test in s. 4(1) is one which requires an applicant to go beyond mere assertions of damage or likely damage to the environment, and to make out a stateable argument that damage to the environment is occurring or is likely to occur.

11 . The applicant states that the relocated car park (which was only intended to be temporary) has permanently replaced wet grassland and possible neutral grassland habitats, citing a report described as the Doherty Environmental Screening Report. It is submitted that this permanent loss of natural grassland adjacent to the Cliffs of Moher falls within the meaning of damage to the environment in s. 4(2) of the Act, specifically damage to (c) soil, (d) land, (e) landscapes and natural sites, and (h) cultural sites and built environment, which damage it is said has clearly been caused by the relocated car park. Further, in respect of (f) biological diversity, it is said that the Cliffs of Moher is a designated SPA for which the bird species Chough is a conservation interest, and that there was evidence of negative impacts to this bird species as a result of the relocation of the car park. The appellant again cites the Doherty Environmental Screening Report, and also another report known as the Ecofact Report.

12 . In the alternative, the appellant relies on the decision of Humphreys J. in North East Pylon Pressure Campaign Limited v. An Bord Pleanála (No.5) [2018] IEHC 622 (“ NEPPC (No.5)”). In that case Humphreys J. referred certain questions in relation to the 2011 Act to the Court of Justice of the European Union (“CJEU”). Humphreys J. held that, insofar as the “not prohibitively expensive” (“NPE”) rule laid down by Article 9(4) of the Aarhus Convention and Article 11(4) of Directive 2011/92 is concerned, it was clear from the judgment of the CJEU that the requirement to demonstrate damage to the environment was not compatible with European Union (“EU”) law. However, this did not necessarily render the special costs provisions in the Act invalid; the Court could leave the statute in place and achieve the same result as provided for in s. 3 by using the general discretion of the court as to costs, as set out under Order 99 of the Rules of the Superior Courts. In doing so the Court could apply a similar approach as found in s. 3 to any cases where there is no link to damage to the environment.

13 . The appellant submits that in the present case, even if the test of establishing damage to the environment was not met, the Court should adopt the same approach as Humphreys J. and seek to achieve the same result as if s. 3 applied to the proceedings, by ordering that each party should bear its own costs of the appeal.

Submissions of the Respondent

14 . In their written submissions dated the 16 ^th December, 2021, the respondents contend that they are entitled to the costs of the appeal, as reflected in the...