Kilsaran Concrete Unlimited Company v O'Reilly Oakstown Ltd and O'Reilly Bros Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Siobhán Phelan |
| Judgment Date | 18 January 2022 |
| Neutral Citation | [2022] IEHC 23 |
| Court | High Court |
| Docket Number | Record No.: 2021/10 MCA |
In the Matter of the Planning and Development Acts 2000 to 2020
and
In the Matter of an Application Pursuant to Section 160 of the Planning and Development Act, 2000 (As Amended)
[2022] IEHC 23
Record No.: 2021/10 MCA
THE HIGH COURT
Planning and development – Remittal – Costs – Respondents seeking to have proceedings remitted to the Circuit Court – Whether the respondents would incur increased costs in preparing a case for hearing in the High Court
Facts: The respondents, O'Reilly Oakstown Limited and O'Reilly Bros Limited, applied to the High Court to have proceedings under s. 160 of the Planning and Development Act 2000 (as amended) remitted to the Circuit Court for hearing on the Eastern Circuit in the County of Meath. The application was brought having regard to the undisputed value of the lands the subject of the application at €950,000 which was such as to vest the Circuit Court with jurisdiction pursuant to s. 160(5)(a) and (b) of the 2000 Act. The parties were companies involved in the manufacture of concrete products. The applicant, Kilsaran Concrete Unlimited Company, and the respondents had commercial interests in that sector. It was not in contention that the respondents’ site had been in use in the concrete industry since the late 1960s to the early 1970s and was acquired by the respondents as a going concern in or about 2003. There was no agreement as to extent and nature of the use at the site throughout that period and whether the existing use was amenable to enforcement action under s. 160 of the 2000 Act. The respondents maintained that O’Reilly Concrete of Oakstown was a small operation which was prejudiced by the maintenance of the proceedings in the High Court. Reliance was placed by the respondents on the fact that both the applicant and respondents were based in County Meath and the lands which were the subject of the proceedings were located in County Meath. The respondents pointed to the volume of pleadings and contended that the case was likely to take a number of days at hearing, particularly in view of the evident contest as to fact and the need for cross-examination. In terms of specific prejudice, the respondents were concerned by exposure to increased costs should the case proceed in the High Court, even in circumstances where the applicants had confirmed on affidavit that they would limit their costs to Circuit Court costs. It was pointed out that this did not address the fact that the respondents would incur increased costs in preparing a case for hearing in the High Court. The respondents pointed to the fact that it was common case that the Environment (Miscellaneous Provisions) Act 2011 (as amended) may have application to the proceedings with the result that the respondents would not benefit from a differential costs order and may not recover costs as against the applicant even if successful in defending the application and establishing that it was unmeritorious. The respondents contended that the issues in the case were “straightforward” and were questions typical of s. 160 applications which are routinely determined before the Circuit Court.
Held by Phelan J that, having particular regard to access to justice considerations, the policy objectives underpinning legislative provision for an increased jurisdiction in the Circuit Court and the additional cost of maintaining proceedings in the High Court as opposed to the Circuit Court, the factors weighing in favour of the proceedings being remitted for hearing before the lower court of competent jurisdiction prevailed over the countervailing considerations which arose principally in the Court’s assessment from the scale of the operation and the potential implications of the orders sought.
Phelan J held that, in all of the circumstances of the case, it was not reasonable to maintain the proceedings in the High Court and the Court would make an order remitting the proceedings to the Circuit Court in County Meath.
Application granted.
EX TEMPORE JUDGMENT OF Ms. Justice Siobhán Phelan DELIVERED ON 18 JANUARY, 2022
This judgment is delivered in respect of an application to have the within proceedings under s. 160 of the Planning and Development Act, 2000 (as amended) remitted to the Circuit Court for hearing on the Eastern Circuit in the County of Meath.
