Ivan Toole v The Minister for Housing, Local Government and Heritage and Minister of State for the Department of Housing, Local Government and Heritage with Special Responsibility for Planning and Local Government

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 16 June 2023
• Neutral Citation: [2023] IEHC 317
• Court: High Court
• Docket Number: [2023 No. 407 JR]

In the Matter of Sections 21B and 3 of the Foreshore Act 1933, as Amended

And in the Matter of Section 50B of the Planning and Development Act 2000, as Amended

Between

Ivan Toole

and

Golden Venture Fishing Limited

Applicants

and

The Minister for Housing, Local Government and Heritage and Minister of State for the Department of Housing, Local Government and Heritage with Special Responsibility for Planning and Local Government

Respondents

and

Rwe Renewables Ireland Limited

and

Minister for Agriculture, Food and The Marine

Notice Parties

[2023] IEHC 317

[2023 No. 407 JR]

THE HIGH COURT

JUDICIAL REVIEW

Foreshore licence – Stay – Judicial review – Applicants seeking to continue an interim stay on an interlocutory basis – Whether the balance of justice favoured refusal of a stay

Facts: A licence was sought under s. 3 of the Foreshore Act 1933 on 1st October, 2021, to undertake geotechnical and geophysical site investigations and ecological, wind, wave and current monitoring to provide further data to refine wind farm design, cable routing, landfall design and associated installation methodologies for the proposed Dublin Array offshore wind farm off the coast of counties Dublin and Wicklow. The five-year foreshore licence was executed by licence agreement on 13th January, 2023. Notice of the licence was published in Iris Oifigiúil on 27th January, 2023 pursuant to s. 21A of the 1933 Act. The applicants, Mr Toole and Golden Venture Fishing Ltd, applied to the High Court seeking an interim order staying the effect of the foreshore licence prior to the grant of leave to seek judicial review to challenge that licence. Humphreys J heard the application and announced the order on 8th May, 2023 and gave reasons ex tempore on 9th May, 2023. He then gave the written version of the reasons in Toole and Anor v. Minister for Housing and Ors (No. 1) [2023] IEHC 263. Humphreys J’s order made on 8th May, 2023 was that: (i) there was a stay in terms of relief 3 in the statement of grounds but made under O. 84, r. 26(1) of the Rules of the Superior Courts (S.I. No. 15 of 1986) (RSC) and/or the inherent jurisdiction of the court; (ii) the first notice party, RWE Renewables Ireland Ltd, would have until 16:00 on 9th May, 2023 to wind down existing works and carry out any health and safety measures but not to carry out any new steps under the licence; (iii) an undertaking as to damages was not required at that stage; (iv) the applicant was to issue a motion for an interlocutory stay by 16.00 on 9th May, 2023 and to furnish papers in draft form to the opposing parties by 14.00 on that date as well as an order for short service; (v) the matter was adjourned to 12th May, 2023 at 11.00 to hear the motion to admit the proceedings to the list on notice and the leave application ex parte and at a minimum for mention of the interlocutory stay motion which was to be for hearing if the parties agreed that or the court considered that appropriate; (vi) the applicants were to write to the CSSO immediately to inform them of the order; and (vii) costs were reserved. There was a contested application to continue the stay on an interlocutory basis.

Held by Humphreys J that, applying Okunade v Minister for Justice and Ors [2012] IESC 49, the arguability of the applicants’ case was not hugely contested and the fact that leave had already been granted had an obvious relevance to that aspect. It seemed to Humphreys J that the basic complaint, namely the lack of legally compliant appropriate assessment, was such that it created the possibility of environmental harm and therefore created a situation where, if that was borne out, damages were unlikely to be an adequate remedy. Overall and without taking from the points in favour of the responding parties, Humphreys J held that the balance of justice and the assessment of all relevant factors, as they appeared, favoured continuing the existing stay. Humphreys J held that this in no way detracted from or reflected on the strong contest on the merits to which the court could look forward.

Humphreys J ordered that: (i) the existing stay do continue until further order; and (ii) unless the parties apply otherwise at the substantive hearing on 21st June, 2023, the foregoing order be perfected forthwith thereafter on the basis of costs being reserved.

Application granted.

(No. 2)

JUDGMENT of Humphreys J. delivered on the 16th day of June, 2023

1 . In ( [2023] IEHC 263 Toole and Anor v. Minister for Housing and Ors (No. 1) Unreported, High Court, 22nd May, 2023), I granted an interim stay on works being carried out pursuant to a foreshore licence. I am now dealing with a contested application to continue the stay on an interlocutory basis.

