Kimpton Vale Developments Ltd v Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hogan
• Judgment Date: 04 October 2013
• Neutral Citation: [2013] IEHC 442
• Docket Number: [2011 No. 125 JR]
• Date: 04 October 2013

Kimpton Vale Developments Ltd v Bord Pleanala

BETWEEN/

KIMPTON VALE DEVELOPMENTS LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

[2013] IEHC 442

[No. 125 J.R./2011]

THE HIGH COURT

PRACTICE AND PROCEDURE

Costs

Application for security for costs - Judicial review - Planning and development - Environmental litigation - Enforcement actions - Remedies not being prohibitively expensive - Stare decisis - Whether costs follow the event - Whether each party bearing their own costs - Whether security for costs to be ordered - JC Savage Supermarket Ltd v An Bord Pleanála [2011] IEHC 488, (Unrep, Charleton J, 22/11/2011); Shillelagh Quarries Ltd v An Bord Pleanála [2012] IEHC 402, (Unrep, Hedigan J, 31/7/2012) and AG v Residential Institutions Redress Board [2012] IEHC 492, (Unrep, Hogan J, 6/11/2012) followed - Hunter v Nurendale Ltd [2013] IEHC 430, (Unrep, Hedigan J, 17/9/2013) approved - Board of Mgt.of St Molaga's NS v Department of Education [2010] IESC 57, [2011] 1 IR 362; [2011] 1 ILRM 389; Coffey v Environmental Protection Agency [2013] IESC 31, (Unrep, SC, 25/6/2013); Commission v Ireland (Case C-427/07) [2009] ECR I-6277; Indaver NV v An Bord Pleanála [2013] IEHC 11, (Unrep, Hogan J, 21/1/2013); Li v Governor of Cloverhill Prison [2012] IEHC 493, [2012] 2 IR 400 and Parolen Ltd v Doherty [2010] IEHC 71, (Unrep, Clarke J, 12/3/2010) considered - Companies Act 1963 (No 33), s 390 - Planning and Development Act 2000 (No 30), s 50B - Planning and Development (Amendment) Act 2010 (No 30), ss 1, 33 - Environment (Miscellaneous Provisions) Act 2011 (No 20), ss 3,4,6,7,8, 21 - Constitution of Ireland 1937, Article 29.6 - Council Directive 85/337/EEC - Council Directive 2001/42/EC - Council Directive 2008/1/EC - Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998, articles 6, 9 - Security for costs ordered (2011/125JR - Hogan J - 4/10/2013) [2013] IEHC 442

Kimpton Vale Limited v An Bord Pleanála

The applicant, Kimpton Vale Developments Limited was a property development company with substantial assets. It also had substantial debts which were transferred to the National Asset Management Agency. Kimpton Vale"s ability to trade was largely dependent on the goodwill of the National Asset Management Agency. These judicial review proceedings concerned a challenge to a decision of An Bord Pleanála. An Bord Pleanála had decided that the construction of two fences did not constitute exempted development, as it would be in contravention of a condition of planning permission previously granted to the applicant.

In this case, the application for security for costs under the Companies Act 1963 raised the issue of how the new costs rules applied to planning and environment matters—in particular the extent to which Article 9 (4) of the Aarhus Convention, which requires that environmental litigation within its scope should not be 'prohibitively expensive', had been transferred into domestic law.

Held by Hogan J, the case turned substantially on how real the prospect was that an order of costs would be made against Kimpton Vale, and its ability to meet such an order if made. It was decided that the applicant"s ability to meet a costs award would be dependent on the goodwill of the National Asset Management Agency. The question to be decided was whether the default Oireachtas rule relating to costs (i.e. following the event) still applied to this kind of proceedings, or whether the rules had been changed as a result of the Aarhus Convention.

As such, Hogan J recognised a question of stare decisis regarding statutory interpretation of 'acute difficulty' arose in this case. It was held that that the Environment (Miscellaneous Provisions) Act 2011, which provides that the court 'shall take judicial notice of the terms of the Convention', did not make a difference in deciding this case. It was also held, following the decision of Charleton J. In JC Savage, that that the special costs rules set out in section 50B of the '2000 Act' did not apply to this judicial review application. It was therefore decided that the case did not fall into the scope of the Aarhus Convention. As such, it was decided that as Kimpton Vale would be open to the usual costs rules if it were to lose the proceedings, and that they were not in a position to meet the costs of An Bord Pleaneála.

