McCoy & South Dublin County Council v Shillelagh Quarries Ltd & Murphy

 
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[2015] IECA 28

Court of Appeal

Peart J.

[C.A. No. 63 of 2014]

Michael McCoy v. Shillelagh Quarries Ltd
Michael McCoy and South Dublin County Council
Applicants
and
Shillelagh Quarries Limited, John Murphy, Declan Murphy, Thomas Murphy, Sandra Murphy and Joan Murphy
Respondents

James Connolly S.C. (with him Frank Crean) for the respondents.

Conleth Bradley S.C. (with him Michael O'Donnell) for the first applicant.

Cur. adv. vult.

Cases mentioned in this report:-

Air Transport Association of America and others v. Secretary of State for Energy and Climate ChangeECAS (Case C-366/10) [2011] E.C.R. I-13833.

CLM Properties Limited v. Greenstar Holdings LimitedUNK [2014] IEHC 288, (Unreported, High Court, Finlay Geoghegan J., 30th May, 2014).

Council and Commission v. Stichting Natuuren Milieu (Joined cases C-404/12P & C-405/12P) (Unreported, Court of Justice of the European Union, Grand Chamber, 13th January, 2015).

Hunter v. Nurendale Ltd. t/a Panda WasteUNK [2013] IEHC 430, [2013] 2 I.R. 373.

Intertanko v. Secretary of State for TransportECAS (Case C-308/06) [2008] E.C.R. I-4057.

Irish Shell v. Elm MotorsIR [1984] I.R. 200; [1984] I.L.R.M. 595.

D.K. v. CrowleyIR [2002] 2 I.R. 744; [2003] 1 I.L.R.M. 88.

Kimpton Vale Ltd. v. An Bord PleanálaUNK [2013] IEHC 442, [2013] 2 I.R. 767.

Minister for Agriculture v. Alte Leipziger A.g. [2000] 4 I.R. 32; [2001] 1 I.L.R.M. 519.

Montemuino v. Minister for CommunicationsUNK [2013] IESC 40, [2013] 4 I.R. 120.

Nowak v. Data Protection Comm. [2012] IEHC 449, [2013] 1 I.L.R.M. 207.

O'Connor v. Environmental Protection AgencyUNK [2012] IEHC 370, (Unreported, High Court, Hogan J., 28th August, 2012).

O'Domhnaill v. MerrickIR [1984] I.R. 151; [1985] I.L.R.M. 40.

Patterson v. MurphyDLRM [1978] I.L.R.M. 85.

R. (Edwards) v. Environment Agency (No. 2)ECAS (Case C-260/11) [2013] 1 W.L.R. 2914

Schrems v. Data Protection CommissionerUNK [2014] IEHC 310, [2014] 3 I.R. 75; [2014] 2 I.L.R.M. 441.

Shillelagh Quarries Limited v. AnBordPleanálaUNK [2012] IEHC 257, (Unreported, High Court, Hedigan J., 27th June, 2012).

Sweeney v. Governor of Loughan House Open CentreUNK [2014] IESC 42, [2014] 2 I.R. 732; [2014] 2 I.L.R.M. 401.

Waterville Fisheries Development Limited v. Aquaculture Licenses Appeals Board (No. 3)UNK [2014] IEHC 522, (Unreported, High Court, Hogan J., 7th November, 2014).

Costs — Planning and development — Environmental litigation — Protective costs order — Statutory interpretation — Stage of proceedings at which application could or should be made — Whether protective costs order available where applicant seeking to ensure compliance with statutory requirement — Whether application premature — Whether applicant entitled to protective costs order — Environment (Miscellaneous Provisions) Act 2011 (No. 20), ss. 4 and 7 — Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998, articles 6 and 9.

Peart J. 19th February, 2015

[1] I have read the judgment about to be delivered by Hogan J. and I agree with it.

Irvine J.

[2] I also agree with Hogan J.

Hogan J.

[3] In the present proceedings the first applicant (and respondent to this appeal), Mr. McCoy (‘the applicant’), contends that the respondents (and appellants in this appeal) 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 Act of 2000’). 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 Act of 2000 directed against the continued operation of the quarry.

[4] The respondents 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 Act of 2000, 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 the 15th April, 2015.

[5] 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 applicant 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 Act of 2011’). A further question is the extent to which the interpretation of these provisions of the Act of 2011 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 Act of 2011 and that it was appropriate to make such an order: see McCoy v. Shillelagh Quarries LimitedUNK[2014] IEHC 511, (Unreported, High Court, Baker J., 16th July, 2014).

[6] 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.

The relevant statutory provisions of the Act of 2011

[7] The relevant statutory provisions are to be found in the long title and Part 2 of the Act of 2011. The long title recites that one of the objects of the Act of 2011 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’.

[8] 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:-

‘(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 in subsection (4), or

(b) in respect of the contravention of, or the failure to comply with such licence, permit, permission, lease or consent, and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment.’

[9] The phrase ‘damage to the environment’ in s. 4(1) is then defined as follows by s. 4(2):-

‘(2) Without prejudice to the generality of subsection (1), damage to the environment includes damage to all or any of the following:

(a) air and the atmosphere;

(b) water, including coastal and marine areas;

(c) soil;

(d) land;

(e) landscapes and natural sites;

(f) biological diversity, including any component of such diversity, and genetically modified organisms;

(g) health and safety of persons and conditions of human life;

(h) cultural sites and built environment;

(i) the interaction between all or any of the matters specified in paragraphs(a) to (h).’

[10] Section 4(3) and s. 4(4) further clarify the scope of application of these provisions:-

‘(3) Section 3 shall not apply—

  • (a) to proceedings, or any part of proceedings, referred to in subsection (1) for which damages, arising from damage to persons or property, are sought, or

  • (b) to proceedings instituted by a statutory body or a Minister of the Government.

(4) For the...

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