THE HIGH COURT

COMMERCIAL
RECORD NO: 2014/647JR
BETWEEN:
JOHN CALLAGHAN
APPLICANT
AND
AN BORD PLEANLA AND IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND
NOTICE PARTIES

REPLYING SUBMISSIONS OF THE BOARD

Introduction
1. Before the Court is the Applicants motion for discovery, which contains claims to
relief regarding costs and invokes the special costs rules in planning cases. The
Applicant appears to request the Court to now determine that these special rules
apply to the case and apply such determination to the costs the discovery motion.
2. In summary terms and in relation to discovery the Boards position is that no
discovery should be ordered. In relation to costs, the Boards position is that special
costs rules do not apply to this case and, in any event, it is premature for the Court to
determine the matter. This is dealt with in more detail below.

The Boards Decision

3. On or about 12 September 2014 and pursuant to s.37A of the Planning and
Development Act, 2000 (as amended) (the PDA), the Board served notice on the
Second Named Notice Party to the effect that the proposed development referred to
therein, if carried out, would fall within s.37A(2)(a) and (b) i.e. it was, in more
common-parlance, strategic infrastructure.

This means that an application for

permission for the proposed development will be made directly to the Board and not
to a planning authority. This is specifically envisaged in the schema of s.37A-s.37E
of the PDA. This is what was before the Board to determine. In more technical
terms, the Board had to determine whether the condition in s.37A(2) was met:

That condition is that, following consultations under section 37B, the Board
serves on the prospective applicant a notice in writing under that section
stating that, in the opinion of the Board, the proposed development would, if
carried out, fall within one or more of the following paragraphs, namely
(a) the development would be of strategic economic or social importance
to the state or the region in which it would be situate,
(b) the development would contribute substantially to the fulfilment of any
of he objectives in the National Spatial Strategy or in any regional spatial
and economic strategy in force in respect of the area or areas in which it
would be situate,
(c) the development would have a significant effect on the area of more
than one planning authority
4. Whereas it is appreciated that the Applicant maintains a direct challenge to these
provisions the above is what the Board considered and applied.

If the Boards

Decision is challenged it is challenged on the basis that in reaching those limited

conclusions set out above it erred in a manner which is capable of judicial review.
That is clearly and simply a matter of law and the Boards determination is reviewed
by this Court with regard to the evidence that was before the Board. If the evidence
is capable of supporting the Decision, the Decision stands. If it is not so capable, or if
something which should have been considered was not, it falls. For the reasons
outlined below there is no impediment to the Applicant making this case, and no
requirement for discovery to enable it to be made.
5. As this will be relevant to both discovery and costs the Court should note that the
decision of the Board is not even a development consent. No permission to develop
is granted by the Board at all. This is a fundamental point completely overlooked (or
consciously ignored) by the Applicant which is critically relevant.
6. The Court may also wish to know that, pursuant to the Boards decision an
application for permission for the proposed development was lodged on 6 October
2014 and the Applicant here has made no submissions or observations on this
application at all, and has raised no issues whatsoever regarding the allegations he
made herein about what he perceived the likely problems to be with such a planning
application.

Discovery and the Applicants Case

7. It is well established that discovery in judicial review proceedings should be the
exception rather than the norm. The leading case is Carlow Kilkenny Radio Ltd. v.
Broadcasting Commission [2003] 3 IR 528 where the Supreme Court held (per
Geoghegan J) as follows:The established English and Northern Irish jurisprudence, which would seem
to be in conformity with our own principles of discovery, is to the effect
that discovery will

not

normally

be

regarded

as

necessary

if

the judicial review application is based on procedural impropriety as ordinarily

that can be established without the benefit of discovery. Likewise, if the
application for judicial review is on the basis that the decision being impugned
was a wholly unreasonable one in the Wednesbury sense, discovery will
again not normally be necessary because if the decision is clearly wrong it is
not necessary to ascertain how it was arrived at. Where discovery will be
necessary is where there is a clear factual dispute on the affidavits that would
have to be resolved in order properly to adjudicate on the application or
where there is prima facie evidence to the effect, either that a document
which ought to have been before the deciding body was not before it or that a
document which ought not to have been before the deciding body was before
it.
8. There is no doubt but that discovery is the exception rather than the norm in judicial
review cases. Clearly, the same principles apply in that relevance, necessity and
proportionality apply to discovery both in general civil litigation as well as judicial
review. However, as is clear from the well-established jurisprudence the contours of
a judicial review and the potential scope of same necessarily limit and shape what
can legitimately be regarded as relevant.

