High Court awards applicant half costs against State for late pleadings in planning judicial review.

Neutral Citation Number: [2007] IEHC 361

THE HIGH COURT

JUDICIAL REVIEW

[2006 No. 477 J.R.]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

CLARE COUNTY COUNCIL

NOTICE PARTY

Judgment of Mr. Justice Clarke delivered 25th October, 2007.

Introduction

1.1 I have already delivered judgment on an application for leave to seek judicial review brought by the applicant (“Mr. Sweetman”) in

which he sought leave to challenge a decision made by the first named respondent (“An Bord Pleanála”) concerning the approval of a

road scheme which had been proposed by the notice party (“Clare Council”). As appears from that judgment, (2007) IEHC 153 (“the

substantive judgment”), in addition to the issues arising under that direct challenge, Mr. Sweetman also raised questions concerning

an alleged failure on the part of the State to comply with its obligations under Council Directive 2003 / 35 / E.C. (“the Directive”).

1.2 Subsequent to the delivery to that judgment a number of issues were left over for further consideration. These are:-

a. The appropriate order for costs to be made in the light of the result of that application;

b. Whether a certificate should be given so as to permit Mr. Sweetman, under the provisions of Section 50 of the Planning

and Development Act 2000 (“The 2000 Act”), to appeal to the Supreme Court; and/or

c. Whether it is appropriate to make a reference, under article 234 of the E.U. Treaty, to the Court of Justice concerning

the interpretation of the Directive and its application in Ireland.

1.3 However it was agreed by all parties that the question of the determination of the appropriate order as to costs, in accordance

with domestic law, should be dealt with first. It is my understanding that Mr. Sweetman no longer wishes to seek a certificate which

would enable an appeal to be brought to the Supreme Court in this matter. He does so while reserving his position to the effect that

certain aspects of the matters which were the subject of the leave application (in substance those aspects which were concerned

with the transposition of the Directive into Irish law) are matters not caught by Section 50 of the 2000 Act and not, therefore,

matters in respect of which a certificate is required. It should also be noted that counsel on behalf of Ireland indicated that it was

the State’s position that all such matters were caught by Section 50 and that an appeal could not, therefore, be brought without a

certificate. I came to the view that it was not appropriate for me to determine that matter. Mr. Sweetman has indicated that he does

not wish to seek a certificate and that, further, he may proceed by way of an appeal, without a certificate, to the Supreme Court. If

he does so then it will be a matter for the Supreme Court to determine whether the appeal is properly before that court and, at any

hearing directed to that end, Mr. Sweetman and the State will be entitled to make whatever submissions they consider appropriate in

relation to that issue.

1.4 It was also agreed between the parties that it would be appropriate to postpone the question of whether a reference should be

made, until the question of costs had been determined in accordance with domestic law. Clearly the result of that determination in

relation to costs has the potential to effect not only the judgment which the parties may exercise as to whether they would wish to

seek a reference, but also, potentially, whether a reference might be necessary in order to determine at least some of the issues of

European law which arise, insofar as some of the potential questions of EU Law which might, in theory, be the subject of a reference,

involve questions concerning Mr. Sweetman’s exposure to costs.

1.5 This judgment is, therefore, directed solely to the question of the appropriate order for costs which I should make in accordance

with domestic law and I now turn to that question.

2. Public Interest Challenges – The Issues

2.1 Mr. Sweetman accepts, as he must, that he has, at least so far as this court is concerned, lost the proceedings and that an

application of the prima facie rule, to the effect that costs follow the event, would inevitably lead to each of the respondents and

Clare Council obtaining an order for costs against him.

2.2 However Mr. Sweetman argues that this case comes within the identified exception to the ordinary rule to the effect that costs

follow the event, which arises in circumstances where the proceedings can legitimately be described as involving a “public interest

challenge”. The jurisprudence in this area has been considered by this court on a number of recent occasions. See for example

Harrington v. An Bord Pleanála (Unreported, High Court, Macken J., 11th July 2006), Dubsky v. Ireland (Unreported, High Court,

Macken J., 13th December 2005), Dunne v. The Minister for the Environment Heritage and Local Government and Others

(Unreported, High Court, Laffoy J., 18th March 2005), McEvoy v. Meath County Council [2003] 1 I.R. 203 and Sinnott v. Martin [2004]

1 I.R. 121.

2.3 From those authorities it is clear that the exercise of the courts discretion to depart from the normal rule that costs follow the

event is governed by two principles:-

1. That the plaintiff or applicant concerned was acting in the public interest in a matter which involved no private

personal advantage; and

2. That the issues raised by the proceedings are of sufficient general public importance to warrant an order for costs

being made in his favour.

