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You are here: BAILII >> Databases >> Irish Court of Appeal >> O'Connor v The County Council of the County of Offaly [2020] IECA 72 (20 March 2020)
URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA72.html
Cite as: [2020] 3 JIC 2001, [2020] IECA 72
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THE COURT OF APPEAL
CIVIL
NEUTRAL CITATION NUMBER: [2020] IECA 72
COURT OF APPEAL RECORD NO. 2017 615
HIGH COURT RECORD NO. 2016/JR
Whelan J.
Noonan J.
Murray J.
BETWEEN/
FERGUS O’CONNOR
RESPONDENT/APPLICANT
- AND -
THE COUNTY COUNCIL OF THE COUNTY OF OFFALY
APPELLANT/RESPONDENT
- AND -
TAG-A-BIN LIMITED
FIRST NAMED NOTICE PARTY
- AND -
THE COUNTY COUNCIL OF THE COUNTY OF MEATH
SECOND NAMED NOTICE PARTY
JUDGMENT of Mr. Justice Murray delivered on the 20th day of March 2020
1. Section 3 of the Environment (Miscellaneous Provisions) Act 2011 (‘the Act’) provides that
the normal principle governing the award of costs in proceedings – that they follow the
‘event’ – does not apply to certain categories of legal action. Section 7 of the Act enables
a party to proceedings at any time before or during the course of those proceedings to
seek a determination from the Court that s.3 applies to that action. By Order of the High
Court (Baker J.) of 14 November, the Court declared pursuant to the former provision,
that the special costs provisions of the latter section apply to the present proceedings.
That Order, which is the subject of this appeal, followed from a reserved judgment
delivered on 13 October, 2017 ([2017] IEHC 606).
2. The proceedings comprise a challenge to a decision of the appellant of 31 March 2016 to
grant to the first notice party a renewal of a national waste collection permit. The decision
was made pursuant to the provisions of the Waste Management (Permit Collection)
Regulations 2007-2016 (‘the 2007 Regulations’). The authority of the appellant to grant
the permit arose from its nomination as National Waste Collection Permit Office
(‘NWCPO’) pursuant to s.34(1)(aa) of the Waste Management Act 1996 as amended. The
permit authorised the first notice party to collect 75 categories of waste, including
hazardous waste, in every area of the State.
3. The challenge was brought in a context where the respondent had operated a riding
school and equestrian centre on property owned by him and adjacent to the premises of
the first named notice party. That premises is in Dunmoe, County Meath. It was the
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respondent’s contention that the first notice party was bringing waste onto its property,
storing it there, and washing down trucks and skips used in the course of the collection
activity. This was all said to be occurring in circumstances where the premises was not an
authorised waste facility. The respondent contended inter alia that this represented a
breach of the conditions of the permit. Those conditions provided that the first notice
party should not cause environmental pollution during the course of the waste collection
activity to which the permit related. Further, the lands at Dunmoe were not listed in the
collection permit as an authorised facility to which the waste might be taken. The
respondent had complained to both Meath County Council and the appellant of these
matters and says that when reviewing the waste permit issued to the first notice party,
the appellant ought – having regard to the respondent’s complaints – to have either
refused to review, or to have revoked, the permit. He says that had the permit been
revoked, the first notice party would not have been in a position to collect waste and thus
there would be no waste to be stored on or disposed of from the property. He contends
that as a consequence of noise, odours and concerns for the health and safety of persons
arising from the alleged activities of the first named notice party, he was forced to close
the horse-riding school he had operated from his property.
4. Leave to seek relief by way of Judicial Review was granted on 27 June 2016 by
Humphreys J. The application was made ex parte. The essential grounds relied upon by
the respondent in support of the relief claimed in the proceedings are as follows:
(i) In granting the permit and/or in failing to revoke it, it was claimed that the
appellant failed to properly investigate and/or consider the respondent’s claim that
the first notice party was acting in breach of conditions of the waste permit and/or
failed to consider that its activities were causing or at risk of causing environmental
pollution and/or failed to take proper account of the planning status of the lands on
which the activity was being conducted. In consequence – it was claimed – the
appellant acted in breach of inter alia Articles 28 and/or 29 of the 2007
Regulations.
(ii) It was contended that the appellant failed to carry out any screening for
appropriate assessment when granting the permit. This, it was said, amounted to a
failure to comply with Article 42 of the Habitats Directive and Regulations
implementing same.
(iii) It was alleged that the appellant had acted ultra vires and without jurisdiction in
purporting to act as the NWCPO when it had not lawfully been nominated to that
position.
(iv) It was claimed there had been an ineffective delegation of power by the manager of
the appellant to the appellant’s director of services, the latter being the person who
made the decision to grant renewal of the permit.
5. The central issue presented by this appeal depends on the relationship between these
grounds and the provisions of s.3 of the Act. As I have noted, s.3(1) provides that subject
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to certain exceptions that are not relevant to this appeal, ‘in proceedings to which this
section applies, each party (including any notice party) shall bear its own costs’. Subject
to an exclusion that is not relevant here, the scope of s.3 is defined in s.4(1) of the Act,
as follows:
“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 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.”
6. The licences or permits listed in ss. 4 and referred to in s.4(1)(a), include (ss (4)(e)):
“a waste collection permit granted pursuant to section 34, or a waste licence
granted pursuant to section 40, of the Act of 1996.”
7. The phrase damage to the environment as it appears in s.4(1) is elaborated upon in two
further sub sections of s.4. ‘Damage’ as defined in s.4(5) includes ‘any adverse effect on
any matter specified in paragraphs (a) to (i) of subsection (2)’. ‘Damage to the
environment’ includes damage to inter alia air, water, soil, land, landscape, biological
diversity, health and safety of persons and conditions of human life (s.4(2)).
******
8. I have already noted that the High Court made an order under s.7. Specifically, Baker J.
determined that these proceedings fell within s.4(1)(a). In that regard, Baker J.
commenced her analysis from the proposition that proceedings which seek to ensure
compliance with a statutory requirement may come within s.4 even where there is no
permit or licence in issue the conditions of which are claimed to have been breached (at
para. 21). This followed from the decision of this Court in McCoy and anor. v. Shillelagh
Quarries Ltd. and ors [2015] IECA 28, [2015] 1 IR 627, in which it was decided that that
part of the provision referring to ‘statutory requirement’ presents a freestanding test.
Section 4(1)(a) accordingly applies to proceedings which are either designed to ensure
compliance with or enforcement of a statutory requirement or, alternatively, compliance
with or enforcement of a condition or other requirement attached to a licence or other
form of development consent (at para. 28).
9. From there, Baker J. stressed that a court in hearing an application under s.7 is
concerned with the substance and not merely the form of the proceedings (at para. 23).
To that extent, she held that the Court should undertake an objective assessment of the
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action in order to determine 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’ per Finlay Geoghegan J. in CLM Properties Limited v.
Greenstar Holdings Limited and ors [2014] IEHC 288). Thus, a claim which was advanced
in order to achieve a collateral purpose would not come within the section. Examples from
the case law identified by Baker J. included proceedings brought not to secure compliance
with a condition within the meaning of s.4(1), but to prevent a neighbouring landowner
brought with a view to obtaining payment of monies due (CLM Properties Limited v.