Thus, it is simply not enough for the

Applicant to say, as it does at paragraph 1, that the same principles apply. Of

course they do. The issue is that the special nature of judicial review proceedings
means those very same principles find different application when it comes to consider
what is relevant and necessary and proportionate to enable a just and effective
conduct of judicial review proceedings. Indeed, the Applicants submissions appear
to attempt to set up a straw-man argument (i.e. that discovery should not be ordered
in judicial review proceedings) simply to knock that down to then reveal, it seems
submitted, a contention that there is nothing special about judicial review. This is an
entirely pointless exercise because as is submitted above the issue is simply that
the scope of judicial review proceedings necessarily contours and affects what a
Court may deem to be relevant, necessary and proportionate when it comes to

discovery. Since, by definition, the availability of discovery depends on the issues

between the parties then the fact that the issues in judicial review tend to be narrower
than on general civil proceedings is the reason as to why discovery, in general, tends
not to be ordered in such proceedings. In this respect, there appears actually to be
no substantial difference between the parties understandings of the principles save
the nuance and emphasis the Applicant places thereon.
9. In this case a wide-ranging fishing expedition is engaged in which seeks discovery of
far more documentation than was, in fact, before the Board when it made the
determination it did. This is undisputed fact. It has been deposed to in affidavit on
behalf of the Board as to what was before it and those documents (despite actually
being publically available) have been exhibited accompanying that averment.
10. Indeed, there is no clear factual dispute on the affidavits at all in this case. Moreover,
there is no case made that any particular document should have been before the
Board which the Applicant wishes to ensure was before it. In fact, the Applicant
actually does make a case (without the need for discovery) that matters which were
before the Board should not have been by reason (it is said) that they were invalid
having not undergone SEA. Thus, the only attack made on documents which were
(or were not) before the Board is a purely legal attack on whether certain guidelines
should have undergone SEA and no discovery in relation to same is sought against
the Board.
11. In this respect, the case actually being made and its limits must be appreciated.
12. First, the Applicant contends that the provisions in s.37A et seq are themselves
unlawful. If the Applicant is correct in that, nothing else will arise and, in that respect,
every other element in the case including discovery to aid same is premature.
13. Second, if the Applicant fails in this, presumably the Applicant moves to the
contention that the Board determination itself was unlawful. However, the only matter
that arises herein (as discussed at length above) is whether the Board got it wrong
applying the s.37A(2) test. Again, that is a challenge that arises as a matter of law
and the Boards determination is assailable on the basis of the evidence before it. If
there was no evidence to support the Boards conclusions on the s.37A(2) elements,
then so be it. If there was evidence, then on the OKeeffe standard the decision
cannot be challenged. No discovery is necessary for this. Indeed, as a concession
and in an attempt to interrupt this needless fishing and wasting of Court time and the
Boards resources the Board has taken considerable steps to assist the Applicant.
The affidavit of Chris Clarke sworn on the 23 January 2015:-

a. Exhibits the Boards File.

b. Exhibits the documents provided in response to a request made under the
European Communities (Access to Information on the Environment)
Regulations 2007. As the Court will see this request sought a copy of all
correspondence / meetings held by the Board and Element Power concerning
the proposed wind turbines in North Meath and a copy of all decisions made
concerning SID and EIS for the proposed development. In response to this
the Board provided just this i.e. all internal emails etc regarding
PL17.PC0178.
14. Thus the Applicant already has, in essence, the documents relating to the subjectmatter of this case. This was already available to him (as he has exhibited aspects of
the AIE information) and the Boards file was publicly available.
15. Thus, if the Applicant has any legal case whatsoever that inadequate information was
before the Board, it can be made out as the Applicant knows what was before the
Board.
16. The Court will appreciate, in addition, that the Applicants case as pleaded appears to
contend that the Boards Decision should be quashed because the fact of making the
determination it has made has somehow created a situation of pre-judgment or bias.
Insofar as the Applicant appears to urge the view that it seeks discovery to effectively
run with a bias or pre-judgment point, this is entirely premature. Whether the Board
will have been prejudiced in determining a subsequent application, or whether a
reasonable person would conclude that it must have been, is an issue that logically
cannot arise until the decision in question is taken. Anything may arise in the interim
to make the issue moot, or it may just be misconceived from the start.. It is thus
entirely premature for the Applicant to effectively contend that the Board cannot be
objective in determining any future application for development consent.
17. Third, the Applicant seeks numerous categories on an all documents basis of other
files and matters before the Board. This is because the Applicant contends that the
Board is engaging in project-splitting. It is, again, regrettable that this has to be dealt
with at this stage but this point is bereft of any possible or potential merit. It is not
simply wrong in law, but it has no basis in law. It is simply a point being made without
a basis. There is no doubt that project splitting is to be avoided. A project (if it
requires EIA) must be subject to EIA prior to the granting of development consent for
such a project. See case C-201/02 Wells [2004] ECR I-72. There is no doubt over

