Dunnes Stores v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 06 December 2016
• Neutral Citation: [2016] IEHC 697
• Court: High Court
• Docket Number: [2015 No. 49 JR]
• Date: 06 December 2016

[2016] IEHC 697

THE HIGH COURT

Barrett J.

[2015 No. 49 JR]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

AND IN THE MATTER OF AN APPLICATION

BETWEEN

DUNNES STORES

APPLICANT

– AND –

AN BORD PLEANÁLA

RESPONDENT

– AND –

KILKENNY COUNTY COUNCIL

FIRST-NAMED NOTICE PARTY

– AND –

DEERLAND CONSTRUCTION LIMITED

SECOND-NAMED NOTICE PARTY

Practice & Procedures – Planning & Development – S. 50 of the Planning and Development Act 2000 – Award for costs – Departure from rule – Conduct of applicant – O.99, r. 10(1) and r.(3) of the Rules of the Superior Courts 1986

Facts: Following the unsuccessful judicial review application of the applicant, the second notice party now sought an order for costs on a solicitor-and-client basis and the respondent, too, sought its costs but on a party-and-party basis.

Mr. Justice Max Barrett granted the desired relief to the second notice party and the respondent. The Court held that before making a departure from the normal rule of ‘costs should follow the event,’ the Court must take into account the manner in which the proceedings were conducted by either party. The Court found that the judicial review application filed by the applicant challenging the decision of the respondent were an abuse of process of law as it had nothing to do with the planning law. The Court observed that the said proceedings were filed merely to avoid the contractual dispute between the applicant and the second notice party and in the guise of that application; the applicant was trying to delay the development process.

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

I. Introduction

1 There are ultimately three different scales upon which costs can be measured, viz. party and party costs, solicitor and client costs, and solicitor and own client costs. The typical measure of costs is on a party and party basis, but the court has a discretion to award costs on a higher scale where appropriate. Deerland Construction Limited comes now to court seeking costs on a solicitor and client basis following on the court's judgments in Dunnes Stores v. An Bord Pleanála [2015] IEHC 716 (the main proceedings) and Dunnes Stores v. An Bord Pleanála [2016] IEHC 263 (the application for a certificate to appeal). An Bord Pleanála too is seeking its costs but on a party and party basis only.

II. Some Salient Elements of the Court's Previous Judgments

(i) Overview

2 Before proceeding to consider the merits of the costs application, it is helpful to recall some salient observations from the court's previous judgments.

(ii) The Judgment in the Main Proceedings

3 In its judgment in the main proceedings, the court, at para. 1, observed as follows:

‘ Dunnes Stores has brought this application ostensibly for one purpose; in truth the application serves a very different end. On its face, the application is concerned with the legality of a decision of An Bord Pleanála to grant certain retention permission to Deerland Construction. That permission concerns a shopping centre development at Ferrybank, in County Kilkenny. The “anchor store” at that development is owned by Dunnes. The retention permission authorises five alterations which, individually and collectively, are minor and cosmetic in nature. In a twist worthy of Lewis Carroll, Dunnes in fact has no issue with the alterations that are the subject of the retention permission. So why have these proceedings been commenced? If truth be told, they have nothing to do with planning law and everything to do with Dunnes securing an advantage for itself in a long-running contractual dispute with Deerland and National Asset Loan Management Limited (“NALM”).’

4 Later, at paras. 3 to 5 of its judgment, under the section heading ‘ iii. Standard reliefs, minor alterations and strange proceedings’, the court observed as follows:

‘a. The standard

3. On the face of it, this application aims at securing the following reliefs: (1) an order of certiorari quashing the decision of An Bord Pleanála to grant retention permission in respect of the Centre; (2) a declaration that the said grant of planning permission is ultra vires, invalid and/or of no legal effect; and (3) certain other ancillary reliefs.

b. The minor

4. On the face of it, the court is being asked, more particularly, to review a retention permission in respect of: (i) a lift motor room/staircase enclosure over-run on the east elevation of the shopping centre; (ii) an external landscaped area at the northern boundary of the sight, including omission of a permitted bridge; (iii) the placement of red glazing panels, instead of stone panels, at the ground floor main entrance lobby; and (iv) louvred screens on the shopping centre roof.

c. The strange

5. Now for the strange bit: Dunnes has no objection to the just-mentioned adjustments. So this is a judicial review of the granting of retention permission where the party that has brought the application (Dunnes) has no issue with the substance of the adjustments to which that permission relates. That must be something of a first, so far as planning-related judicial review applications are concerned. But whether it is or not, the fact that Dunnes has no issue with the substance of the adjustments to which the retention permission relates offers considerable support for the contention that Dunnes, in coming to court with the within application, has engaged in an “abuse of process”.’

5 Moving on, at para.75 of its judgment, the court identified the relevant factors in an abuse of process application, stating, inter alia, as follows:

‘The court, before striking out for “abuse of process”, must…be satisfied by way of evidence that the plaintiff, in commencing these proceedings, (i) has an ulterior motive, (ii) seeks a collateral advantage beyond what the law offers, and (iii) has instituted the proceedings for a purpose which the law does not recognise as a legitimate use of the remedy sought…’.

6 The court was satisfied that all three of those criteria had been satisfied, i.e. that Dunnes had commenced the proceedings for an ulterior motive, was seeking a collateral advantage and had instituted proceedings for a purpose not recognised as legitimate.

7 Finally, at para. 81 of its judgment, the court summarised its conclusions as follows:

‘For the reasons stated above, the court finds that the true object of this judicial review application is to enable Dunnes to delay or avoid compliance with its contractual obligations to fit-out and occupy the anchor store and/or to facilitate the creation of a contrived legal justification for Dunnes' long-time failure to comply with those obligations. These purposes are entirely collateral to the remedies being sought in the within application and have no connection to the objects which the public law procedures now being invoked by Dunnes were designed to achieve. That this is the true purpose of Dunnes is not a matter of conjecture or surmise. It is the irresistible and logical conclusion to be drawn from the detailed consideration of the facts in which the court has engaged above. The court refuses the reliefs sought, declines to enter into any consideration of the purported planning-related issues raised by Dunnes, and dismisses the proceedings as involving an “abuse of process”.’

(iii) The Judgment in the Application for a Certificate to Appeal

8 In the context of Dunnes' application for a certificate to appeal, the court had further occasion to make a number of observations in relation to the case that Dunnes had made. Thus, at para. 28 of its second judgment, when considering the decision in Quinn Group v. An Bord Pleanála [2001] 1 I.R. 505 and the extent to which the court's initial judgment had involved some departure from those principles or some novel application of them, the court...