Indaver NV v an Bórd Pleanála and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 21 January 2013
• Neutral Citation: [2013] IEHC 11
• Docket Number: [2011 No. 650
• Court: High Court
• Date: 21 January 2013

Indaver NV t/a Indaver Irl v Bord Pleanala & Ors

JUDICIAL REVIEW

BETWEEN

INDAVER NV T/A INDAVER IRELAND

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL AND CORK HARBOUR ALLIANCE FOR A SAFE ENVIRONMENT

NOTICE PARTIES

[2013] IEHC 11

[No. 650JR/2011]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Costs

Statutory exemption from liability for costs - Exceptions to statutory exemption - Conduct of proceedings - Delay - Whether unnecessary prolongation of proceedings - Whether intention to continue case - Abuse of court process - Whether respondent and second notice party entitled to costs - Commission v Ireland (Case C-427/07) [2009] ECR I-6277; JC Savage Supermarket Ltd v An Bord Pleanála [2011] IEHC 488, (Unrep, Charleton J, 22/11/2012);McEvoy v Meath County Council [2003] 1 IR 208 and Shillelagh Quarries Ltd v An Bord Pleanála [2012] IEHC 402, (Unrep, Hedigan J, 31/7/2012) considered - Planning and Development Act 2000 (No 30), s 50B - Planning and Development (Amendment) Act 2010 (No 30), s 33 - Environment (Miscellaneous Provisions) Act 2011 (No 30), s 21 - Council Directive 85/337/EEC, article 10a - Parliament and Council Directive 2003/35/EC - Costs awarded to respondent and notice party (2011/650JR - Kearns P - 21/1/2013) [2013] IEHC 11

Indaver NV t/a Indaver Ireland v An Bord Pleanála

Facts The applicant brought judicial review proceedings seeking to challenge the decision of An Bord Pleanála (the Board) to refuse permission in respect of an incinerator. Ultimately the applicant withdrew the proceedings. It was the contention of the Board that notwithstanding the provisions of section 50B (as amended) of the Planning and Development Act, 2000 (whereby parties paid their own costs), costs should be awarded against the applicant having regard to the manner in which they withdrew the case. It was contended that the applicant had engaged in behaviour which had allowed the legal costs of the respondent and notice party to escalate.

Held by Kearns P in making an order of costs against the applicant: The applicant had not acted promptly in withdrawing proceedings and had withdrawn them at the last moment. It could be seen that after a certain date the applicant had no bona fide belief in the case and its conduct afterwards in prolonging the case amounted to an abuse process. Accordingly the statutory exemption from liability for costs could not be relied upon in this instance.

PLANNING & DEVELOPMENT ACT 2000 S50(B)

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S33

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S21

CMSN v IRELAND C-427/07

EEC DIR 85/337 ART 10(A)

EEC DIR 2003/35 ART 3(7)

SHILLELAGH QUARRIES v AN BORD PLEANALA UNREP HEDIGAN 31.7.2012 2012 IEHC 402

JC SAVAGE SUPERMARKET LTD & BECTON v BORD PLEANALA & ORS UNREP CHARLETON 22.11.2011 2011/28/7548 2011 IEHC 488

MCEVOY & SMITH v MEATH CO COUNCIL 2003 1 IR 208

PLANNING & DEVELOPMENT ACT 2000 S50(B)(3)(B)

1 1. This case concerns an application for costs by the respondent and notice party in judicial review proceedings which were withdrawn on the eve of trial by the applicant. Notwithstanding the existence of a special statutory provision contained in section 50B of the Planning and Development Act 2000, as amended, which in the ordinary way would protect the applicant from the making of a costs order against it, costs are in fact being sought against the applicant on the basis of the manner in which it conducted the proceedings. It is effectively contended by and on behalf of the respondent and third party that the manner in which the applicant conducted and then abandoned the proceedings amounts to an abuse of process such as to warrant the making of the order sought.

BACKGROUND

2 2. On 9 ^th June, 2011 the respondent ("the Board") refused an application by the applicant (Indaver NV) for permission to develop a waste to energy facility for hazardous and non-hazardous waste and a transfer station facility on a 12 hectare site located on lands opposite the National Maratime College at Ringaskiddy, County Cork (the "decision").

3 3. The applicant was granted leave to bring judicial review proceedings by order of Mr. Justice Peart dated 25 ^th July 2011. The proceedings were ultimately listed for hearing on Tuesday 23 ^rd October, 2012. On 14 ^th October, 2011 it was ordered by the High Court that Cork Harbour Alliance for a Safe Environment ("CHASE") care of Mary O'Leary be joined as a notice party.

