ENFORCING EUROPEAN UNION ENVIRONMENT LAW
Faculty of Law, University College Cork, November 23rd 2012.
Enforcement of EU Environmental Law – developments at domestic level
TOM FLYNN
Barrister-at-law
1. Introduction
The overarching objective of this conference is to identify and explore the issues surrounding
the enforcement of EU Environmental law. The problem of ensuring effective enforcement of
EU Environmental law exists at a both community and domestic level. Ireland in common
with all the member states of the EU continues to grapple with the problem of effectively
enforcing EU environmental law. This paper attempts to highlight a number of specific
problems and emerging issues surrounding the enforcement of EU environmental law at
domestic level. A unifying theme is the impact of the Aarhus Convention and related
obligations under EU law.
2. Ratification of the Arahus Convention
After a protracted delay earlier this year Ireland finally ratified the Convention on Access to
Information, Public Participation in Decision-making and Access to Justice in Environmental
Matters in June 1998 (‘the Aarhus Convention’).1 The implications of the ratification of the
Aarhus Convention and their consequences for the implementation of EU environmental law
in Ireland are beginning to become apparent.2
(i)
The status of the Aarhus Convention in Irish Law
Despite the fact that Ireland has ratified the Aarhus Convention it does not become part of
domestic law of the state until ratified by the Oireachtas in accordance with the provisions of
Article 29.6 of the Constitution.3 However, prior to ratification and Ireland enacted a number
of legislative measures designed to give effect to the Aarhus Convention in domestic law and
provided for judicial notice to be taken of the Convention.4 The most significant of these
measures is the amendment to the costs rule in certain planning and environmental cases
contained in s.50B of the Planning and Development Acts 2000-2012 and Part 2 of the
Environment (Miscellaneous Provisions), Act 2011. 5 Section 8 of 2011 Act also requires
that requires that judicial notice be taken of the Aarhus Convention but does not expressly
1
United Nations Economic Commission for Europe (UN ECE) Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental Matters adopted in Aarhus, Denmark
in June 1998.
2
For a comprehensive analysis see Ryall A. ‘Access to Justice in Environmental Matters: Pulling the Threads
Together’ IPELJ Vol. Vol. 18. No. 4. P.149.
3
Article 29.6 provides that “ No international agreement shall be part of the domestic law of the State save as
may be determined by the Oireachtas”.
4
Most notably the Environment (Miscellaneous Provisions) Act 2011, Part 2.
5
No. 20 of 2011.
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incorporate it into Irish law. However, the Aarhus Convention “is part of the EU legal order
and has binding force as part of the domestic law by virtue of the force of and within the
proper scope of application of European Union law.”6
In O Connor v EPA7 the Applicant brought an application seeking a declaration on an ex ante
and ex parte basis that it was entitled to have what is described in the judgement “as a not
prohibitively expensive cost order”. The applicant indicated he intended to challenge by way
of judicial review proceedings a decision of the EPA pursuant to the Genetically Modified
Organisms (Deliberate Release) Regulations, 2003 to grant consent to TEAGASC to conduct
carry out the deliberate release of certain genetically modified potato lines subject to certain
conditions. However, no such proceedings had been issued as of the date of the application.
The legal basis for the application for a declaration was stated to be Article 9(4) of the
Aarhus convention which requires that the procedures for challenging the validity of certain
administrative decisions affecting the environment:
“shall provide adequate and effective remedies, including injunctive relief as appropriate and
be fair, equitable, timely and not prohibitively expensive.”
It appears that on this basis and in reliance of the fact that Ireland had now ratified the Aarhus
Convention the applicants argued they were entitled to what is described as “a not
prohibitively expensive cost order” although it is unclear from the judgement what precisely
was the nature of the order sought by the applicant.
In his judgement Hogan J, noted that the application appeared to be based on the erroneous
assumption that the mere act of ratification was sufficient in itself to make the Aarhus
Convention part of Irish domestic law. He noted:
“..... This, however, is not the case for two reasons. First, Article 20(3) of the Convention
provides that so far as each State which subsequently ratifies the Convention:
“. . . shall enter into force on the ninetieth day after the date of deposit by such State
or organization of its instrument of ratification, acceptance, approval or accession.”
This means, therefore, that the Convention will only enter into force so far as Ireland’s
international law obligations are concerned on 17th October 2012.
Second, the Oireachtas has not (yet) elected to make the Convention part of the domestic law
of the State in the manner required by Article 29.6 of the Constitution.
