Village Residents Association Ltd v an Bord Pleanála (No 2)

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 23 March 2000
• Neutral Citation: [2000] IEHC 34
• Court: High Court
• Docket Number: [1999 No. 238 J.R.]
• Date: 23 March 2000

VILLAGE RESIDENTS ASSOCIATION LTD v. BORD PLEANALA & MCDONALDS RESTAURANTS OF IRELAND LTD

JUDICAL REVIEW

BETWEEN

VILLAGE RESIDENTS ASSOCIATION LIMITED

APPLICANT

AND

AN BORD PLEANALA AND McDONALD'S RESTAURANTS OF IRELAND LIMITED

RESPONDENTS

AND

KILKENNY CORPORATION

NOTICE PARTY

[2000] IEHC 34

No. 238 J.R/1999

THE HIGH COURT

Synopsis

Practice and Procedure

Practice and procedure; jurisdiction; security for costs; second-named respondent seeking order pursuant to s.390, Companies Act, 1963 that applicant should provide security for second-named respondent's costs in opposing the proceedings; applicant seeking inter alia both pre-emptive costs order against any other party to the proceedings as may arise or for the reserved costs of any such party as had arisen to date and order directing that it shall not have to furnish security for costs of any other party to the proceedings; whether court has jurisdiction to make a pre-emptive costs order; whether possibility of making such orders should be confined to cases involving public interest challenges; whether applicant should be required to give second-named respondent security for costs; whether applicant has established special circumstances such that court should decline to make an order for security for costs in favour of second-named respondent; whether an order should be made in relation to the reserved costs of the previous stage of the proceedings; section 14, Courts (Supplemental Provisions) Act, 1961; O. 99 r. 1(1) and (3)–(4), r. 5, Rules of the Superior Courts 1986.

Held: Order for security on application of the second-named respondent. Applicant's application dismissed.

Village Residents Association Limited v. An Bord Pleanála - High Court: Laffoy J. - 23/03/00 - [2000] 4 IR 321 - [2001] 2 ILRM 22

The second named respondent (McDonalds) had been granted planning permission on appeal in respect of an intended development. The applicant had been formed by objectors who sought judicial review of the decision to grant permission. McDonalds sought an order for security of costs. The applicant opposed such an order and were themselves seeking a pre-emptive costs order that would prevent the applicant being made liable for costs of any other parties that may arise in the proceedings. Laffoy J held that the applicant had not established any basis for an entitlement to a pre-emptive costs order and held that McDonalds were in fact entitled to an order of costs against the applicant and stayed all further proceedings pending the furnishing of security.

Citations:

COMPANIES ACTS 1963–1990

RSC O.84 r20(7)

VILLAGE RESIDENTS ASSOCIATION LTD V BORD PLEANALA UNREP GEOGHEGAN 5.11.1999

LANCEFORT LTD V BORD PLEANALA 1999 2 IR 270, 1998 2 ILRM 401

R V LORD CHANCELLOR EX-PARTE CPAG 1998 2 AER 755

SUPREME COURT ACT 1981 S51 (UK)

RSC O.62 r3(3) (UK)

MCDONALD V HORN 1995 1 AER 961

RSC O.99 r5

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S14

RSC 1905 O.65 r1

RSC O.99 r1(1)

RSC O.99 r1(3)

RSC O.99 r1(4)

COMPANIES ACT 1963 S390

FALLON V BORD PLEANALA 1992 2 IR 380

FITZGERALD, STATE V BORD PLEANALA 1985 ILRM 117

LISMORE HOMES LTD V BANK OF IRELAND FINANCE LTD 1997 1 IR 501

COMHLUCHT PAIPEAR RIOMHAIREACHTHA TEO V UDARAS NA GAELTACHTA 1990 1 IR 320

BEAUROSS LTD V KENNEDY UNREP MORRIS 18.10.1995 1995/15/3854

OAKES V LYNCH UNREP SUPREME 27.11.1953

SEE CO V PUBLIC LIGHTING SERVICES 1987 ILRM 266

RSC O.70 r75

1 Judgment of Ms. Justice Laffoy delivered on the 23rd day of March, 2000.

FACTUAL BACKGROUND

2 On 30th April, 1999 the first named Respondent (the Board), on an appeal by the second named Respondent (McDonalds) against a decision of the Notice Party to refuse permission for development comprising a change of use of part of the ground floor of existing premises from a hotel facility to a restaurant with drive-through facility for the sale of hot food for consumption off the premises and other alterations and associated site works at premises adjoining the Village Inn Upper Patrick Street, Kilkenny, decided to grant permission for the said development subject to conditions.

