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

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 16 July 2014
• Neutral Citation: [2014] IEHC 511
• Court: High Court
• Date: 16 July 2014

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

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2011 AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

MICHAEL MCCOY AND SOUTH DUBLIN COUNTY COUNCIL

APPLICANTS

AND

SHILLELAGH QUARRIES LIMITED, JOHN MURPHY, DECLAN MURPHY, THOMAS MURPHY, SANDRA MURPHY AND JOAN MURPHY

RESPONDENTS

[2014] IEHC 511

[No. 218 MCA/2013]

THE HIGH COURT

Costs - s. 3 and s. 7 of the Environment (Miscellaneous Provisions) Act 2011 (the Act of 2011)

Facts: The court in this case made a declaration pursuant to s. 7 of the Environment (Miscellaneous Provisions) Act 2011 (the Act of 2011) that s. 3 of the Act of 2011 applies to these proceedings. The court then adjourned the matter to consider the costs application. The court wanted to determine the costs application to reflect the spirit of the legislation that costs in relation to environmental litigation not be prohibitively expensive. The respondents had served a Calderbank letter offering a small sum to satisfy the claim.

Held by Baker J: The applicant was entitled to the costs of the application to be taxed in default of agreement. The offer contained in the Calderbank letter was served after the order had been made in relation to the substantive application and was too low due to the difficulties the respondents experienced in proceedings.

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S7

PLANNING AND DEVELOPMENT ACT 2000 S160

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

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S4

INDAVER NV T/A INDAVER IRL v BORD PLEANALA 2013 1 IR 357 2013/25/7474 2013 IEHC 11

KIMPTON VALE DEVELOPMENTS LTD v BORD PLEANALA UNREPHOGAN 4.10.2013 2013/29/8482 2013 IEHC 442

HUNTER v NURENDALE LTD T/A PANDA WASTE UNREP HEDIGAN 17.9.2013 2013/25/7319 2013 IEHC 430

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S4(1)

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3(2)

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3(3)

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3(4)

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S10

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S7(1)

R (EDWARDS & PALLIKAROPOULOS) v ENVIRONMENT AGENCY 2013 1 WLR 2914 2013 3 CMLR 18 2014 AER (EC) 207

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125 1995/3/1122

PATTERSON v MURPHY & TRADING SERVICES LTD 1978 ILRM 85

SHILLELAGH QUARRIES LTD v BORD PLEANALA UNREP HEDIGAN 27.6.2012 2012/41/12456 2012 IEHC 257

PLANNING AND DEVELOPMENT ACT 2000 S261

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S6(1)(C)

VEOLIA WATER UK PLC v FINGAL COUNTY COUNCIL (NO 2) 2007 2 IR 81 2006/57/12085 2006 IEHC 240

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S8

1 JUDGMENT of Ms. Justice Baker delivered on the 16th day of July, 2014

2 1. This is an application for a declaration pursuant to ss. 3 and 7 of the Environment (Miscellaneous Provisions) Act 2011 ("the Act of 2011"). The provisions of s. 3 the Act of 2011 have the effect of displacing the ordinary rules regarding the award of costs in litigation. The making of a declaration has the effect that each party to proceedings shall, in the absence of factors identified in the legislation, bear their own costs.

3 2. The applicant has commenced these proceedings pursuant to s. 160 of the Planning and Development Act 2000, against the respondents who own or operate a quarry at lands at Ballinascorney Upper, Brittas, Co. Dublin. The applicant is a resident of adjoining lands and asserts that the quarrying which he says is unauthorised is being carried out in an area of great natural beauty and ecological sensitivity and that the carrying out of this activity without planning permission is a matter of great concern to him and to the natural environment.

