PCOs Planning Environmental Law Tom Flynn Barristeratlaw Context

PCO’s & Planning & Environmental Law Tom Flynn Barrister-at-law

Context � In Environmental & Planning Law context International & EU considerations apply � A ‘Special Costs Regime’ contained in s. 50 B of the PDA 2000 and s. 3 of the EMPA 2011 � Applies to many but nor all Environmental and Planning proceedings � In nature and effect bears some resemblance to a PCO � For cases outside ‘Special Costs Regime’ normal rules as to costs/PCO apply 2

Aarhus Convention – Status • • • AC international legal agreement under the auspices of the UNECE ratified by Ireland & EU AC has not been incorporated directly into domestic law Imposes obligations on Ireland in international law - Enforced through Aarhus Compliance Committee (‘ACC’) AC ratified by EU & incorporated into EU law and thus into Irish law In context of PCO’s most NB are Article 9 obligations access to justice by way of a procedure which is ‘not prohibitively expensive’ 3

Aarhus Convention -Obligations • AC imposes a number of obligations on parties in respect of public participation in environmental decisions, which include: ◦ an obligation to ensure that members of the public have access to administrative /judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment ◦ such procedures must provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not be prohibitively expensive 4

Aarhus Convention – EU Law • • • EU approved AC & enacted measures to incorporate AC into EU Law Directive 2003/35/EC on Public Participation amended EIA & IPC Directive by inclusion of ‘access to justice clause’ i. e. ‘not probhitively expensive’ requirement Directive 2003/04 on public access to environmental information were enacted. Krizan (Case C- 416/10) LZ (Case C-240/09) AC has force in domestic law through the scope of application of EU law 5

Aarhus Convention - Case C 260/11 - Edwards • • • CJEU persons covered by provisions of EU law should not be prevented from seeking, or pursuing a claim for, a review by the courts that falls within the scope of those articles by reason of the financial burden that might arise as a result. CJEU in effect held the test encompassed both an objective and subjective element. Cannot be solely on the basis of the financial situation of the person concerned but must also be based on an objective analysis of the amount of the costs

Aarhus Convention - Case C 260/11 - Edwards • 1. 2. 3. 4. 5. National court may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure and the potentially frivolous nature of the claim at its various stages.

Aarhus Convention - Case C 260/11 - Edwards • • • Edwards provides a significant degree of clarity as to what precisely is meant by the phrase ‘not probhitively expensive’ in the context of EU law and the manner in which this test should be applied. CJEU a broad range of factors of both an objective and subjective nature should be taken into account by national courts in determining the manner in which the ‘not probhitively expensive’ test is applied. Important implications in domestic law

Implementing/Transposing AC into Irish Law • • • Has/is proving problematic First moves - AIE Regulations/PDA 2006 s. 50 A C-427/07 in Commission v Ireland – existing discretionary costs rules in breach of EU law EMPA 2011 - Part II – s. 3 – new special costs rules applies to certain civil cases as set out in s. 4. EMPA 2011 - Requirement that judicial notice be taken of the AC PDA 2010 ( as amended by EMPA 2011) – s. 50 B special costs in certain planning cases. 9

Environmental (Misc) Provisions Act, 2011 - The Special Rule � Part 2 – EMPA – ‘Costs in certain Proceedings’ Section 3(1) – ‘Each party (including notice) party shall bear its own costs’ � Subject to s. 3(2) – applicant may get costs or portion of costs to extent they succeed in obtaining relief such costs to be born by the respondent and or notice party to the extent they contributed to the acts or omissions which led to the Plaintiff getting relief � Subsections (3)(a) (c) – further basis for awarding costs - conduct of case etc 10

Section 3 of EMPA Act- Scope • Modified cost rule set out in s. 3 of the EMPA & scope of application of rule set out in s. 4 of the EMPA � 4. —(1) Section 3 applies to civil proceedings, other than proceedings � � referred to in subsection (3), 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 paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment 11

Scope of application of s. 3 of EMPA � S. 4(1)(a)(b) – initially suggested it did not apply where court proceedings are brought to ensure compliance with planning or environment law in a situation where there is no planning permission, consent or licence has been obtained i. e. only applies where there is breach of an existing permission/licence � Appears this was clearly the intention of the Oireachtas � s. 3 EMPA applies to certain JR proceedings � s. 3 does not apply to proceedings instigated by public authorities 12

Hunter v Nuerendale Ltd t/a Panda Waste • Scope of application of s. 3 EMPA considered in context of s. 160 proceedings - Hedigan J • “The fact that the applicant claims both the failure to comply • Affirmed by Crt. Appeal in Mc. Coy with planning permission and the absence of planning permission in the same set of proceedings does not appear to me to take the case out of s. 3. In any event, because s. 4 refers to the enforcement of a statutory requirement, it appears to me that s. 3 would cover a situation where there was no planning permission in existence because that would be a situation where there had been a failure to comply with the statutory requirement” 13