Greenstar Holdings Limited and ors).
10. Baker J. agreed with two relevant contentions advanced by the appellant. She accepted
its argument that the mere fact that proceedings relate to a permit or licence does not
bring the action within s.4(1). Proceedings in respect of such a licence, she emphasised,
must meet one of the two alternative conditions set out in s.4(1) (at para. 32). Further,
Baker J. rejected the proposition advanced by the respondent that the fact that the Waste
Management Act 1996 and waste collection permit granted pursuant to s.34 of that Act
were expressly included in the list of legislation and permissions in s.4(4)(e) of itself
meant that these proceedings were an action in which the enforcement of a requirement
or condition in such a permit was in issue (at para 33).
11. The High Court Judge’s characterisation of the essential features of the claim was central
to her conclusion that the proceedings fell within s.3 of the Act. In that regard she
focussed on the contention that in renewing the permit the appellant failed to have regard
to the respondent’s complaints as regards the breach of the conditions of the permit and
the manner in which the facility was operated with the consequent risk of environmental
pollution. While the substance of the relief sought was directed to quashing the permit,
the Court concluded (at para. 43):
“if the applicant succeeds in quashing the permit, the proceedings will have had the
effect of ensuring compliance with the statutory requirements that a waste facility
be operated only with the benefit of a permit and that the permit be granted in
accordance with the requirements of Articles 28 and 29.”
12. In substance, the trial Judge thus felt, these proceedings comprise an action by which the
applicant seeks to ensure compliance with the statutory requirement that a waste facility
be licensed by law. The applicant, she said, impugns the granting of a permit and by that
means seeks to ensure compliance with a statutory requirement that there be a valid
licence. Similarly, (at para. 45) as to the vires argument, the object of the proceedings
was to obtain compliance by the appellant with the statutory requirements that it should
issue a permit only when competent to do so, and only when the relevant statutory
requirements were met. Accordingly, and having regard to fact that there was no
collateral or extraneous purpose to the proceedings, the Court held that the threshold test
in s.4(1)(a) was satisfied, and the proceedings were for the purposes of ensuring
compliance with a statutory requirement within the meaning of the provision.
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13. Baker J. then proceeded to address whether a link had been established between the
grant of or failure to revoke the permit, and damage to the environment. Noting the
requirement imposed by the text of s.4(1) upon a party seeking to bring their claim within
s.3 to establish a causative and direct link between the failure to ensure compliance with
or enforcement of a statutory requirement and damage or likely damage to the
the respondent had made out a connection sufficient to meet the test at this stage. That
link required that the Court be satisfied that the claim ‘had a certain degree of substance
and that it had a reasonable prospect of success’ (McCoy and anor. v. Shillelagh Quarries
Limited and ors). Because leave had been granted by Humphreys J. on 27 June 2016,
Baker J. said, ‘it must therefore be said that the proceedings meet the threshold that
there exists an arguable case in respect of the grounds pleaded’ (at para. 59). Referring
to the evidence in the case, the Court was satisfied that there was a prima facie case that
damage to the environment was occurring. The Court, she said, could not at this stage of
the proceedings resolve any conflict regarding the evidence. Essentially, Baker J.
reasoned, the permit was extant, there was damage to the environment arising from the
current activities, and the evidence before the Court met the criteria that it have some
reasonable foundation (at para. 62). She formulated – and found to have been satisfied –
the following onus on a party seeking an order under s.7 (at para. 65):
“…to establish that he or she has a reasonable case with a reasonable prospect of
success, and to make out a stateable argument that damage to the environment is
occurring or is likely to occur.”
14. Finally, the Court determined that the respondent had established that his financial
resources were such as to meet the test as to means suggested in some of the
authorities. Noting that there was no provision in the legislation that enabled an
application under s.7 to be heard otherwise than in public, the Court expressed the view
that the Oireachtas did not intend extensive financial disclosure in a public arena of the
financial circumstances of an applicant for such relief.
15. Following the judgment of Baker J., the proceedings came for trial before Faherty J. in the
High Court. She delivered her judgment in the substantive case on 20 December 2019.
This was after the oral hearing of this appeal. The High Court dismissed the proceedings.
******
16. The various contentions advanced by the appellant in support of its claim that Baker J.
erred in making an order under s.7 can be grouped under two headings. In the first place,
the appellant says that s.4 is concerned solely with what are described by the appellant
as ‘enforcement proceedings’. In this action, it is said, the respondent seeks quash the
permit, not to ensure compliance with any statutory requirement or permission. Such
reliefs, it is claimed, would not be appropriate in the context of judicial review
proceedings. In consequence, it is said, proceedings by way of judicial review are outside
the scope of s.4. The appellant contends that allegations of non-compliance with the
permit should be addressed by way of appropriate enforcement proceedings seeking relief
to restrain such breaches and/or to obtain compliance with the conditions of the permit.
Page 6 ⇓
In this case, it is argued, these would have to assume the form of proceedings pursuant
to ss.57 or 58 of the Waste Management Act 1996.
17. From there, it is contended that the Judge erred in deciding that the respondent had
disclosed a reasonable and/or arguable and/or prima facie basis for its claim. The
appellant says that the decision to grant renewal of the permit under Article 28 of the
2007 Regulations did not amount to or comprise a decision to refuse to revoke the
permit. There was, it is said, no evidential basis for the contention that there had been
non-compliance with Article 28 of the Regulations. The power to revoke, it is argued,
arises under Article 29 and is a discretionary power, which the appellant neither had to
nor did, exercise.
18. The appellant’s written submissions, it should be noted, do not engage with the other
issues raised by the respondent in the substantive proceedings, that is the alleged breach
of the Habitats Directive and Regulations implementing same, the asserted invalidity of
the purported discharge by the appellant of the function of NWCO, or the claim that the
purported delegation to the appellant’s director of services of the function of granting the
renewal, was ineffective. Although Baker J. addressed her judgment only to the
proceedings insofar as relief was claimed based upon non-compliance with Articles 28 and
29 of the 2007 Regulations, no cross appeal or notice to vary was served by the
respondent insofar as the other reliefs were concerned. Both parties, however, briefly
addressed the argument based upon the Habitats Directive in their oral submissions to
the Court.
19. The appellant does not take issue with the decision of the Court in respect of the
requirement to establish damage to the environment, any questions of causation arising
in this case in respect of that issue, or the legal or factual basis for the view reached by
the Court that the respondent had to, and did, present sufficient evidence of its financial
circumstances to enable the Court to grant the relief claimed. To that extent, it is not
necessary for the Court to consider whether the trial Judge was correct in concluding that
there was an implied limitation on the obligation of a party seeking a protective costs
order to make public disclosure of his financial affairs. Nor is any issue taken as the
Court’s findings in respect of the motivation of the respondent in bringing the
proceedings.
20. That being so, the appellant’s submissions reduce themselves to six issues arising from
the proper interpretation of ss.3 and 4 of the Act.
