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Cite as: [1999] IESC 82

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Lancefort v. An Bord Pleanála [1999] IESC 82 (2nd December, 1999)

THE SUPREME COURT

94, 104 and 106/98

Hamilton C.J.

Denham J.

Barrington J.

Keane I.

Lynch.

Between:

LANCEFORT LIMITED

Applicants/Appellants

and

AN BORD PLEANÁLA (IRELAND) and THE ATTORNEY GENERAL

Respondents

and

TREASURY HOLDINGS LIMITED

Notice Party

RULING of the Court on costs delivered the 2nd day of December, 1999, by Hamilton, C.J.

1. The Judgment of the majority of the members of this Court on the substantive issues in this case was delivered by Keane J. on the 21st July, 1998

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2. By its said Judgment the Court allowed the cross-appeal and the Notice to Vary and affirmed the Order of the High Court dismissing the Appellants claim.

3. The Court is now functus officio so far as the substantive issues in this case are concerned. The only matter now before it is the ancillary question of costs.

4. Notwithstanding this the Appellants made an elaborate submission on the question of costs the hearing of which occupied the Court for two working days, and the tenor of which was that, notwithstanding the fact that the Appellants had lost their case, the Court should award all the costs of the proceedings to them.

5. At the outset of the argument on costs Mr. Macken, Senior Counsel, who appeared for An Bord Pleanála said that the basic position of An Bord Pleanála was that An Bord Pleanála was not seeking costs against the Appellants but if the Appellants sought costs against them that they would review their position. Mr Brady, Senior Counsel, for Treasury Holdings Limited, adopted a similar position. He wished to maintain the Order for Costs which his clients had received in the High Court but said that he was not seeking the costs of the

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6. Supreme Court proceedings against the Appellants but would review his position if the Appellants sought costs against him.

7. The basic proposition advanced by Counsel for the Appellants on the costs issue was that they should not have been denied locus standi as they wished to raise a point of European Law. Any Rule of National Law which deprived the litigant of the opportunity to raise a point of European Law should, they said, be set aside by this Court. This submission raises two difficulties for this Court. First, the Court has decided the substantive issue and is functus officio. Second, there is no Rule of National Law which prevents a litigant from raising a point of European Law in the Irish Courts.

8. The present proceedings are essentially a review of administrative proceedings at which all points of law and fact were open to all parties.

9. The Appellants are a limited liability Company. The Company did not exist at the time of the administrative proceedings. It could therefore be said that the Company had no interest in those proceedings and no status to challenge their outcome. However Keane J., in his majority Judgment, did not proceed on that basis. He accepted that the persons principally involved in the formation of the Company had been represented at the administrative

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proceedings. But his Judgment proceeded upon the basis that, even allowing an identity of interest between these persons who were represented at the administrative proceedings and the present Appellant Company the point of law which the Appellants sought now to raise had not been raised by them at the administrative proceedings and they should not therefore, in fairness to the Notice Party (Treasury Holdings Limited), be allowed to raise it at this stage.

10. Keane J., makes the following comments on this subject (see 1998 2 ILRM 401 at 439/440):-

“The claim that the permission was invalid rests solely on the alleged failure of the board to consider whether an EIS was required in the circumstances of the present case. Such an EIS, it should be stressed, could have been required by the board at any stage up to the granting of permission. Although Mr. Smith attended the hearing on behalf of An Taisce, as did junior counsel, they at no stage put forward the objection that an EIS had not been required by the planning authority or An Bord Pleanála. Nor was that suggestion made at any stage by any of the reputable conservation groups which attended the hearing or by any of the architects, planning consultants or other experts who were present. It must be assumed that some at least of those present were aware, at least in a general sense, of the circumstances in which

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an US and EIA were required in the particular case of Mr. Smith and junior counsel representing An Taisce, no explanation was given at any stage of these proceedings as to why the objection was not taken until the application was made for leave to issue the present proceedings.

It is clear, as was held by this court in Chambers v. An Bord Pleanála [1992] 1 IR 134, that the fact that a person affected by a proposed development did not participate in the appeals procedure is not of itself a reason for refusing locus standi . It may even be that a company which came into being after the decision which it is sought to challenge may, in particular circumstances, be in a position to assert locus standi , as held by Comyn J. in the case to which I have already referred. But it would, in my opinion, be a significant injustice to a party in the position of the notice party to be asked to defend proceedings on the ground of an alleged irregularity which could have been brought to the attention of all concerned at any time prior to the granting of permission, but which was not relied on until the application was made for leave to bring the proceedings”

11. The Appellants also submitted that Lancefort Limited - being a non-profit making Company concerned with issues of conservation and the

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protection of the environment - should receive special consideration from the Court in the matter of costs even when it was unsuccessful in its litigation. Treasury Holdings Limited on the other hand submitted that it would be grossly unfair if conservationists were allowed, by incorporating a limited liability Company with a nominal capital, to fireproof themselves against the costs of litigation and then, by instituting proceedings, put development Companies to enormous legal costs which they could never hope to recover.

12. However, in view of the practical, not to say generous, approach adopted by the Respondents and the Notice Party on this application for costs it does not appear to this Court to be necessary to resolve these issues on this application. The Orders to be made by the Court will accordingly reflect the offers made by the Respondents and the Notice Party and what the Court considers to be the quite unreasonable attitude of the Appellants in rejecting those offers.

13. The Court will accordingly make the following Orders:-

(1) The Court affirms the Order dated the 1st day of April, 1998 of McGuinness, J. in respect of the costs of the High Court.

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(2) The Court will make no Order as to the costs of the Supreme Court Appeal.

(3) The Court will make no Order as to reserved costs.

(4) An Bord Pleanála and the Notice Party shall have their costs of the two day hearing on the application for costs, against the Appellants.