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

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

[2021 No. 846 JR]

[2021 No. 770 JR]

THE HIGH COURT

JUDICIAL REVIEW

Procedure – Amicus curiae – Adjournment – Applicant proposing amicus curiae – Whether it was appropriate to exercise discretion to adjourn the reference to the Court of Justice of the European Union

Facts: In Enniskerry Alliance and Enniskerry Demesne Management Company CLG v An Bord Pleanála (No. 1) [2022] IEHC 6, the High Court (Humphreys J) gave judgment on an application for a protective costs order. In that ruling Humphreys J 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 related to prevention of future damage to hedgerows by reason of contravention of s. 9(6)(b) of the Planning and Development (Housing) and Residential Tenancies Act 2016 which prohibits material contravention of the development plan save on certain conditions, and decided in principle to refer certain questions to the Court of Justice of the European Union (CJEU). Following the No. 1 judgment Humphreys J 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. The applicant, Protect East Meath Ltd, proposed ClientEarth AISBL as an amicus curiae. The State respondents objected to that. The first respondent, An Bord Pleanála (the board), sought an order putting the reference to the CJEU on hold pending the appeal to the Supreme Court in Heather Hill Management Company CLG v An Bord Pleanála [2021] IECA 259.

Held by Humphreys J that, on balance, an application of the Hellfire criteria (Hellfire Massy Residents Association v An Bord Pleanála (No. 3) [2021] IEHC 771) favoured the addition of the amicus and he would so order, particularly having regard to their international perspective and their track record of being of assistance to the court, citing Eco Advocacy CLG v An Bord Pleanála (No. 2) [2021] IEHC 610. Having regard to the caselaw and reasons they cite, Humphreys J did not think it was either appropriate or desirable, still less necessary, to exercise any discretion to adjourn the reference to the CJEU. Humphreys J indicated at greater length in Save Roscam Peninsula CLG v An Bord Pleanála [2022] IEHC 202 why in his view the reference did not cut across the s. 50B and 2011 Act issues before the Supreme Court. To the extent that Humphreys J might have had any residual uncertainty, he held that the board’s surprising and unexpected submission to another judge that the reference was in breach of stare decisis ensured that he could not adjourn the reference, because to do so would be to appear to agree with that sentiment.

Humphreys J held that the order would be as follows: (i) ClientEarth will be joined as an amicus curiae in the Protect East Meath case; (ii) he will direct that the applicants jointly lodge the following documents with the List Registrar in an electronic form having agreed the contents with the other parties, within 28 days of the delivery of the judgment on the order for reference, for transmission to the CJEU by the Principal Registrar - (a) a contents page in electronic form of the documents submitted, (b) a PDF containing all pleadings, and (c) an electronic version of all judgments including an electronic version of the order for reference; (iii) he will adjourn the hearing of the balance of the matter pending the decision of the CJEU; and (iv) the matter will be listed for mention on 25th July, 2022.

Matter adjourned.

(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...