Save Roscam Peninsula CLG and Others -v- an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 08 April 2022
• Neutral Citation: [2022] IEHC 202
• Court: High Court
• Docket Number: [2021 No. 1110 JR]

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between

Save Roscam Peninsula CLG, Sophie Cacciaguidi-Fahy, Martin Fahy and Philip Harkin

Applicants

and

An Bord Pleanála, Galway City Council, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Alber Developments Limited

Notice Party

[2022] IEHC 202

[2021 No. 1110 JR]

THE HIGH COURT

JUDICIAL REVIEW

Protective costs – Judicial review – Strategic housing development – Applicant seeking costs protection – Whether the applicant was entitled to a costs protection under s. 50B of the Planning and Development Act 2000 or under the Environment (Miscellaneous Provisions) Act 2011

Facts: A motion regarding protective costs in the proceedings was situated in the context that the primary relief sought by the applicant, Save Roscam Peninsula CLG, was an order of certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986, as amended, and s. 50 of the Planning and Development Act 2000, as amended, quashing the decision of the first respondent, An Bord Pleanála, dated 28th October, 2021 (file reference 310797), authorising a proposed Strategic Housing Development involving demolition of existing silage concrete apron, construction of 102 residential units (35 apartments, 67 houses), crèche and associated site works at Rosshill, Galway.

Held by Humphreys J that he would refuse a declaration that the applicant was entitled to a costs protection under s. 50B of the 2000 Act or under the Environment (Miscellaneous Provisions) Act 2011. Humphreys J held that, by consent, he would order that insofar as the applicant’s costs motion was unsuccessful, the applicant would not be liable for costs of that motion. Humphreys J held that he would in principle make a reference to the CJEU of questions along the lines of the first four questions in Enniskerry v An Bord Pleanála [2022] IEHC 6 plus the following additional three questions: (5) whether art. 9(3) of the Aarhus Convention has the effect that if domestic legislation in a particular member state implements that provision in relation to specified matters by means of an express legislative rule that there be no order as to costs, leaving all other matters to be dealt with by judicial discretion which is subject to the EU law interpretative obligation that it is to be exercised in accordance with the Aarhus Convention, such discretion should be exercised in that member state along the same lines as the express legislative rule of no order as to costs; (6) whether the concept of “national law relating to the environment” in art. 9(3) of the Aarhus Convention includes national law relating to sustainable development, having regard inter alia to the preamble to the Aarhus Convention and to the Rio Declaration on Environment and Development approved by the United Nations Conference on Environment and Development, held at Rio de Janeiro in June 1992, referred to in the preamble to the Aarhus Convention; and (7) if the answer to the fifth question in general is no, whether art. 9(3) of the Aarhus Convention has the effect that if domestic legislation in a particular member state implements that provision in relation to the prevention of future contraventions of national law relating to the environment by means of an express legislative rule that there be no order as to costs, leaving the remedying of past contraventions of national law relating to the environment to be dealt with by judicial discretion which is subject to the EU law interpretative obligation that it is to be exercised in accordance with the Aarhus Convention, such discretion should be exercised in that member state in relation to the remedying of such past contraventions along the same lines as the express legislative rule of no order as to costs.

Humphreys J held that he would give the parties the Eco Advocacy CLG v An Bord Pleanála (No. 1) [2021] IEHC 265 directions. For the avoidance of doubt, Humphreys J held that he would direct that the order be perfected in case any parties wished to take any procedural steps elsewhere in relation to the aspects of the motion that were being decided. Humphreys J held that the matter would be listed for mention on 9th May, 2022 for review.

Declaration refused.

