Heather Hill Management Company CLG & McGoldrick v an Bord Plean?la, Burkeway Homes Ltd and the Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian Murray
• Judgment Date: 10 November 2022
• Neutral Citation: [2022] IESC 43
• Court: Supreme Court
• Docket Number: Record No.: S:AP:IE:2022:000003

Between

Heather Hill Management Company CLG and Gabriel McGoldrick

Applicants/Appellants

and

An Bord Pleanála

Respondent

and

Burkeway Homes Limited

Notice Party

and

The Attorney General

Notice Party

[2022] IESC 43

O'Donnell C.J.

O'Malley J.

Woulfe J.

Hogan J.

Murray. J.

Record No.: S:AP:IE:2022:000003

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Protective costs order – Negligence – Planning and Development Act 2000 s. 50B – Appellant seeking a protective costs order – Whether s. 50B of the Planning and Development Act 2000 applied to enable a protective costs order to be issued in relation to all of the grounds in the proceedings

Facts: The applicants, Heather Hill Management Company CLG (Heather Hill) and Mr McGoldrick, on 17 January 2019, were granted leave to apply for judicial review of a decision of 16 November 2018 of the respondent, An Bord Pleanála (the Board), made under s. 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016 (PD16), purporting to grant permission to the notice party, Burkeway Homes Ltd, for a large-scale residential development on a site in Barna, County Galway. On 13 February 2019 Heather Hill issued a notice of motion seeking orders: that s. 50B of the Planning and Development Act 2000 (PDA) applied to the proceedings; pursuant to s. 7 of the Environment (Miscellaneous Provisions) Act 2011 (EMPA) that s. 3 and 4 of that Act applied to the proceedings; and pursuant to Order 99 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court, limiting the sum to which the applicants shall be liable in the event that they were unsuccessful in obtaining relief in the proceedings. The application was opposed by the Board and by the notice party. The resulting dispute between the parties reduced itself to whether (as Heather Hill contended) s. 50B applied to enable a protective costs order (PCO) to be issued in relation to all of the grounds in the proceedings and, if not, whether EMPA or Order 99 provided a basis for the relief claimed, or whether (as the Board and the notice party argued) the special costs rules enabled by s. 50B applied only to the agreed grounds (the provisions of EMPA and of Order 99 being, it was contended, not applicable in the circumstances of the case). In a decision dated 29 March 2019 ([2019] IEHC 186), the High Court (Simons J) concluded that s. 50B applied to all of the grounds in the proceedings. In December 2019, the substantive judicial review proceedings were decided in favour of the applicants. A certificate for leave to appeal in the substantive proceedings was refused, as was an application for leave to appeal directly to the Supreme Court. The Board maintained its appeal of Simons J’s decision to grant a PCO. On 14 October 2021, the Court of Appeal reversed the decision of Simons J ([2021] IECA 259). In a determination of 30 May 2022 ([2022] IESCDET 66) leave was granted to Heather Hill to appeal that decision. Thereafter, the Attorney General was granted liberty to appear in the appeal as a notice party.

Held by Murray J that the effect of the provisions of s. 50B is that all of the grounds agitated in challenges to the validity of decisions to grant development consent under s. 9 PD16 benefit from this protection; the same applies to challenges to the validity of similar decisions under ss. 34 and 37 PDA. He held that this conclusion follows not merely because this is the effect of the literal construction of s. 50B but also because the respondent in contending otherwise had not advanced any persuasive alternative analysis of the text, and had failed to identify any clear and convincing argument based upon the legislative context that would displace this literal construction. He held that this is the interpretation that renders s. 50B and EMPA consistent with each other, and that aligns both with the ‘not prohibitively expensive’ provisions of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus) which, collectively, these provisions were intended to implement; it is also the conclusion that will in many cases match with the State’s obligations under European law.

Murray J held that the appeal should be allowed, the order of the Court of Appeal set aside, and that made by Simons J reinstated.

Appeal allowed.

