Thomas Reid v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 02 November 2021
• Neutral Citation: [2021] IEHC 678
• Docket Number: [2020 No. 54 JR]
• Court: High Court

In the Matter of Section 50 of the Planning and Development Act 2000 as Amended

Between

Thomas Reid

Applicant

and

An Bord Pleanála

Respondent

and

Intel Ireland Limited

Notice Party

[2021] IEHC 678

[2020 No. 54 JR]

THE HIGH COURT

JUDICIAL REVIEW

(NO. 4)

JUDGMENT of Humphreys J. delivered on Tuesday the 2nd day of November, 2021

1 In Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, ( [2021] 4 JIC 1204 Unreported, High Court, 12th April, 2021), I excluded certain evidence prior to the trial on the application of the developer here, Intel. The applicant subsequently applied to re-open that order, but I didn't see a basis to do so.

2 In Reid v. An Bord Pleanála (No. 2) [2021] IEHC 362, ( [2021] 5 JIC 2705 Unreported, High Court, 27th May, 2021), I dismissed the substantive proceedings and made no order as to the costs of the exclusion of evidence motion.

3 In Reid v. An Bord Pleanála (No. 3) [2021] IEHC 593, ( [2021] 10 JIC 0606 Unreported, High Court, 6th October, 2021), I refused leave to appeal and made no order as to costs overall.

4 The applicant then contended that I hadn't dealt with one argument regarding costs against Intel and (again) applied to re-open a judgment in this case, although in this instance, I did agree to re-open the costs hearing, and I am now addressing his renewed submissions on costs.

Procedural history

5 The planning application giving rise to the present proceedings was lodged on 1st February, 2019.

6 On 17th May, 2019, Kildare County Council granted permission subject to 34 conditions.

7 There was then a limited appeal to the board by Intel and a third party appeal by the applicant.

8 On 8th October, 2019, the inspector recommended a grant of permission on 17 conditions.

9 On 21st November, 2019, the board granted permission.

10 A statement of grounds seeking certiorari of the permission was filed on 23rd January, 2020 grounded on an affidavit of the applicant. That included a tab 19, exhibiting a UNECE document: ‘ Review of the 1999 Gothenburg Protocol’, Executive Body for the Convention on Long-range Transboundary Air Pollution (2007), ECE/EB.AIR/2007/13, ECE/EB.AIR/WG.1/2007/14/Rev.1.

11 Meenan J. granted leave by order perfected on 12th February, 2020.

12 A statement of opposition of the board was filed on 5th August, 2020 and by Intel on 13th August, 2020.

13 Legal submissions were filed by the applicant on 9th November, 2020 and by the respondent and notice party on 30th November, 2020.

14 On 21st December, 2020, Intel issued a motion seeking to exclude a number of items of evidence sought to be adduced by the applicant including the UNECE document referred to above, which was included at para. 6 of the schedule of materials objected to attached to the notice of motion. That was grounded on an affidavit of the Solicitor acting in the matter for the notice party. At para. 12 she made the point that the applicant was seeking to adduce material not before the board. At para. 17 she objected to the analysis of the 3μg NH ₃/m ³ emissions limit level that was introduced by the applicant's expert, Ms. Maria Cullen, on the basis that this objection was not before the board. And at para. 32 she objects to the applicant's attempt to refer to the UNECE document on the basis that this “related to the evidence which Ms. Cullen sought to introduce in her first affidavit”.

15 The exclusion motion was heard on 10th February, 2021 and judgment on that motion (the No. 1 judgment) was given on 12th April, 2021. I said at para. 46 that the UNECE documentation could be exhibited in the proceedings because it was referred to in the developer's Natura Impact Statement and was a form of clarification as to what the materials before the decision-maker in fact meant.

16 The substantive hearing then followed in the week of 11th May, 2021 with the first bloc of time on the hearing date being devoted to the costs of the exclusion motion.

17 The substantive judgment (the No. 2 judgment) was delivered shortly thereafter on 27th May, 2021. In that judgment (at paras. 8 – 10), I dealt with the costs of the exclusion motion and decided to make no order as to costs.

18 A leave to appeal hearing took place on 27th July, 2021 and a costs hearing on 29th July, 2021. The long vacation then intervened and I gave a judgment dealing with both issues on 6th October, 2021 (the No. 3 judgment).

19 On 8th October, 2021, the applicant notified the court that he intended to seek to re-open the costs order, and I agreed to that. The reopened hearing took place on 21st October, 2021.

Whether the notice party's motion warrants an adverse costs order now

20 The applicant says that Intel's position in seeking to exclude the UNECE document was inappropriate, and that seemed to involve two broad headings, for seeking its exclusion at all and also for the way they went about it.

21 As regards seeking the exclusion of the document at all, the...