It follows, therefore, that insofar as the Convention has binding force as part of the domestic
law of this State it is only by virtue of the force of and within the proper scope of application
of European Union law. While the Union ratified the Convention in February 2005, the
preparatory work for the ultimate transposition of the principles of the Convention are found
in Directive 2003/35/EC: see recitals 5 to 10 of that Directive. This is further reflected in the
recitals 18 to 22 of Directive 2011/92/EU (“the 2011 Directive”), which is the consolidated
version of the Environmental Impact Assessment Directive. Article 11(1) provides that
Member States shall provide for access:
6
7
Per Hogan J in O’Connor v The EPA 2012 IEHC 370.
2012 IEHC 370.
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“to a review procedure before a court of law or another independent and
impartial body established by law to challenge the substantive or procedural
legality of decisions, acts or omissions subject to the public participation
provisions of this Directive.”
Article 11(4) requires that any such procedure “shall be fair, equitable, timely and not
prohibitively expensive.” 8
Hogan J, noted that some consideration of the phrase ‘not prohibitively expensive” was given
by the Court of Justice in its judgment in Case C-427/07 Commission v. Ireland9 and that the
judgment confirmed that the making of a costs order in environmental cases is not in itself
precluded by these provisions, provided that the costs are not prohibitive. He noted however
that question of what is meant by the phrase “not prohibitively expensive” was uncertain and
in fact the subject of reference pursuant to Article 267 TFEU by the UK Supreme Court in
Case C-260/11 R. (Edwards) v. Environmental Agency [2011] OJ C226/16. Hogan J, also
referred to the fact that in the UK Supreme Court, Lord Hope in his judgement making the
order for the reference had examined the various possible meanings of that phrase, and
suggested that the question of prohibitive cost should be measured by reference to the
standards and monetary values of the average members of the public. On this Hogan J
commented:
“Pending a final decision by the Court of Justice, I would rather incline to that view. It would
not take much persuasion to convince me that the traditional taxed costs associated with a
complex challenge of this kind would be likely to be measured at a level which would deter
most members of the public from commencing litigation of this kind. It might accordingly be
thought that such a level of costs might be said to be prohibitively expensive in that sense.”10
Addressing, the applicants application for the declaration sought Hogan J noted:
“Nevertheless, enough has been said to demonstrate that the meaning of the phrase “not
prohibitively expensive” is at present uncertain and requires further clarification from the
Court of Justice. Moreover, is not even clear that the requirements of Article 9(4) of the
Aarhus Convention (or, more precisely, the corresponding obligations contained in both the
2008 Directive and the 2011 Directive) apply to a challenge to the validity of an
administrative decision licensing the release of genetically modified organisms for the
purposes of field tests. A further issue is whether the Directives require that the level of costs
must be determined ex ante and capped at some upper limit. All of these matters are at present
uncertain
I appreciate that the applicant maintains that he must secure this assurance regarding costs on
an ex ante basis before even commencing proceedings against the Agency, as otherwise he
could not take the financial risks associated with the commencement of litigation. Enough has
been said, however, to show that the applicant’s entitlement to the relief sought and the scope
of any such order is uncertain. Even assuming that I had a jurisdiction to make such an order
on an ex ante and ex parte basis, it would be grossly unfair to make a final order of this kind
8
Paragraphs 9-13 of the judgement.
[2009] E.C.R. I-627
10
At paragraph 17 of the judgement.
9
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without having given the Agency and any other notice parties the opportunity to have been
heard on the matter.
In these circumstances Hogan J, declined the application for the declaration sought. It should
be noted that in NO2GM Ltd v The Environmental Protection Agency Ltd 11 a practically
identical application was brought and dismissed by Hogan J, on similar grounds. These
decisions highlight the status of the Aarhus Convention in domestic law. However, the
judgement of Hogan J, highlights the uncertainty surrounding the requirement that access to
review procedures are “not prohibitively expensive” and the limitations this currently places
on litigants who seek to invoke this obligation in domestic law. The comments of Hogan J,
that the level of taxed costs in complex cases might well be considered to be prohibitively
expensive are of interest in the context of the ongoing debate as to whether Ireland is current
meeting its obligations under EU law in this regard.
3. Taxation of Costs
The impact of the Aarhus Convention and associated obligations under EU law is also being
felt in the area of the taxation of costs. Under existing Irish law the Taxing Master is the
public official responsible for determining the costs to be paid by parties in default of
agreement. This process is referred to as ‘taxation of costs’. The decisions of the Taxing
Master are subject to appeal to the High Court. The question arises to what extent if any do
the obligations imposed under the Arahus Convention, EU Law and transposing domestic
legislation that that access to review procedures be “not prohibitively expensive” apply to and
impact on the taxation of costs.
