Neutral Citation: [2016] IEHC 578
THE HIGH COURT
JUDICIAL REVIEW
[2014 No. 327 J.R.]
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED
AND
IN THE MATTER OF AN APPLICATION
BETWEEN
ANGELA PEARCE
APPLICANT
AND
WESTMEATH COUNTY COUNCIL
RESPONDENT
AND
ANGELA BOYHAN AND AN BORD PLEANÁLA
NOTICE PARTIES
JUDGMENT of Mr. Justice McDermott delivered on the 21st day of October, 2016
1. This is an application for costs arising out of the quashing of the decision of Westmeath County Council dated 22nd November, 2013 purporting to agree that the submission of the first named notice party regarding a haul route survey and provision of lay-bys made pursuant to condition 16(1) of a planning permission granted by An Bord Pleanála (Ref. No. PL252221717) on appeal from a decision of Westmeath County Council (Planning Register Ref. No. 06/5362)[2016] IEHC 477.
2. The applicant and her family resided close to the entrance of a quarry which was the subject of the proceedings. The quarry’s planning history stretched back to 2006. On the 19th April, 2006, Westmeath County Council decided to require the first named notice party to apply for planning permission for the operation of the quarry and to submit an Environmental Impact Statement (EIS) under s. 261(7) of the Planning and Development Act 2000. The council granted permission on 5th February, 2007 for the continuation of quarrying on the site which was considered to be the continuation of a pre-1964 development. A history of the various planning issues and decisions and related legal proceedings are set out in the judgment of the court.
3. Ultimately, An Bord Pleanála granted permission subject to a number of compliance conditions and in particular, condition 16(1) which related to the adequacy of the road access to the quarry via an existing road structure in the immediate area. An Bord Pleanála granted permission and imposed conditions having determined that the proposed development “would be acceptable in terms of traffic safety and convenience, would not seriously injure the amenities of the area or property in the vicinity, would not be prejudicial to public health and would not be contrary to the planning and sustainable development of the area”.
4. The condition in issue was condition 16 which stated:
“(1) The developer shall submit to the planning authority for written agreement a detailed survey of the entire one-way, haul route at 20m intervals, showing width, levels, verges and all other relevant features in identifying the number and location of all lay-bys to be provided by the developer.
(2) The developer shall provide and complete all lay-bys agreed under paragraph (1) above within six months from the date of this order and should comply with the requirements of the planning authority for such works and services.
Reason: In the interest of traffic safety and orderly development.”
5. Westmeath County Council was dissatisfied with submissions made in purported compliance with condition 16 by the first named notice party and so indicated on 2nd February, 2010. Following further consultations between the planners and the first named notice party’s expert and a request made to the council “to have the 20m intervals survey of the road route omitted”, the county council area engineer, in an email to the applicant’s consultants on 18th March, 2010, indicated that condition 16 was specific and did not allow the local authority any discretion to vary the terms of the details required as set out in the condition.
6. As a result, Sean Lucy and Associates, town planning consultants to the first named notice party, applied to An Bord Pleanála under s. 146(a) of the Planning and Development Act 2006 to amend the condition. On 23rd July, 2010, the Bord agreed to amend the condition but not in the terms sought by the first named notice party. The amended term read as follows:
“16(1) The developer shall submit to the planning authority for written agreement a detailed survey of the entire one-way, haul route showing width, levels, verges and all other relevant features and identifying the number and location of all lay-bys to be provided by the developer.”
The words “at 20m intervals” were deleted from condition 16(1). Condition 16(2) remained unchanged. The Bord did not change the condition in terms which would have reduced the obligation on the developer to submit to the planning authority for agreement the number and location of all lay-bys to be provided by the developer on route L1618 thereby covering a much reduced stretch of public roadway between Crookedwood and Multyfarnham, Co. Westmeath. The haul route covered by condition 16(1) remained 27km in length. In effect, the developer had sought a much reduced survey of the haul route to a 8km stretch rather than the 27km originally envisaged.
7. An Bord Pleanála gave as its reason for the amendment that, though it considered a requirement for a survey at 20m intervals over the entire 27km was unduly onerous, the details would be more appropriately agreed between the planning authority (as roads authority) and the developer.
