THE SUPREME COURT
[Supreme Court Appeal No. 38/2009]
[High Court Record No: 2000/ 532 JR]
Denham C.J.
MacMenamin J.
O’Malley J.
JAMES KENNY
APPELLANT
RESPONDENT
JUDGMENT of Ms. Justice O’Malley delivered the 19th day of July 2017.
Introduction
1. On the 4th August, 2000, the respondent (“the Board”) issued a decision granting planning permission to Trinity College Dublin (“Trinity”) for a development intended for student accommodation on a site in Dartry, Dublin. Mr. Kenny, in common with a number of other residents of the area, had objected to the development and sought leave to seek judicial review of the Board’s decision with a view to quashing it. Since it was a planning case the proceedings commenced by way of a contested leave application in the High Court (before McKechnie J.). The application for leave was unsuccessful and the Board’s costs were awarded against the applicants.
2. While Mr. Kenny has initiated multiple proceedings over the intervening years concerning the development (which has long since been completed), this appeal is concerned only with that award of costs of those original judicial review proceedings. Mr. Kenny has many other appeals pending before this Court. I have therefore refrained as far as possible from discussion of proceedings not directly relevant to the issue to be determined in this matter.
3. In a case of this nature, by virtue of s.82(3A) of the Local Government (Planning and Development) Act 1963, as amended, an applicant for leave must demonstrate “substantial grounds” for contending that the decision in question was invalid or ought to be quashed. Trinity, as the developer, was a notice party to the application.
4. McKechnie J. delivered a reserved judgment on the 15th December, 2000, (see Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565). He categorised the grounds for the proposed challenge under four headings which may be summarised as follows.
5. The first ground related to one of the conditions attached to the planning permission, requiring the developer to submit revised drawings to be agreed by the planning authority. It was argued on behalf of Mr. Kenny that this amounted to an unlawful delegation of its powers by the Board to the planning authority.
6. The second ground related to the boiler house facilities which the development would require. It was contended that the plans and drawings as submitted did not give any indication of the nature of the boiler facilities; that a suggestion as to the location of the facilities had been made at the oral hearing that had not been previously proposed; and that the environmental impact statement had mentioned a centralised system whereas at the oral hearing a decentralised system was proposed. It was contended that there was, therefore, insufficient information before the Board to enable it to exercise its jurisdiction. It is recorded in the judgement that a claim had been mentioned, but not pursued, that there was no material before the Board which could justify its decision in this respect.
7. The third ground concerned the adequacy of the environmental impact statement (“the EIS”) submitted by the developer. It was alleged to suffer from such profound defects as to amount to non-compliance with Council Directive 85/337/EEC and also with Irish implementing legislation. According to the trial judge, the factual basis for this argument was almost identical to that of the complaints about the lack of detail regarding the boiler house facilities.
8. The fourth ground related to a claim that a gate lodge on the site was a protected structure.
9. The trial judge refused leave, holding that the appellant had failed to establish “substantial grounds” on any of the issues.
10. As far as the alleged breaches of the Irish regulations and the Directive were concerned, it was observed that counsel had not been able to identify specific provisions of these instruments that had been breached. This contention could not, therefore, constitute a “substantial ground”.
11. The judge found that, despite a degree of confusion, it was clear what proposal was being made at the oral hearing in relation to the boilers. He considered that the matter had been adequately dealt with by the inspector. The trial judge also expressed a firm view that “microscopic examination” of the issue was not appropriate to the nature of the proceedings before the court. At paragraph 19 of the judgment he said:
“19. Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the Environmental Impact Statement or the debate on it had before the inspector. These are not matters of concern to this court. The fourth notice party and the respondent, as these bodies must under the regulations, were satisfied as to the Environmental Impact Statement, with the inspector and the respondent also being satisfied with the evidence, both documentary and oral, produced at the oral hearing. That in my view concludes the matter. However lest there should be any doubt about it, my own opinion is that the Environmental Impact Statement did address adequately, as did the oral hearing, any and all significant impacts which a decentralised boiler system could have on this development.”
12. Mr. Kenny then applied for a certificate for leave to appeal to the Supreme Court pursuant to s.82 (3B) of the Act. The trial judge gave a written judgment on this issue on the 2nd March, 2001, (see Kenny v. An Bord Pleanála (No. 2) [2001] 1 IR 704), in which he refused to grant a certificate, on the basis that it had not been established that a point of law of exceptional public importance had arisen. Leave to appeal had been sought in respect of three points of law, of which McKechnie J. considered only one might be said to be relevant to the argument now made by the appellant. (The other two concerned the standard applicable to a contested leave application under the Act and the issue about the gate lodge).
13. The possibly relevant point concerned the challenge to the EIS in relation to the details about the boiler system. It was argued on behalf of Mr. Kenny that the implication of the paragraph quoted above from the judgment was that the Board would have exclusive jurisdiction in every case to decide the adequacy of the EIS. In finding that the passage did not give rise to a point of law of exceptional public importance McKechnie J. referred to the acceptance on behalf of Mr. Kenny, during the leave hearing, that the Irish regulations, in all material respects, accurately and fully implemented the provisions of Council Directive 85/337/EEC into Irish law. The conclusion reached in paragraph 19 of the earlier judgment was predicated on the relevant statutory and regulatory provisions having been complied with, including those concerned with the EIS. No challenge had been brought on the basis of the principles set out in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.
14. The costs order in favour of the Board was made on the same date.
Subsequent events
15. The Board proceeded to taxation and the costs were taxed in the sum of €56,637.06 on the 7th November, 2002. Mr. Kenny, who was by then representing himself, did not appear at the taxation. He refused to discharge the costs when demand was made, stating that he was now commencing proceedings against Trinity (in which he sought an injunction restraining the development and a rehearing of the judicial review), and he believed that the outcome of that case would affect the recoverability of the Board’s costs.
