North East Pylon Pressure Campaign Ltd v an Bord Pleanála No.5

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 30 October 2018
• Neutral Citation: [2018] IEHC 622
• Court: High Court
• Docket Number: [2016 No. 150 J.R.]
• Date: 30 October 2018

BETWEEN

NORTH EAST PYLON PRESSURE CAMPAIGN LTD

AND

MAURA SHEEHY

APPLICANTS

AND

AN BORD PLEANÁLA, THE MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

EIRGRID PLC

NOTICE PARTY

(No. 5)

[2018] IEHC 622

Humphreys J.

[2016 No. 150 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Costs – Judicial review – Development consent – Parties seeking costs – Whether there would be an order as to costs

Facts: The question in this case was that of the costs of an unsuccessful judicial review leave application aimed at challenging the grant of development consent. The project at issue was the North/South electricity interconnector, a major project of common interest. The High Court (Humphreys J) dealt in this judgment with the costs of the leave application, as distinct from the costs of the extended process relating to the costs hearing itself, which latter dimension included a reference to Luxembourg. The applicants, North East Pylon Pressure Campaign Ltd and Ms Sheehy, sought costs against all other parties. The State did not seek its costs and requested no order as to costs. The first respondent, An Bord Pleanála, and the notice party, EirGrid Plc, applied for their costs against the applicants, although in EirGrid’s case the application was for partial costs only.

Held by Humphreys J that, given the complexity of the proceedings, the Veolia Water approach (Veolia Water UK Plc v Fingal County Council (No. 2) [2006] IEHC 240) applied; the individual issues on which the applicants won were substantially similar in terms of time expended to those on which the applicants lost leaving at worst, from the applicants’ point of view, only a modest balance of potential costs. Humphreys J held that ss. 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 are contrary to EU law but that did not mean they must be treated as invalid; a preferable approach was to apply those sections to the cases covered by their language, thus excluding the present case, but on the basis that the court should take their policy into account in implementing the not-prohibitively-expensive rule and in exercising the discretion as to costs, so as to produce a similar result as if those sections did apply but for the link to environmental damage. Humphreys J held that virtually all of the applicants’ case was covered by the not-prohibitively-expensive rule arising from EU law, the Aarhus Convention as applied by EU law, and s. 50B of the Planning and Development Act 2000. Humphreys J held that, insofar as the not-prohibitively-expensive rule applies, the appropriate order in general, and in this case, was no order to costs. Humphreys J held that, insofar as any modest balance would otherwise arise, the non-EU points did not add significantly to the length of the hearing so no order would be appropriate as regards those points. Humphreys J held that the upshot was that the appropriate order overall was no order as to costs, even without exercising discretion under O. 99 of the Rules of the Superior Courts. Humphreys J held that if he was wrong in that regard and insofar there was any balance of costs remaining against the applicants, which he did not accept, he would exercise discretion under O. 99 to make no order having regard to all of the circumstances of the case.

Humphreys J held that there would be no order as to costs in relation to the leave application and the injunction, up to and including the judgment refusing leave. He held that he would hear from counsel on a date to be fixed as to the costs of the costs hearing itself, including the reference to Luxembourg.

Judgment approved.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 30th day of October, 2018

1 The question here is that of the costs of an unsuccessful judicial review leave application aimed at challenging the grant of development consent. The project at issue is the North/South electricity interconnector, a major project of common interest.

