Joyce-Kemper v an Bord Pleanala
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 10 June 2022 |
| Neutral Citation | [2022] IEHC 349 |
| Court | High Court |
| Docket Number | [2020 No. 22 JR] |
In the Matter of Section 50 of the Planning and Development Act 2000, as Amended
and
[2022] IEHC 349
[2020 No. 22 JR]
THE HIGH COURT
JUDICIAL REVIEW
Costs – Questions of law – Exceptional public importance – Applicant seeking leave to appeal – Whether the discounting of costs was excessive
Facts: In Joyce-Kemper v An Bord Pleanála (No. 1) [2020] IEHC 477, Allen J refused a recusal application in relation to the proceedings, which were a challenge to a grant of planning permission to the notice party, Irish Water DAC, made on 11th November, 2019 for the construction and operation of a sewerage scheme and waste water treatment plant at Clonshaugh in North Dublin, as well as a two metre diameter marine outfall pipe through which treated effluent would be discharged into the sea off Silver Strand beach in Portmarnock. In Joyce-Kemper v An Bord Pleanála (No. 2) [2020] IEHC 601, Allen J quashed the planning decision at issue, but only on one of the grounds raised by the applicant, Ms Joyce-Kemper. In Joyce-Kemper v An Bord Pleanála (No. 3) [2021] IEHC 281, Allen J decided to remit the matter back to the first respondent, An Bord Pleanála. In Joyce-Kemper v An Bord Pleanála (No. 4) [2022] IEHC 25, Allen J awarded 25% of the cost to the applicant against the board minus the costs of the recusal and remittal applications, with no order as to costs against the State. The question of leave to appeal in respect of the costs issue was transferred to Humphreys J following Allen J’s elevation to the Court of Appeal. The applicant proposed ten questions of law of exceptional public importance and in addition two questions which she wanted referred to the CJEU. The applicant’s submissions broke down into three basic issues: (i) the circumstances for discounting costs envisaged by the Supreme Court in Connelly v An Bord Pleanála [2018] IESC 36 should be interpreted in a restrictive way and were not satisfied; (ii) if Connelly applies, the discounting of costs was excessive; and (iii) if discounting as applied is permissible, that is in breach of the Aarhus Convention on a basis not argued in Connelly.
Held by Humphreys J that the applicant’s three essential questions were individually and collectively significant. Humphreys J tried to reformulate them along the following lines: (i) whether Connelly should be interpreted on the basis that discounting, insofar as it is permissible, can be considered if an applicant’s points are not just unsuccessful but are ones that should not have been argued; (ii) whether Connelly should be interpreted on the basis that discounting, insofar as it is permissible, should be applied to a more limited proportion of the costs rather than to something approaching a proportionate deduction; and (iii) whether the Connelly approach should be nuanced to take into account the Aarhus Convention, so that no solicitor-client balance should arise until such time as legislation is enacted to prevent prohibitive solicitor-client charges in environmental litigation. Humphreys J held that these were points of law of exceptional public importance and ones where it was desirable in the public interest that there be clarification.
Humphreys J held that the order would be as follows: (i) the application for leave to appeal is granted on the basis of the reworded questions set out in the judgment which are certified for the purpose; (ii) the order to that effect will be perfected forthwith to facilitate the parties in relation to any other procedural steps; and (iii) he will list the matter for mention on 20th June, 2022 to deal with costs of the leave to appeal application and for any consequential or other matters.
Application granted.
(No. 5)
JUDGMENT of Humphreys J. delivered on Friday the 10th day of June, 2022
In Joyce-Kemper v. An Bord Pleanála (No. 1) [2020] IEHC 477, ( [2020] 9 JIC 2301 Unreported, High Court, 23rd September, 2020), Allen J. refused a recusal application in relation to the present proceedings, which are a challenge to a grant of planning permission to Irish Water made on 11 th November, 2019 for the construction and operation of a sewerage scheme and waste water treatment plant at Clonshaugh in North Dublin, as well as a two metre diameter marine outfall pipe through which treated effluent will be discharged into the sea off Silver Strand beach in Portmarnock.
The applicant appealed to the Court of Appeal [Record No. 2020/166] against the recusal decision. That appeal was due to be heard on 26 th November, 2020, but just before that hearing, Allen J. gave judgment in the substantive application. As that was in favour of the applicant the recusal appeal was rendered otiose.