4 4. Indaver NV's solicitors sent an open letter to the Board's solicitors on 12 ^th October, 2012 referring to new evidence that the applicant contended was relevant to the proceedings, namely the minutes of a meeting of the Cork County Council on 10 ^th September 2012, including a report on an evaluation of the waste management plan for the Cork region. The letter indicated that it was relevant and necessary for the court to be informed of these matters. However, it appears that the applicant did not believe that the minutes and report which it had cited were sufficient and indicated that it was also seeking the Council's evaluation document. The applicant indicated that it would seek to vacate the scheduled hearing date in order to obtain a copy of the evaluation.

5 5. The Board's solicitors responded on 15 ^th October, 2012 indicating that it did not accept that the minutes were relevant as they post-dated the Board's decision. The Board indicated that it would oppose any adjournment. The Board requested that the adjournment application be made the following morning so that the Court and parties could know whether the proceedings would be going ahead the following week. The Board noted that if the applicant believed that the recent changes to which it averred would merit a different outcome it was open to it to make a further application and pointed out that the applicant had in fact requested pre- application consultations with the Board in respect of a revised application. The Board indicated that the appropriate course of action would seem to be for Indaver NV to withdraw the proceedings. The applicant's solicitors responded the same day asserting that the letter of the Board's solicitors was confused. The applicant's solicitors also indicated that they would not make the adjournment application until 18 ^th October, 2012. The Board responded to this on the same day, again requesting that that the adjournment application be made on 16 ^th October and indicating that if the application was not made until the 18 ^th and the case was adjourned, the Board would reserve the right to apply for costs in respect of legal work carried out between the 15 ^th October, 2012 and that date.

6 6. The Board's solicitor's heard nothing further until the evening of 17 ^th October, 2012 when they received an email from the applicant's solicitors advising that they still had not received any response from the Council to their request for a copy of the evaluation document and that they believed it was important for the Court to be aware of the evaluation and would therefore be seeking an adjournment the following day. An application for adjournment was made on 18 ^th October, 2012. The application was duly heard and refused by the Registrar sitting as Deputy Master.

7 7. On the evening of 18 ^th October, 2012, the applicant's solicitors emailed to the Board's solicitors an unsworn version of an affidavit exhibiting the Cork County Council minutes and the evaluation document which they appeared to have received after the adjournment application that morning. At 7.20 p.m. the email regarding the affidavit, in draft form, was received by CHASE. Further emails followed on Friday 19 ^th October, 2012 in relation to the exhibits and indices for the hearing. Shortly after noon on Friday 19 ^th October the applicant's solicitors emailed the index to the book of pleadings which was to be put before the Court for the hearing. This was followed by an email at 12.17 p.m. referring to certain exhibits filed with the applicant's grounding affidavit. At 5.15 p.m. on Friday 19 ^th October the applicant's solicitors wrote to the respondents' solicitors informing them that the evaluation of Cork County Council's waste plan vindicated the applicant's views that the plan was no longer relevant and had not been relevant for two years. It concluded that it was no longer necessary to force the State and third parties to defend expensive litigation in order to demonstrate same. The letter indicated that the applicant would inform the Court on Monday 22 ^nd October, 2012 that the proceedings were not going on and could be struck out. The letter also indicated the belief that section 50B protected the applicant from any order as to costs.

8 8. The Board and CHASE applied for an order directing that the applicant pay the Board its costs of the proceedings.

AFFIDAVIT OF CONOR JONES

9 9. The applicant's affidavit is unsworn and was received on the 18 ^th October, 2012. In it Mr. Jones claims that the necessary evaluation of the Waste Management Plan for Cork County was completed and subsequently reported at a meeting of Cork County Council on 10 ^th September, 2012. Cork County Council provided a copy of an evaluation to the applicant on 18 ^th October, 2012. The evaluation concluded that the current waste management strategy is no longer relevant at a local level and that Cork County Council needs to review its policy objectives. The applicant claims that each of the material changes had occurred before the respondent made the decision under challenge.

AFFIDAVIT OF CHRIS CLARKE

10 10. In the respondent's affidavit sworn on 26 ^th October, 2012 he avers that by instituting judicial review proceedings the applicant was seeking an opportunity to make further submissions to the Board in order to persuade the Board that the policy...