*****
21. Mr. Galligan SC for the appellant began his oral submissions by contending that s.3 did
not apply to proceedings by way of judicial review. The provision, he said, was concerned
only with what he described as ‘enforcement proceedings’, which description - it was
suggested – precluded proceedings by way of judicial review. He cited in this regard the
comments of Simons J. in Heather Hill Management Company CLG and ors v. An Bord
Pleanála [2019] IEHC 186 at para. 106 where the Court said of the judgment of Baker J.
in this case:
Page 7 ⇓
“Whereas the conventional wisdom had been that the EMPA 2011 was intended to
regulate the costs of enforcement proceedings, with the costs of judicial review
proceedings dealt with separately under section 50B of the PDA 2000, the recent
judgment of the High Court in O’Connor v. Offaly County Council [2017] IEHC 606
confirms that the 2011 Act can, in principle, apply to judicial review proceedings
also.”
22. I think that this submission is misconceived. For a start, proceedings by way of judicial
review fall – at least prima facie – within the description ‘civil proceedings’ as it appears in
para. 51 where MacDermott J. observed of the rule making power conferred on the
Superior Courts Rules Committee by section 36 of the Courts of Justice Act 1924
‘[j]udicial review proceedings are clearly civil proceedings the pleadings and procedure of
which may be regulated by rules of court’). There is nothing in the text of either ss.3 or 4
to suggest that that the Oireachtas intended that the scope of such proceedings be
limited by reference to the form they assume. While provision is made for special costs
orders in certain judicial review proceedings by s.50B of the Planning and Development
Act 2000, it does not follow that judicial review proceedings as a whole are implicitly
excluded from the terms of the 2011 Act. Such an argument would require that s.3 be
impressed with a qualification which neither the language nor context of the provision,
read together with s.4, bears. No suggestion that relief by way of judicial review be
excluded from the 2011 Act was made in Waterville Fisheries Development Ltd v.
Pressure Campaign Ltd. and anor v. an Bord Pleanála [2018] IEHC 622 (each of which
comprised proceedings by way of Judicial Review).
23. If correct, the contention would generate the potential for some anomaly given that there
is no general rule of procedural exclusivity attending Order 84 RSC (Shell E&P Ireland Ltd.
it was advanced in this appeal – could be avoided by seeking relief by plenary action.
More fundamentally, the argument ignores the fact that some actions by way of judicial
review may present relief seeking ‘enforcement’. Counsel for the applicant thus accepted
in the course of his oral submissions that in an appropriate case, an application for relief
by way of mandamus could fall within the section.
24. Reference was made in this regard by both parties in their submissions and by the Court
in its judgment, to s.6(a) of the Act. This provides:
“Section 3 applies 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 section 4 or 5.”
25. I do not believe that this provision adds to the discussion. The effect of this subsection is
to confirm that certain satellite litigation around proceedings which themselves come
within s.3, also fall within the section. Section 6 confirms that this is so not only in
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respect of proceedings by way of judicial review of such actions, but also appeals, appeals
by way of case stated, and proceedings for interim and interlocutory relief arising from
such claims. It makes sense that the Oireachtas would wish to confirm that the special
cost rules operate not only in respect of an action in, for example, the District Court, to
which s.3 did apply, but also to proceedings seeking to quash the decision of the Court in
such an action. Absent that clarification there would be obvious scope for contending that
the cost rules were limited to the underlying case. None of this can be credibly interpreted
as implying that the only proceedings by way of judicial review that fall within the scope
of s.3 are those expressly provided for in s.6(a). The central question in determining
whether any given action falls within s.3 is not the form of the proceedings, but the object
of the claim they seek to advance.
******
26. This leads to a related issue. The question of whether these proceedings – be it by way of
judicial review or otherwise – fall within s.4(1)(a) or (b), is not conclusively resolved by
reference to the fact that the relief claimed by the respondent is directed to a quashing of
the permit. Section 4(1)(a) is engaged where proceedings can be properly characterised
as being for the purpose of ensuring compliance with, or the enforcement of, a statutory
requirement. As Baker J. stressed in her judgment, the reference in s. 4(1)(a) to a
‘statutory requirement’ is free standing. This both follows from the decision in McCoy v.
Shillalagh Quarries Ltd., and from a purposive interpretation of the provisions. The
intention, as Hogan J. said in McCoy, is to ‘facilitate access to justice by persons who
contended that certain acts or omissions of other parties were illegal and caused or were
likely to cause damage to the environment, a term which was itself generously defined’
(at para. 31). It is thus unsurprising that in characterising a claim as within or without the
reference to ‘statutory requirement’ a broad view has been adopted by some Courts.
North East Pylon Pressure Campaign Ltd. and anor. v. An Bord Pleanála and ors. involved
a multi-faceted and pre-emptive attack on proceedings before the first named respondent
arising from an application for development consent for the construction of an electricity
interconnector. In the proceedings, orders of certiorari and declaratory relief was claimed
addressed to the invalidity of the development consent process, particularly the
application for that consent (see North East Pylon Pressure Campaign Limited & anor -v-
An Bord Pleanála [2016] IEHC 300 at para. 38). In his judgment addressing costs
( [2018] IEHC 622 ) Humphreys J. operated on the basis that the section was engaged by a claim
in which ‘all of the points raised can go back directly or indirectly to a statutory
requirement’ (at para. 15). He posited a possible exception in respect of one aspect of the
case directed to the validity of the designation by the Minister for Communications,
Energy and Natural Resources of An Bord Pleanála as the competent authority under
Regulation 347/2013, a function which itself did not involve any power of adjudication
over the application for development consent.
27. However, even if the reference to a ‘statutory requirement’ is defined this broadly (and I
express no view as to whether it should be), the apparent breadth of the phrase is
bounded in three ways. First, the applicant must make out to a certain standard that it
has a claim – I will turn shortly to what this means. Second, at least as the law presently
Page 9 ⇓
stands, there is imposed over the provision a requirement of damage to the environment.
Because there is no issue in this appeal arising from that component of s.4(1), it is not
necessary for this Court to determine the apparent consequence of the decision of the
CJEU in Case C-470/16 North East Pylon Pressure Campaign Limited v. An Bord Pleanála,
15 March 2018 that this requirement presents a breach of EU law. In both North East
Pylon Pressure Campaign Ltd. and anor. v. An Bord Pleanála and ors., and Heather Hill
Management Company clg v. An Bord Pleanála, the High Court has suggested that any
such infirmity is properly addressed not by declaring invalid that part of the provision
imposing this requirement, but in applying the general discretion conferred by O.99 RSC
(now s.169 of the Legal Services Regulation Act 2015), so that in cases where the
imposition of such a hurdle would represent a breach of EU law, no order as to costs is
made. There may be some controversy as to when exactly that issue would arise: Hogan,
Morgan and Daly describe such a breach as arising in ‘cases covered by EU law’ (Hogan,
Morgan and Daily “Administrative Law in Ireland” 5th ed. (Dublin, 2019) at para. 18-132).
Humphreys J. suggests it sufficient if the grounds of challenge ‘relate to a field covered by
EU Environmental law’ [2018] IEHC 622 (at para. 27).
28. I would, however, note that this approach – if correct – might not affect the operation of
s.7. Section 7 is only concerned with a determination of whether s.3 applies, not with a
pre-emptive exercise of discretion under the general law.