8. Subsequently, on 1st December, 2010, the first named notice party made a submission pursuant to the amended condition which indicated the position of eight proposed lay-bys to be located on the 8km stretch of the haul route between Crookedwood and Multyfarnham. On 11th March, 2011, the respondent agreed that this submission complied with the condition as amended notwithstanding the fact that it covered less than one third of the haul route which was in effect the same limited stretch of roadway which Sean Lucy and Associates had suggested to An Bord Pleanála in its proposed draft amended condition which had not been adopted. That decision by the County Council was the subject of an application for an order of certiorari by the applicant which was made by consent on 24th April, 2013, (Kearns P.). The Council was directed to make a fresh determination and decision as to compliance or otherwise with condition 16(1), as amended and to make provision for further submissions by the first named notice party, Ms. Pearce, and the applicant in these proceedings in respect of same. These submissions were to be taken into account prior to any further determination or decision as to compliance being made and notified to the parties.
9. Subsequently, on 22nd October, 2013, a meeting took place between Mrs. Angela Boyhan, Mr. Lucy and officials of the County Council. On 23rd October, Mr. Lucy wrote to Mr. Leonard seeking clarification that it had been agreed at the meeting that the Council would forward, as soon as possible, written notification that planning condition 16(1) had been complied with. On 22nd November, a memorandum was prepared by Mr. Tony Buckley, an Executive Engineer with the Council. This was said to have been compiled arising out of the High Court consent order directing the Council to make a fresh determination concerning compliance. This court was satisfied that the Council’s determination that the notice was compliant with condition 16(1), reached at the meeting of 22nd October and acknowledged subsequently in correspondence, was based on essentially the same material submitted on behalf of the notice party by Mr. Lucy on 1st December, 2010 (though there was some further material submitted on 16th May, 2011, which the applicant contended and the court accepted did not contain the detailed survey required by the condition).
10. On 12th February, 2014, the Council informed Mr. Lucy on behalf of the third named notice party, that it had examined the submissions in relation to the condition and was satisfied that it had been complied with. This followed the submission of Mr. Buckley’s memorandum having conducted a site survey on 20th November, 2013, over the length of the haul route. The Council concluded that the level of detail supplied by Mr. Lucy in respect of the eight lay-bys, over a shorter stretch of the route, would adequately cater for the requirement of passing lay-bys on the LP1618.
11. Leave to apply for judicial review of that decision was granted on 5th June, 2014. As set out at para. 39 of the judgment, the respondent declined to deliver a statement of opposition in a letter dated 3rd September, 2014. The respondent’s solicitors wrote to the applicant’s solicitors indicating that they “may be in a position to agree not to oppose the relief sought in these proceedings if costs could be agreed”. In a further letter dated 6th October, 2014, the Council wrote to the first named notice party’s solicitors stating that they had taken advice and were advised:-
“that the survey submitted by your client did not satisfy the requirements of An Bord Pleanála’s decision and accordingly, the County Council proposes to consent to the reliefs sought by the applicant subject to the court being so satisfied”.
12. The first named notice party’s solicitors replied stating that they did not accept that there were proper grounds for judicial review. They indicated that if the Council consented to the granting of the relief sought and this caused economic loss to their client, they would pursue the Council for compensation. By letter dated 20th April, 2015, the Council in a letter to the registrar of the High Court indicated that though the parties at the call-over were directed to make submissions in relation to the matter by close of business on Monday, 20th May, it did not intend to oppose the relief sought by the applicant on the basis of grounds set out at paras. (e)18, (e)19, and (e)20 of the statement of grounds. Notice was also given that it was not intended to file any papers in opposition or to make submissions on the substantive issues in the case.
13. At the commencement of the hearing of the action, counsel on behalf of the respondent indicated that though not consenting to the making of the order sought, it had not entered a statement of opposition. It did not wish to be seen to be consenting to the orders made on the grounds as set out in the letter of 20th April.
14. At the hearing of the matter, issues relating to alleged contempt of the order of Kearns P. were not pursued. A further issue in relation to the continuing validity of the planning permission granted to the first named notice party was raised but not pursued. It was necessary to address it to some degree having regard to the order to remit the matter for further consideration by the Council (paragraph 62).
