Wendy Jennings v an Bord Pleanala, Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 03 May 2022
• Neutral Citation: [2022] IEHC 249
• Court: High Court
• Docket Number: 2021/750JR

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 249

2021/750JR

JUDICIAL REVIEW

Judicial review – Costs protection – Planning permission – Applicants seeking costs protection orders – Whether costs protection orders ought to be deferred the trial of the action

Facts: The applicants, Ms Jennings and Mr O’Connor, applied to the High Court seeking to have quashed the decision of the respondent, An Bord Pleanála, dated 3 June 2021 to grant planning permission (the Impugned 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 (the Site). 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 permitted significant over-development of the Site. In Holland J’s first judgment in the case, delivered 14 January 2022, he declined to stay operation of the Impugned Permission in respect of a limited part of the permitted works. In his second judgment, delivered 19 January 2022, he refused the application by the notice party that the further prosecution of the proceedings be made conditional on the applicants’ provision of undertakings in damages. He 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. In his third judgment, delivered 7 February 2022, he stayed operation of the Impugned Permission in respect of the permitted works pending appeal of his refusal of such a stay pending trial. By notice of motion dated 19 November 2021 the applicants sought a Protective Costs Order (PCO) under any of the following three bases: s. 50B of the Planning and Development Act 2000; Part 2 - ss. 3, 4 and 7 - of the Environmental Miscellaneous Provisions Act 2011; and the inherent jurisdiction of the Court, Order 99 of the Rules of the Superior Courts and/or s. 168 of the Legal Services Regulation Act 2015. The notice of motion also sought a PCO under the duty to interpret national law in accordance with the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters Done at Aarhus, Denmark, On 25 June 1998 (Aarhus) and the EU Charter of Fundamental Rights. Each of those bases fell to be considered by reference to each individually of the grounds on which judicial review was sought.

Held by Holland J that it was agreed that the applicants should have a PCO as to Grounds 10 and 12. Holland J concluded that the applicants alleged in Ground 8 that the breach they alleged would cause specific and tangible ecological harm in the form of loss of trees – and trees protected by a specific provision of the development plan. Holland J held that they were entitled to a 2011 Act PCO as to Ground 8. On balance, Holland J considered it best in all the circumstances to exercise the jurisdiction, identified by Murray J in O’Connor v Offaly County Council [2020] IECA 72, to defer to the trial of the action making any orders as to 2011 Act costs protection, with liberty to any party to apply to resurrect the issue before trial in the event that decisions of the Supreme Court or the Court of Justice of the European Communities clarified matters. On a similar basis, Holland J would defer decision on costs protection pursuant to the inherent jurisdiction of the court, Order 99 of the Rules of the Superior Courts (RSC) and/or Part 11 of the 2015 Act.

Holland J made the following orders: making costs protection orders as to Grounds 8, 10 and 12; other than as to Grounds 8, 10 and 12, refusing costs protection orders under s. 50B of the 2000 Act; other than as to Grounds 8, 10 and 12, deferring to the trial of the action the question whether the applicants were entitled to costs protection under the 2011 Act, the inherent jurisdiction of the court, Order 99 RSC and/or Part 11 of the 2015 Act; and directing that the action proceed to trial in the ordinary way.

Orders refused in part.

