Enniskerry Alliance and Enniskerry Demesne Management Company Clg v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 14 January 2022
• Neutral Citation: [2022] IEHC 6
• Court: High Court
• Docket Number: [2021 No. 846 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

Between

Enniskerry Alliance and Enniskerry Demesne Management Company Clg

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Cairn Homes Properties Limited

Notice Party

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

Between

Protect East Meath Limited

Applicant

and

An Bord Pleanála, Ireland and The Attorney General and Louth County Council

Respondents

and

Hallscotch Venture Limited

Notice Party

[2022] IEHC 6

[2021 No. 846 JR]

[2021 No. 770 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on Friday the 14th day of January, 2022

1 “Who speaks for Earth?” was the question famously posed by Carl Sagan ( Cosmos (London, Book Club Associates, 1980) p. 317). Advocate General Kokott in Case C-260/11 Edwards v. Environment Agency, provided one answer: “the environment cannot defend itself before a court, but needs to be represented, for example by active citizens or non-governmental organisations” (Opinion of Advocate General, 18th October, 2012, ECLI:EU:C:2012:645, para. 42).

2 But the ability of concerned NGOs and individuals to litigate on environmental matters is in practice crucially dependent on a range of preconditions. The most basic is a society that repudiates attacks on their physical security – in that regard, while I was initially minded, without in any way reflecting on causation, motive, or mens rea, to illustrate that possible concern by reference to a specific unsolved incident, the State have asked me not to do so in this particular judgment, and the other parties were broadly neutral on that request.

3 Another precondition is a society that accepts the respective roles of the actors involved in environmental matters, including the right of applicants to invoke rights under the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25 June 1998, and related rights under Irish and EU law and the ECHR. Acceptance of such rights involves not just rejection of penalisation prohibited by the Aarhus Convention, or incitement to such penalisation and other related inchoate wrongs, but more generally repudiating applicant-shaming in cases where such rights are exercised (see An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, ( [2021] 7 JIC 0205 Unreported, High Court, 2nd July, 2021), Save Cork City Community Association CLG v. An Bord Pleanála (No. 1) [2021] IEHC 509, ( [2021] 7 JIC 2802 Unreported, High Court, 28th July, 2021), Cork County Council v. Minister for Housing, Local Government and Heritage [2021] IEHC 683, ( [2021] 11 JIC 0502 Unreported, High Court, 5th November, 2021)).

4 An important practical condition is the availability of a sufficient pool of sufficiently expert legal practitioners willing to take on such cases. That in turn raises the delicate question of whether a hypothetical lack of normal costs recovery, resulting in a solicitor-client balance in excess of that normally arising that would be unrecoverable from the other side and that would remain owing by applicants, could either be prohibitively expensive in itself for applicants or could compromise the applicable business model to an extent that would generally tend to diminish the willingness of lawyers to act in such matters. Thankfully this issue doesn't arise in the present case so I don't have to address it further other than noting it as another aspect of the not-prohibitively-expensive issue that may need to be considered in due course.

5 What does arise in this case is the entitlement of applicants to bring proceedings without the fear of adverse costs orders or at least adverse orders that reach the level of being prohibitively expensive. The Court of Appeal has recently addressed the extent to which applicants are so liable in Heather Hill Management Company CLG v. An Bord Pleanála [2021] IECA 259 (Unreported, Court of Appeal, Costello J. (Ní Raifeartaigh and Pilkington JJ. concurring), 14th October, 2021), and needless to say the starting point would be one of reluctance to re-visit any such questions in the light of that recent and authoritative legal development.