Rowan v Kerry County Council (No. 2) [2012] IEHC 544 • • • Unsuccessful JR to quash a decision by planning authority certifying road realigned in accordance with the requirements of a condition in PP. Applicant - purpose of the proceedings was to secure compliance with a condition in a PP thus, the proceedings fell within the scope of s. 3 EMPA Birmingham J. look at proceedings as instigated & consider the reality and substance of proceedings Proceedings were not designed to secure compliance with a condition lest non-compliance results in damage to the environment, but were issued to advance the applicant’s private agenda to prevent a neighbouring landowner build a house Decision appealed to Supreme Crt – Held certificate for leave to appeal required under s. 50 A(7) PDA – appeal dismissed with addressing substantive point. 14

CLM Properties Ltd. v Greenstar Holdings Ltd. & Ors. (No. 2) [2014] IEHC 288 • • • Finlay-Geoghegan J. followed Rowan Pleadings are the starting point for any consideration, but Court is required to assess whether, as a matter of reality and substance, the proceedings are for the purpose of ensuring compliance with or enforcement of either a statutory provision or condition Court must first determine if the objective purpose of the proceedings is to ensure compliance with or enforcement of a statutory requirement or condition, then consider, “objectively on the facts before it”, whether the alleged failure to comply or enforce has caused, is causing or is likely to cause damage to the environment. 15

Waterville Fisheries Development Ltd v Acquacultural Licenses Appeals Board (No. 3) [2014] IEHC 522] • • • Unsuccessful JR of decision of the Aquaculture Licensing Appeals Board to grant an amendment to an aquaculture licence Did modified costs rules apply under s. 3 EMPA Hogan J. No because aquaculture licensing regime did not come within scope of s. 3/4 of EMPA Applicant cannot directly rely on Aarhus Convention – not part of domestic Irish law Not rely on Art 11 of EIA directive proceedings did not involve compliance with the EIA Directive “in any shape or form” 16

Callaghan v An Bord Pleanala [2015] IEHC 357 • • JR of decision of Board to designate proposed development as SID Challenged on grounds of fair procedure lack of consultation in pre-planning meetings stage this failure satisfies the requirement in s. 4(1)(b) of the Act of 2011 that it “has caused, is causing, or is likely to cause, damage to the environment”. • Application under s. 7 EMPA that special costs rules under s. 3 apply to proceedings 17

Callaghan v An Bord Pleanala • • • Costello J refusing application: It is absolutely clear that a determination, pursuant to s. 7, that s. 3 of the Act of 2011 applies to the proceedings cannot be made unless there is a causative link between the failure to ensure compliance with, or the enforcement of, a statutory requirement and damage to the environment. The damage to the environment may have been caused, continuing or it may be something that is likely to be caused in the future. No planning permission yet applied for provisions of s. 3 EMPA did not apply. 18

Mc. Coy v Shillelagh Quarries Ltd [2014] IEHC 511 Baker J, High Court • • • Proceedings to restrain alleged unauthorised quarrying where no pp in existence s. 160 PDA. Application under s. 7 that special costs rules apply – opposed as app ‘not seeking to enforce a pp’ reject by Baker J, - followed Holly Hunter Application not premature & had a real or reasonable prospect of success – Holly Hunter Court satisfied that the proceedings relate to the general public interest in the environment and not to private enjoyment of land. Procedural tests set out in Holly Hunter applied 19

Mc. Coy v Shillelagh Quarries Ltd [2015] IECA 28 Crt. Appeal] • • Status of AC -subsumed into EU law and thus crt obliged, in an appropriate case, to give effect to the terms of AC as part of these wider EU law obligations – but not this case as governed entirely by national law AC Convention – not part of domestic Law EMPA sought to approximate domestic law with AC - not part of domestic law Existence of AC should not decisively influence interpretation of EMPA – but see NAMA V CEI 2015 IESC 51 & MINCH v CEI 2016 IEHC 20

Mc. Coy v Shillelagh Quarries Ltd Crt. Appeal • • Did proceedings fall within scope of s. 3 EMPA – s. 160 PDA where no PP in permission S. 4(1) of EMPA “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, . . . Respondent – this means s. 4 does not apply in this case. S. 4 to be read disjunctively i. e. Can apply to proceedings where no pp/licence in situ. 21

Mc. Coy v Shilelagh Quaries Crt. Appeal • • • Was making of costs order premature ? Crt. Appeal – No Para 35 judgement: “clear from the terms of s. 7 of the 2011 Act that the Court has a jurisdiction to make a final determination regarding a protective costs order at this early stage of the proceedings. Any other conclusion would defeat one of the principal objects of the 2011 Act and would be at odds with the actual language (“…at any time before, or during the course of the proceedings…”) of s. 7(1). ” 22