In that judgment, Joyce-Kemper v. An Bord Pleanála (No. 2) [2020] IEHC 601, ( [2020] 11 JIC 2402 Unreported, High Court, 24th November, 2020), Allen J. quashed the planning decision at issue here, but only on one of the grounds raised by the applicant.
In Joyce-Kemper v. An Bord Pleanála (No. 3) [2021] IEHC 281, ( [2021] 4 JIC 2704 Unreported, High Court, 27th April, 2021), Allen J. decided to remit the matter back to An Bord Pleanála.
In Joyce-Kemper v. An Bord Pleanála (No. 4) [2022] IEHC 25, ( [2022] 1 JIC 2106 Unreported, High Court, 21st January, 2022), Allen J. awarded 25% of the cost to the applicant against the board minus the costs of the recusal and remittal applications, with no order as to costs against the State.
I am now dealing with the question of leave to appeal in respect of the costs issue. That question was transferred to me following Allen J.'s elevation to the Court of Appeal.
The ex parte application in the proceedings was originally opened before Meenan J. on 14 th January, 2020. It was then transferred to the Strategic Infrastructure Development List.
By order of Simons J. of 23 rd January, 2020 it was directed that the leave application be made on notice and the court raised the question of a possible telescoped hearing. Ultimately eight days were set aside for a telescoped hearing and the hearing that actually took place went on for twelve days before Allen J. from 7 th July, 2020 to 24 th July, 2020. That gave rise to the judgments referred to above.
It is possibly worth noting that the changes and improvements to the Commercial Planning and Strategic Infrastructure Development List introduced by recent Practice Directions issued by Irvine P. have had the result that hearings are now generally in the three to four-day range, that telescoping of cases no longer normally occurs and that leave applications are dealt with normally on the Monday following the case being initiated or shortly thereafter
All of this came too late for this applicant which is a shame from her point of view. All that goes to show that there is a beauty in concision, and there are benefits for all involved.
The requirement for leave to appeal derives from s. 50A(7) of the Planning and Development Act 2000. The caselaw in that regard is well established and is referred to in the parties' submissions, and was recently helpfully summarised by Barniville J. in Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231, ( [2022] 4 JIC 2601 Unreported, High Court, 26th April, 2022).
The applicant proposed ten questions of law of exceptional public importance and in addition two questions which she wanted referred to the CJEU. So in effect there were twelve questions for consideration as a basis for taking the matter further. I will refer to the latter two for simplicity as questions 11 and 12.
In essence the applicant's submissions broke down into three basic issues:
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(i). The circumstances for discounting costs envisaged by the Supreme Court in Connelly v. An Bord Pleanála [2018] IESC 36, [2018] 7 JIC 3002 (Unreported, Supreme Court, Clarke C.J. (O'Donnell, Dunne, O'Malley and Finlay Geoghegan JJ. concurring), 30 th July, 2018) should be interpreted in a restrictive way and were not satisfied here.
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(ii). If Connelly applies here, the discounting of costs here was excessive.
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(iii). If discounting as applied here is permissible, that is in breach of the Aarhus Convention on a basis not argued in Connelly.
The first set of points refers to whether the Connelly discounting approach applies here. I agree with Allen J. that it does, not on any kind of automatic basis but in circumstances where an applicant falls significantly short of winning a majority of her significant points, or where there is a discrete hearing of an interlocutory issue on which she failed (see ( [2022] IEHC 327 Flannery v. An Bord Pleanála (No. 3) Unreported, High Court, 8th June, 2022)). Both aspects apply here. The applicant sought to challenge this in a number of ways.
Question 1 provides as follows:
“Is it an inevitable result of a telescoped hearing of a judicial review leave application and judicial review that there could be no determination that any of the applicant's pleaded grounds were ‘substantial’ or ‘not substantial’ until the judgment is delivered, as the Trial Judge found at paragraph 18 of his judgment, and if so is it the case that telescoped hearings are by their nature incompatible with the ‘not prohibitively expensive’ and ‘timely access to justice’ rules in the Aarhus Convention as transposed into EU Law and therefore incompatible with EU Law?”
The question is based on the premise that the applicant would be better off for costs purposes with an unsuccessful but substantial point than with an unsuccessful but insubstantial point....
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