Savage Supermarket Ltd & Becton v Bord Pleanála and Others

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Charleton
Judgment Date22 November 2011
Neutral Citation[2011] IEHC 488
Date22 November 2011

[2011] IEHC 488

The High Court

No 434 JR/2011
JC Savage Supermarket Ltd & Becton v Bord Pleanala & Ors
Commercial
Judicial Review
In the Matter of an Application pursuant to Section 50 of the Planning and Development Acts, 2000 -2010

Between

JC Savage Supermarket Limited and Des Becton
Applicants
-and-
An Bord Pleanála
Respondent
-and-
Fingal County Council, Lidl Ireland GmbH, Teresa Crothers, Patrick Hughes, Noleen Hughes, Christopher Sheridan, Jacinta Sheridan and Maeve Slattery
Notice Parties

PLANNING AND DEVELOPMENT ACT 2000 S50(B)

PLANNING AND DEVELOPMENT ACT 2000 S34(5)

RSC O.99 r1

PLANNING AND DEVELOPMENT ACT 2000 S50

PLANNING AND DEVELOPMENT (AMDT) ACT 2002 S12

MACMAHON v BORD PLEANÁLA UNREP CHARLETON 8.12.2010 2010/31/7737 2010 IEHC 431

PLANNING AND DEVELOPMENT ACT 2000 S182(A)

PLANNING AND DEVELOPMENT ACT 2000 S182(B)

PLANNING AND DEVELOPMENT ACT 2000 S182(C)

PLANNING AND DEVELOPMENT ACT 2000 S182(D)

PLANNING AND DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S4

PLANNING AND DEVELOPMENT (AMDT) ACT 2010 S33

EEC DIR 85/337 ART 10(A)

EEC DIR 2003/35 ART 7

EEC DIR 2003/35 ART 4.1

EEC DIR 2003/35 ANNEX II

EEC DIR 2003/35 ART 4.2

PLANNING AND DEVELOPMENT ACT 2000 PART X

PLANNING AND DEVELOPMENT ACT 2000 S34

COMMISSION v IRELAND 2010 ENV LR 8

EEC DIR 2003/35 ART 10(A)

RSC O.99

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S3

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S4

DODD STATUTORY INTERPRETATION IN IRELAND 2008

BENNION ON STATUTORY INTERPRETATION 5ED 2008

HEALTH SERVICE EXECUTIVE (HSE) v BROOKSHORE LTD UNREP CHARLETON 19.5.2010 2010/21/5293 2010 IEHC 165

BROOM'S LEGAL MAXIMS 1ED 1845 P268

B (D) v MIN FOR HEALTH & CHILDREN 2003 3 IR 12

TAXES v KIERNAN 1981 IR 117

INTERPRETATION ACT 2005 S5

REPORT ON STATUTORY DRAFTING AND INTERPRETATION: PLAIN LANGUAGE & THE LAW LRC 61-2000

MULCAHY v MIN FOR THE MARINE & CIF TEORANTA UNREP HIGH COURT KEANE 4.11.1994 1995/4/1198

MIN FOR AGRICULTURE v INFORMATION CMSR 2000 1 309

PEOPLE (DPP) v QUILLIGAN 1986 1 IR 495

OFFENCES AGAINST THE STATE ACT 1939 S30

IARNRÓD ÉIREANN v HALLBROOKE 2001 1 IR 237

TRADE UNION ACT 1941

TRADE UNION ACT 1942

CORK CO COUNCIL v WHILLOCK 1993 1 IR 231

MCDONALD v BORD NA GCON 1965 1 IR 217

COLGAN v INDEPENDENT RADIO & TELEVISION COMMISSION 2000 2 IR 490

MAHER v AG 1973 IR 140

MARLEASING SA v LA COMERCIAL INTERNACIONAL DE ALIMENTACION SA 1990 ECR I-4135 1993 BCC 421 1992 1 CMLR 305

PFEIFFER & ORS v DEUTSCHES ROTES KREUZ KREISVERBAND WALDSHUT EV 2005 1 CMLR 44 2004 ECR I-8835

CRIMINAL PROCEEDINGS AGAINST PUPINO 2006 QB 83 2005 3 WLR 1102 2006 AER (EC) 142 2005 ECR I-5285 2005 2 CMLR 63

PLANNING AND DEVELOPMENT ACT 2000 S50(B)(1)(A)

PLANNING AND DEVELOPMENT ACT 2000 S50(B)(2)

PLANNING AND DEVELOPMENT ACT 2000 S50(B)(3)

PLANNING AND DEVELOPMENT ACT 2000 S50(B)(4)

