SC SYM Fotovoltaic Energy Srl v Mayo County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 20 February 2018
• Neutral Citation: [2018] IEHC 81
• Date: 20 February 2018
• Court: High Court
• Docket Number: [2017 No. 745 J.R.]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

SC SYM FOTOVOLTAIC ENERGY SRL

APPLICANT

AND

MAYO COUNTY COUNCIL

RESPONDENT

AND

AEOLUS WIND FARMS LIMITED

AND

ESB NETWORKS LIMITED

NOTICE PARTIES

[2018] IEHC 81

Barniville J.

[2017 No. 745 J.R.]

[2017 No. 197 COM]

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Environment, Construction & Planning – Planning & Development – Costs – No order as to costs – S. 50B of the Planning and Development Act 2000 – Environment Impact Assessment (EIA) Directive – Adjournment

Facts: The dispute between the parties pertained to the award of costs. The applicant contended that the Court should have made no order as to the costs because s. 50B of the Planning and Development Act 2000 applied to an application for extension of time filed by the applicant. The Court refused the applicant's application for the extension of time for seeking judicial review of the decision of the respondent for giving planning permission to the notice parties on the ground that they were not required to perform an Environment Impact Assessment (‘EIA’). Another issue for determination between the parties was relating to the requirement to obtain a certificate to appeal. The first notice party argued that s.50B had not applied to the application to extend time to challenge the s.5 declaration.

Mr. Justice David Barniville adjourned the matter. The Court held that the issues in relation to the award of costs were similar to the issues raised in the case, North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála (No. 1) [2016] IEHC 300, which had been referred to the Court of Justice of the European Union (‘CJEU’). The Court, thus, directed that it would be appropriate to wait until the judgment of the CJEU was delivered on those issues. The Court, however, observed that it was proposing to make no order as to the costs under s. 50b(2) but allowed the first notice party to recover two-third of its costs subject to the outcome of the judgment of the CJEU. The Court opined that s.50B had brought within its scope the applications for an extension of time where it sought to challenge a decision, which was subject to public participation. The Court held that the term ‘proceedings,’ as used in s. 50B(1) and s.50b(1) (A) encompassed ‘any step in a legal action’ and thus, an application for an extension of time, too, came within its ambit. The Court noted that the applicant need not require a certificate under s. 50A(7) in order to appeal the refusal decision to apply for leave to seek judicial review under s. 50(8) as the Court had not decided the application for refusal on merits.

Judgment of Mr. Justice David Barniville delivered on the 20th day of February, 2018

Introduction

1 I gave judgment in this case on 24th January, 2018. In my judgment I refused the applicant's application for an extension of time to seek reliefs by way of judicial review in respect of a decision made by the respondent, Mayo County Council (the ‘Council’) on 6th June, 2017 pursuant to s. 5 of the Planning and Development Act 2000 (as amended) (the ‘2000 Act (as amended)’).

2 Having been adjourned from time to time following the delivery of my judgment, I was informed on 7th February, 2018 that the applicant wished to appeal. I was informed that two issues might require consideration in that context. The first was whether a certificate pursuant to s. 50A(7) of the 2000 Act (as amended) was required in order to enable the applicant to appeal and, if so, whether such a certificate should be granted (the ‘certificate issue’). The second was whether the provisions of s. 50B of the 2000 Act (as amended) apply to the circumstances of this case such that there should be no order as to costs (the ‘s. 50B issue’).

3 Those issues were listed for hearing before me on 9th February, 2018. With impressive industry the applicant and the first named notice party, Aeolus Wind Farms Ltd. (‘Aeolus’), exchanged written submissions in the short period between 7th February, 2018 and the date of the hearing. It was clear from those submissions that the parties (including the Council) were all agreed that it was not necessary for the applicant to obtain a certificate under s. 50A(7) in order to appeal. This agreement was reached on the basis of a decision of Haughton J. in McDonnell v. An Bord Pleanála [2017] IEHC 366 (‘ McDonnell’).

