High Court rejects 'costs follow event' exception for private planning disputes under Environment Act 2011.

Neutral Citation: 2012 [IEHC] 544

THE HIGH COURT

BETWEEN

MICHAEL ROWAN

APPLICANT

AND

KERRY COUNTY COUNCIL

RESPONDENT

AND

TIM MULVIHILL

NOTICE PARTY

JUDGMENT of Mr. Justice Birmingham delivered the 5th day of March 2012

1. In this case I delivered judgment on 17th February 2012, refusing the applicants the reliefs that he had sought. In these

circumstances the respondent and notice party, the successful parties, sought an order for costs in their favour. However, that

application has been resisted by the unsuccessful applicant who has submitted that the proper course is that each party should bear

its own costs. On his behalf it is argued that outcome is mandated by the terms of s. 3(1) of the Environment (Miscellaneous

Provisions) Act 2011.

2. The operative portion of ss (3) and (4) of the Act of 2011 are in these terms:-

(3) Notwithstanding anything contained in any other enactment or in –

(a) Order 99 of the Rules of the Superior Court (S.I. No. 15 of 1986) and subject to subsections (2), (3), (4) in

proceedings to which this section applies each party (including any notice party) shall bear its own costs.

I would just observe that subs (2) deals with the circumstances in which there may be an order for costs in favour of successful

applicants subs (3) deals with claims that are frivolous or vexatious and related issues and subs (4) deals with cases of exceptional

public importance where it is in the interests of justice to award costs. It is not suggested that subs (2), (3) and (4) are of any

relevance. Subsection 4 so far as relevant provides:-

(4)(1) Section 3 applies to civil proceedings... instituted by a person –

(a) For the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or

other requirement attached to a licence, permit, permission, lease or consent specified in subsection (4) or

(b) In respect of the contravention of or the failure to comply with such licence, permit, permission, lease or

consent, and where the failure to ensure such compliance with, or enforcement of, such statutory requirement,

condition or other requirement referred to in para (a) or such contravention or failure to comply referred to in para

(b) has caused, is causing or is likely to cause, damage to the environment.

(2) Without prejudice to the generality of subsection (1) damage to the environment includes damage to all or any of the

following and

(g) Health and safety of persons and conditions of human life

(4) For the purpose of subsection (1) this section applies to –

(n) A permission or approval granted pursuant to the Planning and Development Act 2000.

3. The unsuccessful applicant contends that the proceedings were brought to ensure compliance with the provision of Condition 1(1)

of the decision of An Bord Pleanála of the 17th January 2007 to grant permission for the erection of a single storey dwelling. Clause

1(1) it will be recalled in these terms:-

“Development shall not commence until the public road to the south of the site has been realigned the satisfaction of the

Planning Authority.

Reason: In the interest of traffic safety.

4. The starting point for consideration of this issue must be the proceedings actually initiated. The proceedings do not, in themselves,

on their face, purport to seek to secure compliance with the terms of the condition of the planning permission. Rather the proceedings

were directed at challenging the decision of Kerry County Council of the 7th September 2011 which concluded that realignment had

taken place to its satisfaction.

5. An examination of the pleadings would not suggest that they fall within the scope of subs of (3) and (4). However, that is not the

end of the matter because it must be acknowledged that the arguments advanced in support of the challenge saw the applicant

contending that in permitting work to commence that the respondent was sanctioning non compliance with the condition, a condition

which An Bord Pleanála had stated was being imposed in the interests of traffic safety.

6. It seems to me that given the structure of the proceedings and the nature of some of the arguments advanced that it is necessary

to consider whether as a matter of reality and substance the proceedings were designed to ensure compliance with a condition,

because of concern that non compliance will result in damage to the environment in the sense of jeopardising the safety of people.

7. In that respect, it must be appreciated that the junction of the public road/private road or lane which already exists would remain

active irrespective of the outcome of the proceedings. It would continue to be used amongst others by the applicant. The actions or

omissions of the applicant would continue to impact adversely on sight lines. In substance these proceedings were not designed to

secure compliance with a condition lest non compliance result in damage to the environment. They cannot, in my view, be said to be

proceedings instituted for the purpose of securing compliance but were issued to advance the applicant’s private agenda to prevent a

neighbouring landowner build a house. So viewed the proceedings are not ones to which the 2011 Act applies and in these

circumstances the ordinary rules in relation to costs remain in force, the ordinary rules being that costs follow the event. Applying

those ordinary rules it follows that there must be an order for costs in favour of the respondent and notice party.