this. Thus, one cannot avoid EIA by splitting a project into small portions which each
would avoid thresholds for EIA (salami slicing, as it is sometimes known). This
arises largely because in many cases the EIA obligation is triggered by thresholds
whether in acreage, size, unit capacity or some other equivalent objective
measurement.

If a project could be sliced into several sub-threshold projects

themselves not requiring EIA or not being such, of themselves, as would be likely to
have significant environmental effects, the purpose of the EIA Directive and Part X of
the PDA would be frustrated.
18. The Applicants case misses the fundamental point that nothing the Board determined
had anything to do with EIA.

Indeed, the EIA Directive grounds a compelling

argument in this respect because the EIA Directive is concerned with the process of
EIA being part and parcel of the development consent process.

Hence, all the

provisions in domestic law (i.e. in Part X of the PDA) are geared towards the specific
and clear inclusion of EIA obligations on the Board during the development consent
process. What the Board has decided is not the development consent process it is
the question of which development consent process will apply. This is an entirely
separate and preliminary determination, in the strictest sense of that word: it is a
determination made before the developer even reaches the doorstep of the
development consent process. Thus, nothing has arisen yet that engages EIA.
19. Indeed, this leads to a wider point. Even if one rejects the Boards contention that
project splitting cannot arise at this point, this is a legal characterization of matters.
One can make a project-splitting argument as a matter of law. Either project-splitting
exists or it does not and not a scintilla of evidence has been put before the Court to
suggest that there is any difficulty with the information which is publically available on
the other cases the Applicant now impugns. Thus, the Applicants case is triply illfounded. First, project-splitting cannot arise at this point. Second, even if it does, it is
a matter of law. Third, if facts are relevant, there is no reason why the information
publicly available in relation to the matters alleged to have been split is inadequate
to pursue this point.
20. Thus, there is no obvious reason at all as to why discovery is relevant or necessary
or, indeed, proportionate in respect of the issues between the parties. This is not
because judicial review is special because the issues in judicial review are
necessarily different to that in other civil cases (such as, for example, the
reasonableness of precautions taken to avoid injury etc). Insofar as the Applicant
cites a need for discovery it is an entirely created need by reference to suppositions
about the legal character of the Boards determination herein which are simply not
borne out by the legislative scheme.

Costs Rules in Planning Cases

21. Prior to the 28

th

September 2010, costs in planning cases were governed in

accordance with the normal rules contained in Order 99(1)(e) of the Rules of the
Superior Courts, 1986 as amended; The costs of every action, question, or issue
tried by a jury shall follow the event unless the Court, for special cause, to be
mentioned in the order, shall otherwise direct.
22. The 28

th

September 2010 is the date on which Section 50B of the Planning and

Development Act, 2000 came into effect.

Subject to some special exceptions, this

provided for a rule that each party should bear their own costs in particular cases.
The special exceptions relate to the Applicants conduct of the proceedings, or the
frivolity and vexatious nature of the case. These are important exceptions and have
2

been applied by the Courts and will be referred to below. In short, the Court should
simply note, it is respectfully submitted, that even if s.50B applies the Court retains
a discretion and power under s.50B(3) to award costs against an Applicant on these
grounds.

Thus, it may well happen that a Court could reserve costs on an

interlocutory application and then award costs against an Applicant at the conclusion
of a case (to include reserved costs) if the circumstances so warranted.
23. This provision was amended with effect from the 23

rd

August 2011 to change this

position to provide for a power to award costs to an Applicant or a portion thereof to

3

the extent to which the Applicant succeeded in gaining relief.