4 In the circumstances, it was confirmed at the outset of the hearing that, while it was ultimately a matter for the Court, the parties were all agreed that a certificate was not required. The terms of the order to be made were also agreed, save for the issue of costs as between the applicant and Aeolus which involved a determination of the s. 50B issue. The applicant and Aeolus were not in agreement in relation to the application of s. 50B to the circumstances of this case. The applicant's position was that s. 50B applied and that, in those circumstances, there should be no order as to costs. The position of Aeolus was that s. 50B did not apply and that an order for costs should be made in its favour as against the applicant in accordance with the normal rule in O. 99, r. 1 of the Rules of the Superior Courts (‘RSC’) that costs should follow the event. The Council indicated that it would not be seeking its costs against the applicant and did not wish to participate in the hearing in relation to the s. 50B issue. It sought to be excused from participation in that aspect of the hearing. I acceded to that application.

5 In this judgment, I first consider the certificate issue. I then consider the s. 50B issue, on which most of the submissions of the parties were directed.

The Certificate Issue

6 As noted above, the parties are all agreed that the applicant does not require a certificate in order to appeal my judgment refusing the applicant's application for an extension of time pursuant to s. 50(8) of the 2000 Act (as amended). Ultimately, however, the parties accept that it is a matter for the Court to determine.

7 Section 50A(7) provides as follows:-

‘(7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the [Court of Appeal] in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal].’

8 The issue as to whether a certification under s. 50A(7) is required in order to appeal a decision refusing to extend the period within which an application for leave to seek judicial review may be made was recently considered by the High Court (Haughton J.) in McDonnell. In that case the Court found that the application for leave to seek judicial review was not made within the required period and then went on to consider whether an extension of time should be granted. In considering whether to grant an extension of time in that case, the Court considered the affidavit and oral evidence before the Court as well as the pleadings and written and oral submissions. The Court refused to extend the time having considered the merits of the case and concluded that the case was not arguable and was bound to fail for a number of reasons. On that basis, the Court refused the application to extend the time and dismissed the proceedings. There was then a dispute as to whether the applicant required a certificate under s. 50A(7) to appeal. Haughton J. referred to the decision of the Supreme Court in A.B. v. Minister for Justice, Equality & Law Reform [2002] 1 I.R. 296 (‘ A.B.’), in which the Supreme Court held, in the context of a statutory provision very similar to s. 50A(7), namely, s. 5(3)(a) of the Illegal Immigrants Trafficking Act 2000, that no certificate was required in order to appeal a decision refusing to extend time to bring proceedings. The Supreme Court noted that the issues involved in an application for an extension of time might be substantially different from those involved in the application for leave itself and that under the provisions of the statutory provision at issue there was no ouster of the right of appeal from a refusal to extend time. The Supreme Court held that the refusal by the High Court to extend time was not a ‘ determination’ of an application for leave within the meaning of the relevant statutory provision. The decision in A.B. was followed and applied by the Supreme Court in A. v. Minister for Justice & Equality [2013] IESC 18 (‘ A’).

9 Haughton J. had considered the merits of the case in adjudicating upon the application to extend time. He refused to extend time not based on any time considerations ‘ but did so solely on the basis that on fuller consideration of the relevant grounds with the benefit of full pleadings, replying affidavits and submissions, those grounds were not arguable’ (para. 15). He stated that had the grounds been arguable he would have been disposed to extend time. In those circumstances, Haughton J. held that his decision to refuse to extend time based on a consideration of the merits of the applicant's case was a ‘ determination’ of the judicial review and that a certificate was required. His earlier ruling that the application was made out of time was not based on a consideration of the merits of the application. It did not require a certificate.

10 In the present case, in considering the applicant's application to extend time, I did not consider the merits of the applicant's challenge to the s. 5 declaration. I reached my conclusion on the applicant's application to extend time based on the statutory test in s. 50(8) of the 2000 Act (as amended). I was not satisfied that...