The application is brought having regard to the undisputed value of the lands the subject of the application at €950,000 which is such as to vest the Circuit Court with jurisdiction pursuant to s. 160(5)(a) & (b) of the Planning and Development Act, 2000 [hereinafter “the 2000 Act”].
The parties to the proceedings are companies involved in the manufacture of concrete products. Both applicant and respondent sides have commercial interests in that sector.
It is not in contention that the respondents' site has been in use in the concrete industry since the late 1960s to the early 1970s and was acquired by the respondents as a going concern in or about 2003. However, there is no agreement as to extent and nature of the use at the site throughout that period and whether the existing use is amenable to enforcement action under s. 160 of the 2000 Act.
The proceedings were instituted by originating notice of motion on the 18th January, 2021.
The application to remit was brought on the 24th March, 2021 and was heard on the 17th January, 2021.
The fact that the application to remit was pending did not disrupt the progress of the proceedings and some seventeen affidavits have been filed in the proceedings with the latest affidavit filed on the 22nd October, 2021.
Whilst the applicant maintains that the pleadings are now closed, this was not accepted by the respondents during the hearing of the motion.
An application for a date for hearing was made by counsel for the applicant in November, 2021. The respondents were represented in that list but through some breakdown in communication were taken by surprise to learn during submissions in the course of the remittal application that the case had been assigned a date for hearing in the High Court in May, 2022. A question must arise in respect of the viability of this date in circumstances where it appears to have been fixed without reference to the fact that it is envisaged, at least insofar as the respondents are concerned, that there will be a need for cross-examination in this case having regard to disputed matters of fact arising from the conflicting contents of affidavits filed.
The principal reliefs sought in the proceedings are standard s. 160 orders being orders restraining the respondents from carrying out unauthorised development over lands occupied or under their control at Oakstown, Trim in the County of Meath and orders requiring the removal of structures identified on the face of the notice of motion as being unauthorised structures which have been erected on site.
It is clear from the pleadings and from the oral submissions to the Court that there are significant disputed issues of mixed law and fact in these proceedings. By way of example only, there is dispute as to:
-
a) the effect of a planning permission which was granted in 1982;
-
b) the extent to which a user of the site is covered by the said planning permission or is otherwise protected from enforcement action by virtue of a long user;
-
c) whether there has been an intensification of use;
-
d) whether the use constitutes a new use (as to whether because of production of ready mix concrete is different or materially different to production of pre-cast concrete);
-
e) the implications, if any, of a decision of An Bord Pleanála to refuse permission for development on site in determining the lawfulness of the current use of the site;
-
f) the extent to which development on site can properly be considered to be exempted development;
-
g) the implications, if any, of the Habitat's Directive.
The respondents in moving the application maintain that O'Reilly Concrete of Oakstown is a small operation which is prejudiced by the maintenance of the proceedings in the High Court.
Reliance is placed by the respondents on the fact that both the applicant and respondents are based in County Meath and the lands which are the subject of the proceedings are located in Co. Meath.
The respondents point to the volume of pleadings and contend that the case is likely to take a number of days at hearing, particularly in view of the evident contest as to fact and the need for cross-examination.
In terms of specific prejudice, the respondents are concerned by exposure to increased costs should the case proceed in the High Court, even in circumstances where the applicants have confirmed on affidavit that they will limit their costs to Circuit Court costs. It is pointed out that this does not address the fact that the respondents will incur increased costs in preparing a case for hearing in the High Court. Counsel for the respondents points to the fact that it is common case that the Environment (Miscellaneous Provisions) Act, 2011 (as amended) may have application to these proceedings with the result that the Respondents will not benefit from a differential costs order and may not recover costs as against the applicant even if successful in defending the application and establishing that it was unmeritorious.
The respondents contend that the issues in the case are “straightforward” and are questions typical of s. 160 applications which are routinely determined before the Circuit Court.
The applicant acknowledges that the Circuit Court and the High Court have concurrent jurisdiction having regard to the undisputed market value of the lands but...
To continue reading
Request your trial