******
29. More importantly, however, s.4 is limited by the object of the proceedings – they must be
directed to ensuring compliance with those statutory requirements or must seek to
enforce them. In this regard, there is an important distinction between ss.4(1)(a) and (b).
Section 4(1)(a) is, on its face, intended to be forward looking. While one might say that
proceedings – and in particular proceedings by way of judicial review – which seek
declaratory relief or certiorari ‘enforce’ or ‘ensure compliance’ with statutory requirements
by correcting a past illegality, there is a critical distinction drawn within s.4(1)(a) and (b)
which strongly suggests that it was not intended that s.4(1)(a) extend this far. Section
4(1)(b) is directed to proceedings which are ‘in respect of the contravention of, or the
failure to comply with’ the measures referred to there. However, this provision – most
conspicuously – refers only to a ‘licence, permit, permission, lease, or consent’. Each of
these is also itemised in the forward-looking terms of s.4(1)(a). The ‘statutory
requirement’’ which features in s.4(1)(a) is not referenced in s.4(1)(b).
30. If this is correct, it means that the scope of proceedings within the meaning of s.4(1)(a)
is limited to cases in which, looking to the action as a whole, the applicant seeks to
ensure compliance with or enforce into the future, an identified statutory requirement.
Noting that proceedings which seek to claim damages arising from damage to persons or
property are excluded from the provision (s.4(3)), proceedings which seek only certiorari
or declaratory relief with a view to the correction of historic illegality, are not within the
terms of the provision unless they arise from the provisions of a licence, registration,
permit, permission or lease. Therefore, to bring its claim within s.4(1) – where that claim
is based only on the ‘statutory requirement’ limb of s.4(1)(a) – the applicant must identify
Page 10 ⇓
some action into the future which it is seeking to compel, or which it is seeking to compel
should be conducted in a particular way and in accordance with a statutory requirement in
the sense in which I have explained that term.
31. It might be said that this is to introduce an unduly formalistic requirement which could,
through strategic pleading, be circumvented. Thus, an applicant might instead of simply
seeking to quash a decision, seek to quash it and seek an order that it be made again in
accordance with an identified interpretation of the statute. It might be said that such an
interpretation would render the provision in breach of the Aarhus Convention to which it
was intended the Act would give effect. Indeed, it may well be asked why such a
distinction would be introduced into the legislation at all.
32. While none of these propositions is insubstantial, neither do they displace what appears to
me to be a clear intention on the part of the Oireachtas to limit the scope of the 2011 Act
insofar as it is concerned with proceedings alleging breach of statutory requirements. That
distinction is, as I have explained, conspicuous as between ss.4(1)(a) and (b). The only
conclusion that can be drawn is that it was intended to differentiate between two types of
claim – the claim to ensure compliance with or to enforce a provision, and the claim in
respect of the contravention of such a provision – and to exclude those claims alleging a
breach of statutory requirements from the latter, but not the former. That the distinction
is repeated in the final part of s.4(1), reinforces this:
“… 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.”
33. Insofar as objections based upon strategic pleading are concerned, these can be
addressed by the Court looking at a general level to the true objective of the proceedings
(as did Baker J.), and insofar as objections based on formal distinctions between forward
looking proceedings and actions concerned with past contraventions are concerned, those
distinctions are already familiar to the law insofar as there are cases in which only
certiorari or declaratory orders are appropriate and cases in which remittal, orders of
mandamus or prohibition will issue. Whether this represents a breach of EU law as
explained in North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála, and, if so,
what the consequence of that is, can only be properly determined in a case in which the
issue arises.
******
34. I have already noted that Baker J. concluded that the proceedings fell within s.4(1)(a) for
the following reason (at para. 43):
“… if the applicant succeeds in quashing the permit, the proceedings will have had
the effect of ensuring compliance with the statutory requirements that a waste
facility be operated only with the benefit of a permit and that the permit be granted
Page 11 ⇓
in accordance with the requirements of Articles 28 and 29 of the Regulations of
2007.”
35. A similar conclusion was expressed at para. 44 of the judgment ‘in substance these
proceedings are ones by which the applicant seeks to ensure compliance with the
statutory requirement that a waste facility be licensed by law’.
36. The appellant is correct when it says that paras. 43 and 44 of the judgment appear to
contain an error. The permit the subject of the proceedings did not authorise the
operation of a waste facility. The operation of a waste facility is governed by the
provisions of the Waste Management Act 1996 and the Waste Management (Facility
Permit and Registration) Regulations 2007-2008. The waste permit itself only granted the
authority to collect and transport waste (s.34 of the Waste Management Act 1996). The
respondent could have – but did not – seek to enforce the licence, or indeed could have
sought to compel the appropriate authority to do so and had this been done such
proceedings would have come within the terms of s.4(1)(a). However, if the relief as
actually sought in the proceedings is granted, it means only that the waste permit is
quashed, and that the first notice party ceases to enjoy the legal entitlement to continue
to collect and transport waste.
37. That said, the references by the trial Judge to the waste facility being authorised by a
permit are not in truth material; it is clear from the judgment as a whole that the Court
fully appreciated the difference between waste collection and the operation of a facility.
What is more fundamental, however, is the proposition that by seeking to quash a permit
granted in the past by reference to breaches of Articles 28 and 29 which have already
taken place, the applicant is seeking to enforce on an ongoing basis the provision
pursuant to which the permit was granted in the first place. This was expressed by the
trial Judge as follows (at para. 44) :
“The applicant seeks to impugn the granting of a permit and by that means seeks
to ensure compliance with a statutory requirement that there be a valid licence.”
38. It appears to me that this correctly describes the substance of the respondent’s claim,
explains why these proceedings are in a form that properly comes within s.4(1)(a), and
highlights the error underlying the persistent assertion by the appellant in its submissions
that because these are not ‘enforcement’ proceedings, they do not come within the
subsection. The respondent’s concern was, at the time the proceedings were instituted,
with an ongoing state of affairs. The first notice party (the respondent alleged) was
collecting waste on foot of a permit that was invalid. That invalidity (on the respondent’s
case) arose from a failure to comply with the requirements of a number of separate
legislative provisions. If the underlying claim were well placed, it would mean that a
separate statutory provision (s.34(1)) was being breached, because an activity which
could only be conducted on foot of a licence, was being conducted on foot of a permit
which was, in law, invalid. Compliance with s.34(1) required that the underlying invalidity
be determined by the Court. Not every claim by way of judicial review will present that
feature. Proceedings seeking declaratory relief in respect of an entirely historic event
Page 12 ⇓
would not seek to ensure present compliance or enforce the legal requirement in issue in
the terms expressed in s.4(1)(a). However, in this case that is precisely what the action
seeks to do. The applicant’s objective was, when he issued the proceedings, to preclude
the continuation of an activity which – he said – was unlawful. It appears to me that
Baker J. was correct in concluding that the proceedings thus understood fell within the
terms of s.4(1)(a).