The Legislative Context

4 3. The law has long recognised the role of individual citizens in enforcing or seeking to enforce environmental protection and the unique role and interest of the citizen of the protection of the environment. This finds reflection in s. 160 of the Planning and Development Act 2000, which permits a citizen who can show sufficient locus standi to bring enforcement proceedings under the planning code, it being recognised that the primary enforcement body, the relevant local authority is on occasion unable or unwilling to commence the enforcement proceedings.

5 4. The Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, known as the Aarhus Convention, was a United Nations sponsored convention entered into in order to facilitate parties taking actions supportive of environmental protection. The Aarhus Convention was approved by the European Union in Council Decision 2005/370/EC of 17 ^th February, 2005 and was incorporated into Irish law by the Environment (Miscellaneous) Provisions Act 2011. The stated aim of the Aarhus Convention itself was the promotion of the involvement of citizens in environmental matters and to improve the enforcement of environmental law within the Union. Ireland signed the Aarhus Convention on 25 ^th June, 1998, it was ratified on 20 ^th June, 2012, and it is legally binding on the State from that date.

6 5. One aspect of the public right to participate in environmental matters is the right of the public to access to the courts to enforce environmental law, whether this be against public bodies, individual citizens or corporate persons. Article 9 of the Convention which is entitled Access to Justice requires the parties to the Convention to "ensure that any person…has access to a review procedure by a court of law or other independent and impartial body established by law". Parties to the Convention were required to ensure that members of the public having a sufficient interest should have access to court procedures to challenge either substantive or procedural legality of any decision, act or omission in environmental matters. The Article requires that access be to an expeditious procedure which is either free of charge or inexpensive. What constitutes sufficient interest was one left to the individual requirements of national law but the Article specifically provided that such national provisions should be consistent with the objective of giving the public concerned wide access to justice within the scope of the Convention.

The Irish Statutory Provisions

7 6. Sections 7 and 3 of the Act of 2011 provide as follows:

8 7. (1) A party to proceedings to which section 3 applies may at any time before, or during the course of, the proceedings apply to the court for a determination that section 3 applies to those proceedings.

9 (2) Where an application is made under subsection (1), the court may make a determination that section 3 applies to those proceedings.

10 (3) Without prejudice to subsection (1), the parties to proceedings referred to in subsection (1), may, at any time, agree that section 3 applies to those proceedings.

11 (4) Before proceedings referred to in section 3 are instituted, the persons who would be the parties to those proceedings if those proceedings were instituted, may, before the institution of those proceedings and without prejudice to subsection (1), agree that section 3 applies to those proceedings.

12 (5) An application under subsection (1) shall be by motion on notice to the parties concerned.

13 3. (1) Notwithstanding anything contained in any other enactment or in-

14 (a) Order 99 of the Rules of the Superior Courts (S. I. No. 15 of 1986),

15 (b) Order 66 of the Circuit Court Rules (S. I. No. 510 of 2001), or

16 (c) Order 51 of the District Court Rules (S. I. No. 93 of 1997), and subject to subsections (2), (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.

17 (2) The costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant, or as the case may be, the plaintiff, to the extent that he or she succeeds in obtaining relief and any of those costs shall be borne by the respondent, or as the case may be, defendant or any notice party, to the extent that the acts or omissions of the respondent, or as the case may be, defendant or any notice party, contributed to the applicant, or as the case may be, plaintiff obtaining relief

18 (3) A court may award costs against a party in proceedings to which this section applies if the court considers it appropriate to do so-

19 (a) where the court considers that a claim or counter-claim by the party is frivolous or vexatious,

20 (b) by reason of the manner in which the party has conducted the proceedings, or

21 (c) where the party is in contempt of the court.

22 (4) Subsection (1) does not affect the court's entitlement to award 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.

23 (5) In this section a reference to "court" shall be construed as, in relation to particular proceedings to which this section applies, a reference to the District Court, the Circuit Court, the High Court or the Supreme Court, as may be appropriate.

24 7. The class of relevant proceedings is set out in s 4:

25 4. (1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (3), instituted by a person-

26 (a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement...