Enniskerry Alliance v an Bord Pleanala and Protect East Meath Ltd v an Bord Pleanala

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 10 June 2022
• Neutral Citation: [2022] IEHC 337
• 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 337

[2021 No. 846 JR]

[2021 No. 770 JR]

THE HIGH COURT

JUDICIAL REVIEW

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 10th day of June, 2022

1 In Enniskerry Alliance and Enniskerry Demesne Management Company CLG v. An Bord Pleanála (No. 1) [2022] IEHC 6, ( [2022] 1 JIC 1410 Unreported, High Court, 14th January, 2022), I gave judgment on an application for a protective costs order. In that ruling I noted a consent order in relation to certain costs, decided that s. 50B of the Planning and Development Act 2000 did not apply to any other grounds, and that the Environment (Miscellaneous Provisions) Act 2011 applied only to one element of the remaining case, namely core ground 6 in Enniskerry insofar as it relates to prevention of future damage to hedgerows by reason of contravention of s. 9(6)(b) of the 2016 Act which prohibits material contravention of the development plan save on certain conditions, and decided in principle to refer certain questions to the CJEU.

2 I now deal with certain procedural matters that are not necessary to include in the order for reference.

Procedural developments since the No. 1 judgment – Enniskerry proceedings

3 On 6 ^th March, 2022, the developer changed tack and proposed agreeing not to seek costs against the applicant, agreed to an order over against it if the board was granted costs against the applicant, and as a fall-back offered the applicant a full indemnity as to costs that might be awarded to the board. The applicant then sought clarification on 10 ^th March, 2022 as follows:

• (i). that the board would undertake not to pursue the applicant if the developer failed to satisfy the indemnity;

• (ii). that the reliefs against the State would not proceed without a similar arrangement;

• (iii). as to the extension of the indemnity to any application for leave to appeal, or on appeal or before the CJEU; and

• (iv). as to payment of the High Court costs of the protective costs motion.

4 There was a further issue raised subsequently as to what the mechanism would be to formalise an agreement.

5 The position in relation to those five issues was as follows:

• (i). The board declined to give any undertakings to the applicant.

• (ii). The issue of the costs of the reliefs against the State wasn't pursued at this time as those reliefs have been adjourned generally.

• (iii). As regards the issue of protection for any appeal, the developer took instructions on this and on 6 ^th April, 2022, clarified that it was positively considering, subject to final instructions, that the undertaking would cover the entire proceedings including appeal but not any costs referable to any hypothetical reference to Luxembourg in the substantive proceedings.

• (iv). The notice party agreed to pay the High Court costs of the costs motion in the event of an agreement.

• (v). As regards the mechanism in the event of an agreement, it was suggested that a consent order might be appropriate.

6 However, no meeting of minds between the two sides was in fact reached (I assume because of the exclusion of Luxembourg costs from the offer) and the developer then withdrew from the process of finalising the reference.

7 A draft order was prepared on 1 ^st April, 2022, was circulated to the parties, and without objection was perfected. The applicant was thus at liberty to appeal the refusal of relief in relation to s. 50B of the 2000 Act or under the 2011 Act. The board proposed that it would appeal the finding in relation to the one ground to which I considered that the 2011 Act applied. Both sides were of the opinion that no leave to appeal to the Court of Appeal was necessary. That seems quite dubious to me having regard to the caselaw (in particular Rowan v. Kerry County Council [2015] IESC 99, [2015] 12 JIC 1801 (Unreported, Supreme Court, Dunne J. (McKechnie, MacMenamin, Laffoy and Charleton JJ. concurring), 18 ^th December, 2015)). But ultimately that would be a matter for the Court of Appeal – although they presumably won't have to consider it because the Supreme Court has accepted the applicant's appeal.

8 Following the perfection of the order, the applicant appealed (without leave to do so) to the Court of Appeal insofar as it was refused relief [CA Record No. 2022/103].

9 Both the applicant and (insofar as I granted relief) the board sought leave to appeal to the Supreme Court by applications received in the Supreme Court Office on 26 ^th April, 2022, record numbers S:AP:IE:2022:000045 and S:AP:IE:2022:000046. The Supreme Court granted the applicant leave to appeal ( [2022] IESCDET 68) but refused the board ( [2022] IESCDET 69) on the grounds that the board could pursue its point by cross-appeal, and also apparently on the basis that the board had consented to the relief in relation to ground 6. Some confusion has entered the picture however because the No. 1 judgment indicates that the board didn't consent to relief in respect of ground 6 in Enniskerry, but rather ground 6 in Protect East Meath.

10 To clarify however, those appeals are not appeals against the decision to refer, and in and of themselves do not at this point impact at all upon the proposed reference to the CJEU. If it should happen that the appeals have a result that renders the reference moot I will of course inform the CJEU at that point.

Procedural developments since the No. 1 judgment – Protect East Meath proceedings

11 An issue arose as to whether the agreement as to the costs of the costs issue itself would also apply on appeal. The board said it would, and the notice party sought time to take instructions. On 6 ^th April, 2022, the notice party said that the costs of any appeal about costs would also be subject to no order as to costs if the applicant loses. Thus the question as to whether, if there was a dispute as to the costs of the costs on appeal, this was an issue that could be considered as relevant before the proceedings get going in the High Court, or alternatively was an issue that could only be raised in an appellate court, did not arise for decision in this case.

12 Again, a draft order was circulated on 1 ^st April, 2022 and following clarification of the foregoing, was perfected.

13 Following the perfection of the order, the applicant appealed to the Court of Appeal (without leave to do so) insofar as I refused relief [CA Record No. 2022/104].

14 The applicant also sought leave to appeal from the Supreme Court by application received in the Supreme Court Office on 26 ^th April, 2022, record number S:AP:IE:2022:000044. That was granted: [2022] IESCDET 67.

Consideration of amici curiae

15 Following the No. 1 judgment I gave the parties the option of proposing the addition of any amici curiae that might assist the formulation of the formal order for reference and that might assist the CJEU.

16 Protect East Meath Limited proposed ClientEarth AISBL as an amicus curiae. The State objected to that, albeit the objection seemed to me to become moderately less vigorous as time wore on.

17 As regards whether to join ClientEarth as an amicus, the State's first line of attack was to argue that a motion should be brought, preferably by ClientEarth itself, but I rejected that on 4 ^th April, 2022 because it is not in accordance with the general procedure set out in Eco Advocacy CLG v. An Bord Pleanála (No. 1) [2021] IEHC 265, ( [2021] 5 JIC 2704 Unreported, High Court, 27th May, 2021), which is an attempt to streamline the preparation of any references that may arise. That procedure involves the proposal of amici by a party, not by the amicus themselves, and moreover doing so by submission rather than affidavit. When this was pointed out to the State, it did not particularly press the objection regarding a motion. That doesn't rule out directing an affidavit if necessary, but it didn't seem necessary here, and it would be pointless formalism to require the putting on affidavit of matters as to its role and expertise set out in a submission by a reputable NGO such as ClientEarth here.

18 The State then complained that there was not sufficient information to allow the joinder of ClientEarth. Without any strenuous objection I directed that the proposed amicus would file a submission without prejudice to whether they would be allowed to appear or not in which they could address all such information as to their work and qualifications and why they would be in a position to contribute on this issue.

19 The State also raised various other objections or difficulties to the joinder of an amicus but unhelpfully its written submissions didn't particularly engage with my attempt to comprehensively review the caselaw on this issue in Hellfire Massy Residents Association v. An Bord Pleanála (No. 3) [2021] IEHC 771, ( [2021] 12 JIC 1402 Unreported, High Court, 14th December, 2021). I think that if the State had properly taken that judgment into account, such an exercise would have answered most of the fairly theoretical concerns articulated here.

20 The legal Alamo under this heading came with the State's last stand of complaining about an alleged lack of additional content in the submission actually made by...