JUDGMENT of Humphreys J. delivered on Friday the 8th day of April, 2022

“Confusion now hath made his masterpiece!” ( Macbeth Act II sc. 3)

1 The board's quotation of Macduff at the hearing of the present motion regarding protective costs (heard simultaneously with a similar motion in Abbey Park and District Residents Association Baldoyle v. An Bord Pleanála [2021 No. 972 JR] which will be addressed in a separate judgment) is both bold and apt. It speaks to an uncertainty in the rules on costs in environmental cases that can partly be put down to the creativity of applicants and to a lack of clarity the legislative scheme but also partly to some inconsistencies in caselaw, despite considerable effort at all levels. While I can't pretend to be able to deliver an end to that confusion by means of the present judgment, I can suggest how that outcome might be arrived at – essentially by a combination of the Supreme Court being asked to deal with all domestic law costs issues together with all EU law costs issues that are acte clair, and (subject to any argument to the contrary) by the CJEU being asked to clarify any EU law costs issues that are not acte clair. We will return to that. To commence with the present motion regarding protective costs in these proceedings, it is situated in the context that the primary, but by no means the only, relief sought by the applicant is an order of certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986, as amended, and Section 50 of the Planning and Development Act 2000, as amended, quashing the decision of the first respondent, An Bord Pleanála (the board), dated 28th October, 2021 (file reference 310797), authorising a proposed Strategic Housing Development (SHD) involving demolition of existing silage concrete apron, construction of 102 residential units (35 apartments, 67 houses), crèche and associated site works at Rosshill, Galway.

Relevant parties

2 The case has been adjourned as against the State. The notice party developer is not getting involved in the costs issue. Galway City Council however did make submissions on costs.

Grounds of challenge

3 A dispute arises in relation to the applicability of costs protection for grounds 1 to 7 which are as follows:

• (i). “The Decision is invalid because the Board had no jurisdiction to grant permission in respect of a development that materially contravened the development plan in relation to zoning, and it infringed S9(6)(b) (2016 Act) and S10(2)(a) (2000 Act) in purporting to so do.

• (ii). The Decision is invalid because the Board granted permission in material contravention of the Development Plan for the purposes of S9(6) (2016 Act) without first directing itself correctly as to the meaning of that Plan as required by S9(2).

• (iii). The Decision is invalid because the Board failed to have any or any proper regard to relevant guidelines and policy as required by S9(2) (2016 Act) and S28 (2000 Act) before deciding to grant permission for a material contravention of the Development Plan pursuant to S9(6) (2016 Act) and S37(2) (2000 Act).

• (iv). The Decision is invalid because the Board failed to have any or any proper regard to the National Planning Framework as required by S9(2) (2016 Act) and S143 (2000 Act) before deciding to grant permission.

• (v). The Decision is invalid because it is not open to the Board to grant permission in material contravention of the Development Plan for the purposes of S9(6) (2016 Act) and S37(2)(b)(iii) (2000 Act) where the Development Plan is already compliant with relevant Guidelines and Government Policy.

• (vi). Even were the Board to be correct in the above, it would still be in error in finding that the Height Guidelines warrant a grant of permission in circumstances where the predominant part of the Proposed Development would involve a 2-storey, cul-de-sac dominated approach contrary to paragraph 3.7 of those Guidelines.

• (vii). The Decision is invalid because the Board's Inspector failed to report adequately on the submissions made, or to make recommendations in relation to them, contrary to S146 (2000 Act) as applied by S17 (2016 Act).”

4 Ground 8 in relation to roadworks has been dropped by the applicants.

5 The first sentence of ground 9 is as follows: “[t]he Application is invalid because the Developer has no interest in a part of the site, the lands comprising the L5037 Old Dublin Road, and the Council in whose charge that road is has no power to authorise the Developer carry out works on it, or to apply for permission to do so.” The board disputes the application of costs rules to that sentence.

6 The second sentence is a case against the council which is as follows: “[t]he purported consent issued by Council to the Developer to apply for permission in respect of road construction works on or beneath that road is ultra vires the Council and invalid” and the council says there is no costs protection in relation to that claim.

7 Ground 10 in relation to a lack of interest in certain lands has been dropped.

8 Ground 11 provides as follows: “[t]he Decision is invalid because the Board failed to carry out an EIA in accordance with the requirements of S171A and 172 (2000 Act) as applied by S20 (2016 Act), and failed to comply with A8a and A1(2)(g), 2(1), 3(1) and 5 (EIA Directive), or with S9(1) and 10(3) (2016 Act), in relation to effects on groundwater, protected sites, bats, birds, significance, alternatives, and monitoring.” In relation to that ground, the board concedes that the not-prohibitively-expensive-costs rule under the Aarhus Convention applies...