St. Margaret's Concerned Residents v Dublin Airport Authority Plc

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 14 February 2018
• Neutral Citation: [2018] IEHC 66
• Docket Number: 2017 No. 86 MCA
• Court: High Court
• Date: 14 February 2018

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

Between:

ST MARGARET'S CONCERNED RESIDENTS, HELEN MERRIMAN,

MICHAEL REDMOND, ADRIENNE MCDONNELL, PETER COLGAN, ELIZABETH MCDONNELL, TREVOR REDMOND, PATRICIA DEIGHEN, MARGARET THOMAS, NOEL REILLY, HELEN GILLIGAN, JAMES SCULLY, FERGUS RICE, NOEL DEEGAN, VALERIAN SALAGEAN, SIDNEY RYAN, GREG FARRELL, SHEELAGH MORRIS, JIMMY O'CONNELL, SILE HAND, DECLAN MC DONNELL, ELIZABETH ROONEY

AND

DESMOND O'CONNOR

Applicants

AND

DUBLIN AIRPORT AUTHORITY PLC

Respondent

[2018] IEHC 66

2017 No. 86 MCA

THE HIGH COURT

Environment, Transport & Planning – Practice & Procedure – Costs – S. 160 of the Planning and Development Act 2000, as amended – S. 3 of the Environment (Miscellaneous Provisions) Act 2011 – Exceptional public importance – Special circumstances

Facts: The applicants filed an application for costs. The applicants contended that infrastructural development was commenced without previous satisfaction of a planning condition that was intended to protect the community and the environment, so the matter was of exceptional public importance. The applicants also averred that the proceedings involved a novel and new point of law concerning the breach of a planning condition that related to environmental protection.

Mr. Justice Max Barrett applied the default rule as to the costs under s.3 (1) of the Environment (Miscellaneous Provisions) Act 2011 and ordered that each party would bear its own costs. The Court held that the issues involved in the present case were of no public importance.

JUDGMENT of Mr Justice Max Barrett delivered on 14th February, 2018.

I Introduction

1 This is an application for costs following on the delivery by the court of its judgment (the "principal judgment") in the above-titled proceedings on 21st November last. It is contended by the applicants and (rightly) accepted by Dublin Airport Authority that, by virtue of s.4(1) and (4)(n) of the Environment (Miscellaneous Provisions) Act 2011, [Section 4(1) provides that ' Section 3 [of the Act of 2011] applies to civil proceedings...instituted by a person...(b) in respect of the contravention of, or the failure to comply with...[a] licence, permit, permission, lease or consent [specified in section 4(4)]. Section 4(4) provides that 'For the purposes of subsection (1), this section applies to...(n) a permission or approval granted pursuant to the Planning and Development Act 2000'.] the within proceedings come within the ambit of s.3 of that Act. As Dublin Airport Authority accepts matters to be so, that seems to the court to yield the consequence that there is, in effect, that agreement between the parties which is contemplated by s.7(3) of the Act of 2011, [Section 7(3) provides that 'Without prejudice to subsection (1), the parties to proceedings referred to in subsection (1), may, at any time, agree that section 3 applies to these proceedings.'] thus obviating the need for the court to make a determination under s.7(1) of the Act of 2011 that s.3 applies. [Section 7(1) provides that ' A party to proceedings to which section 3 applies may at any time before, or during the course of, the proceedings apply to the court for a determination that section 3 applies to those proceedings']