16. This set of proceedings against Trinity (No. 2002 14269 P) was, essentially, based on a claim of fraud in respect of the evidence that had been put forward by Trinity as to the proposed location of the boiler facilities within the development. As amended, the statement of claim alleged that the EIS was inadequate in this regard, but it is clear that this claim was made squarely within the context of the allegation of fraud. These proceedings were initially struck out as disclosing no cause of action by order of the Supreme Court on the 20th June, 2003, in an appeal by Trinity against a refusal of such an order by Finnegan P.
17. Other litigation initiated by the appellant against Trinity resulted in a number of orders for costs against the appellant. Eventually an “Isaac Wunder” type order was made against him in the High Court, restraining him from issuing further proceedings against Trinity without the leave of the court.
18. On the 12th December, 2003, the Board obtained a fieri facias order in respect of the unpaid costs in the judicial review. The City Sheriff was requested to execute but the Board then deferred that request because it was conscious that Mr. Kenny intended to apply for an injunction against it to prevent enforcement. The injunction application was made in plenary proceedings (No. 2004 1940 P). It was refused by O’Donovan J. on the 29th March, 2004, and the proceedings were struck out as disclosing no reasonable cause of action. The Board agreed not to execute its costs order pending appeal against that order.
19. On the 15th October, 2007, the Supreme Court reversed the order it had made in 2003 and reinstated the proceedings against Trinity (2002 14269 P), meaning that Trinity’s appeal against the refusal of the strike-out order had to be reheard. That appeal was heard on the 27th May, 2008, at the same time as Mr. Kenny’s appeal against the refusal by O’Donovan J. to grant an injunction against the enforcement of the Board’s costs order.
20. Judgments in both appeals were delivered on the 10th April, 2008 - see Kenny v. The Provost & others [2008] IESC 18 and Kenny v. An Bord Pleanála [2008] IESC 17. It is recorded in the judgment of Fennelly J. in the injunction proceedings that the parties had agreed that Mr. Kenny must necessarily fail in relation to his defence to the enforcement of the Board’s costs order if Trinity succeeded in its strike-out application. That is what occurred. The Supreme Court held that McKechnie J. had been fully conscious of the dispute about the boiler houses, and that he considered that it was not an issue that he had to resolve. The case made by Mr. Kenny thus did not meet the standard for setting aside a judgment on grounds of fraud, as set out by Murphy J. in Tassan Din v. Banco Ambrosiano S.P.A. [1991] 1 I.R. 569. The Court then went on to hold that there was no basis in law for restraining the Board from pursuing its costs.
The appeal now before the Court
21. The current appeal is against an order of Hedigan J. (made on the 26th January, 2009) granting leave to the Board to issue execution on foot of the costs order. The application for this order was initiated by way of motion on notice after the delivery of the Supreme Court judgments referred to above.
22. In the affidavits sworn in 2008 for the purpose of resisting the application, the appellant averred that he was proceeding with an appeal against the Isaac Wunder order made by Clarke J. He believed that, if he was successful, the Board’s costs order would be set aside. He therefore sought an adjournment pending the outcome of that appeal. He also averred that he had discovered evidence that Trinity had submitted false documents to McKechnie J. in relation to the boiler houses. Finally, he brought forward an argument based on the decision of the European Court of Justice in Commission v. Ireland (Case C-215/06) [2008] ECR I-4911 in relation to certain inadequacies in the Irish regulations dealing with environmental impact statements.
23. In a report on his decision (which had been given ex tempore) Hedigan J. refers to the fact that the Supreme Court had, on the 10th April, 2008, held that there was “no basis in law” for restraining the Board from pursuing the costs awarded to it. He therefore ruled that there was an unappealable order for costs that had been taxed and ascertained. Mr. Kenny had sought an adjournment of the motion on the basis that he contemplated bringing other proceedings, but Hedigan J. considered that there were no possible proceedings that could affect the validity of the costs order. The only possible argument against permitting execution was the delay that had occurred, and in that respect he accepted the explanation offered in the affidavit sworn on behalf of the Board by its solicitor (which essentially sets out the history of the litigation as summarised above).
24. In his submissions in this appeal, the appellant says that Hedigan J. was mistaken in thinking that he was referring to other proceedings. He had in fact been referring to the fact that in September, 2008 he had contacted the Environment Directorate-General of the Commission, in the light of the judgment of the CJEU in Commission v. Ireland (Case C-215/06) in July of that year. He says that his complaint was that the EIS in respect of the Trinity development did not comply with the Directive. He informed Hedigan J. at the hearing (in 2009) that he was awaiting a response from the Commission. He has informed the Court of some details of his communications with the Commission but has not furnished copies to either the Court or the Board (which is not a party to those communications).
25. Essentially, Mr. Kenny’s case is that McKechnie J. erred in refusing him leave to seek judicial review and further erred in refusing leave to appeal. If the Commission confirms his view, he believes that the orders made against him should be quashed. He therefore submits that this hearing should be adjourned.
Conclusion
26. It must be repeated that the only issue before the Court is the matter of the enforcement of the costs order. In my view Hedigan J. was correct in considering that the issue was disposed of with the order made by this Court on the 10th April, 2008. That was a final order, which remains in force. Furthermore it was made in circumstances where Mr. Kenny accepted that it followed from the failure of his claim as against Trinity. It has not been set aside, and no grounds have been shown that could possibly justify setting it aside even if such an application was before us.
27. I would dismiss this appeal.
