Margaret Mccallig v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 05 June 2014
• Neutral Citation: [2014] IEHC 353,[2014] IEHC 354
• Court: High Court
• Date: 05 June 2014

McCallig v Bord Pleanala & Ors

JUDICIAL REVIEW

IN THE MATTER OF AN APPLICATION PURSUANT TO S. 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) AND IN THE MATTER OF AN APPLICATION

BETWEEN

MARGARET McCALLIG

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DONEGAL COUNTY COUNCIL AND P.J. MOLLOY

NOTICE PARTIES

[2014] IEHC 353

[No. 291 J.R./2011]

THE HIGH COURT

Planning and Development Law - Application for Planning Permission - Environmental Impact Assessment - Costs - Application for certiorari by judicial review - Unreasonable or improper claim

Facts: The applicant was granted leave to apply for judicial review and the matter appeared for hearing on 6 ^th June 2012. The applicant claimed an order for costs of the entire proceedings under s. 50B(2) of the Planning and Development Act 2000. Section 50B(2)as inserted by s. 33 of the Planning and Development (Amendment) Act 2010, became operative on 28 ^th September 2010. Section 21 of The Environment (Miscellaneous Provisions) Act 2011 became operative on 23 ^rd August 2011. The second notice party and respondent submitted the court should make no costs order or order each party to bear its" own proceedings costs of proceedings. The second notice party and respondent submitted the litigation had commenced and was pending at the date the amending provisions of s. 21 of the 2011 Act came into force and that such provisions applied. The applicant submitted s. 21 provisions dealt with the practice and procedure of the courts and not with vested existing rights. Mr Justice Herbert discussed Hamilton v Hamilton [1982], which held statutes were to be construed as operating prospectively and not retrospectively unless the legislature declared otherwise. Mr Justice Herbert discussed Wilson v Secretary of State for Trade and Industry [2003] to the effect legislation was not intended to affect vested rights and discussed Dublin City Council v Fennell [2005] which referred to the interpretation of common law. Mr Justice Herbert discussed Wright v Hale (1860) which held cost enactments dealt with procedure and unless the contrary was expressed such enactment applied to all actions whether commenced before or after the passing of the Act. Mr Justice Herbert cited O"Riordan v O"Connor [2005] which held the decision related to legal costs and referred to cases such as Kimbray v Draper (1868), Republic of Costa Rica v Erlanger (1876), Executors of Freeman v Moyes (1834) and R v Dunwoodie [1978]. Mr Justice Herbert cited McEnery v Sheahan [2012] which referred to statutes altering matters of procedure.

Mr Justice Herbert held the application of s. 50B(2) of the 2000 Act, as amended by s. 21 of the 2011 Act to proceedings seeking judicial review which commenced and were pending prior to the 23 ^rd August 2011 would be unfair. Mr Justice Herbert referred to the Aarhus Convention whereby the State accepted an obligation to bring domestic law into conformity with the Convention. Mr Justice Herbert cited s.50B(2) of the Planning and Development Act 2000 which provided in proceedings to which s. 50B(1) applied each party should bear its" own costs notwithstanding Order 99 of the Superior Court Rules, unless subsections 3 and 4 applied.

Held by Mr Justice Herbert he was satisfied it was reasonable and proportionate the applicant should be awarded the planning issue costs, (non-environmental impact assessment issue), regarding what the court found was the wrongful inclusion without her consent of a portion of her lands in the application for and subsequent grant of planning permission. Mr Justice Herbert further held the applicant was entitled to the costs of the issue raised by the respondent and the second notice party(in which they were unsuccessful) and that the applicant was entitled to the costs of the issue raised by the respondent alone(in which it was unsuccessful). Mr Justice Herbert held an order for costs in favour of the applicant would be made against the respondent in respect of the former issue, and jointly and separately against the respondent and the second notice party in respect of the wrongful inclusion of part of her lands and of the irrelevance as the decision to grant permission did not affect any part of her lands. Mr Justice Herbert further held there would be no order for costs made against or in favour of the first notice party.

Costs awarded on an issue basis

PLANNING & DEVELOPMENT ACT 2000 S50B(2)

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S33

PLANNING & DEVELOPMENT (AMDT) ACT 2010 (COMMENCEMENT) (NO 2) ORDER 2010 SI 451/2010

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S21

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

PLANNING & DEVELOPMENT ACT 2000 S50B(3)

PLANNING & DEVELOPMENT ACT 2000 S50B(4)

GARDNER v LUCAS & ORS 1878 3 APP CAS 582 1878 5 R (HL) 105

HAMILTON v HAMILTON & DUNNE 1982 IR 466 1982 ILRM 290 1982/4/800

SECRETARY OF STATE FOR SOCIAL SECURITY & ANOR v TUNNICLIFFE 1991 2 AER 712 1992 4 ADMIN LR 57

L'OFFICE CHERIFIEN DES PHOSPHATES UNITRAMP SA v YAMASHITA-SHINNIHON STEAMSHIP CO LTD 1994 1 AC 486 1994 2 WLR 39 1994 1 AER 20