6 However, the applicants here have strenuously advanced a series of fresh arguments, particularly ones of EU law, that don't seem to have been made in those terms to the Court of Appeal in Heather Hill. The book of authorities provided to that court in that case has been helpfully made available to me and it is clear that a number of important authorities and international materials relied on in the present case are not included. The applicants submit that the points raised by this additional material may require clarification at EU level by the CJEU. It doesn't take from the hierarchical system or the principle of stare decisis for applicants in a new set of proceedings, who were not involved in a previous case, to draw attention to new material, thereby in effect invoking the doctrine articulated by the Supreme Court in The State (Quinn) v. Ryan [1965] I.R. 70, that “a point not argued is a point not decided” ( per Ó Dálaigh C.J. at p. 120). And indeed it is also an inescapable feature of the European architecture that only Luxembourg's determination of an EU law point is finally determinative. So the views of any domestic court on interpretation of EU law could potentially be revisited on foot of a subsequent reference in a later case: see Balscadden Road SAA Residents Association Ltd. v. An Bord Pleanála (No. 2) [2021] IEHC 143, ( [2021] 3 JIC 1217 Unreported, High Court, 12th March, 2021).

Facts

7 Before the court are motions seeking orders at the outset of proceedings as to the rules that will be applicable regarding liability for costs in two challenges to two separate developments:

(i). in Enniskerry, the construction of 165 residential units, a child care facility and associated works at Cookstown Road, Enniskerry, Co. Wicklow in respect of which the board granted permission on 13th August, 2021; and

(i). in Protect East Meath, the construction of 275 apartments, a crèche and associated site works on lands adjacent to Scotch Hall Shopping Centre, Marsh Road, Drogheda, Co. Louth which is the subject of a permission granted by the board on 29th June, 2021.

8 While declarations are in one sense a form of substantive relief, not normally to be sought by interlocutory motion, nobody suggested that the grant or refusal of a declaration in such circumstances was inappropriate at a preliminary stage such as here. We will return later to the point made by Hogan J. in McCoy v. Shillelagh Quarries Limited [2015] IECA 28, [2015] 1 I.R. 627, that a determination as to special costs rules is “in the nature of a final order”, but having regard to that approach it makes sense for that determination, albeit at an interlocutory stage, to be embodied in a formal and final declaration. Conceptually the entitlement to grant a final declaration regarding a procedural matter on an interlocutory motion is a more satisfying way of analysing this procedure, rather than the alternative approach of considering the present motion as a kind of front-loaded module of the substantive hearing. Admittedly the statements of grounds seek orders in relation to the application of costs rules as well as seeking certiorari (although that wasn't necessary because you don't need to claim interlocutory relief in a statement of grounds), but if such relief is viewed as substantive (contrary to my views) then by having a hearing on that issue one could be viewed in a sense as isolating and accelerating that aspect of the substantive case and hearing it as an initial module. To analyse the matter thus would be to suggest that in an absolutely perfect procedural world, the board and notice parties should have filed modularised statements of opposition limited to the costs declaration issue. Even if I am wrong that the present applications can be considered a valid consideration of final declaratory relief on an interlocutory motion, and thus if the hearing has to be considered as a first module of the substantive claim, I am certainly not going to hold the academic point of a lack of statements of opposition against the opposing parties. Essentially everybody acquiesced to these issues being determined by interlocutory motion and that is how I propose to proceed.

9 Environmental impact assessment (EIA) was required in the Enniskerry case, but was screened out in Protect East Meath. Appropriate assessment (AA) was not required in either case.

10 In the Enniskerry case, a pre-application consultation occurred on 9th July, 2020 at which representatives of the developer, the local authority and board were present. This resulted in an inspector's report dated 6th October, 2020 that indicated that the proposed application required amendment.

11 The amended application was submitted by the notice party on 28th April, 2021. The application included a material contravention statement that noted contravention of building heights set out in the county development plan, but asserted that this could be justified by reference to Ministerial Guidelines on Urban Development and Building Heights.

12 The inspector recommended that planning permission be granted subject to 20 conditions on 30th July, 2021. The board granted permission on 13th August, 2021.

13 In Protect East Meath, a pre-application consultation occurred on 23rd August, 2019 following which the inspector reported that the application required amendment. The...