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Special costs rules governing environmental litigation under Planning & Development Act

Executive summary

Heather Hill Management Company CLG and Gabriel McGoldrick (the Applicants) challenged a decision of An Bord Pleanala (the Board) to grant permission for a strategic housing development. The Applicants challenged that decision on a number of grounds and argued that the entire proceedings attracted the special costs rules governing environmental litigation under Section 50B of the Planning and Development Act 2000, as amended (the 2000 Act). The Court found in favour of the Applicants and held that the decision to grant permission for a strategic housing development under s.9 of the Planning and Development (Housing) and Residential Tenancies Act 2016 (PD(H)A 2016) was a “statutory provision” of national environmental law in a field covered by EU environmental law and as a result, the entire proceedings were covered by the special costs rules.

Facts

The Applicants challenged a decision of the Board to grant permission for a strategic housing development of 197 new dwellings (houses and apartments) in Galway. This decision was made in accordance with s.9 of the PD(H)A 2016, but was challenged by the Applicants on a number of grounds. This included the Habitats Directive, the EU Flood Directive, on the basis of a material contravention of the development plan and alleged deficiencies in obtaining landowner consent in the making of the planning application. The Applicants argued that the entire proceedings attracted the special costs rules governing environmental litigation under Section 50B of the 2000 Act and/or under Part 2 of the Environment (Miscellaneous Provisions) Act 2011 (EMPA 2011). The Board disagreed with this and contended that the Applicants were only entitled to costs protection for the grounds of challenge that related to the Habitats Directive and EU Floods Directive.

Statutory Interpretation of Section 50B

Simons J stated that the starting point for his analysis of whether the Applicants were entitled to a protective costs order was the language of Section 50B itself.1 He noted that it was clear from the structure of Section 50B that the qualifying criteria for costs protection were directed to the type of decision or action which is the subject of judicial review proceedings. The wording of Section 50B is such that costs protection applies to “proceedings“, rather than “grounds“. The Board had argued that the recent Court of Justice of the European Union (CJEU) decision in North East Pylon allowed Ireland to apportion costs as between different aspects of legal proceedings.

Simons J. accepted that EU law does in principle allow a distinction between the costs of various grounds in legal proceedings (for example, a plea alleging infringement of public participation rules in the environmental decision-making and pleas alleging infringement of other rules). However, he found that this distinction is not provided for in the Irish legislation. Under Irish legislation, the special costs rules are directed to the nature of the decision being challenged. Where the decision is made under to a statutory provision that gives effect to the public participation elements of the EIA Directive, the Strategic Environmental Assessment Directive, the Industrial Emissions Directive or Articles 6(3) or 6(4) of the Habitats Directive (as s.9 of the PD(H)A 2016 did), then the special costs rules apply. If the Oireachtas intended to impose different costs rules in respect of different categories of grounds within the same “proceedings“, then it could have done so by inserting “grounds” into Section 50B. However, it had not done so.

Is the Court bound to follow earlier judgments on the special costs rules?

Simons J held that there were a number of features of the law on the costs of environmental litigation which suggested that the value of following earlier judgments was weaker in this sphere. Simons J identified four principal reasons why the full rigour of the principle of precedent could not be adhered to in this context. A departure from earlier cases was possible because:

(a) the underlying legislation has been amended on a number of occasions, most recently extending the range of proceedings that benefit from Section 50B protection to the Habitats Directive by the Planning and Development (Amendment) Act 2018;

(b) the case-law of the CJEU continues to evolve and many Irish judgments pre-date important CJEU decisions;

(c) there is limited guidance from the appellate courts on this area of law, with an authoritative interpretation of Section 50B still awaited by the higher courts; and

(d) the High Court must be mindful of its obligation as a national court to seek to give effect to EU law and this interpretative obligation will have an impact on the proper interpretation of the national measures under consideration.

Distinguishing earlier High Court judgments

Simons J did not consider that his judgment was inconsistent with recent case-law in MerrimanFotovoltaic and North East Pylon No. 5. Those cases were distinguishable because the decisions under review were made under a different “statutory provision” than what was at issue in the present proceedings. Unlike the Heather Hillproceedings before him, MerrimanFotovoltaic and North East Pylon No. 5 did not concern “development consents”. Fotovoltaic related to a Section 5 decision; Merriman concerned an extension of the duration of a planning permission; and in North East Pylon No.5, the application for development consent had not yet been decided at the time proceedings were instituted.

The meaning of “Decision” under Section 50B

Simons J also considered whether the term “decision” under Section 50B(1) should be understood as referring to the decision to grant or refuse permission, or should instead, be understood as encapsulating specific sub-decisions or strands of decision made as part of the overall determination of the consent application (i.e. whether a screening determination constitutes a “decision” that could attract costs protection). The Court rejected the latter interpretation and found that if the term “decision” under Section 50B was interpreted as encapsulating sub-decisions, then this would have a knock-on effect on the interpretation of the eight-week time limit for judicial review and would create considerable legal uncertainty about when time would run for the purposes of judicial review.

Part 2 of the Environment (Miscellaneous Provisions) Act 2011

Simons J concluded that the proceedings benefit from the special costs rules under s.50B. He did not consider it strictly necessary for him to consider the alternative basis on which the Applicants sought costs protection, namely Part 2 of the EMPA 2011. However, he set out his views on this, in case his decision is appealed. Simons J noted that costs protection under the EMPA 2011 is subject to a significant restriction. Specifically, it is a prerequisite that the failure to ensure compliance with, or enforcement of, a statutory requirement has caused, is causing or is likely to cause, damage to the environment. He acknowledged that Part 2 of the EMPA 2011 has been amended in light of the CJEU’s judgment in North East Pylon so that the costs of proceedings in relation to the Habitats Directive are now included, with the requirement to show “damage to the environment” still in force. The Court stated that if read in isolation, the provisions of Part 2 of the EMPA 2011 would represent an incomplete implementation of the Aarhus Convention. As a result, Part 2 of the EMPA 2011 cannot be read in isolation and must be read in conjunction with s.50B of the 2000 Act. The Court quoted North East Pylon No.5with approval and noted that the best option to deal with an under-inclusive statute, where there is a parallel source of discretion to achieve the same result, is to leave the statute in place to cover the cases it covers and to apply the general jurisdiction of the court to any cases that fall outside the wording of the statute. In this circumstance, that meant that the Court could use its general jurisdiction under Order 99 to achieve the result which could not be permitted under Part 2 of the EMPA 2011.

Conclusion

This decision is a significant one. Although it will be welcomed by public interest groups and individuals who are seeking to rely on special costs rules, it may present real challenges to developers who are taking forward large scale development. The judgment’s wider application will need to be watched carefully, particularly as to whether it encourages and emboldens more challenges, genuine or otherwise, being brought against large scale development. Clearly, the Court was concerned about adopting an overly narrow interpretation of Section 50B, which would leave the Irish costs regime incompatible with EU law generally. However, Simons J’s findings on precedent and his view that each case has to be considered by reference to its own factual background and, in particular, by reference to the specific “statutory provision” under which an impugned decision was made, is likely to be important to any future special costs rules that come before the High Court.

Source – Lexology: A&L Goodbody    |    Image – Drayton Valley

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