McCoy & South Dublin County Council v Shillelagh Quarries Ltd & Murphy
 IECA 28
THE COURT OF APPEAL
63/2014 - Peart Irvine Hogan - Court of Appeal - 19/2/2015 - 2015 IECA 28
Planning and development – Planning permission – Planning injunction – Applicant seeking a planning injunction – Whether applicant could properly apply for and obtain a protective costs order
Facts: The first applicant/respondent, Mr McCoy, contended that the defendants/appellants, Shillelagh Quarries Ltd, Mr J Murphy, Mr D Murphy, Mr T Murphy, Ms S Murphy and Ms J Murphy, were operating a quarry without the benefit of planning permission, contrary to s. 32 of the Planning and Development Act 2000. The applicant sought a planning injunction pursuant to s. 160 of the 2000 Act directed against the continued operation of the quarry. The appellants admitted that they had no such permission, but they maintained that it was unnecessary in that they could show that the quarry had been in continuous operation prior to the coming into force of the immediate precursor to the 2000 Act, the Local Government (Planning and Development) Act 1963, and that there had been no intensification of use since that date. The immediate question for consideration by the Court of Appeal was whether the applicant could properly apply for and obtain a protective costs order under ss. 3, 4 and 7 of the Environment (Miscellaneous Provisions) Act 2011. A further question was the extent to which the interpretation of these provisions of the 2011 Act should be informed by the provisions of the Aarhus Convention. The High Court ( IEHC 511) held that the present case came within the scope of the protective costs jurisdiction provided for by the 2011 Act and that it was appropriate to make such an order. The applicant argued that the proceedings did not come within the scope of s. 4(1) of the 2011 Act, contending that s. 4(1) only applied to proceedings which involved the enforcement of an existing planning permission or planning condition or other similar requirement which was the subject of a positive decision by a planning authority or other similar body. He submitted that this argument was further buttressed by the terms of the Aarhus Convention itself, as it applied only to environmental decisions. The appellants contended that many important factual issues remained to be determined in the proceedings, including questions as to whether the appellants were in fact obliged to obtain planning permission in respect of the quarry and whether the operation of the quarry has caused or is likely to cause damage to the environment. In those circumstances they objected to the granting of a protective costs order by what they submitted was a form of interlocutory order, since this was, in effect, to pre-judge the outcome of the proceedings.
Held by Hogan J that, having considered the Aarhus Convention and its status in Irish law, it could not be said that neither the existence of the Aarhus Convention in general or Article 9(3) or Article 9(4) in particular could or should decisively influence the interpretation of the 2011 Act. Having considered the construction of s. 4 of the 2011 Act, Hogan J considered that the High Court was correct in its conclusion that the reference to statutory requirement in s. 4(1)(a) is a free standing one which is distinct and separate from proceedings designed to ensure the compliance with or enforcement of a condition or other requirement of a licence, permit or other form of development consent; it followed, accordingly, that the s. 160 proceedings fell within the scope of s. 4(1) and, therefore, by extension, the High Court had jurisdiction to make the appropriate protective costs order under s. 7 of the 2011 Act. Hogan J held that it was clear from the terms of s. 7 of the 2011 Act that the Court has a jurisdiction to make a final determination regarding a protective costs order as any other conclusion would defeat one of the principal objects of the 2011 Act and would be at odds with the actual language of s. 7(1). Hogan J held that while it would have been preferable if the applicant had provided fuller details of his financial means and any arrangements which he made with his lawyers regarding contingent fee arrangements, given that the applicant”s financial status was not in dispute and the object of any protective costs order is to safeguard the litigant against exposure to the costs of the other side, these omissions were not fatal.
Hogan J held that the appeal should be dismissed
JUDGMENT of the Court delivered by Mr. Justice Gerard Hogan on 19th February 2015
1. In the present proceedings the first applicant (and respondent to this appeal), Mr. McCoy ("the applicant"), contends that the defendants (and appellants in this appeal) ("the appellants ) are operating a quarry without the benefit of planning permission, contrary to the provisions of s. 32 of the Planning and Development Act 2000 ("the 2000 Act"). The applicant lives close to the quarry which is situated at Ballinscorney Upper, Brittas, Co. Dublin, immediately adjacent to the Dublin/Wicklow border. The applicant has now sought a planning injunction pursuant to s. 160 of the 2000 Act directed against the continued operation of the quarry.
2. The defendants ("the appellants") admit that they have no such permission, but they maintain that is unnecessary in that they can show that the quarry has been in continuous operation prior to the coming into force of the immediate precursor to the 2000 Act, the Local Government (Planning and Development) Act 1963 and that there has been no intensification of use since that date. On the hearing of this appeal we were informed that this issue is scheduled to be heard by the High Court over a two week period commencing on April 15 th, 2015.
3. While this issue also forms an important part of the background to this appeal, the immediate question for consideration by this Court is a more specific one, namely, whether the respondent could properly apply for and obtain what is known as a protective costs order under the combined provisions of ss. 3, 4 and 7 of the Environment (Miscellaneous Provisions) Act 2011 ("the 2011 Act"). A further question is the extent to which the interpretation of these provisions of the 2011 Act should be informed by the provisions of the Aarhus Convention, a topic to which we shall presently return. In her judgment in the High Court, Baker J. held that the present case came within the scope of the protective costs jurisdiction provided for by the 2011 Act and that it was appropriate to make such an order: see McCoy v. Shillelagh Quarries Ltd.  IEHC 511.
4. As will be seen, the fundamental issue before the Court presents a question of statutory interpretation of no little difficulty. It is, however, first necessary to explain and to set out the relevant statutory provisions.
5. The relevant statutory provisions are to be found in the Long Title and Part 2 of the 2011 Act. The Long Title recites that one of the objects of the 2011 Act is "to give effect to certain articles" of the Aarhus Convention and for judicial notice to be taken of the Convention. Sections 3 to 7 then modify in a significant fashion the traditional costs order regime. In effect, an applicant may apply by notice of motion seeking a declaration pursuant to s. 7 to the effect that s. 3 applies to the proceedings. Where it has been determined that s.3 applies to the proceedings, then the starting point is that, subject to the provisions of s. 3( 2), s. 3(3) and s. 3(4), each party is required to abide their own costs: see s. 3(1). Where, however, the applicant obtains relief in the proceedings, then s. 3(2) provides that he or she may be awarded some or all of their costs which is to be borne by the respondent "to the extent that the acts or omissions of the respondent…contributed to the applicant…obtaining relief." Section 3(3) empowers the courts to make an award of costs against any party (including an applicant) where it has been determined that the claim is frivolous or vexatious or by reference to the manner in which they have conducted proceedings or are in contempt of court. Section 3(4) empowers the court to make an order for costs in favour of a party "in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so."
6. Section 4 then deals with the scope of application of s. 3 and it is this section which presents the issue of statutory interpretation which is at the heart of this appeal. Section 4 provides:
a "(1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (3), instituted by a person -
(a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement attached to a licence, permit, permission, lease or consent specified...
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