******
39. That then leads to the next stage of the analysis suggested by the trial Judge - the
question of whether the respondent had made out a sufficiently plausible claim to merit
the making of an Order under s.7. Here, also, there is a preliminary question to be
resolved. This relates to the correct standard applicable to the resolution of that issue.
40. As the case law on this issue has developed in this jurisdiction., the starting point is the
decision of the CJEU in Case C-260/11, David Edwards & Anor. v. Environment Agency &
Ors., 11 April, 2003. This arose from a reference by the United Kingdom Supreme Court
in proceedings brought in connection with a decision of the Environment Agency to
approve the operation of a cement works. The case having failed at first instance and on
appeal to the Court of Appeal and the appeal having been dismissed by the House of
Lords, an order for costs was made against one of the applicants who had pursued those
appeals. The relevant costs officers having decided that they were competent to
adjudicate on arguments advanced by the applicant based on the prohibition on
prohibitively expensive procedures within the meaning of Article 9(4) of the Aarhus
Convention as implemented by Article 10a of Directive 85/337/EEC and Article 15a of
Directive 96/61/EC, the issue of whether they had that competence was referred to a
panel of the Supreme Court (that Court having in the meantime been established). The
Supreme Court, in turn, referred to the CJEU a series of questions as to the proper
interpretation and application of these provisions. The questions, it is to be noted, arose
at the point where the proceedings were concluded (an application for a protective costs
order having been earlier refused). However, the Court made it clear (at para. 44) that
the assessment of whether or not costs are prohibitively expensive ought not to differ
depending on whether the national court was deciding on costs at the conclusion of the
proceedings, an appeal or a second appeal. In the course of answering those questions,
the CJEU said (at para. 42):
“The 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.”
41. This formulation has been re-iterated more recently by the CJEU in Case C-470/16 North
East Pylon Pressure Campaign and Sheehy v An Bord Pleanála and others, 15 March,
2018 (a decision made on foot of a reference made at the conclusion of those
proceedings), with one important qualification (at para. 61):
Page 13 ⇓
“It is … open to the national court to take account of factors such as, in particular,
whether the challenge has a reasonable chance of success, or whether it is frivolous
or vexatious, provided that the amount of the costs imposed on the
applicant is not unreasonably high.”
(Emphasis added)
42. The decision in Edwards influenced the approach adopted by Hedigan J. in Hunter v.
Nurendale Ltd. t/a Panda Waste [2013] IEHC 430, [2013] 2 IR 373. There, an application
was made under s.7 of the 2011 Act in respect of proceedings brought by the applicant
pursuant to s.160 of the Planning and Development Act 2000. Although the CJEU had
been concerned with the general considerations to be taken into account in giving effect
to the not prohibitively expensive principle, Hedigan J. applied the comments of the CJEU
in fashioning how the discretion of the Court in considering an application under s.7,
should be approached. It was from this analysis by the CJEU that he derived the
requirements applied by Baker J. in her judgment in this case in respect of the financial
means of the applicant for the relief. As I have already noted, this issue is not before this
Court.
43. However, Hedigan J. also said (at para. 14):
“I think that when the European Court of Justice refers to a reasonable prospect of
success, it requires that an applicant should be pressing a case that does have a
certain measure of substance to it. It is not required that there be a probability of
success but there must be, it seems to me, at least a good chance of success.”
44. Hedigan J. later referenced this in terms of there being ‘some substance to the claim’, and
to ‘a reasonable prospect of success’ (at para. 14). Notably, the Court did not apply the
familiar test of arguability applicable to the leave stage of an ex parte application for
judicial review, the test applicable to the striking out of proceedings under O.19 Rule 28
RSC or the inherent jurisdiction of the Court, or indeed the test underpinning the
substantial grounds requirement imposed by statute for certain types of inter partes leave
applications (this in fact being a standard which Hedigan J. references the respondent in
that case as having conceded as being higher than the obligation in an application under
s.7 – see para. 12 of the judgment). Instead, the standard Hedigan J. suggested for
application under s.7 is that adopted in England for an inter partes application for leave to
seek judicial review (see R v. Cotswold District Council (1998) 75 P&CR 515, at pp. 530 to
531). The application of such a standard in that context has been rejected in this
45. Hedigan J.’s analysis of the provision was taken up by this Court in McCoy v. Shillalagh
Quarries Ltd. McCoy similarly concerned an application under s.7, this time in connection
with proceedings which sought to prevent the operation of a quarry without the benefit of
planning permission. The substantive issue in the case related to whether s.4(1) applied
to proceedings which involved no decision, an argument which was of importance because
the claim of the respondent was that it was operating the quarry in accordance with a
Page 14 ⇓
pre-1963 user. Having determined (at para. 20) that the provisions of the Aarhus
Convention did not ‘decisively influence’ the interpretation of the 2011 Act, and having
determined that s.4(1)(a) applied where there was a breach of a statutory provision alone
(at para. 35), the Court proceeded to determine how it should approach the exercise of
the discretion vested in it by s.7.
46. In that regard, the Court observed the intent behind the protective cost order as being to
ensure that the environmental litigant could know in advance whether the litigation could
be safely continued from a costs perspective (at para. 38). At the same time, it felt that
such an order should not be lightly made having regard to the impact it may have on the
respondent (at para. 43). Referring to the decision of CJEU in Edwards (and describing
that judgment as being concerned with a protective costs order), citing its reference to
‘reasonable prospect of success’ and to Hedigan J’s judgment in Hunter, the Court
proceeded to approve the finding of Baker J. (who was also the High Court Judge in that
case) that the proceedings did enjoy a ‘reasonable prospect of success’ (at para. 40). It
bears emphasis that while Hedigan J’s formulation was in general terms certainly
described as ‘helpful’, the Court did not in fact posit in terms an inflexible requirement
that proceedings enjoy a ‘reasonable prospect of success’ as a precondition to obtaining
relief under s. 7. The most it said was that the CJEU in Edwards had said that a national
court called upon to make a protective costs order could take into account inter alia
whether the claimant has such a reasonable prospect of success.
47. It follows from the foregoing, that there is no authority binding on this Court determining
that before an Order can be made under s.7, it must be established that the proceedings
enjoy a reasonable prospect of success. In determining what standard should be applied
to this issue, it is necessary to go back to the structure adopted by the legislature within
the 2011 Act.
48. It would have been open to the Oireachtas in framing the special costs provisions to
confer a discretion upon the Court and to condition that discretion by reference to inter
alia the strength of the underlying claim, the financial position of the applicant for relief or
the complexity of the case. Instead of doing this, the draftsman has applied a sharp rule
applicable to a specific type of proceedings. Section 3(1) imposes a mandate that where
the section applies to proceedings, each party shall bear its own costs. Section 4 defines
the proceedings to which s.3 applies. A case either falls within these provisions, or it does
not.
49. Accordingly, where no protective costs order has been sought, at the conclusion of a case,
the Court must, if called upon to do so, determine if the action is within these provisions.
If the action does fall within s.3, one of a number of things may occur.
(i) If the applicant for the relief succeeds in his claim he may recover some or all of his
costs (s.3(2)).
(ii) If the case is one of exceptional public importance, the applicant for such relief may
also recover his costs in accordance with the established case law (s.3(4)).
