Shillelagh Quarries Ltd v an Bord Pleanála (No 2)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hedigan
• Judgment Date: 31 July 2012
• Neutral Citation: [2012] IEHC 402
• Date: 31 July 2012

Shillelagh Quarries Ltd v Bord Pleanala & Anor

JUDICIAL REVIEW

BETWEEN

SHILLELAGH QUARRIES LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

SOUTH DUBLIN COUNTY COUNCIL

AND

DUBLIN MOUNTAIN CONSERVATION AND ENVIRONMENTAL GROUP

NOTICE PARTIES

[2012] IEHC 402

[No. 154 J.R./2011]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Costs

Refusal of leave to seek judicial review - Challenge to refusal of permission - Quarry - Application for costs - Statutory provisions - Whether costs should follow event - Whether proceedings came within class of proceedings to which default rule that costs follow event did not apply - Project requiring environmental impact assessment - Whether notice party should be awarded costs - Whether case of exceptional public importance - Whether special circumstances existed - JC Savage Supermarket Ltd v An Bord Pleanála [2011] IEHC 488, (Unrep, Charleton J, 22/11/2011) considered - Planning and Development Act 2000 (No 30), s 50B - Order that each party bear own costs (2011/154JR - Hedigan J - 31/7/2012) [2012] IEHC 402

Shillelagh Quarries Limited v An Bord Pleanála

The applicant challenged a decision of the respondent by seeking leave for judicial review following a refusal planning permission for the development of a quarry. This was initially granted by South Dublin County Council but then overturned when appealed by the Dublin Mountain Conservation and Environmental Group to the respondent. The respondent stated that a development of the kind intended required an environmental impact assessment in line with European Union requirements. Leave to seek judicial review was refused.

The respondent subsequently applied for their costs. S 50B of the Planning and Development Act 2000 had been drafted to ensure that in a certain class of planning cases, no order for costs was to be made to ensure the general public were not discouraged from challenging decisions they were affected by. The respondent submitted that the applicant's case was not within that provision's remit.

Relying on earlier case law, it was held by Hedigan J that by the respondent's own admission in their final decision, the applicant's project was one which required an environmental impact assessment and therefore was within the s 50 B class. As such, there should be no order as to costs. J C Savage Supermarkets v An Bord Pleanála [2011] IEHC 488 applied.

Each party to bear their own costs.

PLANNING & DEVELOPMENT ACT 2000 S50A(2)(B)

EEC DIR 1985/337

PLANNING & DEVELOPMENT ACT 2000 S50B

PLANNING & DEVELOPMENT ACT 2010 S33

JC SAVAGE SUPERMARKETS v BORD PLEANALA UNREP CHARLETON 22.11.2011 2011/28/ 7548 2011 IEHC 488

PLANNING & DEVELOPMENT ACT 2000 S50B(2)

PLANNING & DEVELOPMENT ACT 2000 S50B(3)(B)

PLANNING & DEVELOPMENT ACT 2000 S50B(3)(C)

PLANNING & DEVELOPMENT ACT 2000 S4

1 Judgment of Mr. Justice Hedigan delivered on 31st day of July, 2012.

2 1. In the judgment delivered on the 27 ^th June, 2012 following a telescoped hearing pursuant to s. 50A(2)(b) of the Planning and Development Act 2000, as amended, this Court refused leave to seek judicial review of a decision of An Bord Pleanála for the reasons set out in that judgment.

3 2. The application to An Bord Pleanála involved a quarry which was registered by South Dublin County Council (SDCC) and in respect of which it was considering requiring the making of an application for planning permission and the preparation of an environmental impact study. Submissions concerning the operation and history of the quarry were made by the second notice party. SDCC did decide to grant planning permission and the second notice party appealed this to An Bord Pleanála. An Bord Pleanála refused permission and that was the decision challenged herein. As part of the reasons for refusing permission, An Bord Pleanála described the quarry as "a proposed development of a class which requires an environmental impact assessment in accordance with EU Directive 85/337/EEC as amended".

4 3. Counsel for An Bord Pleanála has applied for its costs and has opened the provisions of s. 50B as inserted by s. 33 of the Planning and Development Act 2010. This amendment was made in order to meet Ireland's obligations under EU law as determined by the European Court of Justice on the 16 ^th July, 2009. Counsel has very helpfully opened the judgment of my colleague, Charleton J., in the case of J.C. Savage Supermarkets v. An Bord Pleanála (delivered on the 22 ^nd November, 2011) where he dealt with the same issue of costs that arises here. The obligation is that, in certain planning cases, in order to ensure access to Court to challenge decisions, the general public must have a cost effective way of doing so. Such review should be fair, equitable, timely and not prohibitively expensive. Section 50B attempts to do this by providing that in such cases, the default order that costs follow the...