Friends of the Curragh Environment Ltd v Trustees of the Turf Club

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 14 July 2006
• Neutral Citation: [2006] IEHC 243
• Court: High Court
• Docket Number: [2006 No. 240 J.R.]
• Date: 14 July 2006

Friends of the Curragh Environment Limited v An Bord Pleanála and Ors

COMMERCIAL

JUDICIAL REVIEW

BETWEEN

FRIENDS OF THE CURRAGH ENVIRONMENT LIMITED

APPLICANT

and

AN BORD PLEANÁLA

RESPONDENT

and

THE TRUSTEES OF THE TURF CLUB, KILDARE COUNTY COUNCIL, PERCY PODGER AND ASSOCIATES, GERALDINE MacCANN

NOTICE PARTIES

[2006] IEHC 243

[2006/240 J.R]

THE HIGH COURT

PRACTICE AND PROCEDURE

Protective costs order

Criteria for determining application - Whether issues of general public importance raised - Reg v Lord Chancellor, ex p CPAG [1999] 1 WLR 347 and R (Corner House) v Trade and Industry Secretary [2005] EWCA Civ 192, [2005] 1 WLR 2600 followed; Village Residents Association Ltd v An Bord Pleanála (No 2) [2000] 4 IR 321 approved -Relief refused (2006/240JR - Kelly J -14/7/2006) [2006] IEHC 243 Friends of the Curragh Environment Ltd v An Bord Pleanála

Facts Article 10A of Council Directive 85/337/EEC, as inserted by Council Directive 2003/35/EEC, provides, inter alia, that "Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned...have access to a review procedure before a court of law or another independent and impartial body...to challenge the...substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive". The plaintiff instituted a judicial review challenge against the granting of planning permission to the first respondent by the second respondent. At the outset, it sought a protective costs order against the respondents on the basis that it was a company of limited means and that the judicial review raised issues of general public importance. It also sought the order on the basis that Council Directive 2003/35/EEC had not been implemented by the State and was therefore of direct effect and that its effectiveness required the making of a protective costs order.

Held by Kelly J in dismissing the application that protective costs orders should be granted only in exceptional circumstances. The first thing an applicant for a protective costs order had to demonstrate was that the issues raised by him were of general public importance, which the applicant had not done in this instance. That as no issues of general public importance were raised by the applicant, it was not in the public interest that such issues as were raised be resolved with the aid of protective costs order.

That for a Directive which had not been implemented within the time mandated for such to have direct effect, its language had to be sufficiently precise, clear or unconditional. That direct effect had only horizontal effect and could only be relied upon as against an emanation of the State and therefore could not be relied upon by the applicant so as to obtain a protective costs order against the respondent.

Reporter: P.C.

VILLAGE RESIDENTS ASSOCIATION LTD v BORD PLEANÁLA & ORS 2000 4 IR 321

PLANNING AND DEVELOPMENT ACT 2000 S50

RSC O.63A

RSC O.63A r1(g)

BATTLE v IRISH ART PROMOTION CENTRE LTD 1968 IR 252

R v LORD CHANCELLOR (EX PARTE CHILD POVERTY ACTION GROUP) 1999 1 WLR 347

R (ON THE APPLICATION OF CORNER HOUSE RESEARCH) v SECRETARY OF STATE FOR TRADE & INDUSTRY 2005 4 ALL ER 1

BOLAND v BORD PLEANÁLA 1996 3 IR 435

KENNY v BORD PLEANÁLA & ORS 2001 1 IR 565

ARKLOW HOLIDAYS LTD v BORD PLEANÁLA & ORS 2007 1 ILRM 125

EEC DIR 96/61/EC

EEC DIR 85/337/EEC ART 10(a)

EEC DIR 85/337/EEC ART 1(2)

EEC DIR 2003/35/EC ART 6

BECKER v FINANZAMT MUNSTER-INNENSTADT 1982 ECR 53

MARSHALL v SOUTHAMPTON & SOUTH WEST HAMPSHIRE AREA HEALTH AUTHORITY (TEACHING) 1986 2 WLR 780

EEC DIR 2003/35/EC ART 3

PLANNING AND DEVELOPMENT ACT 2000 S145

1 JUDGMENT of Mr. Justice Kelly delivered on the 14th day of July, 2006

Costs

2 It is unusual to deal with an issue of costs at the commencement of a judgment. It is even more rare to deal with the topic at the beginning rather than the end of litigation. But that is what I am asked to do in this case.