Page 15 ⇓
(iii) If the applicant’s claim or counter-claim is frivolous or vexatious, if he conducts the
proceedings in a way that justifies an order for costs against him or if he is in
contempt of court, an order may be made against him (s.3(3)). I will return to this
shortly.
50. In all other cases, the court must make no order as to costs (s.3(2)). It has no discretion
in this regard. This is important insofar as the criteria for the making of an order under
s.7 are concerned. Given that an unsuccessful claimant in proceedings who does not seek
an order under s.7 and merely relies on s.3 at the conclusion of his case does not have to
establish that his claim enjoyed a reasonable prospect of success – the only requirement
as to the merits of the case is that it not be frivolous or vexations – it is not immediately
obvious to me how or why that obligation can or should be applied as a matter of course
when an application is brought under s. 7.
51. Subsections (1) and (2) of s.7 state:
“(1) A party to proceedings to which section 3 applies may at any time before, or during
the course of, the proceedings apply to the court for a determination that section 3
applies to those proceedings.
(2) Where an application is made under subsection (1), the court may make a
determination that section 3 applies to those proceedings.”
52. Insofar as s.7 is framed in terms that allow an application to be brought ‘before or during
the course of the proceedings’ it clearly envisages an application that is distinct from the
application for costs made in the ordinary course at the conclusion of a case. Two
consequences relevant to the scope of the discretion conferred by the section follow from
this. First, while an Order that s.3 applies (or indeed an affirmative order that it does not
apply) made on foot of an application under s.7 is a final determination of the issue
subject only to appeal (see McCoy v. Shillalagh Quarries Ltd.at para. 39 and 54), the
Court may decline to make an order under the provision but may leave it open to the
applicant to agitate his contention that s.3 does apply to the case at a later point in time.
This follows from the extent of the discretion vested by s.7(2).
53. Second, as I have noted, even if the Court grants the application, an order made under
s.7 does not guarantee that the applicant will at the end of the day be immunised from an
adverse costs order. The determination is merely to the effect that s.3 applies to his case.
Section 3 itself provides that the subsequent conduct of the applicant may debar him
from obtaining such an order, and the provision allows the Court at the conclusion of the
case to order costs against the claimant if it decides that the case was frivolous or
vexatious. This is the terminology of Order 19 Rule 28 RSC, and has a broader reach than
the language used might at first suggest. It includes a claim in which the plaintiff has no
reasonable chance of succeeding (Farley v. Ireland, Unreported, Supreme Court, 1st May
1997), which it is obvious cannot succeed (Riordan v. Ireland (No.5) [2001] 4 IR 463),
which is unsustainable in law (McCoy v. Shillalagh Quarries Ltd. at para. 39) or (as
Page 16 ⇓
Charlton J. has said of this provision) which is ‘without merit’ (Sweetman v. Shell E&P
Ireland Limited [2016] IESC 58, [2016] 1 IR 742 at para. 20).
54. By definition, where the legislature has conferred a general discretion of the kind provided
for in s.7(2), the intention is that the Court should approach the task of determining
whether to make an order pursuant to the provision on a case by case basis albeit by
reference to identified principle. To that extent, the factors identified by Hedigan J. in
Hunter v. Nurendale Limited and applied by this Court in McCoy v. Shillalagh Quarries Ltd.
may be of assistance in some cases. However, they should not be applied
indiscriminately.
55. The purpose of any discretion of the kind conferred by s.7 is to ensure that any order
made by the Court both gives effect to the overall intention of the legislation and does so
in a manner that has regard to the legitimate interests of the parties to the action. If a
requirement that an applicant is to establish a case that enjoys a particular likelihood of
success is to be imposed in the exercise of that discretion, it must be justified in any
given case by some legitimate interest of one of the parties that requires that the
discretion be conditioned in this way.
56. The applicant – obviously – has an interest in obtaining a protective costs order so as to
give it an assurance in respect of its exposure in the event it loses the case. The
respondent’s interest, however, is not a corresponding one. Whatever its strategic
preference may be, in a case in which s.3 properly construed applies the legitimate
interest of the respondent which falls to be protected is not the interest in not having a
protective cost order made against it per se. If an order that s.3 applies is properly made
it matters not to the respondent whether it is made at an early stage of the proceedings,
or a late one. Its legitimate interest is in not having such an order made at an early stage
in circumstances where it may emerge that s.3 does not apply to the action at all.
57. Once that is understood, the first and critical question in determining whether to grant a
protective costs order under s.7 is whether the Court is confident based on the
information before it at the time the application is made, that it can (a) determine
whether the proceedings fall within s.3 and (b) be sure that nothing is likely to happen
after the making of such an order that will affect the answer to that question. Given (as I
explain shortly) that the Court is concerned only to characterise the proceedings, to
determine that they disclose a stateable claim, and to determine whether the
characterisation of the claim brings it within or without s.3, the answer to both of these
questions should be in the affirmative in many cases.
58. However, cases will occur in which the Court cannot be confident that the issue of
whether section 3 applies is ripe for determination or even if it appears as if it is, that
nothing will change before the trial. It could, for example, be that a respondent will be in
a position to present a credible basis for contending that as the evidence develops or
discovery is obtained, it may emerge that a claim is brought for a purpose other than as
envisaged by s.3. There will be cases in which it might be said that as the claim develops,
parts of the proceedings which are within s.3 may subside, thereby affecting the overall
Page 17 ⇓
application of the provision (a hypothesis, I should state, which assumes that proceedings
can be ‘split’ for the purposes of the provision – an issue to which I return later). Insofar
as a requirement of damage to the environment remains part of the text of s.4, and
therefore forms part of the proofs in an application under s.7, this is a fact sensitive issue
which in some cases a respondent may be able to say could be affected by the evidence.
59. In all of these circumstances, considerations such as requiring that a case be strong, or
reasonable, or that the applicant show that he is a person of means, or that the issue of
whether s.3 applies be postponed to the trial of the case could intrude into the discretion
of the Court in deciding whether it is appropriate to make such an order at an early stage.
The decision in McCoy establishes that it is permissible to take account of these factors
when exercising that discretion. However, in most cases in which the Court determines
that the action falls within s.3, that it is stateable, and that there is no basis for believing
that the application of s.3 will change as the proceedings develop, it is hard to see how
these considerations are relevant, and harder to see where the Court obtains the power to
condition the exercise of its discretion by reference to whether the claim enjoys a
reasonable prospect of success.
60. It follows that there is no basis for superimposing on that statutory scheme a general
requirement that an applicant for an order under s.7 establish that his case meets
anything more than the basic threshold of stateability. The position is, as stated by
Simons Annual Review of Irish Law 2013 (at p.452) ‘there is nothing in the legislation
that requires the court to consider whether the applicant has a “reasonable prospect of
success”’. What has to be established (as the appellant itself characterises it at para. 23
of their submissions to this Court) is in the nature of a prima facie case, being a case, on
the Judicial Review side, in which leave would be properly granted, and in other actions
whether they satisfy the requirements of O.19 Rule 28 and/or would survive an
application to dismiss under the inherent jurisdiction of the Court. In fact, it appears to
me that unless contending that it is too early to decide if s.3 applies to the case, a
respondent or defendant to proceedings faced with an application for a protective costs
order should either accept that the proceeding meet the required threshold, or
contemporaneously apply to set aside leave or strike out the proceedings.
