Pearce v Westmeath County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 21 October 2016
• Neutral Citation: [2016] IEHC 578
• Docket Number: [2014 No. 327 J.R.]
• Court: High Court
• Date: 21 October 2016

[2016] IEHC 578

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2014 No. 327 J.R.]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

AND

IN THE MATTER OF AN APPLICATION

BETWEEN

ANGELA PEARCE

APPLICANT

AND

WESTMEATH COUNTY COUNCIL

RESPONDENT

AND

ANGELA BOYHAN

AND

AN BORD PLEANÁLA

NOTICE PARTIES

Environment & Planning – S. 50 of the Planning and Development Act 2000 – Environment (Miscellaneous Provisions) Act 2011 – Compliance of condition of planning permission – Protection of environment – Practice & Procedures – Order for costs

Facts: The present case concerned the award of costs, which was claimed by the applicant having successfully contested its application for certiorari for quashing the decision of the respondent that the first named notice party had complied with the necessary condition for obtaining planning permission. The respondent contended that the applicant was not entitled for costs as the matter had been quashed on consent and that the remittal of the matter for fresh consideration was a consequence of an acceptance by the respondent that it made an error of interpretation of the condition of compliance. The first named notice party, too, sought an order for costs for suffering loss as a result of the respondent's acquiescence to the main relief sought by the applicant.

Mr. Justice McDermott held that the applicant was entitled for costs against the respondent. The Court found that the case of the applicant fell within the scope of s.50B of the Planning and Development Act 2000 and s. 3 and s.4 of the Environment (Miscellaneous Provisions) Act 2011 Act. The Court held that the costs of the proceeding might be awarded to the applicant to the extent of relief obtained by the applicant. The Court held that an order for costs would be appropriate as the applicant sought compliance by the first named notice party with the relevant condition for the protection of environment and safety of the persons using the haul route. The Court held that as the first named notice party did not succeed in obtaining the relief, the first named notice party was not entitled for the costs.

JUDGMENT of Mr. Justice McDermott delivered on the 21st day of October, 2016

1 This is an application for costs arising out of the quashing of the decision of Westmeath County Council dated 22nd November, 2013 purporting to agree that the submission of the first named notice party regarding a haul route survey and provision of lay-bys made pursuant to condition 16(1) of a planning permission granted by An Bord Pleanála (Ref. No. PL252221717) on appeal from a decision of Westmeath County Council (Planning Register Ref. No. 06/5362) [2016] IEHC 477.

2 The applicant and her family resided close to the entrance of a quarry which was the subject of the proceedings. The quarry's planning history stretched back to 2006. On the 19th April, 2006, Westmeath County Council decided to require the first named notice party to apply for planning permission for the operation of the quarry and to submit an Environmental Impact Statement (EIS) under s. 261(7) of the Planning and Development Act 2000. The council granted permission on 5th February, 2007 for the continuation of quarrying on the site which was considered to be the continuation of a pre-1964 development. A history of the various planning issues and decisions and related legal proceedings are set out in the judgment of the court.

3 Ultimately, An Bord Pleanála granted permission subject to a number of compliance conditions and in particular, condition 16(1) which related to the adequacy of the road access to the quarry via an existing road structure in the immediate area. An Bord Pleanála granted permission and imposed conditions having determined that the proposed development ‘would be acceptable in terms of traffic safety and convenience, would not seriously injure the amenities of the area or property in the vicinity, would not be prejudicial to public health and would not be contrary to the planning and sustainable development of the area’.

4 The condition in issue was condition 16 which stated:

‘(1) The developer shall submit to the planning authority for written agreement a detailed survey of the entire one-way, haul route at 20m intervals, showing width, levels, verges and all other relevant features in identifying the number and location of all lay-bys to be provided by the developer.

(2) The developer shall provide and complete all lay-bys agreed under paragraph (1) above within six months from the date of this order and should comply with the requirements of the planning authority for such works and services.

