Sweetman v an Bord Pleanála & others (Costs and leave to appeal)

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 25 October 2007
• Neutral Citation: [2007] IEHC 361
• Court: High Court
• Date: 25 October 2007

[2007] IEHC 361

THE HIGH COURT

[No. 477 J.R./2006]

Sweetman v An Bord Pleanála & Ors

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN/

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

CLARE COUNTY COUNCIL

NOTICE PARTY

SWEETMAN v BORD PLEANALA, IRELAND, AG & CLARE COUNTY COUNCIL UNREP CLARKE 26.4.2007 2007 IEHC 153

EEC DIR 2003/53

PLANNING & DEVELOPMENT ACT 2000 S50

HARRINGTON v BORD PLEANALA UNREP MACKEN 11.7.2006 2006/28/5955 2006 IEHC 223

DUBSKY v IRELAND & ORS UNREP MACKEN 13.12.2005 2005 IEHC 442

DUNNE v MIN FOR ENVIRONMENT UNREP LAFFOY 18.3.2005

MCEVOY v MEATH COUNTY COUNCIL 2003 1 IR 208

SINNOTT v MENIHANE & MARTIN 2004 1 IR 121

Abstract:

Planning and environment - Leave to apply for judicial review - Substantial interest - Substantial grounds - Public participation - Whether review through judicial review failed to meet requirements of Directive - Amendment of pleadings - Whether application out of time - Planning and Development Act 2000, s. 50(4)(b) - Directive 2003/35/EC

The applicant sought to challenge the validity of the approval by An Bord Pleanala to a road scheme pursuant to s. 50(4)(b) of the Planning and Development Act 2000. The applicant further contended that Ireland had failed to comply with its obligations under Council Directive 2003/35/EC. The Directive required that a person who wished to challenge certain environmental decisions have access to a judicial review of such decisions at a cost that was not prohibitively expensive.

Held by Clarke J. in refusing to grant leave that the applicant had met the substantial interests test in the unusual circumstances of the case but failed to establish substantial grounds for contending that the decision ought to be overturned. There were not substantial grounds for the contention that there had been a failure to properly transpose the Directive and the Directive did not require that there be an immunity from exposure to the sort of costs which arise in judicial review proceedings.

Reporter: R.W.

1 Judgment of Mr. Justice Clarke delivered 25th October, 2007 .

Introduction

2 2 1.1 I have already delivered judgment on an application for leave to seek judicial review brought by the applicant ("Mr. Sweetman") in which he sought leave to challenge a decision made by the first named respondent ("An Bord Pleanála") concerning the approval of a road scheme which had been proposed by the notice party ("Clare Council"). As appears from that judgment, (2007) IEHC 153 ("the substantive judgment"), in addition to the issues arising under that direct challenge, Mr. Sweetman also raised questions concerning an alleged failure on the part of the State to comply with its obligations under Council Directive 2003 / 35 / E.C. ("the Directive").

3 3 1.2 Subsequent to the delivery to that judgment a number of issues were left over for further consideration. These are:-

4 a a. The appropriate order for costs to be made in the light of the result of that application;

5 b b. Whether a certificate should be given so as to permit Mr. Sweetman, under the provisions of Section 50 of the Planning and Development Act 2000 ("The 2000 Act"), to appeal to the Supreme Court; and/or

6 c c. Whether it is appropriate to make a reference, under article 234 of the E.U. Treaty, to the Court of Justice concerning the interpretation of the Directive and its application in Ireland.

7 4 1.3 However it was agreed by all parties that the question of the determination of the appropriate order as to costs, in accordance with domestic law, should be dealt with first. It is my understanding that Mr. Sweetman no longer wishes to seek a certificate which would enable an appeal to be brought to the Supreme Court in this matter. He does so while reserving his position to the effect that certain aspects of the matters which were the subject of the leave application (in substance those aspects which were concerned with the transposition of the Directive into Irish law) are matters not caught by Section 50 of the 2000 Act and not, therefore, matters in respect of which a certificate is required. It should also be noted that counsel on behalf of Ireland indicated that it was the State's position that all such matters were caught by Section 50 and that an appeal could not, therefore, be brought without a certificate. I came to the view that it was not appropriate for me to determine that matter. Mr. Sweetman has indicated that he does not wish to seek a certificate and that, further, he may proceed by way of an appeal, without a certificate, to the Supreme Court. If he does so then it will be a matter for the Supreme Court to determine whether the appeal is properly before that court and, at any hearing directed to that end, Mr. Sweetman and the State will be entitled to make whatever submissions they consider appropriate in relation to that issue.

8 5 1.4 It was also agreed between the parties that it would be appropriate to postpone the question of whether a reference should be made, until the question of costs had been determined in accordance with domestic law. Clearly the result of that determination in relation to costs has the potential to effect not only the judgment which the parties may exercise as to whether they would wish to seek a reference, but also, potentially, whether a reference might be necessary in order to determine at least some of the issues of European law which arise, insofar as some of the potential questions of EU Law which might, in theory, be the subject of a reference, involve questions concerning Mr. Sweetman's exposure to costs.

9 6 1.5 This judgment is, therefore, directed solely to the question of the appropriate order for costs which I should make in accordance with domestic law and I now turn to that question.

2. Public Interest Challenges - The Issues

10 2 2.1 Mr. Sweetman accepts, as he must, that he has, at least so far as this court is concerned, lost the proceedings and that an application of the prima facie rule, to the effect that costs follow the event, would inevitably lead to each of the respondents and Clare Council obtaining an order for costs against him.

11 3 2.2 However Mr. Sweetman argues that this case comes within the identified exception to the ordinary rule to the effect that costs follow the event, which arises in circumstances where the proceedings can legitimately be described as involving a "public interest challenge". The jurisprudence in this area has been considered by this court on a number of recent occasions. See for example Harrington v. An Bord Pleanála (Unreported, High Court, Macken J., 11th July 2006), Dubsky v. Ireland (Unreported, High Court, Macken J., 13th December 2005), Dunne v. The Minister for the Environment Heritage and Local Government and Others (Unreported, High Court, Laffoy J., 18th March 2005), McEvoy v. Meath County Council [2003] 1 I.R. 203 and Sinnott v. Martin [2004] 1 I.R. 121.

12 4 2.3 From those authorities it is clear that the exercise of the courts discretion to depart from the normal rule that costs follow the event is governed by two principles:-

13 1. That the plaintiff or applicant concerned was acting in the public interest in a matter which involved no private personal advantage; and

14 2. That the issues raised by the proceedings are of sufficient general public importance to warrant an order for costs being made in his favour.

15 5 2.4 As an additional point it should be noted that, in Harrington, Macken J. had to analyse the interaction between the requirement under the first of the above principles to the...