Contents

Judgment of Mr Justice Holland delivered the 3rd of May 2022	4
Introduction	4
The Evidence	9
Agreed Orders on Grounds 10 & 12 & Order on Ground 8	10
The Remaining Grounds — 1 to 7, 9 & 11	14
Aarhus — Introduction & Relevant Provisions	17
Aarhus — Legal Status in EU & Irish Law & Shared Competence	21
Aarhus Article 9(3), “Environment”, “National Law Relating to the Environment”	25
Aarhus — “National Law relating to the Environment” includes EU Law	25
Aarhus Implementation Guide & O'Connor	25
Conway v Ireland	27
Venn	28
ClientEarth	30
S.4(2) of the 2011 Act — Environmental/Planning — a distinction?	32
Enniskerry/PEM & another case	33
Collection of the foregoing	34
Aarhus as an Aid to Interpreting National Law — 2 Routes	34
Aarhus & Interpretive Routes not Free-Standing in Irish Law	36
Aarhus Interpretive Route 1 — the EU Law Interpretive Obligation — LZ1 Slovak Brown Bears #1 & some related cases	37
Aarhus Interpretive Route 1 — the EU Law Interpretive Obligation — North East Pylon	44
North East Pylon, CJEU — The Interpretive Obligation	44
North East Pylon, CJEU — Environmental Damage Criteria	47
The Applicants' Argument from the CJEU decision in North East Pylon	48
North East Pylon #5 — High Court	49
Conclusion	51
Aarhus Interpretive Route 2 — the Irish Law Presumption of Legislation Conforming to International Law	51
CLM Properties, McCoy, Kimpton Vale, ClientEarth & Austin Miller	51
Aarhus Interpretive Routes 1 & 2 — Comparison	59
Fields covered by EU environmental law	59
Environmental damage criterion	59
National Law Relating to The Environment & Development Plans	60
Introduction	60
S.9 of the 2016 Act	63
S.37(2) PDA 2000	64
Analysis	65
S.50B PDA 2000 & the Remaining Grounds	67
Article 11 of the EIA Directive	68
S.50B PDA 2000	69
S.50B — Heather Hill #1	71
S.50B — Enniskerry/PEM	73
S.50B PCOs in this case — Conclusion	74
2011 Act PCOs — the Law	74
Part 2 of the 2011 Act — “ Costs of certain proceedings to be borne by each party in certain circumstances”	75
2011 Act PCO — Heather Hill #1 & 2011 Act PCO — in Judicial Review? & Private Interest	76
2011 Act S.4(1)(a) — “Statutory requirement” — Free-Standing	79
2011 Act Costs Protection — Purpose of Proceedings — “Damage to the Environment” — Forward Looking & Ongoing — Action to Quash a Permit	81
S.4(1) of the 2011 Act — “Damage to the Environment” — Breadth of the Concept	86
2011 Act PCO — Damage Requirement, Causative Link & Some Grounds Only?	93
2011 Act PCO — Strength of Claim, Discretion & Proofs	95
2011 Act — Radical Change in the Law?	100
Fotovoltaic #3 & Merriman	109
Heather Hill #1 on Material Contravention — Res Integra?	110
2011 Act PCO — Financial Information as to the Applicants	119
2011 PCO — Damage	121
Inherent Jurisdiction, Order 99 RSC, Part 11 of the Legal Services Regulation Act 2015	128
Deferral of Decision?	130
Orders	136

Judgment of Mr Justice Holland delivered the 3 ^rd of May 2022

Introduction

1 The Applicants seek to have quashed the decision of the Respondent (“the Board”) 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 (“the Site”). 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 (“SHD”). The Applicants live nearby and consider that the permission permits significant over-development of the Site.

2 This is my fourth judgment in this case. In my first, delivered 14 January 2022 1, I declined to stay operation of the Impugned Planning Permission in respect of a limited part of the permitted works. In my second judgment, delivered 19 January 2022 2, I refused the application by the Notice Party (“Colbeam”) that the further prosecution of these proceedings be made conditional on the Applicants' provision of undertakings in damages. I also refused Colbeam's application that the Applicants be directed to disclose their means to satisfy any liability which could arise on such an undertaking. In my third judgment, delivered 7 February 2022 3, I stayed operation of the Impugned Permission in respect of the permitted works pending appeal of my refusal of such a stay pending trial.

3 This judgment addresses the question whether the Applicants should have a Protective Costs Order (“PCO”). By Notice of Motion dated 19 November 2021 the Applicants seek a PCO under any of the following three bases:

The Notice of Motion also seeks a PCO under the duty to interpret national law in accordance with the Aarhus Convention 6 (“Aarhus”) and the EU Charter of Fundamental Rights. However, as will be seen, these are not free-standing bases on which PCOs may be made but result, rather, in techniques of statutory interpretation.

• • S.50B PDA 2000 4

• • Part 2 — Ss 3, 4 & 7 — of the 2011 Act 5

• • The inherent jurisdiction of the Court, Order 99 of the Rules of the Superior Courts and/or S.168 of the Legal Services Regulation Act 2015

4 It is important to state also that these bases are intertwined and each is entwined with Aarhus such that their truly...