Heather Hill Management Company Clg and Gabriel McGoldrick v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 14 October 2021
• Neutral Citation: [2021] IECA 259
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number 2019/204

Between

Heather Hill Management Company Clg and Gabriel McGoldrick

Applicants/Respondents

and

An Bord Pleanála

Appellant

and

Burkeway Homes Limited

Notice Party

[2021] IECA 259

Costello J.

Ní Raifeartaigh J.

Pilkington J.

Court of Appeal Record Number 2019/204

THE COURT OF APPEAL

JUDGMENT of Ms. Justice Costello delivered on the 14th day of October 2021

Introduction

1 This case raises the question of the correct interpretation of s. 50B of the Planning and Development Act 2000, as amended, and in particular whether a litigant is entitled to the benefit of the protective costs provisions therein with regard to all grounds of the ligitant's challenge to certain types of planning decision even though only some and not all of the grounds of challenge relate to environmental matters. This is a matter which has been the subject of consideration by at least seven different High Court judges in the past, but the trial judge in the present case sought to distinguish the conclusions reached in those cases and reached a different conclusion in the case before him, holding that the provisions applied to the entirety of the proceedings in the case before him, notwithstanding that only some of the grounds for challenge involved environmental matters. He did so on the basis of what he considered to be the plain and ordinary meaning, or literal interpretation, of the language used in the relevant subsection. The key question is whether he was correct in this conclusion. The primary issue before the court is therefore one of statutory interpretation of s. 50B. It has, for obvious reasons, far-reaching implications for awards of costs in many planning cases.

2 The appeal is in respect of the order of the High Court granting the applicants a Protective Costs Order (“PCO”) in respect of all of the costs of the proceedings. The applicants challenged the decision of An Bord Pleanála (“the Board”) dated 16 November 2018, and notified to the applicants on 19 November 2018, to grant permission to the notice party for development on a greenfield site in Barna, County Galway, including 197 residential units (to include housing and ten apartment blocks) and related development. The proposed development was to be accessed via the Cnoc Froaigh development, in respect of which the first named applicant is the residents' management company (“Heather Hill”) and where the second named applicant (“Mr. McGoldrick”) resides with his family. The development comprised strategic housing development within the meaning of the Planning & Development (Housing) and Residential Tenancies Act 2016 (“PD(H)A 2016”); the application for permission was made under s. 4 of that Act and the decision of the Board was made under s. 9.

3 By order of the High Court (Barniville J.), of 17 January 2019, the applicants were granted leave to apply for judicial review of the decision of the Board. The statement required to ground an application for judicial review pleaded sixty-four grounds upon which it was alleged that the decision was unlawful, ultra vires the powers of the Board, null and void and of no legal effect.

4 The applicants sought a PCO in their statement of grounds. By letter dated 30 January 2019, solicitors for the applicants wrote to solicitors for the Board and for the notice party requesting that they accept that the provisions of s. 50B of the Planning and Development Act 2000 (as amended) (“the PDA 2000”) applied to the entire proceedings, thereby affording the applicants protection against any award of costs against them. They each replied accepting that the provisions of s. 50B applied to those grounds which related to Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”), set out in paras. E.24-E.34 of the statement of grounds. They also accepted that the section applied to one ground relating to flooding, pleaded at para. E.50 of the statement of grounds. Neither accepted that the applicants were entitled to costs protection in respect of the remaining grounds asserted in the statement of grounds, referred to as the “disputed grounds”.

5 On 31 January 2019, the High Court directed that the solicitors for the applicants set out the basis upon which the applicants said that s. 50B applied to the totality of the proceedings, i.e. why they were entitled to a PCO in respect of the disputed grounds. This was done by letter dated 4 February 2019, to which I shall return. On 5 February 2019, the solicitors for the Board and for the notice party each replied rejecting the arguments of the applicants and reiterating their previous positions.