ALAM v SECRETARY OF STATE FOR THE HOME DEPT 2012 IMM AR 974 2012 EWCA CIV 960

WILSON v FIRST COUNTY TRUST LTD (NO 2) 2004 1 AC 816 2003 3 WLR 568 2003 4 AER 97 2003 2 AER (COMM) 491 2003 HRLR 33 2003 UKHL 40

WRIGHT v HALE 158 ER 94 1860 6 HURL & N 227 30 LJ EX 40

HEFFERON KEARNS LTD, IN RE; HEFFERON & ORS v DUBLIN HEATING CO LTD (NO 1) 1993 3 IR 177 1992 ILRM 51 1991/8/1875

RSC O.99

RSC O.84 r20(1)

RULES OF THE SUPERIOR COURTS (JUDICIAL REVIEW) 2011 SI 691/2011

RSC O.84 r22(1)

DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604 2005 2 ILRM 288 2005/17/3473 2005 IESC 33

O'RIORDAN v O'CONNOR 2005 1 IR 551 2005/49/10272 2005 IEHC 96

KIMBRAY v DRAPER 1867-68 3 LRQB 160

REPUBLIC OF COSTA RICA v ERLANGER (NO 2) 1876 3 CH D 62

FREEMAN & ORS v MOYES 110 ER 1235 1834 1 AD & EL 338

CIVIL PROCEDURE ACT 1833 S31

R v DUNWOODIE & ORS 1978 1 AER 923 142 JP 221

LEGAL AID IN CRIMINAL PROCEEDINGS (FEES & EXPENSES) REGS 1968 (UK)

LEGAL AID IN CRIMINAL PROCEEDINGS (FEES & EXPENSES) REGS 1977 (UK)

MCENERY v SHEAHAN UNREP FEENEY 30.7.2012 2012 IEHC 331

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S8

O'CONNOR v ENVIRONMENTAL PROTECTION AGENCY UNREP HOGAN 28.8.2012 2012/34/10196 2012 IEHC 370

NO2GM LTD v ENVIRONMENTAL PROTECTION AGENCY UNREP HOGAN 28.8.2012 2012/34/10023 2012 IEHC 369

O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593

QUAZI v QUAZI 1980 AC 744 1979 3 WLR 833 1979 3 AER 897

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9(3)

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

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9(5)

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

LESOOCHRANARSKE ZOSKUPENIE VLK v MINISTERSTVO ZIVOTNEHO PROSTREDIA SLOVENSKEJ REPUBLIKY 2012 QB 606 2012 3 WLR 278 2012 PTSR 822 2011 2 CMLR 43 2012 AER (EC) 1 2011 ENV LR 28 2011 AER (D) 171 (MAR) 2011 ECR I-1255

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

EEC DIR 85/337 ART 10A

EEC DIR 2011/92 ART 11

EEC DIR 2003/35

PFEIFFER & ORS v DEUTSCHES ROTES KREUZ KREISVERBAND WALDSHUT EV 2004 ECR I-8835 2005 1 CMLR 44 2005 ICR 1307 2005 IRLR 137

EEC DIR 2011/92 ART 1

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S47

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S22

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S23

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S24

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S48

LOCAL GOVERNMENT ACT 2001 S194

LOCAL GOVERNMENT ACT 2001 S189

LOCAL GOVERNMENT ACT 2001 S190

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S6

PLANNING & DEVELOPMENT ACT 2000 S50B

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S7

PLANNING & DEVELOPMENT ACT 2000 S50B(2A)

INTERPRETATION ACT 2005 S26(1)

INTERPRETATION ACT 2005 S26(2)(C)

INTERPRETATION ACT 2005 S27(1)

INTERPRETATION ACT 2005 S27(1)(B)

INTERPRETATION ACT 2005 S27(1)(E)

PLANNING & DEVELOPMENT ACT 2000 S50B(1)

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

PLANNING & DEVELOPMENT ACT 2000 S34(1)(A)

PLANNING & DEVELOPMENT ACT 2000 S37(1)(B)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 22(2)(G)

PLANNING & DEVELOPMENT ACT 2000 S34(1)

EEC DIR 97/11

MIN FOR JUSTICE v INFORMATION CMSR 2001 3 IR 43 2002 2 ILRM 1 2002/17/4076

LITTAUR v STEGGLES PALMER 1986 1 WLR 287 1986 1 AER 780

AG'S REFERENCE (NO 53 OF 1998), IN RE; R v KELLY 2000 QB 198 1999 2 WLR 1100 1999 2 AER 13

CRIME (SENTENCES) ACT 1997 S2 (UK)

SKYTOURS TRAVEL LTD, IN RE; DOYLE v BERGIN 2011 4 IR 676 2011/15/3537 2011 IEHC 518

1 1. The applicant in this case was granted leave to apply for judicial review by Order of this Court made on the 6 ^th April, 2011. The application for judicial review was made returnable for the 4 ^th May, 2011. The statement of opposition was delivered by the second notice party on the 22 ^nd September, 2011 and by the respondent on the 5 ^th October, 2011. The matter came on for hearing before this Court on the 6 ^th June, 2012 and was heard over a period of fifteen days. Judgment was delivered on the 24 ^th January, 2013.

2 2. Section 50B(2) of the Planning and Development Act 2000, as inserted by s. 33 of the Planning and Development (Amendment) Act 2010...