24. For the convenience of the Court some background as to the pedigree of these
4

amendments can be set out as follows. This begins with the Convention on Access
to Information, Public Participation in Decision-Making and Access to Justice in
Environmental Matters more commonly known as the Aarhus Convention. The
relevant provisions of the Aarhus Convention so far as costs are concerned are those
contained in Article 9(3) and Article 9(4):

Planning and Development (Amendment) Act 2010 (Commencement) (No. 2) Order 2010
(SI 451 of 2010) which commenced ss. 32 and 33 of the Planning and Development
(Amendment) Act 2010 Act, and where s.33 introduced s.50B.
2
Indaver Ireland v. An Bord Pleanla [2013] IEHC 11;
3
The amendment was made by s.21 of the Environment (Miscellaneous Provisions) Act 2011
takes effect from the 23rd August 2011 Environment (Miscellaneous Provisions) Act 2011
(Commencement of Certain Provisions) Order 2011 (SI 433 of 2011).
4
Detailed considerations are found in JC Savage Supermarket Limited & Des Becton v An
Bord Pleanla [2011] IEHC 488; Kimpton Vale Developments Ltd. v. An Bord Pleanla [2013]
IEHC 442 and Waterville Fisheries Development Limited -v- Aquaculture Licenses Appeals
Board & Ors [2014] IEHC 522
7

3. In addition..each Party shall ensure that, where they meet the criteria, if
any, laid down in its national law, members of the public have access to
administrative or judicial procedures to challenge acts and omissions by
private persons and public authorities which contravene provisions of its
national law relating to the environment.
4. In addition and without prejudice to paragraph 1 above, the procedures
referred to in paragraphs 1, 2 and 3 above shall provide adequate and
effective remedies, including injunctive relief as appropriate, and be fair,
equitable, timely and not prohibitively expensive. Decisions under this article
shall be given or recorded in writing. Decisions of courts, and whenever
possible of other bodies, shall be publicly accessible.
25. The Aarhus Convention is not domestic law.
Court on several occasions.

This has been confirmed by the High

Rather, it has had domestic resonance only through

how it has been implemented in Irish law which, in turn, has been the product of the
transposition of European directives. This arose by reason of Directive 2003/35/EC
of the European Parliament and of the Council of 26 May 2003 providing for public
participation in respect of the drawing up of certain plans and programmes relating to
the environment and amending with regard to public participation and access to
justice Council Directives 85/337/EEC and 96/61/EC (the Public Participation
Directive).

This Directive made amendments to two Directives being Council

Directives 85/337/EEC and 96/61/EC which are more commonly known as the EIA
Directive and the IPPC Directive respectively.

It inserted provisions into those

Directives which required Member states to adopt special rules regarding the costs of
certain challenges arising under those regimes i.e. EIA and IPPC.
26. Section 50B is part of the Irish transposition of this.

As Charleton J said in JC

Savage Supermarket Limited & Des Becton v An Bord Pleanla [2011] IEHC 488:5

See Kimpton Vale Developments Ltd. v. An Bord Pleanla [2013] IEHC 442; Waterville
Fisheries Development Limited -v- Aquaculture Licenses Appeals Board & Ors [2014] IEHC
522. In the latter case Hogan J held:Save for the special case of where the Aarhus Convention has been transposed into
EU law (which I will consider presently) and, by that process, has become part of Irish
domestic law as a result, it is clear that, having regard to the provisions of Article 29.6
of the Constitution, the Convention is otherwise only part of domestic law to the
extent to which such either has been or may be determined by the Oireachtas.
6
In this respect, it is noted that Applicants often refer (unsuccessfully) to s.8 of the
Environment (Miscellaneous Provisions) Act, 2011 which provides that judicial notice can be
taken of the Aarhus Convention. Clearly, this does not mean that reckonable judicial
cognisance can be taken of the Aarhus Convention in any sense that gives it an otherwise
unconstitutional domestic force. Rather, it simply means that the evidential doctrine of judicial
notice applies to same and the Aarhus Convention does not require formal evidentiary proof
in Court.
8

This new section was necessitated by Ireland's obligations under European

law. In particular, Article 10a of Council Directive of 27 June 1985 on the
assessment of the effects of certain public and private projects on the
environment (85/337/EEC) as inserted by Article 7 of Council Directive of 26
May 2003 providing for public participation in respect of the drawing up of
certain plans and programmes relating to the environment and amending with
regard to public participation and access to justice.
27. Section 50B as is as follows (for the convenience of the Court although the 2011
version was in force, the amendments are highlighted below):(1) This section applies to proceedings of the following kinds:
(a) proceedings in the High Court by way of judicial review, or of
seeking leave to apply for judicial review, of(i) any decision or purported decision made or purportedly
made,
(ii) any action taken or purportedly taken, or
(iii) any failure to take any action,
pursuant to a law of the State that gives effect to(I)

a provision of Council Directive 85/337/EEC of 27

June 1985 to which Article 10a (inserted by Directive
2003/35/EC of the European Parliament and of the
Council of 26 May 2003 providing for public
participation in respect of the drawing up of certain
plans and programmes relating to the environment
and amending with regard to public participation and
access to justice Council Directive 85/337/EEC and
96/61/EC) of that Council Directive applies,

