Hunter v Nurendale Ltd t/a Panda Waste

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 17 September 2013
• Neutral Citation: [2013] IEHC 430
• Docket Number: [2012 No. 470 MCA]
• Court: High Court
• Date: 17 September 2013

Hunter v Nurendale Ltd t/a Panda Waste

BETWEEN

HOLLY HUNTER

APPLICANT

AND

NURENDALE LIMITED TRADING AS PANDA WASTE

RESPONDENT

[2013] IEHC 430

[No. 470 MCA/2012]

THE HIGH COURT

PRACTICE AND PROCEDURE

Costs

Protective costs order - Planning- Whether applicant entitled to protective costs order - Application to join notice party - Whether notice party could be joined so as to be fixed with costs- Whether court should exercise jurisdiction to make a non-party liable for costs - Moorview Developments Ltd v First Active plc [2011] IEHC 117, [2011] 3 IR 615 and The Queen (Edwards) v Environment Agency & Ors (Case C-260/2011) (Unrep, ECJ, 11/4/2013) followed - Cullen v Wicklow County Manager [2010] IESC 49, [2011] 1 IR 152; McNamara v An Bord Pleanála [1995] 2 ILRM 125 and Thema Intl Fund v HSBC Inst Trust Services (Ireland) [2011] IEHC 357, [2011] 3 IR 654 considered - Planning and Development Act 2000 (No 30), s.160 - Environmental (Miscellaneous Provisions) Act 2011 (No 20), s. 3 and 7 - Rules of the Superior Courts, 1986 (SI 15/1986), O 15, r 13 - Supreme Court of Judicature (Ireland) Act 1877 (40 & 41 Vict, c 57), s 53 - Applications granted (2012/470MCA - Hedigan J - 17/9/2013) [2013] IEHC 430

Hunter v Nurendale Ltd t/a Panda Waste

Facts: The applicant sought an order restraining individuals from carrying out unauthorised development pursuant to s. 160 Planning and Development Act, 2000. The applicant was a Chinese national and had no assets. She sought an order pursuant to s. 7 Environmental (Miscellaneous Provisions) Act 2011 for a protective costs application and the Court considered whether it had jurisdiction.

Held by Hedigan J. that the applicant was entitled to a protective costs order, as sought. The applicant satisfied the requirement of a reasonable prospect of success.

PLANNING & DEVELOPMENT ACT 2000 S160

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S7

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & ORS 2011 3 IR 615 2011/38/10818 2011 IEHC 117

RSC O.15 r13

SUPREME COURT OF JUDICATURE ACT (IRL) 1877 S53

CULLEN & ORS v WICKLOW COUNTY MANAGER 2011 1 IR 152 2010/9/2114 2010 IESC 49

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S4

WASTE MANAGEMENT ACT 1996 S40

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S4(1)

R (EDWARDS & ANOR) v ENVIRONMENTAL AGENCY & ORS (NO 2) 2013 1 WLR 2914 2013 3 CMLR 18

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA (NO 1) 1995 2 ILRM 125 1995/3/1122

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3(4)

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS 25.6.1998 (AARHUS CONVENTION) ART 9(4)

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS 25.6.1998 (AARHUS CONVENTION) ART 9(5)

1 Judgment of Mr. Justice Hedigan delivered on 17th of September 2013.

2 1. The respondent operates a commercial waste facility at Rathdrinagh, Beauparc, Navan, County Meath, which is located approximately seventy metres away from the applicant's family home. In the main s.160 proceedings herein commenced by way of originating notice of motion dated 21 ^st December, 2012, the applicant seeks the following orders pursuant to s. 160 of the Planning and Development Act 2000:

3 (1) an order restraining the respondent, its servants or agents, or any persons acting in concert with them, from carrying out or continuing to carry out any unauthorised development of lands at Rathdrinagh, Beauparc, Navan, County Meath; and

4 (2) an order requiring the respondent, its servants or agents, to return and restore the lands at Rathdrinagh, Beauparc, Navan, County Meath, to their condition prior to the commencement of the unauthorised development.

5 2. The respondent operates a waste facility on lands which are located approximately seventy metres away from a house in which the applicant lives with her husband and children. It is this facility which is the subject of the s. 160 proceedings. The applicant alleges the facility is not being carried on in accordance with the planning permission granted.

