Wendy Jennings v an Bord Pleanála, Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 19 January 2022
• Neutral Citation: [2022] IEHC 16
• Docket Number: 2021/750JR
• Court: High Court

In the Matter of Section 50, 50A and 50B of the Planning and Development Act, 2000 (As Amended)

Between:-

Wendy Jennings

and

Adrian O'Connor

Applicants

and

An Bord Pleanala, Ireland

and

The Attorney General

Respondents

and

Colbeam Limited

Notice Party

[2022] IEHC 16

2021/750JR

JUDICIAL REVIEW

Planning permission – Strategic housing developments – Fortified undertakings in damages – Notice party seeking to have further prosecution of the proceedings made conditional on the applicants’ providing fortified undertakings in damages – Whether it was possible to decide the issue on the basis of domestic law without significant reference to costs protection law or to EU law

Facts: The applicants, Ms Jennings and Mr O’Connor, sought to have quashed the decision of the first respondent, An Bord Pleanála, dated 3 June 2021, to grant planning permission to the notice party, Colbeam Ltd, for, essentially, construction of 698 student bedspaces on a site at Our Lady’s Grove, Goatstown Road, Dublin 14. That permission was granted pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 as applicable to Strategic Housing Developments. The applicants lived nearby and considered that the permission would permit significant over-development of the site. On 14 January 2022, the High Court (Holland J) declined to stay operation of the impugned planning permission in respect of a limited part of the permitted works. Colbeam Ltd sought to have further prosecution of the proceedings made conditional on the applicants’ providing fortified undertakings in damages.

Held by Holland J that private interests at stake in the case were not, on the evidence before him, discernibly as acute as those of the disappointed tenderer in Broadnet Ireland Ltd v Office of the Director of Telecommunications Regulation [2000] 3 I.R. 281 or the disappointed shareholders in Dowling v Minister for Finance [2013] IEHC 299; nor did they exceed the private interests at stake for Mr Huddleston in his dispute with Durham County Council (R (Huddleston) v Durham County Council, [2000] Env LR D20) or for Mr O’Connor in his with Offaly County Council (O'Connor v Offaly County Council [2020] IECA 72). Holland J held that, on the facts, the position in the case seemed broadly more akin to that in Coll v Donegal County Council & Gillespie [2007] IEHC 110, in which an undertaking was not required. Holland J held that the position in the case was also very different to that in Seery v An Bord Pleanála and Ors [2001] 2 I.L.R.M. 151 and in O'Connell v Environmental Protection Agency [2001] 4 IR 494 in that the proceedings did not act as a de jure or de facto stay on Colbeam Ltd’s works and Colbeam Ltd had made clear its intention to press on. Holland J found that damage to which such an undertaking might apply did not seem in prospect.

Holland J held that in the exercise of his discretion and on the basis of domestic law, without reference to the “NPE rule” (the rule of EU law that certain types of proceedings not be prohibitively expensive to applicants) or to costs protection (save to the limited extent to which he had cited EU law authority), he would refuse Colbeam Ltd’s application that the further prosecution of the proceedings be made conditional on the provision by the applicants of undertakings in damages. Holland J also refused Colbeam Ltd’s application that the applicants be directed to disclose their means to satisfy any liability which could arise on such an undertaking.

Application refused.

Contents

Judgment of Mr Justice Holland, delivered the 19 th of January 2022	2
INTRODUCTION & DECISION	2
REASONS FOR DECISION	4
O'Connell v EPA, Broadnet, Coll v Donegal County Council & Seery v An Bord Pleanála	4
Further Cases & Discussion	8
Application of Law to Facts	12
CONCLUSION	14

Judgment ofMr Justice Holland, delivered the 19 ^th of January 2022

INTRODUCTION & DECISION

1 This judgment addresses the question whether the Applicants' further prosecution of these judicial review proceedings should be made conditional on their providing an undertaking in damages to the Notice Party.

2 The Applicants seek to have quashed the Board's decision dated 3 June 2021 to grant planning permission (“The Impugned Permission”) to the Notice Party, “Colbeam”, for, essentially, construction of 698 student bedspaces on a site at Our Lady's Grove, Goatstown Road, Dublin 14. That permission was granted pursuant to the Planning and Development (Housing) and Residential Tenancies Act 2016 (“the 2016 Act”) as applicable to Strategic Housing Developments. The Applicants live nearby and consider that the permission would permit significant over-development of the site.