Reason: In the interest of traffic safety and orderly development.’

5 Westmeath County Council was dissatisfied with submissions made in purported compliance with condition 16 by the first named notice party and so indicated on 2nd February, 2010. Following further consultations between the planners and the first named notice party's expert and a request made to the council ‘to have the 20m intervals survey of the road route omitted’, the county council area engineer, in an email to the applicant's consultants on 18th March, 2010, indicated that condition 16 was specific and did not allow the local authority any discretion to vary the terms of the details required as set out in the condition.

6 As a result, Sean Lucy and Associates, town planning consultants to the first named notice party, applied to An Bord Pleanála under s. 146(a) of the Planning and Development Act 2006 to amend the condition. On 23rd July, 2010, the Bord agreed to amend the condition but not in the terms sought by the first named notice party. The amended term read as follows:

‘16(1) The developer shall submit to the planning authority for written agreement a detailed survey of the entire one-way, haul route showing width, levels, verges and all other relevant features and identifying the number and location of all lay-bys to be provided by the developer.’

The words ‘at 20m intervals’ were deleted from condition 16(1). Condition 16(2) remained unchanged. The Bord did not change the condition in terms which would have reduced the obligation on the developer to submit to the planning authority for agreement the number and location of all lay-bys to be provided by the developer on route L1618 thereby covering a much reduced stretch of public roadway between Crookedwood and Multyfarnham, Co. Westmeath. The haul route covered by condition 16(1) remained 27km in length. In effect, the developer had sought a much reduced survey of the haul route to a 8km stretch rather than the 27km originally envisaged.

7 An Bord Pleanála gave as its reason for the amendment that, though it considered a requirement for a survey at 20m intervals over the entire 27km was unduly onerous, the details would be more appropriately agreed between the planning authority (as roads authority) and the developer.

8 Subsequently, on 1st December, 2010, the first named notice party made a submission pursuant to the amended condition which indicated the position of eight proposed lay-bys to be located on the 8km stretch of the haul route between Crookedwood and Multyfarnham. On 11th March, 2011, the respondent agreed that this submission complied with the condition as amended notwithstanding the fact that it covered less than one third of the haul route which was in effect the same limited stretch of roadway which Sean Lucy and Associates had suggested to An Bord Pleanála in its proposed draft amended condition which had not been adopted. That decision by the County Council was the subject of an application for an order of certiorari by the applicant which was made by consent on 24th April, 2013, (Kearns P.). The Council was directed to make a fresh determination and decision as to compliance or otherwise with condition 16(1), as amended and to make provision for further submissions by the first named notice party, Ms. Pearce, and the applicant in these proceedings in respect of same. These submissions were to be taken into account prior to any further determination or decision as to compliance being made and notified to the parties.

9 Subsequently, on 22nd October, 2013, a meeting took place between Mrs. Angela Boyhan, Mr. Lucy and officials of the County Council. On 23rd October, Mr. Lucy wrote to Mr. Leonard seeking clarification that it had been agreed at the meeting that the Council would forward, as soon as possible, written notification that planning condition 16(1) had been complied with. On 22nd November, a memorandum was prepared by Mr. Tony Buckley, an Executive Engineer with the Council. This was said to have been compiled arising out of the High Court consent order directing the Council to make a fresh determination concerning compliance. This court was satisfied that the Council's determination that the notice was compliant with condition 16(1), reached at the meeting of 22nd October and acknowledged subsequently in correspondence, was based on essentially the same material submitted on behalf of the notice party by Mr. Lucy on 1st December, 2010 (though there was some further material submitted on 16th May, 2011, which the applicant contended and the court accepted did not contain the detailed survey required by the condition).

10 On 12th February, 2014, the Council informed Mr. Lucy on behalf of the third named notice party, that it had examined the submissions in relation to the condition and was satisfied that it had been complied with. This followed the submission of Mr....