3 These are not the only unusual aspects of the matter. I am asked to depart from the general rule, which has been traditionally accepted in this jurisdiction, that costs are awarded to a successful litigant. Instead, I am asked to make an order the effect of which, if granted, will be to insulate the applicant from any costs liability to any other party regardless of the outcome of the litigation. In addition I am asked to make an order absolving the applicant from any obligation to furnish security for costs or to give any undertakings as to damages to any other party to the litigation.

4 Such orders appear to turn on their head the long accepted view on the awarding of costs in this jurisdiction, as mentioned above. The Irish courts are not alone in their approach. Throughout the common law world the issue of costs is decided at the conclusion of litigation and in general they are awarded to the successful litigant, or, to use the language of lawyers, they follow the event.

5 But orders of the type sought are not unknown. They are certainly unusual but not unprecedented. They have been considered and granted in a number of common law jurisdictions.

6 There is just one instance of such an order being sought in this State. It was refused, but the jurisdiction to grant such an order in an appropriate case was acknowledged ( Village Residents Association Limited v. An Bord Pleanála [2000] 4 I.R. 321). Indeed the topic was also considered by the Law Reform Commission in its 2004 report on judicial review procedure.

7 The applicant here contends that it is entitled to such an order not merely by reference to the principles which have been worked out at common law, but also on foot of certain alleged European legal rights which I shall have to consider in due course.

Background

8 The applicant is a company limited by guarantee and does not have a share capital. Its principal objects are to "preserve, protect and improve the environment and heritage of the Curragh of Kildare by representing the interests of members of the community of and owners and users of sheep grazing rights on the Curragh of Kildare and its environs and to take such legal or other actions as may be considered necessary or desirable to promote such interests".

9 The first notice party (the Turf Club) is proposing to develop lands at the Curragh.

10 The respondent (the board) granted two planning permissions to the Turf Club in that regard.

11 It is these permissions which the applicant seeks leave to judicially review.

The Planning Permissions

12 Both permissions are dated the 18th January, 2006.

13 The first grants permission for the realignment of approximately 1.1 km of the R413 road, generally situate to the north of the existing Curragh racecourse complex and to the south of the existing Stand Hotel. The new realigned R413 will include a total of five new accesses along its length as well as a horse and rider underpass. The permission was granted subject to six conditions.

14 The second decision of the board grants permission to the Turf Club for the demolition of the western half of the west stand at the Curragh and the construction of a 72 bedroom hotel and ancillary facilities. This permission was granted subject to eleven conditions.

15 Each decision of the board was accompanied by a letter in identical terms signed by an administrative assistant to the board.

16 Each letter is dated 18th January, 2006. They point out that an order had been made by the board under the relevant legislation and that the board took the decisions within the specified statutory time period. They say that due to work load constraints it was not possible to sign and issue the order in the appeal on that day. The letters then continue:-

"In accordance with section 146(3) of the Planning and Development Act, 2000, the Board will make available for inspection and purchase at its offices the documents relating to the appeal within three working days following its decision. In addition, the Board will also make available the inspector's report and the Board direction on the appeal on its website ( www.pleanala.ie). This information is normally made available on the list of decided cases on the website on the Wednesday following the week in which in (sic) the decision is made."

These Proceedings

17 The substantive relief sought in these proceedings is judicial review of the two decisions of the board. Pursuant to the provisions of s.50 of the Planning and Development Act, 2000, (the Act), such an application must be made on notice to the relevant parties.

18 In this case the originating notice of motion is dated 2nd March, 2006.

19 The first three reliefs sought in the notice of motion are those relating to costs which I have already outlined. The remaining parts of it seek the substantive reliefs.

20 It was agreed by all parties to the litigation that the court should consider the costs orders which are sought, first. Indeed the applicant made it clear on a number of occasions that in the event of it being unsuccessful in obtaining the costs orders it will not proceed further with the judicial review application.

21 The institution of these proceedings was preceded by an extraordinary application which was made to Laffoy J. That application was apparently made on 28th February, 2006. The applicant there sought ex parte the three reliefs which are the subject of this judgment. Not surprisingly, that application failed.

22 The originating notice of motion was issued on 2nd March, 2006 and made returnable in the judicial review motion list for 27th March, 2006. In the meantime however, the Turf Club issued a notice of motion on 22nd March, 2006, seeking to have the case transferred into the commercial list pursuant to...