This question was considered in Klohn v An Bord Pleanala12 in the context of taxation of
costs. The applicant was unsuccessful in judicial review proceedings and costs were awarded
against it.13 The costs were assessed by the Taxing Master at approximately €86,000 and the
applicant requested the High Court to review the taxation process by which the costs were
assessed. The principal ground for requesting a review was that the Taxing Master did not
have regard to art.10a of the EIA Directive and the requirement that review procedure (in
Ireland's case, judicial review) “shall be fair, equitable, timely and not prohibitively
expensive”. The Taxing Master considered he had no jurisdiction to consider art10a. In
dismissing the application for review of the decision of the Taxing Master Hedigan J. held
that the Taxing Master did not have power to apply art.10a because:-
“[t]he powers vested in the Taxing Master are clearly limited to assessing and
determining the value of work done. The Courts role in reviewing the decision of the
Taxing Master is likewise limited to the issue of determining the value of work done”
11
2012 IEHC 369.
2011 IEHC 196 Heidigan J
13
The proceedings are reported at Klohn v An Bord Pleanala [2009] 1 I.R. 59
12
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In Klohn the application for planning permission had been made prior to the date for
transposition of Article 10a (June 25th ) and thus Hedigan J, held it art. 10a was not
applicable. However, Hedigan J. appeared to leave open the possibility of art.10a applying in
the case of planning applications made after June 25, 2005. He stated:
“It may well be the case that if the planning application post-dated the 25thJune, 2005,
which was the date for implementation of Article 10a of the EIA Directive the
applicant would have an arguable case that costs of approximately €86,000.00
violated this provision. However that is not the situation here, the planning
application predates the 25thof June, 2005.”
It is submitted the foregoing comments of Hedigan J, are obiter having regard to the earlier
finding of his decisions. They do however appear to leave open the possibility of a challenge
to a decision on the taxation of costs in circumstances where the proceedings relate to an
application for planning permission made after the 25th of June 2005.
The issue was further considered in Kenny v Trinity College Dublin14 where the applicant
invoked Article 10a of the EIA Directive in an application seeking to review the taxation of
costs in three sets of proceedings in which he was the unsuccessful party who was ordered to
pay the costs of the successful litigants. The Applicant had made a submission to the Taxing
Master that the provisions of the Aarhus Convention and art 10a of the EIA Directive
operated to limit the costs that could be awarded against him to amounts that were "not
prohibitively expensive". The Taxing Master did not agree and proceeded to make his
decisions in the three cases on the traditional criteria. The Applicant challenged the decision
of the Taxing Master on the grounds his decision was wrong in law in applying the traditional
criteria.
In his judgement Ryan J, first noted that in all three sets of proceedings the Courts that had
imposed the orders for costs had determined that neither the Aarhus Convention or the article
10a of the EIA Directive were applicable and/or relevant. In these circumstances Ryan J,
noted:
“Having regard to these observations by the Courts that imposed the orders for costs, I cannot
see how the Taxing Master could have acceded to Mr Kenny's request that he apply Article
10a to the measurement of costs. The respondents submit, in my view correctly, that the
question of the applicability of Article 10a was determined by the Courts and that it was not
open to the Taxing Master to decide otherwise”
Ryan J, next considered the statutory function of the Taxing Master and noted
“On a review of taxation an applicant must show that the Taxing Master was in error and that
there was an injustice: section 27(3) of the Courts and Courts Officers Act, 1995. In this case
the applicant relies on the inherent probability that if the costs were to be measured by
reference to the suggested test, the outcome would be a greatly reduced bill. Injustice is to be
14
[2012] IEHC 77.
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inferred as a matter of probability. The question whether the costs were prohibitively
expensive did not arise at the hearing before the Taxing Master. There was no evidence
before me that the amounts that were permitted were in fact excessive and it would seem
therefore that if I upheld Mr Kenny's objections, it would be necessary to send the matter back
to the Master for a new hearing.
The Taxing Master is required to carry out his function in accordance with the above Act and
with the Rules of the Superior Courts. That is to decide on questions that are raised by the
parties as to the costs a receiving party should recover from a paying party. The successful
party is entitled to recover from the paying party the costs that it was reasonable for him to
incur in pursuing or defending the action.
In the circumstances, it was not open to the Taxing Master to superimpose the test that the
applicant proposed.”