2.4 As an additional point it should be noted that, in Harrington, Macken J. had to analyse the interaction between the requirement

under the first of the above principles to the effect that the plaintiff should not be acting to private personal advantage and the

requirement specified in section 50 of the 2000 Act to the effect that, in order to challenge most decisions in the environmental field,

an applicant is required to establish a “substantial interest” in the matter at issue (even though that interest does not, necessarily,

have to amount to a property type interest). Macken J. determined that the fact that an applicant may have established a

substantial interest in the proceedings did not, of itself, mean that such a party was debarred, under the first principle, from

qualifying on the basis of having some degree of private personal interest in the litigation. I respectfully agree with the conclusions

reached by Macken J. in that regard.

2.5 Neither of the respondents nor Clare Council argued that Mr. Sweetman was acting for private personal advantage in such a

manner as would debar him from meeting the first test. The real debate centred upon whether the second test was met. The true

question was, therefore, as to whether the proceedings could properly be characterised as being of sufficient general public

importance to warrant a departure from the ordinary rule as to costs.

2.6 There were, however, some additional issues which were raised at the hearing. Firstly attention was drawn to the fact that there

were, in substance, two separate and, it was said, discreet, sets of issues involved in the application (being those which were

directly concerned with the challenge to the approval by An Bord Pleanála of the roads plan concerned on the one hand and those

which were principally concerned with the transposition of the Directive on the other hand). Each of the respondents and Clare

Council made submissions as to the proper approach to a consideration of whether these proceedings or part of these proceedings

could properly be said to be characterised as a public interest challenge in the light of such a division.

2.7 In addition reliance was placed upon the fact that, for reasons which I set out in the substantive judgment, I was satisfied that

some important issues, relating to the process which is mandated in a review of an environmental decision by provisions of the

Directive, had not been raised in the pleadings although those issues were, nonetheless, argued and determined on the basis set out

in that judgment.

3 Application to this Case

3.1 However it seems to me that the appropriate starting point has to be to consider whether the proceedings have the appropriate

characteristics of being of sufficient general public importance to warrant a departure from the ordinary rule as to costs. If they have

not, then costs must follow the event. If they have then it will be necessary to give consideration to the additional submissions, to

which I have referred, in order to determine what the appropriate order as to costs should be.

3.2 It does not seem to me that the issues which were raised in relation to the direct challenge to the decision of An Bord Pleanála

are issues of such sufficient general public importance as would warrant characterising the proceedings, insofar as same relate to

those issues, as a public interest challenge. Mr. Sweetman had made a very generalised submission to An Bord Pleanála as to the

inappropriateness of approving the road scheme concerned. His complaint in these proceedings related to a question as to whether

the relevant permission of An Bord Pleanála was invalid by virtue of same not including a condition directed towards remediation in the

event that monitoring (which was the subject of a condition) revealed a worse than expected consequence on a sensitive

environment. It does not seem to me that that issue bears the characteristics of being one of general public importance and that

aspect of the case does not, therefore, seem to me to qualify under the tests which have been identified by reference to the cases

which I have cited.

3.3 I am not satisfied that the mere fact that the development of the road in question has the potential to have some possible effect

on a Candidate Special Area of Conservation would, of itself, make issues arising in a challenge to a permission for such a

development, necessarily, come within the category of public interest challenge. That does not, of course, mean that the sensitivity

of the development concerned and its location may not be a factor which, when coupled with the important, general, and difficult

legal issues arising, might properly lead a court to reach a conclusion that proceedings involve issues of general public importance.

However the legal issues which arose in respect of the challenge itself (as opposed to those which were relevant to the transposition

issue) cannot, it seems to me, be so characterised.

3.4 However, I have taken a different view in respect of the issues which arose in relation to the transposition issue. There are

important questions concerning the precise manner in which article 10a of the Directive is to be interpreted and as to how the

Directive should be implemented in Ireland. Some of those issues arose on this application. The issues concerned are of wide public

importance, in that they have the potential to affect very many court proceedings involving challenges in the environmental field. The

resolution of those issues has the potential to effect the interests and entitlements not only of those who may have the benefit of

the decisions under challenge but also authorities charged with giving permissions and the rights of persons who may seek to raise

such challenges. In simple terms the issues raised concerned both the provisions of the Directive concerning costs and also questions

concerning whether the process available to challenge certain environmental decisions in Ireland was adequate to meet the

requirements imposed by the Directive. Both sets of issues flow from new and potentially far reaching European legislation which has

only been the subject of limited judicial consideration to date.

3.5 It is important to note in that regard that, while not being satisfied that Mr. Sweetman had made out substantial grounds for his

challenge, I did note that it might well be necessary for the existing jurisprudence of the Irish courts in judicial review challenges in

the environmental field, to be adjusted so as to meet the obligations imposed by the Directive in at least two respects. For the

reasons which I set out in the substantive judgment, I was satisfied that it might well be necessary to have regard to the

requirement of the Directive that there be “wide access to justice” when interpreting the “substantial interest” threshold which an

applicant needs to establish under s.50 of the 2000 Act. In addition I was satisfied that it might well be necessary for a court, in such

proceedings, to apply a standard of challenge which might go beyond that identified in the existing jurisprudence, so as to provide a

means of reviewing the substantive legality of the environmental decision under challenge with a greater degree of scrutiny. Even

though, therefore, Mr. Sweetman has failed in his challenge, it seems to me that the proceedings have led to a potential evolution in

the jurisprudence in at least those two important respects. Those matters are of general public importance and seem to me to meet

the criteria set out in the jurisprudence.

