Ireland: Environment & Planning Group Update – Domestic News, May 2018

Last Updated: 13 June 2018
Article by Arthur Cox

Domestic Cases

Following the recent CJEU decision in North East Pylon Pressure Campaign Ltd. and Maura Sheehy v. An Bord Pleanála & Ors, C-470/16 (NEPP) (accessible here), there have been two decisions of the Irish High Court on costs in cases wholly or potentially involving environmental grants. Both cases had been adjourned pending the determination of the CJEU in NEPP, and provide welcome guidance on the interpretation of the NEPP case.

Merriman & Ors. v. Fingal County Council, Ireland and the Attorney General, Dublin Airport Authority and Ryanair DAC [2017] No. 201 JR – 17 May 2018, Barrett J.

High Court makes split costs order, finds that Order 99 applies to costs relating to grounds of challenge under the Habitats Directive.

This judgment concerned the allocation of costs in relation to the unsuccessful judicial review by local residents of the decision of Fingal County Council to extend the "life" of the planning permission for development of the new Northern Runway at Dublin Airport. The challenge made in the course of the case involved three different categories of argument relating to:

  • The failure to carry out an Environmental Impact Assessment (EIA);
  • The failure to carry out an Appropriate Assessment (AA); and
  • The residents' property rights under the Constitution and the European Convention on Human Rights (ECHR).

The Applicants argued that under NEPP, all of their costs should be recoverable on the basis of the "not-prohibitively-expensive" requirement. Fingal County Council, daa, the State and Ryanair variously sought either some or all their costs adopting differing interpretations of NEPP.

Barrett J., in making costs orders, considered the three heads of challenge set out above.

  • EIA costs: EIA costs were subject to Article 11 of the EIA Directive and Section 50B of the Planning and Development Acts 2000 to 2017 (the Planning Acts) and accordingly made no order as to costs.
  • AA costs: Barrett J. held that while Order 99 of the Rules of the Superior Courts applied here (where costs "follow the event" unless there is special cause (Order 99 Rule 3)), so did the "interpretive obligation" described by the CJEU in NEPP. The CJEU held that Article 9(3) and (4) of the Aarhus Convention must be interpreted as meaning that where the application of national environmental law is at issue, it is for the national court to give an interpretation of national procedural law which is consistent with the objectives contained in the Aarhus Convention, so that judicial procedures are "not prohibitively expensive". Barrett J. made an order for costs against the local residents in favour of Fingal County Council and daa, but held that such costs must be measured in a manner which is not prohibitively expensive. This element of the Court's ruling remains to be adjudicated upon where sufficient information on the amount of cases to be discharged and the means of the residents to discharge same is put before the Court.
  • Constitutional/ECHR Rights costs: In relation to the non-EIA and non-AA costs, Barrett J. held that Order 99 of the Rules of the Superior Courts applied. All respondents (save for Ryanair) were awarded their costs on the basis that the applicants had been refused all reliefs sought and refused every point for which they sought leave to appeal.

SC SYM Fotovoltaic Energy SRL -v- Mayo County Council [2018] IEHC 245 – 4 May 2018, Barniville J.

High court makes distinction between EIA and non-EIA grounds when awarding costs

This decision on costs followed an unsuccessful application by SC SYM Fotovoltaic SRL (Fotovoltaic) to extend time to bring a judicial review leave application to quash a section 5 declaration issued by Mayo County Council for the laying of underground cabling and ducting to link an existing substation to a proposed wind farm substation.  The Respondent, Mayo County Council, did not seek its costs, and only Fotovoltaic and the developer Notice Party (Aeolus Windfarms Ltd.) engaged in the costs arguments before the Court.

Fotovoltaic had challenged Mayo County Council's decision on three basic grounds at the substantive hearing:

  • An EIA/public participation related ground; 
  • A fair procedures ground; and 
  • A ground based on the alleged failure by the Council to provide adequate reasons for its decision.

Barniville J considered each of the three grounds separately in coming to his decision on costs and concluded as follows:

  • EIA/public participation costs: the "not prohibitively expensive" requirement applied to the arguments made under this head. 
  • Fair procedures, and 
  • Inadequate reasons costs: the grounds of challenge raised under these two heads were not concerned with national environmental law or its application and therefore the 'not prohibitively expensive' requirement did not apply.

Barniville J. ordered Fotovoltaic to pay two thirds of the developer Notice Party's costs.

The judgment can be accessed here.

Hayes and Others v An Bord Pleanála [2016] No.499 JR – 17 May 2018, Ní Raifeartaigh J.

High Court quashes decision to grant future planning permission for a non-compliant quarry due to failure to environmentally assess the impact of past development

The Applicants challenged An Bord Pleanála's (the Board's) decision to grant planning permission to a quarry in Cork. The quarry owner had previously failed to register the quarry under s.261 of the Planning Acts with the local planning authority rendering it "unauthorised development". In response to an enforcement notice, it ceased operating for six months. It then applied for planning permission in respect of future development under s.34 of the Planning Acts for essentially the same plot of land. The application was accompanied by an EIS. The Board, on appeal, granted planning permission and this was challenged by the Applicants.

Ní Raifeartaigh J. quashed the Board's decision due to its failure to factor the impact of past development on the environment into the decision making process and the absence of any remedial Environmental Impact Statement from the quarry owner. In doing so, she noted the decision of the CJEU in Cases C-196/16 and 197/16 Commune Di Corridonia v. Provincia Di Macerate, in which the Court had held that an assessment carried out after a plant has been constructed and entered into operation cannot be confined to its future impact on the environment but must also take into account its environmental impact from the time of completion of construction. Ní Raifeartaigh J. held that "EU law requires that information about past adverse environmental effects (if any) be made available to the decision maker and a decision made by the decision-maker about the future in light of all relevant information."

Cork County Council v. O'Driscoll [2018] IEHC 203 – 18 April 2018, Baker J.

High Court considers the nature and effect of the conditions of a waste licence

This case arose out of a motion for summary judgment brought by Cork County Council, which was seeking to recover a €1.2 million landfill levy due under the Waste Management Act 1996, as amended. Mr O'Driscoll, the Defendant, resisted the application on a number of grounds, including that the levy was wrongfully claimed by Cork County Council. Mr. O'Driscoll's defence did not succeed and Cork County Council was granted judgment.

What is notable about the case is its consideration of the nature and effect of the conditions of a waste licence including the levy payment obligation. In particular, Baker J. considered whether the conditions were such that the breaches could be termed technical, or did they need to be treated as conditions precedent and necessary to the operation of the licence? In finding that they were conditions precedent, Baker J. held that in deciding on such a question the substance of the condition should be examined and that the literal wording of the condition will not be conclusive. She also set out a three pronged methodology for categorisation of waste licence conditions. These are that a condition must be examined in light of:

  • The facts; 
  • The considerations intended to be achieved by the imposition of the condition, and; 
  • The probable consequences of the breach.

Separately, it should be noted that Baker J. also held that the claim was a statutory claim and not a claim in contract for the purposes of the Statute of Limitations, which meant that the case was not statute barred as argued by the defendant.

This judgment can be accessed here.

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This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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