Ryan J, also noted that the first two cases were instituted before the last date allowed by the
Directive for bringing it into domestic law. Finally, the Respondents argued that whilst the
original proceedings which involved a challenge to grant planning permission for student
residences at Trinity Hall in Dublin were within the scope of the EIA Directive the
subsequent three proceeding (to which the costs orders related) were a fraud case, compliance
proceedings and a case about a stay and thus outside the scope of the EIA Directive or the
Convention. On this point Ryan J, noted:
“When the issues in litigation have been decided and further disputes are raised, there comes
a point at which the original legal context segues into other, quite different legal rubrics. That
is what has happened in the matter of Mr Kenny's epic struggle over the Trinity Hall
development. It follows that these three cases are subject to the same logic. They are not
about the environment”
In the context of taxation costs it should be noted that at the date of writing the Legal
Services Regulation Bill 2011 is before the Oireachtas and expected to be enacted shortly.
Amongst, other matters the Bill proposes to establish the Office of the Legal Costs
Adjudicator (to replace the Taxing Masters’ Office) and significantly reform the rules and
principles applicable to legal costs. It remains to be seen how these new rules will impact on
the obligations under the Aarhus Convention.
4. Standard of review in judicial review proceedings
One key issue which has begun to emerge in the context of the enforcement and
implementation of EU environmental law is the compatibility of the existing law on judicial
review with the requirements of the Aarhus Convention and EU law. In particular concerns
have been raised around the standard of review in judicial review proceedings currently
applicable in Irish law.15
15
For a analysis of this issue see Hogan & Morgan, Administrative Law in Ireland 4t Edition Chapter 15.
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(i)
The significance of the standard of review in judicial review proceedings
The term judicial review has been defined as “the means whereby the courts examine the
legality of all public actions including their own”.16 In essence it is a legal process whereby
the decisions and actions of public bodies can be scrutinised in accordance with well
established legal principles and in certain circumstances set aside. As the lawyers amongst
you will be aware it is well established that judicial review is not a mechanism for reviewing
the substantive outcome of the decision. In judicial review proceedings the court is not
concerned not with the merits of the decision but rather the process by which the decision
was made. It does not constitute an appeal against a decision but rather a review of the
manner in which the decision was reached.
Notwithstanding these limitations judicial review remains a key legal remedy for securing the
enforcement of EU environmental law. In particular it provides a legal mechanism whereby
the decisions of Government, local authorities, the EPA, An Bord Pleanala and other local
authorities can be challenged and quashed if they found to have been taken contrary to EU or
domestic environmental law.
A decision can be challenged by way of judicial review on a number of grounds including
failure to adhere to prescribed procedures and/or bias on the part of the decision maker,
breach of natural or constitutional justice or failure to give adequate reasons. One of the most
frequent grounds on which decisions are challenged in judicial review proceedings are on the
basis that the decision is unreasonable or irrational. The issue of unreasonableness and
irrationality in the context of planning decisions was considered in the case of O’ Keefe v An
Board Pleanala.17 In a seminal decision the Supreme Court held that in effect a planning
decision cannot be challenged for unreasonableness or irrationality unless the decision:



is fundamentally at variance with reason and common sense;
is indefensible for flying in the face of plain reason and common sense;
the court is satisfied that the decision maker has reached his decision whereby
he must not flagrantly reject or disregard fundamental reason or common
sense in reaching his decision.
As Finlay C.J, stated:
“ In order for an applicant for judicial review to satisfy a court that the decisionmaking authority has acted irrationally …. It is necessary that the applicant should
establish to the satisfaction of the court that the decision-making authority had before
it no relevant material which would support its decision”.
Arising from O’Keefe, in effect an Applicant in judicial review proceedings seeking to
impugn a decision on the grounds the decision is irrational or unreasonable must establish to
the Court that the decision-maker had before it no relevant evidence or material which would
16
17
M. DeBlacam Judicial Review 2nd edition Tottel, Dublin, 2009 at page 3.
[1993] I.R. 39.
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support its decision. This is clearly a very high standard of review and as a consequence it is
exceptionally difficult to succeed in judicial review proceedings on this ground. The decision
in O’Keefe has been approved and followed by the courts in numerous subsequent decisions
in the context of challenges to decisions made under planning and environmental legislation
much of which purports to transpose EU law. The effect of the widespread adoption of the
O’Keefe standard of review has to greatly limit the utility of judicial review as legal
mechanism for securing enforcing EU environmental law. This is most graphically illustrated
in the restrictive approach adopted by the Irish courts to challenges to decisions based on the
inadequacy of an EIA.18
(ii)
Compatibility of the O’Keefe standard of review with EU Law
It is important to acknowledge that the jurisprudence on the standard of review in judicial
review proceedings has and continues to evolve. In Meadows v Minister for Justice, Equality
and Law Reform19 in the context of a challenge to a decision to issue a deportation order the
Supreme Court held that where an administrative decision impacts on fundamental rights, the
courts should have regard to the principle of proportionality when called upon to review any
such decision although a number of judgements of the Court suggest the principle may not be
as readily applicable in the context of planning decisions.20 Notwithstanding, Meadows the
O’Keefe standard of review continues to be applied in the context of planning and
environmental cases. Thus, in Scanlon v Sligo County Council 21 Hedigan J, expressly
referring to Meadows held the O’Keeffe standard of unreasonableness remains relevant “to
areas of special skill and knowledge such as planning and development”.