61. In this case there was no suggestion that the characterisation of the respondent’s claim
was going to evolve or change so as to affect the application of s.3. The appellant’s case
was that as pleaded at the time of the application, the case fell without that provision. In
that regard, as I have explained, I believe the respondent to have erred. No other
circumstance justifying the exercise by the Court of its discretion against the relief sought
having been advanced, an order under s.7 follows.
62. In this regard, I should state that as a general proposition I am unconvinced that the law
in general or interests of the parties to proceedings of this kind is well served by the
introduction of a multiplicity of complicating adjectives into what, at least in this context,
should be the relatively straightforward exercise of determining whether a claim enjoys
sufficient reality to impose a requirement that a party bear their own costs of the action in
Page 18 ⇓
the manner envisaged by s.3. The comments of Denham J. (as she then was) in DC v.
DPP when rejecting the proposition that applications for leave to seek judicial review on
notice should be determined by reference to the standard of whether a case presented a
reasonably good prospect of success (at p. 289), apply equally here:
“… there is a real danger of developing a multiplicity of different approaches, that of
G. v. Director of Public Prosecutions [1994] 1 IR 374, the test applied in specific
statutory schemes, and that governing the position where a respondent is on notice
in a particular area of litigation. Not only may there be legal difficulties in
identifying and applying each different standard, but such an approach would also
take up valuable court time.”
******
63. That being so, the remainder of this inquiry becomes more straightforward. It reduces
itself to whether in respect of the various reliefs pleaded in the case, the respondent has
established an arguable claim. That question – I should emphasise – must (at least where
leave has been granted ex parte) be determined de novo and in the light of the
submissions advanced by the respondent to the proceedings. A grant of leave made on
foot of an ex parte application is only provisional in nature and cannot deprive the
respondent of the entitlement to contend that it should not have been granted (Adam v.
Minister for Justice [2001] 3 IR 53, at p. 77).
64. The first contention is that the appellant acted unlawfully in granting the renewal of the
permit without having any or any adequate regard to the complaints made by the
respondent that the first notice party was taking waste collected by it pursuant to the
permit, to an unauthorised facility. As presented by the respondent in this Court, that
argument reduced itself to the effect of the provisions of Article 28 of the 2007
Regulations.
65. Article 28 of the 2007 Regulations provide a discretionary power vested in the appellant
to grant a national waste collection permit. The power is framed in the first instance in
general terms (Article 28(1)):
“a nominated authority may, on application being made to it for the review of a
waste collection permit, grant a reviewed waste collection permit in accordance
with these Regulations, or refuse to grant such a permit, in relation to the carrying
on by the applicant of a waste collection activity relating to a region or regions.”
66. Article 28(6) proceeds to condition that power – negatively – as follows:
“A nominated authority shall not grant a reviewed waste collection permit unless it
is satisfied that –
(a) the activity concerned, carried on in accordance with such conditions as are
attached to the reviewed waste collection permit, will not cause
environmental pollution,
Page 19 ⇓
(b) any emissions from the activity concerned will not result in the contravention
of any relevant standard, including any standard for an environmental
medium, or any relevant emission limit value, prescribed under any
enactment, and
(c) the applicant is a fit and proper person.”
67. In terms, I do not see that the respondent can advance any plausible basis for contending
that the appellant failed to comply with any of these express conditions. If carried on in
accordance with the permit ((a)), the activity would not cause environmental pollution.
No emission from the activity was identified by the respondent which would engage (b).
‘Fit and proper person’ is defined exhaustively in s.34D of the Waste Management Act
1996 in terms which are triggered by conviction for certain offences, by an identified
absence of technical knowledge or qualification, by an inability to discharge financial
commitments, or where there have been other adverse regulatory determinations made
against the applicant for the permit (for example the revocation of a permit).
68. What the respondent can and does say, however, is that the general discretion vested in
the appellant by Article 28 allows it to take account of the conduct of the first notice party
of which he complains. The case advanced by the respondent is that where there is
evidence that the holder of a waste collection permit is operating in a manner which is
causing or risks causing environmental pollution, this is a material consideration in terms
of whether the activity will cause environmental pollution. The appellant, it is said, cannot
‘close its mind to the facts on the ground’ relating to how the collection permit is being
operated by the applicant for renewal. The evidence here discloses, it is said, that the first
notice party is bringing waste collected under the permit to an unauthorised facility where
further activities are being carried out which raises a risk of environmental pollution. The
respondent says that this is also relevant to the question of whether the applicant for
renewal is a fit and proper person.
69. There is no doubt but that this argument faces some hurdles. The contention that the
Regulations intend that all issues arising from the conduct of the applicant for renewal fall
to be addressed exclusively under Article 28(6) is obviously substantial. However, given
the threshold as I have defined it, the case meets the relevant threshold. Article 28(1)
affords a general discretion. It does not expressly limit that discretion by reference to the
remainder of the provision. There is a basis for contending that in exercising the power to
review the permit, the appellant is required to take account of and have regard to
submissions and evidence provided to it suggesting that an applicant for review of a
permit is in breach of the conditions of the existing permit in such a way as to be the
cause of environmental damage. This is all the more so given the asymmetry that would
otherwise arise when Article 28 is juxtaposed with Article 29 which, on its face, gives rise
to a basis for revocation where there has been non-compliance with a permit. It would
give rise to the potential for some incongruity if the appellant had the power to consider
revoking the licence where there had been an allegation of misconduct, but no power to
Page 20 ⇓
consider those same allegations when determining whether to review it. Certainly, it
seems to me to be impossible to contend that the proposition is unarguable.
70. The argument advanced by the respondent in respect of Article 29 of the 2007
Regulations is, if anything, stronger. That provision states that a permit may be revoked
where inter alia:
“(b) The activity is being carried out is, or may be, in contravention of the conditions of
the waste collection permit granted by the nominated authority
(c) the activity is, or may be, in contravention of the Waste Management (Facility
Permit and Registration) Regulations 2007; Waste Management (Movement of
Hazardous Waste) Regulations, 1998 or Waste Management (Transfrontier
Shipment of Waste) Regulations 1998,
(d) the permit holder, or other relevant person, is likely, by a continuation of his or her
activities, to cause environmental pollution, or
(e) the permit holder, or other relevant person, is participating in, or facilitating, the
onward movement of waste to unauthorised facilities or unauthorised collectors.”
71. The respondent alleged and proposed a factual basis for the claim that the circumstances
identified in each of (b), (c), (d) or (e) were occurring, there was an arguable basis for
maintaining that the failure of the appellant to revoke, was in breach of the provision. The
principal response of the appellant to this argument – that it had made no decision on the
application for revocation – prompted the (unsurprising) response from the respondent
that by granting the review of the permit, the appellant had effectively refused to revoke
the existing permit. Whether that contention was well placed was a matter for the trial
Judge. It is hard to see how the contention could be reasonably described as unarguable.