(II)

Directive 2001/42/EC of the European Parliament

and of the Council of 27 June 2001 on the
assessment of the effects of certain plans and
programmes on the environment, or

(III)

a provision of Directive 2008/1/EC of the European

Parliament and of the Council of 15 January 2008
concerning

integrated

pollution

prevention

and

control to which Article 16 of that Directive applies; or

(b) an appeal (including an appeal by way of case stated) to the
Supreme Court from a decision of the High Court in a proceeding
referred to in paragraph (a);
(c) proceedings in the High Court or the Supreme Court for interim or
interlocutory relief in relation to a proceeding referred to in paragraph
(a) or (b)
(2) Notwithstanding anything contained in Order 99 of the Rules of the
Superior Courts and subject to subsections (3) and (4), in proceedings to
which this section applies, each party (including any notice party) shall bear
its

own

costs.

[Replaced

since

the

23

rd

August

2011

with:

Notwithstanding anything contained in Order 99 of the Rules of the

Superior Courts ( S.I. No. 15 of 1986 ) and subject to subsections (2A),
(3) and (4), in proceedings to which this section applies, each party to
the proceedings (including any notice party) shall bear its own costs.
[Inserted since the 23

rd

August 2011]: (2A) The costs of proceedings,

or a portion of such costs, as are appropriate, may be awarded to the

applicant to the extent that the applicant succeeds in obtaining relief
and any of those costs shall be borne by the respondent or notice party,
or both of them, to the extent that the actions or omissions of the
respondent or notice party, or both of them, contributed to the applicant
obtaining relief..
(3) The Court may award costs against a party in proceedings to which this
section applies if the Court considers it appropriate to do so(a) because the Court considers that a claim or counterclaim by the
party is frivolous or vexatious,
(b) because of the manner in which the party has conducted the
proceedings, or
(c) where the party is in contempt of the Court.

10

(4) Subsection (2) does not affect the Court's entitlement to award costs in
favour of a party in a matter of exceptional public importance and where in
the special circumstances of the case it is in the interests of justice to do so.
(5) In this section a reference to 'the Court' shall be construed as, in relation
to particular proceedings to which this section applies, a reference to the High
Court or the Supreme Court, as may be appropriate".
28. In interpreting the section, in JC Savage Supermarket Limited & Des Becton v An
Bord Pleanla [2011] IEHC 488 Charleton J noted that
The legislative history of an enactment can illuminate its meaning. If a section
is grafted into an enactment in order to deal with a situation that may not
have been provided for in earlier version of an Act, or if a section is amended,
it can become clear that the legislature is defining statute law in a particular
way so as to make up for what was missing or to change the wording in order
to facilitate a new situation or eliminate an old mischief.
29. And he held:Moving on the legislation necessitated by the State's duty of effective
cooperation with the institutions of the European Union, similar rules arise to
those which apply in construing legislation where there is a challenge to its
constitutionality. Where a national measure is passed in order to give effect to
an Obligation of the State which arises from European law, such national
legislation must be construed so as conform to that legislative purpose.
30. He concluded:The legislative history of s. 50B includes the prior forms of s. 50 of the Act of
2000 and the amendments thereto before that new section was introduced
and the decision of the European Court of Justice of 16th July 2009 in case
C-427/07, Commission v Ireland. Nothing in that legislative history shows any
intention by the Oireachtas to provide that all planning cases were to become
the exception to the ordinary rules as to costs which apply to every kind of
judicial review and to every other form of litigation before the courts. The
immediate spur to legislative action was the decision of the European Court
of Justice in case C-427/07. Nothing in the judgment would have precipitated
the Oireachtas into an intention to change the rules as to the award of costs
beyond removing the ordinary discretion as to costs from the trial judge in