However, there is increasing concerns that the O’Keefe standard in its current guise may well
be incompatible with the European Convention on Human Rights and require reformulation
to ensure compliance with EU law.22 In (Sweetman v An Bord Pleanála (No 1)23 Clarke J
considered the issue in the context of an argument that the access to justice provisions
introduced under Public Participation Directive 24 (in particular Article 10a of the EIA
Directive), required an elevated level of judicial of judicial scrutiny with which O’Keefe was
incompatible. Clarke J, was satisfied than any such requirement could be accommodated
“within the existing judicial review regime” and that Article 10a did not require “a complete
appeal on the merits” but may require the existing judicial review procedure to be adapted by
the courts to accommodate the requirements of Article 10a which may entail a review of the
different standard of review.
In Klohn v. An Bord Pleanala 25 McMahon J, further addressed the question of the
compatibility of the O’Keefe test with EU law in the context of a judicial review of a
planning decision. He stated
18
See in this regard: Kenny v An Bord Pleanála (No 1) [2000] IEHC 146; Kenny v An Bord Pleanála (No 2)
[2001] IEHC 39; Arklow Holidays Ltd v Wicklow County Council [2003] IEHC 68 and Kildare County
Council v An Bord Pleanála [2006] IEHC 173).
19
[2010] IESC 3,
20
See in this regard the comments of Denham and Fennelly JJ, highlighting the particular technical expertise of
An Board Pleanala.
21
[2011] IEHC 143.
22
See further Scannell op.cit para 2-326-327 at p. 174.
[2007] 2 ILRM 328.
24
Directive 2003/35/EC
25
[2008] IEHC 111.
23
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“In Irish law, in the planning area at least, the courts have shown huge deference to the
decision of the appropriate authority, and will normally only interfere when the decision is
irrational (the O’Keefe standard). Though not without its critics, this is the general rule as set
down in the case law. More recently, when the national legislation was inspired by an EU
directive and the decision maker is exercising its discretion the question has arisen as to
whether the non-demanding O’Keefe threshold is appropriate when an EU measure is
involved. It would seem more appropriate, in these circumstances, to adopt the standard of
review adopted by the EU itself in reviewing the decisions of its own officials. Two reasons
can be advanced for such a position: first, the O’Keefe standard is too low; second, the
adoption of the EU standard will go someway to ensuring uniformity throughout the
Community in these matters. (see SIAC Construction Ltd. v. Mayo County Council [2002] 3
I.R. 148 and Sweetman v. An Bord Pleanála [2007] 2 I.L.R.M. 328, referred to at pp. 838 and
839 of Simons supra)
It is possible to discern similar concerns (although expressed with varying degrees of
intensity) in a number of subsequent decisions in the context of planning and environmental
cases.26 The issue was raised most recently in Keane v An Bord Pleanala27 the context of a
judicial review to a planning decision where the applicant challenged the decision of the
Board to grant planning permission with a condition28 which the applicant unsuccessfully
argued was in breach of the EIA Directive. In the course of his judgement Hogan J, stated:
“It is not here necessary to express any concluded view as to whether the review of the
exercise of the Board's discretion in a case such as this should be governed by the test
enunciated in O'Keffee v. An Bord Pleanála [1993] 1 I.R. 39 or whether the somewhat more
relaxed "manifest error test" should be applied in view of the approach taken by the Supreme
Court in SIAC Ltd. v. Mayo County Council [2002] IESC 39, [2002] 3 I.R. 148, a public
procurement case. As Clarke J. seemed to hint in Sweetman, the case for applying the
manifest error test would seem to be a powerful one in this context, not least given that the
relevant discretionary powers vested in the Board with regard to the environmental impact
assessment contained in the 2001 Regulations cannot be regarded as purely autonomous,
autochthonous items of secondary legislation, but rather derive their root of title from the
1985 Directive (or, for that matter, the codified 2011 version of that Directive).
Accordingly, it is now possible to point to a body of jurisprudence which indicates that at
domestic level a judicial re-appraisal of the O’Keefe standard of review in light of the
requirements of EU law is underway, and this may crystallise in the near future. The outcome
may a recasting of the O’Keefe standard or its replacement with the ‘manifest error’ test or
some other form of recalibration of the O’Keefe standard.