******
72. While Baker J. explains in the course of her judgment why in her view the proceedings
disclose to the required standard a claim under Articles 28 and 29 of the 2007
Regulations, the Court did not conduct a detailed analysis of the remaining grounds, nor
did she suggest in her judgment that the claim could be ‘spliced’ with a special costs
order being made in respect of some parts of the claim, but not others. In the course of
oral argument, it was suggested by counsel for the appellant that the other aspects of the
claim were not pressed by the respondent at the High Court hearing. It may well also be
that the Judge simply assumed that once part, or at least a substantial part, of the claim
fell within the scope of.s.3, it was appropriate to make an order under s.7. That would
reflect the conclusion reached by Simons J. in Heather Hill Management Company CLG v.
An Bord Pleanála in respect of s.50B of the Planning and Development Act 2000, a
conclusion which, it might be noted, differs from that reached by Humphreys J. in North
East Pylon Pressure Group v. An Bord Pleanála and by Herbert J. in the earlier case of
McCallig v. An Bord Pleanála [2014] IEHC 353. The appellants have not sought to either
suggest that the trial Judge was in error in adopting that approach, and they have not in
Page 21 ⇓
their written submissions advanced any argument as to the stateability or otherwise of
the other grounds invoked by the respondent (although as I have observed, reference
was made to the argument as regards the Habitats Directive in the course of the oral
argument on this appeal).
73. That being so, the Court has heard no argument as to whether an application under s. 7
can or should be conducted on the basis of an analysis of the different causes of action in
issue. There are two ways of viewing that question. One, consistent with the approach
taken to s.4 itself, is to look at the proceedings in the round and to determine whether as
a whole they have as their object the measures identified in ss.4(1)(a) or (b). The fact
that s.3 speaks of the costs of ‘proceedings’ might suggest that this is the correct
analysis. Similar language in s.50B of the Planning and Development Act 2000 led Simons
J. to that conclusion in Heather Hill Management Company CLG v. An Bord Pleanála.
74. On this basis, if a claim presents causes of action which form a central part of the case
and which themselves come within ss.4(1)(a) or (b), it will be appropriate to make an
order under the provision, subject to the right of the respondent to contend after the
hearing that some parts of the claim were in fact not sustainable in law and thus that
costs should be awarded against the applicant in respect of same. It is clear that
s.3(3)(a) (which speaks of ‘claims’ or ‘counterclaims’ as opposed to ‘proceedings’) allows
this to be done.
75. The second is to conduct a detailed analysis of each cause of action contained within a
proceeding, and from there to determine whether each part of the claim falls within the
provisions of the section – not merely in terms of being stateable, but also in the sense
that they are claims of a kind within s.4(1)(a) or (b). The general costs jurisdiction of the
Court as explained in the decision in Veolia Water UK v. Fingal County Council (No.2)
[2006] IEHC 240, [2007] 2 IR 81, and the very fact that s.3 itself envisages an analysis
of the separate claims in the action for the purposes of enabling costs to be awarded
(s.3(3)(a)) support such an approach.
76. Given that the Court has heard no argument in respect of this issue, and noting that the
decision in Heather Hill Management Company CLG v. An Bord Pleanála is under appeal, it
would not be appropriate to address the question in this decision. This will not, in this
case, produce any injustice. These claims certainly come within s.4(1)(a) for the reasons
the claims based upon Article 28 and 29 do. If the other aspects of the claims are felt by
the respondent to have been unstateable, they are free to apply to the trial Judge under
s.3(3)(a) in respect of those claims at the conclusion of the case.
******
77. It is to be noted that the appellant does not take issue with the decision of the Court in
respect of the requirement to establish damage to the environment, any questions of
causation arising in this case in respect of that issue, or the legal or factual basis for the
view reached by the Court that the respondent had to, and did, present sufficient
evidence of its financial circumstances to enable the Court to grant the relief claimed. Nor
is any issue taken as to the Court’s findings in respect of the motivation of the respondent
Page 22 ⇓
in bringing the proceedings. Thus, I do not address here any issues that may arise from
these aspects of the decision of the High Court.
78. My conclusions in respect of those issues that do arise, are as follows.
79. First, there is no basis for the suggestion that s.3 of the Environment (Miscellaneous
Provisions) Act 2011 does not apply to proceedings seeking relief by way of judicial
review. It does. The issue in any given case is not the form the proceedings assume, but
the nature of the relief claimed in those proceedings.
80. Second, s.4(1)(a) is engaged where proceedings can be properly characterised as being
for the purpose of ensuring compliance with, or the enforcement of, a statutory
requirement. The reference in s.4(1)(a) to a ‘statutory requirement’ is free standing.
81. Third, the scope of proceedings referred to s.4(1)(a) is limited to cases in which, looking
to the action as a whole, the applicant seeks to ensure compliance with or enforce into
the future, an identified statutory requirement. To bring its claim within s.4(1) – where
that claim is based only on the ‘statutory requirement’ limb of s.4(1)(a) – the applicant
must identify some action into the future which it is seeking to compel, or which it is
seeking to compel should be conducted in a particular way and in accordance with a
statutory requirement in the sense in which I explain that term in this judgement.
82. Fourth, in this case the respondent’s concern was, at the time the proceedings were
instituted, with an ongoing state of affairs. The first notice party (the respondent alleged)
was collecting waste on foot of a permit that was alleged to be invalid. That invalidity (on
the respondent’s case) arose from a failure to comply with the requirements of a number
of separate legislative provisions. If the underlying claim were well placed, it would mean
that a separate statutory provision (s.34(1)) was being breached, because an activity
which could only be conducted on foot of a licence, was being conducted on foot of a
permit which was, in law, invalid. The question of whether there was compliance with
s.34(1) required that the underlying invalidity be determined by the Court. The
applicant’s object was, when he issued the proceedings, to preclude the continuation of
an activity which – he said – was unlawful. Accordingly, Baker J. was correct in concluding
that the proceedings thus understood fell within the terms of s.4(1)(a).
83. Fifth, I can see no basis for superimposing on that statutory scheme a generally
applicable requirement that an applicant for an order under s.7 establish that his case
meets anything more than the basic threshold of stateability. In fact, it appears to me
that a respondent or defendant to proceedings faced with an application for a protective
costs order unless contending that section 3 does not apply or that it is too early to
decide if it does, should either accept that the proceeding meet the required threshold, or
contemporaneously apply to set aside leave or strike out the proceedings.
84. Sixth, I think it clear that the respondent’s case insofar as based on Articles 28 and 29 of
the 2007 Regulations meet that threshold of stateability.
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85. Seventh, and finally, given that the Court has heard no argument in respect of the
specific issue of whether a claim can or should be split for the purposes of analysis under
s.3, and noting that the decision in Heather Hill Management Company CLG v. An Bord
Pleanála is under appeal, that it would not be appropriate to address this issue in this
decision. This will not, in this case, produce any injustice. These claims certainly come
within s.4(1)(a) for the reasons the arguments as to Article 28 and 29 do. If the other
aspects of the claims are felt by the respondent to have been unstateable, they are free
to apply under s.3(3)(a) in respect of those claims at the conclusion of the case.
86. It follows that this appeal should be dismissed.