Procedure under s. 7 of EMPA • • Application for determination that s. 3 applies may be made at any time before, or during the course of, the proceedings Application made on motion – ex parte application not possible - Supreme Crt - Re Coffey’s Application [2013] IESC 31 The grant of a declaration under s. 7 is discretionary – what factors should the court take into account ? Is a declaration under s. 7 is irreversible ? 23

Procedure under s. 7 of the EMPA – Hunter (as approved in Mc. Coy) • 1. 2. 3. 4. 5. 6. Hunter proceedings should be brought by motion on notice supported by an affidavit of the applicant which should set out- broadly the expenses involved in such an application would be; a broad statement of the claimant's financial situation; the reasons why he believes that there is a reasonable prospect of success, set out clearly what is at stake for the claimant and for the protection of the environment; deal with any possible claim of frivolous proceedings, should that arise; and applicant should deal with the existence of any possible legal aid scheme or any contingency arrangement in relation to costs that may have been made with their solicitors. 24

S. 50 B Planning and Development Acts 2000 -2015 � Introduce • • • the ‘special costs regime’ in certain planning JR cases 50 B (1)(a) of the PDA is applicable to proceedings for judicial review or seeking leave to apply for judicial review of any decision made or action taken or any failure to take action pursuant to a law of the state that gives effect to: EIA/SEA/IPPC Directive JC Savage – Charleton. J - modified costs not of general application limited to three categories referred to in s. 50 B(1)(a) PDA Kimpton Vale Developments Ltd – Hogan J follows Savage – but suggests s. 50 B could be interpreted to be of general application 25

S. 50 B of the PDA • • • 50 B (1)(a) of the PDA is applicable to proceedings for judicial review or seeking leave to apply for judicial review of any decision made or action taken or any failure to take action pursuant to a law of the state that gives effect to: EIA/SEA/IPPC Directive JC Savage – Charleton. J - modified costs not of general application limited to three categories referred to in s. 50 B(1)(a) PDA Kimpton Vale Developments Ltd – Hogan J follows Savage – but suggests s. 50 B could be interpreted to be of general application 26

Harrington v An Bord Pleanála • � • O. Neill J, certified the following point of law of exceptional public importance for appeal to the Supreme Court: “Whether or not section 50 B of the Planning and Development Act 2000 as amended properly construed applies to all proceedings that arise under the Planning and Development Act 2000 as amended or merely those proceedings that arise pursuant to a law of the State that gives effect to the European Directives listed at section 50 B(1)(a). ” Appeal pending: 27

What is proper scope of s. 50 PDA • • • Notwithstanding the decision in J. C. Savage there still remains a degree of uncertainty as to the precise nature of the proceedings which fall within the scope of s. 50 B of the PDA Entirely understandable that applicants who instigate judicial review proceeding under s. 50 of the PDA will try and avail of the advantages of the modified costs rules contained in s. 50 B Outcome of appeal in Harrington will hopefully bring clarity to the issue

Application of s. 50 B � What about mixed cases – involving a challenge which partially falls within the scope of s. 50 B ? � Mc. Callig v ABP (No. 2) [2014] IEHC 353. � In certain cases the court may have to apportion costs as between EU law issues & national issues � Difficult to apply in practice 29

Relationship between s. 3 of EMPA and s. 50 B of the PDA • S. 50 B of PDA applies special costs rule to limited categories of cases: EIA/SEA/IPPC – cases J. C. Savage Supermarket Limited v An Bord Pleanála Shillelagh Quarries Limited v An Board Pleanala – impacted by the EMPA ? • • s. 6(a) EMPA new costs rule apply to “proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review, of proceedings referred to in s. 4 or s. 5”. Kimpton Vale – in summary no - JC Savage applies 30

Aarhus Convention – PCO’s • Does not alter or impact on existing law governing legal representation – Re Coffey [2013] IESC 11 2013 • • Legal Aid ? – Browne v Fingal CC [2013] IEHC 630 Applicant sought order conferring an indemnity for his legal costs (regardless of the outcome of proceedings) in advance of leave for JR Peart J, no basis in law for such an order – AC/EU law do not mandate legal aid be made available – Held - s. 50 B meets obligations under AC Peart J ‘No jurisdiction to ‘cap’ costs 31

Future developments • • Outcome of 2014 the DECLG public consultation on Article 9 of the Aarhus Convention awaited Proposed “Aarhus Convention Bill’ – publication 2016 “to consolidate and clarify the existing costs provisions in one piece of legislation, to provide a statutory basis for a number of other provisions of the Aarhus Convention and related EU Directives” What will Bill contain ? 32

Future Developments � Number of complaints against Ireland lodged with ACC � Hearings before ACC on one complaint concluded & determination awaited � Other complaints in system � Key question is ‘special costs regime’ compatible with AC � Answer may require further legislative amendments 33

Thanks for your attention! 34