PRACTICE AND PROCEDURE

Costs

Withdrawal of proceedings - Judicial review - Notice party - Rule that costs follow event - Whether notice party entitled to costs where proceedings withdrawn before trial date - Statutory interpretation - Whether rules on costs amended by statute - European Union law - Directive - Whether amendment to rule on costs applicable - Whether development complained of within category of development requiring environmental assessment - Whether obligation on State to provide for swift and cost effective judicial review of certain planning decision applicable - Whether words in statute should be given literal meaning - Whether technical statute - Whether statutory provision ambiguous - Intention of Oireachtas - Whether court could have regard to legislative history - Whether national measure arising from European law obligation should be construed to conform with legislative purpose - Whether national law should be interpreted in light of European law obligation - Expressio unius est exclusion alterius - Whether intention of Oireachtas to create special rule on costs for all judicial review of planning decisions - Whether discretion of court to award costs affected - Whether withdrawal of proceedings six weeks before trial constituted exceptional circumstances - Health Service Executive v Brookshore Ltd [2010] IEHC 165 (Unrep, Charleton J, 19/5/2010), DB v Minister for Health and Children [2003] 3 IR 12, Inspector of Taxes v Kiernan [1981] IR 117, Mulcahy v Minister for the Marine (Unrep, Keane J, 4/11/1994), Commission v Ireland (Case C-427/07) (Unrep, ECJ, 15/1/2009), Marleasing SA v La Comercial Internacional de Alimentacion (Case C-106/89) [1990] ECR I-4135, Pfeiffer v Deutches Rotes Kreuz (Joined cases C-397-403/01) [2004] ECR I-8835 and Criminal Proceedings Against Pupino (Case C-105/03) [2005] ECR I-5285 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 99 - Planning and Development Act 2000 (No 30), ss 50 & 50B - Planning and Development (Amendment) Act 2010 (No 33), s 33 - Interpretation Act 2005 (No 23), s 5Council Directive 85/337/EC on the assessment of the effects of certain public and private projects on the environment, art 10 - Council Directive 2003/35/EC providing for public participation in respect of drawing up certain plans and programmes and relating to the environment, art 4 & Annex I & II - Notice party awarded one third of costs (2011/434JR - Charleton J - 22/11/2011) [2011] IEHC 488

JC Savage Supermarket Ltd v An Bord Pleanála & Lidl Ireland GmbH (Notice party)

Facts The applicant had taken judicial review proceedings against An Bord Pleanála regarding the granting of planning permission for a supermarket. Ultimately the applicant withdrew the proceedings and one of the notice parties (Lidl) sought its costs pursuant to Order 99 rule 1 of the Rules of the Superior Courts. The applicants contended that this rule did not apply by virtue of a particular amendment (section 50B of the Act of 2000 (inserted by section 33 of the Planning and Development (Amendment) Act 2010)) of the Planning and Development Act, 2000 and also contended that even if costs were to be awarded this should only extend to the costs of the opposition papers. The applicants contended that s. 50B of the 2000 Act was now the costs provision for every planning judicial review.

Held by Charleton J in rejecting the arguments of the applicant. Nothing in the legislative history showed any intention by the Oireachtas to provide that all planning cases were to become the exception to the ordinary rules as to costs. Section 50B related to environmental assessment cases or projects involving integrated pollution prevention and control licence and that each party bear its own costs in relation to these categories. There was nothing in the obligations of Ireland under European law which provided for a wholesale change on the rules as to judicial discretion in costs in planning cases. As this litigation did not concern a project which required an environmental assessment, costs should follow the event unless there were exceptional circumstances.

Reporter: R.F.

1

Judgment of Mr Justice Charleton delivered on the 22nd day of November 2011

2

2 1.0 This application by a notice party for costs in a judicial review application that has been withdrawn hinges on s.50B of the Planning and Development Act 2000, as amended. In turn, how that is to be applied by this Court depends upon the principles of statutory interpretation.

Background
3

2 1.1 On the 11 th of April 2011, An Bord Pleanála granted planning permission on appeal to the notice party Lidl Ireland GmbH ("Lidl") for the development of a supermarket, of a kind with which we are all increasingly familiar, at Rathbeale Road, Swords, County Dublin. The applicants, who are a neighbour and the owner of a nearby existing supermarket, commenced judicial review proceedings claiming that this decision was beyond the powers of the Board. The focus of the judicial review was on the condition attached to the permission which required a revised car park layout and a revised landscaping scheme to be "agreed in writing with the planning authority prior to commencement of development." Section 34(5) of the Planning and Development Act 2000 as amended ("the Act of 2000"), allows a condition that points of detail relating to the grant of a planning permission be agreed between the planning authority and the person carrying out the development. It might be commented that the point at issue in the case was always going to be difficult to bring home.

4

3 1.2 Leave to commence proceedings was given by Peart J. on the 30 th of May; on the 11 th of July the case was admitted to the commercial list by order of Kelly J.; Lidl, as notice party, filed Opposition papers on the 14 th of July; the Board did likewise on the 8 th of August; all affidavits were to be completed by the first week in August; and on the 9 th of September the solicitors for the applicants wrote to the other parties indicating that they were withdrawing the case. A trial date had already been scheduled for the case and set for October 25 th. On receiving that letter, the Board as respondent did not seek costs or any other order apart from the striking out of the case. Lidl took a different view as notice party. Lidl seeks its costs pursuant to Order 99 rule 1 of the Rules of the Superior Courts which provides that costs should follow the event, in this case a dismissal of the proceedings by consent, absent a special reason to the contrary which must be stated in the court order. The applicants counter argue that this rule does not apply by virtue of a particular amendment of the Act of 2000; and they further claim that even if it does that costs should be limited to opposition papers and should not extend to the trial costs.

Amendment as to costs
5

2 2.0 The original form of s. 50 of the Act of 2000 has been subject to many amendments. As originally cast, it provided...

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