The court therefore made an order for security for costs under section 390 of the 1963 Companies Act.

COMPANIES ACT 1963 S390

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

PAROLEN LTD v DOHERTY & LINDAT LTD UNREP CLARKE 12.3.2010 2010/43/10857 2010 IEHC 71

INDAVER NV T/A INDAVER IRL v BORD PLEANALA UNREP KEARNS 21.1.2013 2013 IEHC 11

RSC O.99 r1

EEC DIR 2005/370

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS 25.6.1998 (AARHUS CONVENTION) ART 6(1)(A)

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS 25.6.1998 (AARHUS CONVENTION) ANNEX I

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS 25.6.1998 (AARHUS CONVENTION) ANNEX I PARA 19

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS 25.6.1998 (AARHUS CONVENTION) ART 9(2)

CONSTITUTION ART 29.6

INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT (CAPE TOWN CONVENTION) ACT 2005 S4(1)

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S8

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 (COMMENCEMENT OF CERTAIN PROVISIONS) ORDER 2011 SI 433/2011 ART 2

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S4

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S5

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S21

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

PLANNING & DEVELOPMENT ACT 2000 S50B

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S33

CMSN v IRELAND 2009 ECR I-6277 2011 3 CMLR 46 2010 ENV LR 8

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

SHILLELAGH QUARRIES LTD v BORD PLEANALA UNREP HEDIGAN 31.7.2012 2012/41/12476 2012 IEHC 402

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S7

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S7(4)

COFFEY & ORS v ENVIRONMENTAL PROTECTION AGENCY UNREP SUPREME 25.6.2013 2013 IESC 31

CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS 25.6.1998 (AARHUS CONVENTION) ART 6 ANNEX 1

HUNTER v NURENDALE LTD T/A PANDA WASTE UNREP HEDIGAN 17.9.2013 2013 IEHC 430

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S4(3)(B)

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S6(A)

EEC DIR 85/337

EEC DIR 2001/42

EEC DIR 2008/1

PLANNING & DEVELOPMENT (AMDT) ACT 2010 PART II

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S1(2)

PLANNING & DEVELOPMENT ACT 2000 S50B(1)(A)

BOARD OF MANAGEMENT OF ST MALOGAS NATIONAL SCHOOL v SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION & ORS 2011 1 IR 362 2011 ILRM 389 2010/4/923 2010 IESC 57

JIN v GOVERNOR OF CLOVER HILL PRISON 2012 2 IR 400 2012/19/5531 2012 IEHC 493

G (A) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP HOGAN 6.11.2012 2012/16/ 4476 2012 IEHC 492

1 1. This application for security for costs under s. 390 of the Companies Act 1963 ("the 1963 Act") raises once again the general question of how the new costs rules relating to planning and environment matters should be interpreted and applied. A specific dimension of this question concerns both the extent to which and the manner in the manner in which Article 9(4) of the Aarhus Convention (with its requirement that environmental litigation which comes within the scope of that Convention should not be "prohibitively expensive") has been transposed into national law.

2 2. The problem for consideration arises in this way. The applicant, Kimpton Vale Developments Ltd. ("Kimpton Vale") is a property development company with substantial assets. It also has substantial borrowings and these debts have been transferred to the National Asset Management Agency. While it is continuing to trade, its viability seems in large measure dependent on the continuing goodwill of NAMA.

3 3. In these judicial review proceedings Kimpton Vale has challenged a decision of An Bord Pleanála dated 9 ^th December 2010 whereby it was held that the construction of two 1.2m fences on particular lands did not constitute exempted development. The Board reached this conclusion on the ground that this would contravene a particular condition (condition 6) of a planning permission (PL06F. 124586) which was previously granted to the applicant. It is accepted that this decision (or, if you will, purported decision) was taken pursuant to s. 5 of the 2000 Act.

4 4. In truth, this case has substantially turned on whether there is a real prospect that Kimpton Vale would be likely to face an award of costs were it to be unsuccessful in these proceedings. It is not in dispute but that the company has significant bank liabilities (estimated to be just over€8m. in October 2011) and that its ability to pay this debt is dependent on its ability to realise its not inconsiderable property assets in a manner which would enable this to be done. It may be that its ability to do just this in the second part of 2013 might be slightly easier than might have been the case in 2011.

5 5. Yet its ability to meet any award of the respondent's costs...