26
See in this regard Cairde Chill an Disirt Teo v An Bord Pleanála [2009] IEHC 76; Usk and District Residents
Association Ltd v An Bord Pleanála [2009] IEHC 346; and Hands Across the Corrib Ltd v An Bord Pleanála
and Galway County Council (No 1) [2009] IEHC 600 and An Taisce v Ireland, the Attorney General and An
Bord Pleanála [2010] IEHC 415
27
[2012] IEHC 324.
28
The relevant condition required a survey of roads and bridges along the route to the development be
conducted before and after construction of the development. The stated reason given was to assess the
environmental impact of the development. The applicant argued the condition was incompatible with the
requirement of the EIA Directive that environmental impact be assessed before the development commenced.
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It should also be noted that the more specific question of the compatibility of the O’Keefe
standard with the Aarhus Convention and article 10a of the EIA Directive was raised in Case
C- 427/07 Commission v Ireland in which the EU Commission challenged on a number of
grounds the compatibility of the then applicable Irish judicial review regime with article 10a
of the EIA Directive. Amongst, the grounds advanced by the Commission was that case-law
on judicial review such as O’Keefe did not enable applicants for judicial review to effectively
challenge the substantive or procedural legality of decisions as required by article 10a.
However, this ground was dismissed by the Court on a pleading point and thus not
determined. However, it is not unreasonable to anticipate that this issue may be revisited by
the EU Commission in the future.
Further, support, for the proposition that the O’Keefe test may be incompatible with the
Aarhus Convention (and article 10a) is found in a decision of the Aarhus Convention’s
Compliance Committee which expressed concern about the somewhat similar Wednesbury
standard of judicial review which applies in England and Wales. 29 Following Ireland’s
ratification of the Arahus Convention it is be anticipated that the O’Keefe test will in due
course also fall to be considered by the Aarhus Compliance Committee
5. The scope of application of the rule in s. 50B of the Planning and Development
Acts 2000-2012
(i)
The statutory provisions
The scope of application of s.50B of the Planning and Development Acts 2000-2012 is
prescribed by the statutory provisions in the following terms:
“50B.—(1)
This section applies to proceedings of the following kinds:
(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) any action taken or purportedly taken, or
(iii) any failure to take any action,
pursuant to a law of the State that gives effect to—
(I) a provision of Council Directive 85/337/EEC of 27 June 1985 to which Article
10a (inserted by Directive 2003/35/EC of the European Parliament and of the Council
of 26 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 27 June
2001on the assessment of the effects of certain plans and programmes on the
environment,
For a further discussion of this issue see Kingston ‘Mind the Gap:Difficulties in Enforcement and the
continuing Unfulfilled Promise of EU Environmental Law’ in Kingston (ed), European Perspectives on
Environmental Law and Governance (Abington: Routledge, 2012. It should be noted no formal infringement
was decision was made by the compliance committee on this point.
29
10 | P a g e
or
(III) a provision of Directive 2008/1/EC of the European Parliament and of the
Council of 15 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);
(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).
(ii)
Judicial Interpretation of s.50B (1) – JC Savage
In J.C. Savage Supermarket Limited v An Bord Pleanála 30 Charleton J. considered the
application of s.50B of the PDA as inserted by s.33 of the PDA 2010. As previously
highlighted the provisions of s.50B(1)(a) of the PDA are only applicable to judicial reviews
of decisions, actions and omissions “pursuant to a law of the State that gives effect to”
European Directives on three categories of development: development requiring an
Environmental Impact Assessment; development plans which included projects that could
change the nature of a local environment; and projects which require an IPPC. In the
proceedings the applicant sought to challenge by way of judicial review a decision of the
Board to grant planning permission for supermarket. The development itself did not fall
within one of the three categories specified in s. s.50B(1)(a) – an EIA was not required.
However, the proceedings were withdrawn by the Applicant six weeks prior to the trial date
for the substantive hearing but the notice party developer applied for their costs pursuant to
the ‘normal rule’ i.e. Order 99 Rule 1 of the Rules of the Superior Courts. However, this
application was disputed by the applicant who sought to rely on the rule in s.50B contending
that the use in the section of the words “a law of the State” applied s.50 to the entirety of the
statutes referring to those three categories, whether or not the decision, action or omission
itself related to one of those categories.