6 Heather Hill issued a motion on 13 February 2019 seeking the following relief:-

• “1. An order that section 50B of the Planning and Development Act 2000, as amended, applies to the within proceedings;

• 2. An order pursuant to section 7 of the Environment (Miscellaneous Provisions) Act 2011, as amended, that section 3 and 4 of the said Act apply to the within proceedings;

• 3. An order pursuant to Order 99 of the Rules of the Superior Courts 1986, as amended, and/or pursuant to the inherent jurisdiction of the court, limiting the sum to which the applicants and/or each of them, shall be liable in the event that the applicants and/or each of them, are unsuccessful in obtaining relief in the within proceedings.”

7 The motion also sought further and other orders and costs.

8 In his affidavit sworn to ground the motion, Mr. McGoldrick explained that the scale of the costs risk involved in the application for a PCO to himself and his family was prohibitive. He said he could not take the risk of applying for a PCO in respect of the disputed grounds and, accordingly, he had no alternative but to abandon his application for relief on the disputed grounds. Therefore, only Heather Hill proceeded with the motion.

9 The High Court (Simons J.) directed the parties to file written submissions. They each did so on 15 February 2019. The motion was heard on 21 February and 8 March, and a written judgment was delivered by the trial judge on 29 March 2019 granting Heather Hill an order pursuant to s. 50B of the PDA 2000 in respect of the entire proceedings.

10 The Board appealed the decision to grant a PCO. The substantive judicial review proceedings were determined by the High Court in favour of Heather Hill in December 2019. The court quashed the decision to grant planning permission and ordered the Board to pay the costs of Heather Hill. A certificate for leave to appeal in the substantive proceedings was refused and leave to appeal directly to the Supreme Court was also refused. Due to the systemic implications of the decision of the High Court on the application for a PCO, the Board maintained its appeal against the decision of 29 March 2019, notwithstanding the conclusion of the underlying proceedings.

The application for a PCO

11 The applicants' solicitors set out the basis for its argument that it was entitled to a PCO in respect of the disputed grounds in the letter of 4 February 2019. They did not argue that because some of the grounds for judicial review undoubtedly attracted the special costs rules in s. 50B that therefore the rules applied to the proceedings as a whole. They justified the claim to a PCO by reference to grounds advanced for judicial review and asserted, by reference to the grounds, that the disputed grounds came within the provisions of s. 50B.

12 The letter says the Board failed properly to apply the 2009 Flood Risk Guidelines and this led to:-

“… a contravention by the Board of Article 4(3) of the Treaty on the Functioning of the European Union, in that the decision undermines and fails to advance the State's objective – and obligation – under the Floods Directive (in particular Article 7 thereof) to reduce flooding.”

The letter said that leading up to this failure under EU law are failures of:-

“— Error of law

— Failure to consider relevant material

— Consideration of irrelevant material

— Fair procedures and natural justice

— Rationality”

These are all classic grounds for judicial review under national law and are not particular to planning or environmental law.

13 The applicants claimed that the Board's decision authorised an allocation of population in excess of a zoning and development plan (paras. E.35–44) and involved building on lands zoned for open space, and land zoned at risk from flooding (paras. E.56–61):-

“It therefore constitutes an inadvertent material contravention of the County Development Plan and Bearna Local Area Plan. The issues of population and flood zoning fall squarely within the field of national and European environment law.”

14 The applicants elaborated that the special costs rules applied to the disputed grounds on the basis that:-

“Questions relating to appropriate assessment and Habitat Regulations ( S.I. No. 477 of 2011) are now clearly covered by S. 50B of the Planning and Development Act 2000 as amended by ss. 29(a)(iv) and (b) of the Planning and Development (Amendment) Act 2018.

Questions relating to floods are matters of substantive national and European environmental law covered by the Floods Directive (2007/60). The applicants are entitled to raise procedural irregularities where these result in the substantive decision being in contravention of national and European environmental law (and which is subject to the requirement of conforming interpretation by the national courts.)

Questions relating to the zoning and population are matters of substantive national environmental law. The applicants allege error of fact and/or law, and irrationality, and are entitled to do so (and these matters are also subject to the requirement of conforming interpretation by the national courts).”

15 The applicants said that they were entitled to costs protection by virtue of Article...