Hickcastle Ltd v Meath County Council (No. 2)

JurisdictionIreland
JudgeHumphreys J.
Judgment Date18 November 2022
Neutral Citation[2022] IEHC 631
CourtHigh Court
Docket Number[2021 No. 961 JR]

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000, As Amended

Between
Hickwell Limited and Hickcastle Limited
Applicants
and
Meath County Council
Respondent

[2022] IEHC 631

[2021 No. 961 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Form of order – Costs – Applicants seeking costs – Whether there was a sufficiently pressing basis for any discount

Facts: The High Court (Humphreys J), in Hickwell Ltd v Meath County Council (No. 1) [2022] IEHC 418, decided in principle to grant relief in relation to a challenge to the indicative road route through areas MP2 and MP3 set out in Land Use Zoning Map Sheet 13(a) (Dunboyne-Clonee-Pace Land Use Zoning Map) to the Meath County Development Plan 2021 to 2027, which passed through the lands of the applicants, Hickwell Ltd and Hickcastle Ltd. Humphreys J left open the question of the precise form of the order. The applicants pressed for an order of certiorari applying to the road as a whole, as opposed to just the portion of it that passed through their lands. The applicants also sought the costs of the proceedings.

Held by Humphreys J that the critical point in terms of the form of the order was that the No. 1 judgment held that there was a lack of reasons as to the need for the road as a whole, as opposed to just the route of the road as it went through the applicants’ lands. He held that the order of certiorari should address that flaw. He noted that the respondent, Meath County Council, endeavoured to support what it called the court’s “first instinct” to make an order of certiorari to the extent that the road crosses the applicants’ lands as suggested at one point in the No. 1 judgment. He held that the wording of that line in the No. 1 judgment was mistaken because it did not incorporate the point that the applicants’ reasons argument applied to the road as a whole, as opposed to just the road as it crossed the applicants’ lands. He held that once that infelicity of wording had been pointed out, the logical implication was clear, which was that the road as a whole should be subject to an order of certiorari. He noted that the applicants did not win all their arguments, so were not “wholly successful” within the meaning of s. 169 of the Legal Services Regulation Act 2015; that section therefore did not apply. He held that s. 168 applied, which gives the court a limited degree of discretion. He held that the starting point on costs is the substantive result, and any discretion must be exercised with regard in the foreground to the fact that the applicants won the case and were therefore presumptively entitled to all of their costs. He held that the case would have been a two-day hearing under any circumstances, even if the applicants had confined themselves to the winning points; there was therefore no sufficiently pressing basis for any discount. He held that as the applicants had prevailed on the issues of the form of the order and costs, it seemed pointless to have a separate hearing on the costs of those issues, so those should simply follow the event. In relation to those matters at least, he held that the applicants seemed to have been “wholly successful” for s. 169 purposes.

Humphreys J held that the appropriate order was as follows: (i) that there be an order of certiorari removing, for the purpose of being quashed, the indicative road route through areas MP2 and MP3 set out in Land Use Zoning Map Sheet 13(a) (Dunboyne-Clonee-Pace Land Use Zoning Map) to the Meath County Development Plan 2021 to 2027; and (ii) that costs of the proceedings be awarded to the applicants including costs of the leave application certifying for two counsel, costs of the substantive hearing, costs of written submissions for the substantive hearing, costs of the subsequent hearing as to the form of order and as to costs, costs of written submissions in relation to that subsequent hearing, and any reserved costs not included in the foregoing.

Costs awarded to applicants.

(No. 2)

JUDGMENT of Humphreys J. delivered on the 18th day of November, 2022.

1

In ( [2022] IEHC 418 Hickwell Ltd v. Meath County Council (No. 1) Unreported, High Court, 12th July, 2022) I decided in principle to grant relief in relation to a challenge to the indicative road route through areas MP2 and MP3 set out in Land Use Zoning Map Sheet 13(a) (“Dunboyne-Clonee-Pace Land Use Zoning Map”) to the Meath County Development Plan 2021 to 2027, which passes through the applicants' lands. I am now dealing with the form of the order and costs.

Form of the order
2

In Hickwell (No. 1), I left open the question of the precise form of the order. That was originally at the request of the council, but in fact the applicants took full advantage of that, illustrating the principle that a facility to one party is generally a facility to all parties. The applicants pressed for an order of certiorari applying to the road as a whole, as opposed to just the portion of it that passes through their lands.

3

When this issue was first argued on 29th July, 2022, the question arose as to notification of other landowners that might be affected by such a wider order. I gave the applicants liberty to put any such additional identified landowners on notice, and to serve papers by way of a link. Subsequent to this, counsel for the Ward family appeared, indicating their opposition to the road which takes up 1.5 km of their lands. Other private parties wrote indicating that generally they were not supportive of the road. Solicitors for Runways were also notified but indicated that they were not getting involved.

4

It is true that the other landowners did not advance legal arguments or the like, but that does not hugely matter. For present purposes, the important thing is that they do not have any issue with the order of certiorari affecting the road as a whole. It is also true that the applicants could have joined those parties at the outset, but no injustice is in fact being done by them being notified now, in circumstances where it turns out that they are not objecting. Only an aficionado of pointless formalism would see that as a fatal obstacle to making the order at this point, now that we know that the parties affected have no objection. It would be different if they were seeking to revisit conclusions in the No. 1 judgment, not having been notified at the appropriate time. At the absolute best from the applicants' point of view, that might require a rehearing. However, such a scenario does not arise here.

5

The road is essentially in three sections. From north to south those are as follows:

  • (i) a section through the north-west of the applicants' lands which has not been the subject of any development consent. The indicative route of the road at this location was introduced by the current development plan, and there was no road at all across these lands in the previous development plan (see exhibit DC3 to affidavit of Denis Coakley).

  • (ii) the section through the applicants' lands in respect of which it is agreed that there should be an order of certiorari; and

  • (iii) a section through lands to the south-east of the applicants' lands owned by Facebook/Runways. The road through those lands had been consented to, but of course quashing the alignment in the development plan does not affect anything in the existing consents.

6

The critical point in terms of the form of the order is that the No. 1 judgment held that there was a lack of reasons as to the need for the road as a whole, as opposed to just the route of the road as it went through the applicants' lands (see paras. 49 to 53). It logically follows that the order of certiorari should address that flaw. The applicants draw attention to the decision in Dover District Council v. CPRE Kent [2017] UKSC 79, [2018] 1 WLR 108 per Lord Carnwath at para. 68 where, analogously to the present case, “the defect in reasons goes to the heart of the justification for the permission and undermines its validity. The only appropriate remedy is to quash the permission.”

7

The council endeavours to support what it calls the court's “first instinct” to make an order of certiorari to the extent that the road crosses the applicants' lands as suggested at one point in the No. 1 judgment. In essence, the simple but, for that reason, fatally effective riposte to that is (although the applicants' counsel was too diplomatic to say so quite so bluntly) that...

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