Legal principles

2 . As set out in the No. 1 judgment, the basic test for a stay arises from American Cyanamid v. Ethicon Ltd [1975] A.C. 396, [1975] 2 W.L.R. 316, [1975] 1 All E.R. 504, [1975] LS Law Pat 1, [1975] FSR 101, 1975 RPC 513, [1975] UKHL J0205-1, Campus Oil Ltd v. Minister for Industry and Energy (No. 2) [1983] I.R. 88, [1984] I.L.R.M. 47, [1983] 5 JIC 1703 and Okunade v. Minister for Justice & Ors [2012] IESC 49, [2012] 3 I.R. 152, [2013] 1 I.L.R.M. 1, [2012] 10 JIC 1602. The test involves consideration of the question of an arguable case or a fair question to be tried, the adequacy of damages and any undertaking in that regard, and the least risk to injustice as well as all other relevant circumstances. These basic tests have been considered in a number of cases including Dowling & Ors v. Minister for Finance & Ors [2013] IESC 37, [2013] 4 I.R. 576, [2013] 7 JIC 3102 and Krikke v. Barranafaddock Sustainability Electricity Ltd [2020] IESC 42, ( [2020] 7 JIC 1702 Unreported, Supreme Court, 17th July, 2020), which confirmed that this approach applies in the context of EU law and does not breach the principles of effectiveness or equivalence.

3 . The applicants bear the onus of proof, even in the context of continuing a stay that has already been granted on an interim basis, see: McDonnell v. Brady & Ors [2001] IESC 88, 3 I.R. 588, [2001] 10 JIC 3103 and Sweetman v. Cork County Council and An Bord Pleanála [2021] IEHC 350, [2021] 5 JIC 1805 (Unreported, O'Regan J., 18th May, 2021).

4 . I will turn now to the three limbs of the test.

Arguability or fair question to be tried

5 . The arguability of the applicants' case was not hugely contested. The fact that leave has already been granted has an obvious relevance to this aspect.

6 . While I noted in the No. 1 judgment the dangers of getting too involved in the strength of the arguments, that was in a context where there would be an expectation that there will in fact be a full hearing. I fully recognise the point made by O'Donnell J. in Krikke at para. 9 that if that is unlikely then the court would have to look more closely at merits in a context where the injunction hearing would determine the proceedings in substance. This is not such a case. All merits-related issues will be up for discussion at the substantive hearing.

7 . The opposing parties made certain points in relation to delay but those were in reality advanced under the balance of justice heading, and I will consider them in that context below.

Adequacy of damages

8 . The broad approach taken as to the adequacy of damages in the No. 1 judgment was that damages were unlikely to be a relevant or satisfactory alternative to an injunction where the issue was environmental harm, and I would reiterate that approach here. Admittedly, the parties were in some dispute as to whether there will in fact be any harm, or whether the applicants' complaints are more of a technical nature. Nonetheless it seems to me that the basic complaint, namely the lack of legally compliant appropriate assessment, is such that it creates the possibility of environmental harm and therefore creates a situation where, if that is borne out, damages are unlikely to be an adequate remedy.

9 . While the question of an undertaking as to damages was referenced in submissions, it was not particularly pressed in oral submissions. If any opposing party wants to pursue that specifically it can apply in that regard and if so the issue can be more fully debated.

The least risk of injustice

10 . A wide volley of points were advanced as to why the balance of justice allegedly favours refusal of a stay. The public interest was heavily relied on, and the fact that the project, if and when completed, is intended to form a significant part of the State's renewable energy infrastructure. Much emphasis was given to the policy on combating climate change.

11 . Such arguments do create a delicate challenge for the court, which I will try to explain as follows.

12 . First of all, and in favour of the responding parties, the climate emergency goes well beyond the realm of opinion and must be recognised as being in the category of established fact. The UN Environment Programme summarises the situation thus in public domain information: “The science is clear. The world is in a state of climate emergency, and we need to shift into emergency gear. Humanity's burning of fossil fuels has emitted enough greenhouse gases to significantly alter the composition of the atmosphere and average world temperature has risen between 1.1 and 1.2°C. And for every degree in rising temperatures, the cost of adaptation will rise exponentially. GHG emission must peak now yet the gap between ambition and action is growing” (https://www.unep.org/climate-emergency).

13 . On the other hand, how any particular public body or the State as a whole will respond to that is, generally speaking, a matter of policy for the decision-maker in the absence of there being a specific justiciable standard. Thus, for example, permission was granted for a facility requiring an production of 450M litres of milk involving 0.513Mt of CO2 or equivalent...