15. The remaining grounds were fully contested between the applicant and the first named notice party. The court was satisfied that neither the notice party nor the Council had adjusted their respective views as to the degree of detail required to be submitted in order to comply with the wording of the amended form of condition 16(1) following the order of Kearns P. The court was satisfied on the evidence that, notwithstanding the terms of the consent order and the inadequacies of the survey submitted and approved which led to the quashing of the compliance decision, the first named notice party’s experts persisted in the view that the details supplied to date were compliant and chose not to advance any further material. The notice party submitted that there had been substantial compliance with the condition and that the application should be dismissed.
16. The court was also satisfied that the quashing of the earlier decision by consent and the remittal of the matter for fresh consideration was implicitly based on an acceptance by the Council that its interpretation of compliance was in error. The order provided a further opportunity to the notice party to submit a more detailed survey of the entire route and for the applicant to make submissions thereon. The first named notice party acquiesced in this process, notwithstanding that she was also a notice party to those proceedings and could have opposed the proposed order if she thought it appropriate.
17. The court was satisfied that the clear terms of the condition required a detailed survey of the entire one way hall route which the first named notice party chose to interpret as limited to a detailed survey of approximately 8km of the route. The details required were explicitly stated to include the width, levels, verges and all other relevant features and identification of the number and location of lay-bys to be provided by the developer. The court was satisfied that the notice party and, for a time, the Council proceeded on the basis that the survey could be confined largely to the 8km stretch and materials previously submitted. In the course of these proceedings, the Council resiled from that position and indicated in correspondence its acceptance that the survey submitted was inadequate. This placed the first named notice party in a difficult position. She had, understandably relied upon representations made by Council officials that submissions made on her behalf in respect of the haul route complied with condition 16(1). The Council later resiled from this assessment.
18. The court was satisfied that the condition clearly envisaged a written agreement but that in its amended form, the details of the survey would have to be agreed in a proportionate and reasoned manner between the planning authority (as the roads authority) and the developer. A written agreement was clearly envisaged in the body of the amended condition itself. It was not intended as a permission to provide a minimal survey for all but the section which was covered by the first named notice party’s proposed amendment. The court was, therefore, not satisfied that there had been substantial compliance with condition 16 as would justify the court in refusing relief. The court, therefore, quashed the decision on the basis that the process mandated by condition 16(1) had not yet been properly completed and remitted the matter to enable the condition to be carried out in accordance with its terms. This would require a full and proper engagement by the Council and its engineers with the first named notice party’s experts in respect of the survey required and the intervals and any specific locations along this entire route that should be subjected to detailed surveys. The Council should consider such further details as are submitted in reaching its decision on compliance and any submissions on any additional material submitted by the applicant and first named notice party before arriving at its decision. The decision was quashed.
19. The applicant and first named notice party now respectively seek an order for the costs of the proceedings.
The statute
20. The issue of costs is governed by s. 50B of the Planning and Development Act 2000 which applies in relation to the following kinds of proceedings.
“(a) Proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of -
(i) any decision or purported decision made or purportedly made,
(ii) …pursuant to a law of the State that gives effect to -
(i) A provision of council directive 85/337/EEC of 27th June, 1985 to which Article 10a (inserted by Directive 2003/35/EC of the European Parliament and of the Council of 26th May, 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directive 85/337/EEC and 96/61/EC of that Council Directive applies;
(ii) Directive 2001/42/EC of the European Parliament and of the Council of 27th June, 2001 on the assessment of the effects of certain plans and programmes on the environment or;
(iii) A provision of Directive 2008/1/EC of the European Parliament and of the Council of 15the January, 2008 concerning integrated pollution prevention and control to which Article 16 of that Directive applies; or
(b) An appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a);
(a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of—
(b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a);
(c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in relation to a proceeding referred to in paragraph (a) or (b).
(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986) and subject to subsections (2A), (3) and (4), in proceedings to which this section applies, each party to the proceedings (including any notice party) shall bear its own costs.