3 This is my second judgment arising out of my hearing of two motions in this case. It should be read with my first judgment, delivered 14 January 2022 1, in which I declined to stay operation of the Impugned Planning Permission in respect of a limited part of the permitted works.

4 Questions are outstanding as to:

• • whether further prosecution of the proceedings should be made conditional on a fortified undertaking in damages by the Applicants.

• • whether the Applicants should have a protective costs order.

• • the costs of the hearing of the two motions.

5 In accordance with the position taken by Colbeam, the stay remains in place from the point at which the site, once cleared and prepared, is to be handed over to the main construction contractor. Given a present lack of clarity as to when Colbeam will be able to start those works not stayed, (as to which see my first judgment), it is unclear when the site will be ready to be handed over to the main construction contractor. It is anticipated that at, or presumably shortly prior to, that point, Colbeam may make a further application to lift the stay on development as it still applies from that point of handover to the main construction contractor.

6 After the hearing of the motions, and more or less contemporaneous with delivery of my first judgment, Humphreys J delivered his judgment on costs protection issues in the Enniskerry Appliance/Protect East Meathcases2. Inter alia, he decided to refer certain questions on costs protection issues to the Court of Justice of the European Communities. That judgment and those questions appear to me to be likely to bear upon questions as to costs protection arising in this case. Accordingly, I intend to invite the parties to address me on that decision and await their doing so.

7 Some further variables require mention:

• • the prospect of its proving necessary or desirable to await the outcome of the reference to the CJEU to be made in the Enniskerry Appliance/Protect East Meath cases.

• • the prospect of its proving necessary or desirable to make such a reference also in the present case.

• • as will be seen, the prospect of a further application by Colbeam for an order making the Applicant's further prosecution of these proceedings conditional on their providing an undertaking in damages.

• • Colbeam has issued a motion seeking to identify all persons who have funded the applicants' proceedings with a view to making them liable on undertakings in damages and for costs. It awaits being assigned a hearing date. It seems likely that this motion will take some time and, if such persons are identified, it seems likely they will have a right to be heard, if not at the hearing of the motion at least by way of application to set aside any order made in the motion exposing them to costs.

8 In the circumstances described above, I am conscious of the prospect of delay in these proceedings. Although in my first judgment I have not uncritically accepted its assertions in this regard, I am conscious also of, and in a general sense accept at least to an appreciable degree, the urgency asserted by Colbeam as to completing the development to a deadline in mid-2024 with a view to letting its accommodation to students for the 2024/2025 academic year starting September 2023. It was for that reason that I gave my first judgment on the issue of a stay on works only rather than delay it to await my decision on the costs protection issue. The prospect of a reference to the CJEU as to costs protection issues in the Enniskerry Appliance/Protect East Meathcases may perhaps be seen as justifying that course.

9 However, prior to the decision of Humphreys J in the Enniskerry Appliance/Protect East Meathcases, I had come to a view that I should, on domestic as opposed to EU law grounds, refuse at least pro tem Colbeam's application for an order making the Applicants' further prosecution of these proceedings conditional on their providing an undertaking in damages.

10 It is in general terms undesirable that multiple judgments should issue on foot of a single hearing, albeit of two motions – not least when there is a prospect of interaction between the various issues involved. However the same impetus of minimising delay and also the desirability of making the parties as aware of my decisions as can be managed as early as can be managed, leads me to issue this judgment addressing only the issue whether I should require an undertaking in damages of the Applicants. It has proved possible to do so because I have been able to decide that issue on the basis essentially of domestic law and without significant reference to costs protection law or to EU law or as to, for example, the quantum of exposure of an undertaking in damages as it may bear on the rule of EU law that certain types of proceedings not be prohibitively expensive to applicants (the “NPE Rule”). Inter alia, I hope this judgment will inform and assist the parties deliberations as to where they consider we should go from here.

REASONS FOR DECISION

11 As stated, Colbeam seeks to have further prosecution of these proceeding made conditional on the...