2 This is the seventh judgment or determination on this matter and the fifth at High Court level. On 12th May, 2016, I refused leave in the present proceedings, North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála (No. 1) [2016] IEHC 300 [2016] 5 JIC 3008 (Unreported, High Court, 12th May, 2016), in relation to a challenge to an ongoing process before An Bord Pleanála prior to that body making a decision on the impugned application. On 29th July, 2016 in North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála (No. 2) [2016] IEHC 490 [2016] 7 JIC 2935 (Unreported, High Court, 29th July, 2016) I referred a number of questions regarding costs to the CJEU. Following the board's decision giving consent to the impugned project, a second set of judicial review proceedings were instituted [2017 No. 151 J.R.] and on 22nd August, 2017, in North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála [(No. 3)] [2017] IEHC 338 (Unreported, High Court, 22nd August, 2017), Barrett J. rejected the substantive judicial review challenging that decision of the board. On 19th October, 2017 in Case C-470/16 North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála, Advocate General Bobek issued his opinion on the reference. On 11th January, 2018 North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála [(No. 4)] [2018] IEHC 3 (Unreported, High Court, 11th January, 2018), Barrett J. refused leave to appeal to the Court of Appeal against his judgment on the substantive application. On 15th March, 2018, the CJEU gave judgment in case C-470/16 North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála. On 25th June, 2018 the Supreme Court granted leave to bring a leapfrog appeal to that court ( North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála [2018] IESCDET 82). That appeal was heard by the Supreme Court on 15th October, 2018 and judgment has been reserved. Meanwhile, the costs of the substantive action have also been adjourned by Barrett J. by agreement between the parties. The basis for that agreement appears to be that the parties are awaiting the outcome of costs on the leave application.

3 I have received helpful submissions from Mr. Esmonde Keane S.C. and Mr. Michael O'Donnell B.L., who also addressed the court (with Mr. Conleth Bradley S.C. and Mr. Christopher Hughes B.L.) for the applicants, from Mr. Brian Foley B.L. (with Ms. Emily Egan S.C.) for the board, from Mr. Rory Mulcahy S.C. (with Ms. Gráinne Gilmore B.L.) for the State respondents, and from Mr. Jarlath Fitzsimons S.C. (with Mr. Brian Murray S.C. and Mr. Stephen Dodd B.L.) for EirGrid. At the conclusion of the hearing on 30th October, 2018 I delivered an ex tempore ruling that there would be no order as to costs, indicating that there would be a written judgment later which would be the definitive version (the written version is in any event always the definitive one whether the parties are reminded of that specifically or not); and I now take the opportunity to formalise matters in a written judgment that somewhat develops the reasoning for the conclusion then announced.

The applications currently before the court

4 I am dealing in the present judgment with the costs of the leave application, as distinct from the costs of the extended process relating to the costs hearing itself, which latter dimension includes the reference to Luxembourg. The applicants seek costs against all other parties. The State does not seek its costs and requests no order as to costs. The board and EirGrid apply for their costs against the applicants, although in EirGrid's case the application is for partial costs only.

The starting point

5 The starting point in any application in our system must be that costs follow the event: Dunne v. Minister for the Environment [2007] IESC 60 [2007] 1 I.L.R.M. 264 [2008] 2 I.R. 775. As the present question relates to the costs of a leave application, and as leave was refused, I start from the premise that the applicant did not carry the event. However, the principle that costs follow the event can be modified in a number of ways:

(a) by the Veolia Water approach (see Veolia Water UK Plc v. Fingal County Council (No. 2) [2006] IEHC 240 [2007] 2 I.R. 81);

(b) by domestic legislation, where more specific rules apply, such as the Environment (Miscellaneous Provisions) Act 2011 and s. 50B of the Planning and Development Act 2000, interpreted as appropriate in accordance with EU law;

(c) by EU-based rules on costs in environmental matters, including the obligation to interpret national environmental legislation in accordance with the Aarhus Convention; and

(d) in the discretion of the court under O. 99 of the Rules of the Superior Courts, albeit that the court is not entirely at large in that regard.

6 To deal with the costs applications in a structured manner, having identified the appropriate starting point, I should then firstly apply the Veolia Water approach and following that, insofar as an overall balance of costs is left over as against an unsuccessful environmental litigant, I can consider the national and EU-based rules and the court's discretion.

The Veolia Water approach

7 In Veolia Water UK Plc v. Fingal County Council (No. 2) Clarke J., as he then was, noted at para. 2.2 that ‘ it is incumbent on the court, at least in complex cases, to at least give consideration as to whether it is necessary to engage in a more detailed analysis of the precise circumstances giving rise to such costs having been incurred before awarding costs. Furthermore, it seems to me to be incumbent on the court to attempt to do justice to the parties by fashioning, where appropriate, orders of costs which do more than simply award costs to the winning side’.

8 The Veolia Water approach may fall for consideration if the proceedings come into the category of being a complex case. They have no particular relevance to a common-or-garden...