6 3. Injudicial review proceedings commenced by notice of motion dated the 22 ^nd October, 2012, the applicant sought an order of certiorari quashing the decision of the Environmental Protection Agency ( EPA) dated the 11 ^th July, 2012, whereby it purported to grant a technical amendment to a waste licence WO 140 - 03 granted by the EPA in respect of this facility. The applicant's home adjacent to this facility is in the legal ownership of her husband, Richard Hunter. The applicant contends that the site has not been operated in accordance with the planning permission granted or with the conditions laid down in the waste licence. She argues that the respondent has persistently exceeded the tonnages permitted at the facility and has operated the facility outside the permitted hours. Consequently she submits that she has experienced severe nuisance arising from the facility and that it has given rise to serious local nuisance generally.

7 4. The licence was originally issued to the respondent on the 26 ^th March, 2009. In 2011 the office of Environmental Enforcement drew the respondent's attention to the terms of Schedule A of the waste licence and indicated that there was an incompatibility between the waste actually accepted at the facility and the terms of Schedule A of the licence insofar as the same appeared to limit the respondent to receiving "dry recyclable household" waste rather than "household" waste. The inspector appointed by the EPA indicated in her report that the restriction on the types of waste to be accepted was inserted by way of "oversight", i.e. it was done in error.

8 5. The respondent subsequently applied to the EPA for a technical amendment to the terms of a licence to change the reference to "dry recyclable house waste" in Schedule A to "household" waste. By decision of the EPA taken on the 11 ^th July, 2012, it substituted "household" waste for "dry recyclable household" waste. The technical amendment changes the household waste stream permitted at the facility from green bin dry recyclable waste to black bin household putrescible waste and increases the tonnages permitted.

9 6. A new shed (known as Shed 3) was built to accommodate increased capacity at the facility. The applicant argues that the shed is only suitable for dry recyclable waste. The shed was destroyed by fire on the 13 ^th June, 2012. The applicant contends that the respondent initiated demolition and reconstruction of the shed in the absence of a grant of planning permission and this forms part of her proceedings under s. 160 of the Planning and Development Act 2000.

10 7. The applicant is a Chinese national and has no assets. The respondent has alleged that she may have been appointed sole applicant in these proceedings since she has no assets, whereas her husband does. The respondent originally sought an order directing the applicant to provide security for its costs in the proceedings. Now, however, as an alternative it wishes the Court to direct that the applicant's husband be joined as a notice party to the proceedings in order to fix him with responsibility for any costs order made in favour of the respondent. The applicant denies that she is the sole applicant for the purposes of avoiding a costs order against her husband and she contends that in any event no such costs order can be made in the within proceedings having regard to the 2011 Act. In response to the respondent's application to add Mr. Hunter as a notice party, the applicant seeks an order pursuant to s. 7 of the Environmental (Miscellaneous Provisions) Act 2011 declaring that s. 3 of that Act applies to the within proceedings. This application is commonly known as a protective costs application. This particular application is the first such that has come before the Irish courts. It is with these two preliminary applications that the Court is concerned today.

The application to join Richard Hunter as a notice party

11 8. With regard to this application, the respondent primarily relies upon the judgment of Mr. Justice Clarke in Mooreview Developments Ltd. v. First Active Plc [2011] IEHC 117 where he considered the question as to whether the Court had jurisdiction to add a party to proceedings after hearing the substantial action, either under Order 15, rule 13 of the Rules of the Superior Courts 1986 or pursuant to s. 53 of the Judicature (Ireland) Act 1877, for the purposes of making that party liable for the costs of the proceedings. In Mooreview, Clarke J. found that persons cannot be made to sue if they do not wish to and, therefore, cannot be added as plaintiffs against their will. However, the respondent argues that the plaintiff's husband could be joined as a notice party to the proceedings. In this regard it relies on Clarke J.'s finding that where proceedings are initiated and controlled by a person who, although not a party to the proceedings, has a direct personal financial interest in their result, it would not be just for such a person pursing his own interests to be able to do so with no risk to himself should the proceedings fail or be discontinued. Clarke J. held that the key factors to be taken into account by a court when deciding whether to exercise its jurisdiction to make a non-party liable for costs are: -

12 (1) The extent to which it might have been reasonable to think that the party, who was primarily liable for the costs for which the non-party was to be made liable, could meet any costs if it failed in the proceedings;

13 (2) the degree of possible benefit of the proceedings to the non-party...