(2A) The costs of proceedings or a portion of such costs as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the actions or omissions of the respondent or notice party or both of them contribute to the applicant obtaining relief.
(3) The Court may award costs against a party to proceedings to which this section applies if the Court considers it appropriate to do so—
(a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious,
(b) because of the manner in which the party has conducted the proceedings, or
(c) where the party is in contempt of the Court.
(4) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.”
21. Under ss. 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 the costs of proceedings described in s. 4 must be borne by each party to those proceedings (including any notice party). Section 3 is in similar terms to the provisions of s. 50B. The section applies to civil proceedings other than those referred to in s. 4(3). It applies (inter alia) to proceedings instituted by a person for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement of a permission or in respect of the contravention of or failure to comply with such a permission and where the failure to ensure such compliance has caused or is causing or is likely to cause damage to the environment. Damage to the environment includes damage under sub-s 2(g) to the “health and safety of persons and conditions of human life”. Under s. 4(4) the provisions apply to:
“(n) a permission or approval granted pursuant to the Planning and Development Act 2000.”
22. The correct interpretation and application of these provisions has been considered in a number of cases including J.C Savage v. An Bord Pleanála [2011] IEHC 488:Rowan v. Kerry County Council [2012] IEHC544; Shillelagh Quarries Limited v. An Bord Pleanála [2012 IEHC 402 and Mc Callig v. An Bord Pleanala [2014] IEHC 353 which I gratefully adopt and apply.
23. This case concerned the enforcement of compliance with the condition imposed by An Bord Pleanála which is part of a decision in respect of which an Environmental Impact Statement has been obtained and submitted. It also concerns a condition which was clearly imposed for the purpose of the health and safety of persons and in the interest of orderly development.
24. I am satisfied that the proceedings fall within those contemplated by s. 50B and ss. 3 and 4 of the 2011 Act. The sections provide that the costs of these proceedings may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and must be borne by the respondent or notice party or both of them to the extent that their actions or omissions contributed to the applicant obtaining relief.
25. I am satisfied that the applicant, on the history of the case as set out in the judgment, was entirely blameless. These proceedings were rendered necessary by the failure of the County Council to engage adequately with the issue of compliance with condition 16(1) by the first named notice party. Notwithstanding the fact that the council consented to an order quashing its original determination that the condition had been complied with, it failed to ensure that the process mandated by condition 16(1) was properly completed and that a full and proper survey was carried out following an appropriate engagement between the council, its engineers and the first named notice party’s experts in respect of same. The Council adopted inconsistent and contradictory approaches in its dealings with the first named notice party by initially indicating that it had determined that the developer was compliant with condition 16(1) but then later reversing that decision. Though the Council did not participate in the proceedings its behaviour rendered the quashing of the decision inevitable. It is entirely responsible for the course of events and wrongful decisions which led to the original consent order and to the order in these proceedings. I am therefore satisfied that the applicant is entitled to an order for costs against the respondent. I am also satisfied that this order is appropriate since these proceedings are brought seeking compliance with condition 16(1) the purpose of which is to protect the environment from damage including to the health and safety of persons using the haul route. The applicant does not seek costs against the third party and I consider that she was correct not to do so (notwithstanding the fact that the notice party fought the case) as the statutory duty and the duty following the consent order to determine compliance in a lawful manner lay with the Council.
26. The first named notice party also seeks an order against the County Council. However, she did not succeed in obtaining relief. I do not consider that there is any issue of exceptional public importance and there are no special circumstances arising in this case that would require such an order in the interests of justice. The first named notice party vigorously opposed the scope of the original condition 16(1). When she succeeded in having condition 16(1) amended by An Bord Pleanála she contended for an interpretation of the amended condition which was effectively to the same effect as the original but rejected proposed amendment. This interpretation, though presented as a substantial compliance argument, was vigorously pursued in these proceedings without success. I am satisfied that the first named notice party should bear her own costs in these proceedings.
27. I wish to add that, had the normal rules as to costs under Order 99 applied, I would have reached the same conclusion. The applicant succeeded. The third party did not succeed. Having regard to the overall behaviour and circumstances of the respondent and the notice party, the same orders would have been appropriate in the interests of justice.