3 The Applicant was incorporated on 24th June, 1999 as a company limited by guarantee not having a share capital under the Companies Acts 1963– 1990with the primary object of representing interested members of the community of The Village in the City of Kilkenny in the preservation and protection, improvement of the amenities and environment in the locality and taking such legal or other actions as might be considered necessary or desirable to support such interests. The Applicant has approximately 150 members, some of whom are residents of The Village and others of whom are teachers in or parents of children attending two schools in the locality and concerned citizens.

4 These proceedings were initiated by Notice of Motion dated 25th June, 1999 wherein the Applicant sought leave to apply by way of application for judicial review for various reliefs, including an order of Certiorari of the decision of the Board made on 30th April, 1999. The application for leave was heard in this Court by Geoghegan J. over three days in October 1999. During the hearing McDonalds challenged the locus standi of the Applicant. By order dated 11th November, 1999 the Applicant was granted leave to apply for an order of Certiorari quashing the decision of the Board of 30th April, 1999 on one only of the ten grounds advanced by the Applicant, that is to say, that the Board did not give adequate reasons for granting the permission in that the reasons as given did not provide an explanation or at least an adequate explanation as to why the Board made a decision which it was alleged constituted a material contravention of the development plan.

5 On 12th November, 1999 McDonalds" solicitors wrote to the Applicant's solicitors seeking an undertaking that the Applicant would furnish to McDonalds security for costs. No such undertaking was forthcoming.

6 The freehold owner of the premises at the Village Inn the subject of the decision of the 30th April, 1999, Denis Treacy, is not a party to these proceedings. The Applicant has not at any time sought a direction from the Court that the grant of leave should operate as a stay of the decision of 30th April, 1999 under Order 84, Rule 20(7) of the Rules of the Superior Courts, 1986, (the 1986 Rules) nor has the Applicant sought injunctive relief to restrain the implementation of the development to which that decision relates. On 23rd February, 2000 Mr. Treacy notified the Applicant and McDonalds that he was proceeding to develop his property in accordance with the decision of 30th April, 1999. That work commenced on 6th March, 2000.

THE APPLICATIONS

7 There are two applications before the Court.

8 The first is the application of McDonalds, on foot of a Notice of Motion dated 29th November, 1999, seeking an order pursuant to Section 390 of the Companies Act, 1963that the Applicant should provide security for McDonald's costs in opposing these proceedings.

9 The second is the Applicant's application on foot of a Notice of Motion dated 1st February, 2000 seeking orders in the following terms:-

10 (1) What has been referred to by Counsel as a pre-emptive costs order, that is to say, an order directing that the Applicant shall not be liable for the costs of any other party to these proceedings as may arise, or for the reserved costs of any such party as have arisen in the proceedings to date;

11 (2) An order directing that the Applicant shall not have to furnish security for costs of any other party to the proceedings; and

12 (3) An order granting such costs as have arisen in the proceedings to date in favour of the Applicant as against the Board and McDonalds jointly and severally.

13 The order in which I propose considering the issues which arise on the applications is as follows. First, I propose considering whether the Applicant is entitled to a pre-emptive costs order. This issue arises between the Applicant, on the one hand, and the Board and McDonalds, on the other hand. Secondly, I will consider whether the Applicant should be required to give McDonalds security for its costs. Only McDonalds and the Applicant are concerned with this issue. Finally, I will consider whether an order should be made at this juncture in relation to the reserved costs of the previous stage of the proceedings. In this connection, there has been only one order in these proceedings, the order of 11th November, 1999 on the Applicant's motion for leave and in that order the question of costs was reserved. Mr. Treacy for the Applicant made it clear that despite the terms in which the relief in respect of the reserved costs was sought in the Notice of Motion, his application was directed against McDonalds only and would arise only if McDonalds were given security.

14 Before addressing the issues, I propose considering the judgment delivered by Geoghegan J. on 5th November, 1999 on the application for leave insofar as it is germane to the issues.

JUDGMENT OF GEOGHEGAN J.

15 Setting out the background to the locus standi challenge, Geoghegan J. stated as follows (at page 2):-

"The members of the company are local people including the principals of two schools who oppose the permission. Although none of the members of the company were official objectors before the Board, two of them who were prime movers in the establishment of the company did lodge objections which were one day late and were therefore not accepted. It is suggested that I should draw an inference that the sole purpose of the application being made in the name of this company is to avoid the effects of an expensive costs order if the application was unsuccessful. Although it is conceded that there would probably be good grounds for making an order for security for costs, it is suggested that traditionally the security...