2 The fact that s.3 of the Act of 2011 is applicable to the within proceedings has the result that the applicable default rule as to costs is not that "costs follow the event" but rather that, to quote from s.3(1) ' each party...shall bear its own costs'. Thus the applicants, who failed in their original application, start out from a legally privileged position: despite having instituted failed proceedings that ran for a couple of days in the High Court, the starting-point under the Act of 2011 is that they need only bear their own costs, a generous statutory starting-point (and, as will be seen from the consideration hereafter of s.3(3) of the Act of 2011, it is but a starting-point, though it will likely often also be the end-point in most applications as to costs that come within the scope of s.3) which is properly reflective of the position presenting at law under (i) the Aarhus Convention, i.e. the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25th June, 1998 (as considered, inter alia, by Clarke J., as he then was, in Conway v. Ireland and ors [2017] IESC 13, paras. 1 and 2.4), and (ii) the judgments of the High Court in, inter alia, (a) O'Mahony Developments Limited v. An Bord Pleanála [2015] IEHC 757, paras. 1 and 2, and (b) Merriman and ors. v. Fingal County Council and ors [2017] IEHC 695, paras. 241-265).

II Section 3(3) of the Act of 2011

3 It is possible under s.3(3) of the Act of 2011, for a court to award costs against a party in proceedings to which s.3 applies if certain factors present, viz:

'(a) where the court considers that a claim or counter-claim by the party is frivolous or vexatious,

(b) by reason of the manner in which the party has conducted the proceedings, or

(c) where the party is in contempt of court.'

4 As it happens, Dublin Airport Authority is satisfied that each side should bear its own costs and has not sought any award of costs against the applicants – though, in truth, this may not be so much of a "give"; certainly the court struggles offhand to see how the Authority would have established any of the above-quoted factors to present in the circumstances of the within proceedings.

III Section 3(4) of the Act of 2011

5 Section 3(4) of the Act of 2011 provides as follows:

'Subsection 1 [so s.3(1)] does not affect the court's entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so'.

6 Section 3(4) was the subject of the following commentary by the court in its judgment in An Taisce v. McTigue Quarries Ltd [2016] IEHC 701, paras.6–9 (inclusive) under the heading ' Effect of Section 3(4)':

' 6. In essence, what s.3 does is to displace the normal costs rule in litigation. As Hogan J. observed in Kimpton Vale Developments Limited v. An Bord Pleanála [2013] IEHC 442, para. 23, s.3 introduces a new default rule whereby, absent special circumstances, the normal order as to costs will be one of no order as to costs. Where special circumstances are present, and the matter arising is one of exceptional public importance, s.3(4) comes into play, pursuant to which the court:

(i) is entitled (not obliged) to award costs to a party, where

(ii) the matter presenting is one of exceptional public importance, and

(iii) in the special circumstances of the case it is in the interests of justice for the court to award those costs.

[It is possible to read s.3(4) disjunctively, with (ii) and (iii) being alternate grounds; however, the court's sense, and the meaning urged on the court by all the parties in the within application, is that the word 'and' in s.3(4) falls to be read as having a conjunctive effect.]

7. The effect of s.3(4) is that the court has two questions to answer in the within application:

(1) was the matter presenting in this case one of exceptional public importance?

(2) are there special circumstances which render it in the interests of justice that costs should be awarded to a particular party?

8. In passing, the court notes that it does not consider that the factors relevant to determining whether the matter presenting is one of exceptional public importance cannot also inform the court's determination of whether the requisite special circumstances are present, and vice versa. Moreover, as a general rule and without seeking to constrain the freedom enjoyed by the court in this regard, it would seem safe to assert that the interests of justice seem likely generally to incline the court towards exercising the entitlement acknowledged by s.3(4) to arise where a matter of exceptional public importance has arisen to be addressed and the requisite special circumstances present.

9. Notably, s.3(4) does not distinguish between parties, in terms of whether they are public or private persons. Thus it allows for the possibility that the court would award costs in favour of a party, and so against another party, whether a public or private person, provided the matter that presented in particular proceedings was of exceptional public importance – and there is no reason why such a matter could not present between entirely private parties – and in the special circumstances of the case it is in the interests of justice that such an award be made.'

IV Some Additional Points Arising

(i) Exclusion of Other Grounds for Reversal of Applicable Default Rule as to Costs?

7 Section 3(4) states simply and solely that ' Subsection 1 [so...