Accordingly, the net issue to be determined in JC Savage was whether the costs provisions of
s.50B applied to all planning judicial reviews or only those involving decisions, actions and
omissions relating to the three categories specified in s.50B(1)(a). Charlton J, having
considered the legislative history of s.50B and the well established rules of statutory
interpretation went on to state:
4.0 The legislative history of s. 50B includes the prior forms of s. 50 of the Act of 2000 and
the amendments thereto before that new section was introduced and the decision of the
European Court of Justice of 16th July 2009 in case C-427/07, Commission v Ireland.
Nothing in that legislative history shows any intention by the Oireachtas to provide that all
planning cases were to become the exception to the ordinary rules as to costs which apply to
every kind of judicial review and to every other form of litigation before the courts. The
immediate spur to legislative action was the decision of the European Court of Justice in case
C-427/07. Nothing in the judgment would have precipitated the Oireachtas into an intention
to change the rules as to the award of costs beyond removing the ordinary discretion as to
costs from the trial judge in one particular type of case. Specified, instead, was litigation that
was concerned with the subject matter set out in s. 50B (1)(a) in three sub paragraphs:
30
2011 IEHC 488.
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environmental assessment cases, development plans which included projects that could
change the nature of a local environment, and projects which required an integrated pollution
prevention and control licence. By expressing these three, the Oireachtas was not inevitably to
be construed as excluding litigation concerned with anything else. Rather, the new default
rule set out in section 50B (2) that each party bear its own costs is expressed solely in the
context of a challenge under any 'law of the State that gives effect to' the three specified
categories: these three and no more. There is nothing in the obligations of Ireland under
European law which would have demanded a wholesale change on the rules as to judicial
discretion in costs in planning cases.
4.1 The circumstances whereby the State by legislation grants rights beyond those required in
a Directive are rare indeed. Rather, experience indicates that the default approach of the
Oireachtas seems to be 'thus far and no further'. There can be exceptions, but where there are
those exceptions same will emerge clearly on a comparison of national legislation and the
precipitating European obligation. Further, the ordinary words of the section make it clear that
only three categories of case are to be covered by the new default costs rule. I cannot do
violence to the intention of the legislature. Any such interference would breach the separation
of powers between the judicial and legislative branches of government. The intention of the
Oireachtas is clear from the plain wording of s. 50B and the context reinforces the meaning in
the same way. The new rule is an exception. The default provision by special enactment
applicable to defined categories of planning cases is that each party bear its own costs but
only in such cases. That special rule may exceptionally be overcome through the abuse by an
applicant, or notice party supporting an applicant, of litigation as set out in s. 50B (3).
Another exception set out in s. 50B (4) provides for the continuance of the rule that a losing
party may be awarded some portion of their costs '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'.
4.2 The Court must therefore conclude that as this litigation did not concern a project which
required an environmental assessment, costs must be adjudged according to the ordinary
default rule that costs should follow the event unless there are exceptional circumstances."
Charlton J, went on to hold that as the normal rule as to costs applied, the applicant should be
responsible for the costs of the proceedings. However in the exercise of his discretion in
respect of costs Charlton J, awarded the notice party only one-third of its costs citing the fact
that the applicant had withdrawn the proceedings in advance of the hearing date.
(iii)
Judicial Interpretation of s.50B (2) - Shillelagh Quarries
The question of the scope of application of s.50B was further considered in Shillelagh
Quarries v An Bord Pleanala, & others (No.2).31 The proceedings had had their background
in an application to An Bord Pleanála involved a quarry which was registered by South
Dublin County Council (SDCC) pursuant to s.261 of the Planning and Development Acts
2000-2012 and in respect of which SDCC was considering requiring the making of an
application for planning permission and the preparation of an environmental impact study.
Submissions concerning the operation and history of the quarry were made by the second
notice party and environmental grouping. SDCC did decide to grant planning permission and
the second notice party appealed this to the Board which refused permission. This decision
31
2012 IEHC 402.
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was challenged by the quarry in judicial review proceedings which were dismissed by the
Court. Subsequently, the Board and the notice parties applied for costs, relying on provisions
of s.50B and the judgement of Charlton J in J.C. Savage they argued that the case fell outside
the scope of s.50B and thus the normal rule as to costs (i.e. cost follow the event) was
applicable and the applicant who was unsuccessful should pay their costs.
This argument was rejected by Hedigan J, citing the judgement of Charlton J in J.C. Savage
and in particular the extracts previously cited above. He noted:
“I gratefully adopt this very helpful interpretation of these new provisions in relation to costs.