11

one particular type of case. Specified, instead, was litigation that was
concerned with the subject matter set out in s. 50B (1)(a) in three sub
paragraphs: environmental assessment cases, development plans which
included projects that could change the nature of a local environment, and
projects which required an integrated pollution prevention and control licence.
By expressing these three, the Oireachtas was not inevitably to be construed
as excluding litigation concerned with anything else. Rather, the new default
rule set out in section 50B (2) that each party bear its own costs is expressed
solely in the context of a challenge under any 'law of the State that gives
effect to' the three specified categories: these three and no more. There is
nothing in the obligations of Ireland under European law which would have
demanded a wholesale change on the rules as to judicial discretion in costs
in planning cases.
The circumstances whereby the State by legislation grants rights beyond
those required in a Directive are rare indeed. Rather, experience indicates
that the default approach of the Oireachtas seems to be 'thus far and no
further'. There can be exceptions, but where there are those exceptions same
will emerge clearly on a comparison of national legislation and the
precipitating European obligation. Further, the ordinary words of the section
make it clear that only three categories of case are to be covered by the new
default costs rule. I cannot do violence to the intention of the legislature. Any
such interference would breach the separation of powers between the judicial
and legislative branches of government. The intention of the Oireachtas is
clear from the plain wording of s. 50B and the context reinforces the meaning
in the same way. The new rule is an exception. The default provision by
special enactment applicable to defined categories of planning cases is that
each party bear its own costs but only in such cases. That special rule may
exceptionally be overcome through the abuse by an applicant, or notice party
supporting an applicant, of litigation as set out in s. 50B (3). Another
exception set out in s. 50B (4) provides for the continuance of the rule that a
losing party may be awarded some portion of their costs 'in a matter of
exceptional public importance and where in the special circumstances of the
case it is in the interests of justice to do so'.
The Court must therefore conclude that as this litigation did not concern a
project which required an environmental assessment, costs must be
adjudged according to the ordinary default rule that costs should follow the
event unless there are exceptional circumstances.

12

31. Hedigan J considered the provision in Shillelagh Quarries Limited v An Bord Pleanla
[2012] IEHC 402 wherein he referred to Charleton Js analysis in JC Savage and
held, at para. 5 that I gratefully adopt this very helpful interpretation of these new
provisions in relation to costs. Both these decisions were cited with approval and
followed by Kearns P in Indaver Ireland v. An Bord Pleanla [2013] IEHC 11. They
have been cited or followed on numerous occasions since.
32. It is absolutely crystal clear that s.50B does not apply to these proceedings. Indeed,
insofar as there is absolutely nothing about IPPC in this case, nothing more will be
said about same.
33. It is certainly the case that these proceedings concern a challenge to a decision of the
Board. However, the decision of the Court does not arise under the banner of EIA,
SEA or IPPC. It is simply a determination of the Board under the special provisions
introduced by the Planning and Development (Strategic Infrastructure) Act, 2006.

It

was a determination by the Board that the proposed development referred to therein,
if carried out, would be fall within s.37A(2)(a) and (b) i.e. was strategic
infrastructure.

A determination that an application may be made to the Board

pursuant to s.37E does not amount to a development consent. As said above, it

amounts simply to a determination that a particular legislative modality for applying
for development consent may be availed of by a prospective developer.
34. The decision of the Board is not even a development consent. Thus, nothing could
arise under the EIA banner at all because nothing relating to EIA can be invoked, at
all, to challenge the determination that something is or is not strategic infrastructure.
This is a fundamental point completely overlooked (or consciously ignored) by the
Applicants. The only matter for the Board to determine was whether this was the
case.

As set out above the Board had to determine whether the condition in

s.37A(2) was met:

That condition is that, following consultations under section 37B, the Board
serves on the prospective applicant a notice in writing under that section
stating that, in the opinion of the Board, the proposed development would, if
carried out, fall within one or more of the following paragraphs, namely
(a) the development would be of strategic economic or social importance
to the state or the region in which it would be situate,

I.e. Section 37A et seq of the PDA.

13

(b) the development would contribute substantially to the fulfilment of any

of he objectives in the National Spatial Strategy or in any F156[regional
spatial and economic strategy] in force in respect of the area or areas in
which it would be situate,
(c) the development would have a significant effect on the area of more
than one planning authority
35. Thus, there is no requirement (and indeed, no jurisdiction) for the Board to apply
considerations relating to EIA on a determination made under s.37A(2). Now, what
the Applicant appears to maintain is that because the Boards decision facilitated
project splitting (which is a well known point in EIA terminology) then there must be
an EIA point here. But that misses the fundamental point that nothing the Board
determined had anything to do with EIA.