3.6 I am, therefore, satisfied that, in principle, I should consider exercising a discretion in this case to depart from the general rule

that costs should follow the event. In that context the two issues, to which I have earlier referred, need to be considered for the

purposes of determining the precise order that would be appropriate in all the circumstances of the case.

4. Two Separate Cases?

4.1 While I fully appreciate and accept that, to quite an extent, these were almost two separate cases tried in these one

proceedings, it does not seem to me that it is appropriate to place any blame on Mr. Sweetman for that state of affairs. If Mr.

Sweetman had sought to raise the same questions concerning the transposition of the Directive in the abstract he would, doubtless,

have been met with serious issues as to whether he had the standing to mount such a challenge.

4.2 Therefore, the fact that Mr. Sweetman was seeking to challenge an actual decision by An Bord Pleanála which was relevant to

Clare Council was, at least arguably, a necessary part of his standing to raise the transposition issues. It does not, therefore, it

seems to me, follow that the costs should be divided in some way to reflect the two separate sets of issues.

4.3 It does, however, it seems to me, follow that it would be inappropriate to consider making any order against An Bord Pleanála,

because the issues which involved An Bord Pleanála were not those issues of general public importance which give rise to the exercise

of the discretionary jurisdiction in the first place.

4.4 So far as the State is concerned the issues which I have indicated were such as to satisfy me that the case was one of general

public importance, were, of course, directed to those respondents. However, there does seem to me to be some merit in the point

made by counsel on behalf of the State to the effect that some of the very issues which lead to that conclusion were not pleaded.

5. Part of the Case not pleaded

5.1 For the reasons which I set out in the substantive judgment, I was not satisfied that those aspects of the argument developed in

the written submission filed on behalf of Mr. Sweetman, which were concerned with whether the process available to challenge, by

judicial review, certain decisions in the environmental field, met the requirements of the Directive, were adequately pleaded. On that

basis, and having regard to the jurisprudence concerning the addition of significant substantial grounds in a leave application after the

expiry of the period during which such a challenge is required, by s. 50 of the 2000 Act, to be commenced, I took the view that I

would, in all the circumstances, nonetheless, consider those issues and, if I was satisfied that they had merit, afford Mr. Sweetman

an opportunity to persuade me that time should be extended.

5.2 It is fair to say, therefore, that at least a material part of the issues which led to the conclusion that this case involved important

questions of “general public importance”, were not pleaded and were only raised, for the first time, in written submissions filed close

to the date of hearing.

5.3 Were it not for that factor, I would have come to the view that Mr. Sweetman was entitled to his costs against the State. For

the reasons which I have already analysed I would not have been satisfied to reduce those costs by reference to the fact that there

were, in substance, two separate sets of issues at hearing, one of which did not meet the “general public importance” test. However

it seems to me that, in circumstances where a material aspect of the case, which contributed significantly to the case being properly

regarded as one of “general public importance”, was not pleaded, it is impossible to ignore that factor. I would, therefore, propose

awarding Mr. Sweetman half his costs against the State only. It is my understanding that McKechnie J. has already marked the fact

that the written submissions filed on behalf of Mr. Sweetman were very late, by directing that no costs at all should be awarded in

respect of those submissions. My order, therefore, is concerned with half of the costs, other than those relating to the written

submissions.

5.4 I also propose to make no order in respect of the costs of An Bord Pleanála or Clare Council. Given the conclusions which I have

reached to the effect that the proceedings cannot properly be divided for costs purposes and involve a public interest challenge in

accordance with the established jurisprudence of this court, it seems to me to follow that it would be inappropriate to award costs

against an applicant and in favour of a public body, even though such public body was necessarily involved in the proceedings. In the

absence of special circumstances, to do so would negate the overall intent of the jurisprudence of allowing a plaintiff or applicant

costs against a State Authority in such litigation. I would leave over to consideration to a case in which the issue specifically arose,

the more difficult question which might arise if a private body was also necessarily a party in such proceedings and would, in the

ordinary way, be entitled to its costs. In such a case it would be necessary to give consideration to balancing the proper entitlement

of such a person or body to obtain the costs of having successfully defended proceedings with the reasons behind the jurisprudence

in respect of public interest challenges. However no such considerations arise in this case as the “developer” is, itself, a public body.

6 Conclusion

6.1 I, therefore, propose making no order in respect of the costs of An Bord Pleanála and Clare Council. I propose awarding Mr.

Sweetman half of his costs (excluding the costs of written submissions) against the State.