Applying these and in particular, 4.2, to the facts of this case, I note that An Bord Pleanála in
its decision of the 24th December, 2010 at Part 2 thereof, described the project the subject
matter of these proceedings in the following way:
“It is considered that as the proposed development for which permission is sought is
of a class that requires an environmental impact assessment in accordance with the
requirements of EU Directive 85/337/EEC (as amended) and that it includes a
significant element of retention permission, the Board is, therefore, precluded from
considering a grant of planning permission in this case."
The project was one which required an environmental impact assessment. Upon that basis it
falls within the limited class of cases envisaged by s. 50B. 32 Thus pursuant to s. 50B (2) the
respondent and the notice party should bear their own costs.”
Accordingly, in the view of Hedigan J, if the decision which is impugned relates to a project
which requires an EIA then this alone is sufficient to bring it within the scope of s.50B.
Furthermore, by way of analogy it follows that where the impugned decision relates to a
project which requires an IPPC licence or a plan or programme which requires a strategic
environment assessment this alone will suffice to bring the proceedings within the scope of
s.50B. As the majority of judicial review proceedings relate to projects for which an EIA
and/or an IPPC licence is required it appears the majority of proceedings will fall within the
scope of s.50B.
A somewhat ironic aspect of the decision in Shillelagh Quarries is that the beneficiary of the
rule as to costs under s.50B was in fact a developer who had been unsuccessful in the
proceedings. This aspect of the judgement has been questioned:
“It is at least arguable that insofar as Section 50B allows a developer to rely on the new costs
rules, it may go further than European law requires. The Aarhus Convention, and the EU
Directives, are intended to facilitate public participation in environmental decision-making.
The entitlement to a review procedure is given to NGOs and members of the public
concerned. It is at least arguable that a developer does not constitute a member of the public
32
At paragraph 5 of the judgement. Emphasis is added.
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concerned. In this regard, it is to be noted that the terms the ―public concerned and
―developer are defined separately under the legislation.”33
One further noteworthy aspect of the judgement in Shillelagh Quarries is that in support of
their application for costs the notice parties sought to rely on the provision of s.50B(3)(c) and
(d) of the PDA on the grounds that notwithstanding a High Court order made more than thirty
years ago, the quarry has remained open and active the quarry the subject matter of the
proceedings. It will be recalled that s.50B(3)(c)and(d) provides:(3) The Court may award costs against a party in 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.
Hedigan J, considered he did not have sufficient evidence as to the planning and enforcement
of the quarry and in respect of the arguments that the case was a matter of exceptional public
importance he noted:
“I do not think that there is any convincing evidence before the Court that there is any
exceptional public importance attached to this case. It is one of many cases involving quarries
under recent legislation, all of which cases are of considerable public importance but
something over and above the norm would be required in order to move the Court to make an
order for costs on the basis of there being anything exceptional about this particular quarry
case.”34
Accordingly, it is submitted that it would appear that where reliance is placed upon s.50B(3),
it must be substantiated by appropriate and sufficient evidence, and that it may be that only
cases which raise novel and significance issues of law that could be considered “a matter of
exceptional public importance’ for the purposes of s.50B(4).
Conclusions
The decision of the High Court in JC Savage and Shillelagh Quarries significantly clarifies
the scope of application of s.50B. However, some issues remain unresolved. What is the
position of an applicant in proceedings who alleges that the project plan or project should
have been subject to EIA, an IPPC licence or SEA but was not ?. If the proceedings
Simons G, ‘Unresolved Issues under the Planning and Development (Amendment) Act 2010. (Paper delivered
at the Thomson Reuters Planning and Environmental Conference 2012.)
34
At paragraph 6 of the judgement. Emphases is added.
33
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successful it would appear clear there is no reason why the proceedings would not fall within
the rule in s.50B. However, what of the position of an applicant who is successful or only
partially successful ?. Is it correct that a ‘developer’ should have the benefit of the new rule in
s.50 B ?. All of these are issues which will no doubt be ventilated before the courts in due
course.
6. Future Developments
As the foregoing analysis illustrates the Aarhus Convention and the associated obligations
imposed under EU Law as transposed in domestic law is having and will continue to have a
profound impact on the implementation of EU law in Ireland. Many issues remain uncertain
and will require to be ventilated before the courts at domestic and EU level before they are
resolved. The most significant unresolved issue is undoubtedly the uncertainty surrounding
the requirement that access to review procedures be “not prohibitively expensive”. In this
regard the forthcoming judgement of the CJEU in the Edwards reference should bring much
needed clarity on this point. The opinion of the Advocate General Sharpston in Edwards
which has been considered by other speakers and the analysis contained therein would if
adopted by the CJEU appear to require a further amendment of the existing Irish law
governing costs in planning and environmental cases.
November 23rd 2012
Tom Flynn BL
tflynnbl@eircom.net
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