Indeed, the EIA Directive grounds a

compelling argument in this respect. It is well known that s.50B constitutes part of the
Irish transposition of provisions of various Directives which make requirements
regarding public participation and the cost of same. Initially insofar as EIA was
concerned this was found in Article 10a which is now Article 11 in the EIA
Directives latest consolidated iteration. This provides:1. Member States shall ensure that, in accordance with the relevant national
legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively;
(b) maintaining the impairment of a right, where administrative
procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another
independent and impartial body established by law to challenge the
substantive or procedural legality of decisions, acts or omissions subject to
the public participation provisions of this Directive.
2. Member States shall determine at what stage the decisions, acts or
omissions may be challenged.
3. What constitutes a sufficient interest and impairment of a right shall be
determined by the Member States, consistently with the objective of giving
the public concerned wide access to justice. To that end, the interest of any
non-governmental organisation meeting the requirements referred to in
Article 1(2) shall be deemed sufficient for the purpose of point (a) of

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paragraph 1 of this Article. Such organisations shall also be deemed to have

rights capable of being impaired for the purpose of point (b) of paragraph 1 of
this Article.
4. The provisions of this Article shall not exclude the possibility of a
preliminary review procedure before an administrative authority and shall not
affect the requirement of exhaustion of administrative review procedures prior
to recourse to judicial review procedures, where such a requirement exists
under national law.
Any such procedure shall be fair, equitable, timely and not prohibitively
expensive.
36. It simply cannot be gainsaid by the Applicant that the EIA Directive and the public
participation provisions of same arise and relate only to the development consent
process. This has not yet arisen. The reason this is important is because it is not
simply that s.50B does not apply on its face, but that there is no requirement for it to
apply because there was no such requirement in European law. There is simply
nothing that requires a costs-friendly approach to challenges which are not covered
by the EIA Directive and this challenge is self-evidently not so covered. What the
Board determined had simply nothing to do with the EIA process. Moreover, the
Board would not have had jurisdiction to deal with EIA matters as the schema in
s.37A et seq is very clearly set out and self-contained. The Board was required to
consider and was limited in considering whether the condition set forth in s.37A(2)
was met.
37. With regard to SEA, it is simply incongruous to suggest that the Board made any
determination in relation to same such as would engage s.50B. In this respect the
Applicants are now seeking, it seems, to reason by the back-door that various
guidelines which the Board referred to in its Decision should have been subject to
SEA and thus, presumably, were invalid and thus not capable of being referred to.
With respect, however, this argument is not an argument that can be advanced
against the Board. The Board has no function whatsoever with regard to SEA. This
is an argument for the State but the Board observes that it would appear that any
contention that the guidelines referred to should have been the subject of SEA is
completely ill-founded and, indeed, absolutely no relief is claimed in this respect.
Again, as set out above the only matter before the Board was whether the condition
set forth in s.37A(2) was met.

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38. Thus, there is simply no rational case to be made that s.50B applies. Indeed, this
makes some sense. The provision is clearly designed to ensure that as per the EIA
Directive parties can challenge decisions to grant development consent to projects
on a costs-friendly basis.

Prematurity
39. Again, as matters stand, the Board only understands the Applicant to now argue that
s.50B applies to the discovery motion. If it does not apply to the proceedings, it
cannot apply to the motion and it does not apply to the proceedings so it does not
apply to the motion. If, however, the Applicant seeks to advance anything more than
this and ask the Court to determine that s.50B applies writ large to the proceedings,
there are serious practical problems and, indeed, jurisdictional difficulties with this.
40. First, the Court may, however, also note that there is recent authority for the relatively
sensible proposition that s.50B is divisible.

As Herbert J held in McCallig v An Bord

Pleanala [2014] IEHC 353:In my judgment proceedings as used in s. 50B(1) only refers to that part of
judicial review proceedings which challenge a decision made or action taken
or a failure to take action pursuant to one or more of the three categories
therein specified. Proceedings is not defined in the Act of 2010, in the
Planning and Development Act 2000, or in the Interpretation Act 2005. It is
not a term of legal art and where undefined its meaning falls to be established
by reference to the context in which it is used, (see Minister for Justice v.
Information Commissioner [2001] 3 I.R. 43 at 45: Littaur v. Steggles
Palmer [1986] 1 W.L.R. 287 at 293 A-E). In my judgment it cannot be
considered that the legislature intended so radical an alteration to the law and
practice as to costs as to provide that costs in every judicial review
application in any planning and development matter, regardless of how many
or how significant the other issues raised in the proceedings may be, must be
determined by reference only to the fact that an environmental issue falling
within any of the three defined legal categories is raised in the proceedings.
Such a fundamental change in the law and practice as to awarding costs is
not necessary in order to comply with the provisions of the Directive. It would
encourage a proliferation of judicial review applications. Litigants would
undoubtedly resort to joining or non-joining purely planning issues and
environmental issues in the same proceedings so as to avoid or to take
8