JUDGMENT of Mr. Justice Brian Murray delivered on the 10 ^th of November 2022

I THE BACKGROUND

Introduction

1 . In a period of a little over a decade, the provisions intended to give effect to the ‘ not prohibitively expensive’ requirements of the Aarhus Convention (which I refer to throughout this judgment as ‘s. 50B’ and ‘EMPA’) have generated at least thirty-five reserved judgments of the High Court, four decisions of the Court of Appeal, three references to the Court of Justice of the European Union, one judgment of that Court (so far) and, now, this decision of this Court.

2 . Many of the problems addressed in these cases (including this one) arise from disputes around questions of definition and of scope – as to the categories of action that are intended to benefit from the facility extended by s. 50B and EMPA and, within those proceedings, whether the cost protection enabled by these provisions applies to all, or only parts, of the claims thus advanced. This is a recurring difficulty in an area of the law in which multiple and overlapping grounds of legal complaint are commonly grounded in lengthy and involved pleadings. Litigation around those questions has generated a wide and at points complex range of arguments and counter arguments and has prompted differing analyses of the domestic statutory provisions, together with — at points opaque — interpretations by the CJEU of aspects of relevant provisions of EU law.

3 . The assessment I undertake here of some of these authorities and the range of contentions advanced by the parties in the light of them is necessarily lengthy. My conclusion can, however, be shortly expressed. The effect of the provisions of s. 50B is that all of the grounds agitated in challenges to the validity of decisions to grant development consent under s. 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016 (‘PD16’), benefit from this protection. The same applies to challenges to the validity of similar decisions under s. 34 and 37 of the Planning and Development Act 2000 (‘PDA’). That conclusion follows not merely because this is the effect of the literal construction of s. 50B – the first point of contact in any exercise in statutory interpretation – but also because the respondent in contending otherwise has not advanced any persuasive alternative analysis of the text, and has failed to identify any clear and convincing argument based upon the legislative context that would displace this literal construction. Moreover, this is the interpretation that renders s. 50B and EMPA consistent with each other, and that aligns both with the ‘ not prohibitively expensive’ provisions of the Aarhus Convention which, collectively, these provisions were intended to implement. It is also the conclusion that will in many cases match with the State's obligations under European law.

The proceedings

4 . In these proceedings the applicants challenged the validity of a decision of 16 November 2018 of An Bord Pleanála (‘the Board’ or ‘the respondent’). The decision purported to grant permission to the notice party for a large-scale residential development on a site in Barna, County Galway. The proposed development was to be accessed via another development (‘Cnoc Froaigh’) of which the first named applicant (‘Heather Hill’ or ‘the applicant’) is the residents' management company. The second named applicant resides at Cnoc Froaigh. The proposed project comprised strategic housing development within the meaning of PD16. The application for permission was made under s. 4 of that Act and the decision of the Board was made under s. 9.

5 . On 17 January 2019 the applicants were granted leave to apply for judicial review of this decision of the Board. They pleaded (and were granted leave in respect of) 64 separate grounds. These fell into four broad categories.

6 . The first comprised grounds arising under Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (‘ the Habitats Directive’) and/or Article 42 of the European Communities (Birds and Natural Habitats) Regulations 2011, SI 477 of 2011. In this regard, it was alleged that the screening exercise conducted by the Board was flawed. In particular, it was claimed that the documentation furnished by the notice party developer was deficient, as a result of which it was said that it was not capable of providing the Board with sufficient information to enable it to conduct a lawful screening exercise and/or to justify the conclusions drawn from the screening exercise that was conducted. In the same context it was alleged that the Board and its inspector erred in law in misinterpreting and/or misapplying the provisions of domestic legislation and/or Article 6(3) of the Habitats Directive. Related to this were a number of grounds which alleged that mitigation measures were unlawfully taken into account for the purposes of the screening exercise.

7 . The second set of grounds alleged a material contravention of the county development plan and of local plans. Complaint was made that the decision authorised an allocation of population within the subject development in excess of that permitted by the zoning provided for in the development plan. It was claimed that the decision was therefore contrary to s. 9(6) of PD16. The applicants said that the decision was based on an interpretation of the population allocation as and between different zoned areas in the county development plan that had no basis in...