16

advantage of the provisions of s. 50B(2). This is scarcely something which

the legislature would have intended to encourage.
41. If, for example, the Court accepted that some of the Applicants case concerned
grounds not within s.50B but, perhaps, accepted that some of the Applicants grounds
were within it, the Court can apply s.50B to that which it should apply to and refuse to
apply it (and therefore apply Order 99 of the Rules of the Superior Courts, 1986) to
the balance. In this sense, it seems wholly artificial to entertain any question of the
applicability of s.50B to the case as a whole. Indeed, it is equally arguable that no
determination should be made on the application even to the discovery as the
discovery sought fuels (presumably) all of the Applicants case. In this respect, there
is a very real prospect that having heard the case in full the Court would accept that
the Applicant has not raised s.50B grounds and thus any determination of the issue
would now be pointless.
42. Second, the other compelling reason as to why the Court should not determine this
now is that, as the Court will see, the Court effectively has to (now) grapple with the
entire case to determine whether a development consent is at issue. The Board says
this is not the case, but the Applicants case can only proceed if the Board has
granted a development consent. This, however, seems to involve the Court now
getting into the substance of the case when there seems to be no good reason to do
so now and no prejudice that can arise from making a determination on s.50B at the
end of the proceedings as is normal.
43. Third, there is no obvious jurisdiction in s.50B for the Court to make declarations
which amount to in effect protective insulations at the outset of the case regarding
its applicability. Rather, the section is phrased positively to invite the inference that it
arises at the end of proceedings. For example, the section speaks of the Applicant
being, perhaps, entitled to costs to the extent to which the Applicant has succeeded
in obtaining relief which seems to pre-suppose that the provision is applied when the
Court comes to consider costs at the conclusion of the case. In contrast to this, there
is another special costs regime (which is not applicable for reasons set out below) in
the Environment (Miscellaneous Provisions) Act 2011. Section 7 of that provides
clearly for a special judicial jurisdiction to determine at any stage of the proceedings
whether the special costs rules set forth in s.3 and s.4 thereof apply. There is no
such provision in s.50B. It is further noted that in Hunter v Nurendale Ltd [2013]
IEHC 591 Hedigan J set forth a clear procedure for making an application for an
Order under s.7 none of which has been followed here. Of course, as the Board
says, this is completely irrelevant because this special costs regime simply does not
apply here and the reasons for same are outlined below.

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44. Finally, as the Applicant points out a point has been certified to the Supreme Court as
to whether s.50B applies to all planning cases or not. In this respect, it would seem
far more appropriate that in the normal course and, as was the practice in this Court,
that costs are costs in the case pending conclusion of the case at which point a
determination on costs is made. If the Applicant believes that to be incorrect then, a
certificate for leave to appeal same can be sought.

The Environment (Miscellaneous Provisions) Act 2011

45. As noted above and for the avoidance of any doubt, some reference should be made
to the special costs provisions in this Act. Section 3 thereof provides another costsfriendly provision but it applies only to civil proceedings as defined in s.4.
Section 3 applies to civil proceedings, other than proceedings referred to in
subsection (3), instituted by a person
(a) for the purpose of ensuring compliance with, or the enforcement
of, a statutory requirement or condition or other requirement attached
to a licence, permit, permission, lease or consent specified in
subsection (4), or
(b) in respect of the contravention of, or the failure to comply with
such licence, permit, permission, lease or consent,
and where the failure to ensure such compliance with, or enforcement of,
such statutory requirement, condition or other requirement referred to in
paragraph (a), or such contravention or failure to comply referred to in
paragraph (b), has caused, is causing, or is likely to cause, damage to the
environment.
46. Thus, none of this arises. There is no licence, permit, permission, lease or consent
in respect of which compliance is sought and even if there was there are no issues or
evidence at all here regarding damage to the environment. This simply does not
arise.

BRIAN FOLEY BL
EMILY EGAN SC

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