THE HIGH COURT

COMMERCIAL
Record No. 2014/647JR
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT,
2000 (AS AMENDED)
Between:
JOHN CALLAGHAN
Applicant
-andAN BORD PLEANLA
First Named Respondent
-andIRELAND AND THE ATTORNEY GENERAL
Second Named Respondent
ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND AND
NORTH MEATH WINDFARM LIMITED
Notice Parties
_________________________________________________________________
OUTLINE LEGAL SUBMISSIONS ON BEHALF OF THE APPLICANT
__________________________________________________________________

1.

The substantive proceedings seek Orders quashing the decision of the First Named
Respondent made on the 11th and/or 12th December 2014 in respect of the
development of a windfarm comprising 46 turbines at Emlagh, near Kells, County
Meath. The essence of the proceedings relate to the decision of the Respondent to
deem this development strategic infrastructure for the purposes of the Planning and
Development Acts and by so doing the First Named Respondent has rendered itself a
competent authority for the purposes of 2011/92/EC. In addition to an Order of
Certiorari quashing the decision of the First Named Respondent to the effect that the
windfarm development falls within the provisions of Section 37A of the Planning and
Page 1 of 46

Development Act, the applicant seeks a number of Declaratory reliefs in respect of the
Environmental Impact Assessment Directive now consolidated in 2011/92/EC and the
extent to which the provisions that have now been applied under Section 37A are
consistent with the Environmental Impact Assessment Directive and the extent to
which the procedures adopted by the First Named Respondent are equally consistent
with the provisions of that Directive. In the alternative the applicant pleads that
insofar as any of these procedures adopted are consistent with the Directive, the
requirements of the Directive have not been properly transposed into Irish domestic
law.
2.

The Applicant seeks in that regard in respect of the First Named Respondent eight
categories of documents as follows:
Category 1:
The entire File No PL17.PC0178 in respect of the Pre Application Consultation
Process and the Application for Strategic Infrastructure Development Status by
Element Power Ireland Limited, submitted on or about 30/5/14 for a proposed wind
farm of up to 50 turbines at Emlagh, near Kells, County Meath and decided on
11/9/14.
Category 2:

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All notes, documents, memoranda, records, reports and/or attendances, email

communication and/or electronic communication touching upon or concerning the preapplication consultation process requested by Element Power Ireland Limited of the
First Named Respondent and/or meetings held on foot thereof with any party
whatsoever in the context of the said pre-application consultation process and the
subsequent determination of the application, which application was assigned file
number PL17.PC0178 by the first named respondent, to include:

i all documentation submitted by the Notice Parties herein, their servants or agents;
ii all documentation considered by the by the First Named Respondent herein, its
servants or agents;
iii all documentation generated in the course of its deliberations by the First
Named Respondent herein, its servants or agents, to include all records of all or
any meetings, telephone attendances, e-mail communication or conversations
between inspectors and the board members, between the inspectors themselves,
between the board members themselves or with any other party.
Reasons:
The Applicant has sought judicial review of the decision made by the First Named
Respondent to grant the proposed development of a wind farm consisting of up to 50
turbines at Emlagh near Kells, County Meath strategic infrastructure status. The
Applicant has challenge the validity of that decision on upwards of 25 grounds set out
at paragraph (E) of the Statement of Grounds delivered herein. The Applicant impugns
the said decision inter alia on the grounds that:
(i) the Applicant who is a directly affected person was not included at the earliest
possible stage in decisions in relation to the proposed development contrary to the
requirements of Council Directive 2011/92/EU;
(ii) The Applicant contends that he was excluded at all material times from the
decision making process contrary to the said Directive;
(iii) That the First Named Respondent failed to properly consider the provisions of
section 37A(2)(a) and (b) of the Planning and Development Act 2000, as
amended; and
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(iv) That the proposed development does not satisfy the provisions of the said Act;
(v) That the First Named Respondent accepted the submissions of the applicant
without question thereby offending the Rules of Natural Justice and Fair
Procedures;
(vi) That the First Named Respondent, its servants or agents failed to properly
apply the provisions of the said European Directive.
The relevance and necessity of the documents set out in categories 1 and 2 arise in
circumstances where there is an apparent conflict between:
(i)

the Boards role in deciding whether the proposed development comes within
the provisions of S.37A of the Planning and Development Act, 2000 as

(ii)

amended,
its role in advising the developer during the course of the pre application

(iii)

process, and
its role in deciding the substantive application for SID status.

It is relevant to this litigation whether, in that context, the Board was able to exercise,
and in fact exercised, sufficient care that it acquitted each of those functions adequately
or at all.
Each of those functions of the Board is required to be kept entirely separate and the
Applicant is concerned, whether, in the manner in which the Board determined the
application and arrived at its decisions, that degree of separation was maintained.
It is of relevance to this litigation, and it is necessary to its determination, that the first
named respondent make discovery of all or any documentation which may have
compromised the Board in making those decisions and reaching its ultimate
determination on the application for Strategic Infrastructure Development (SID) status.
Category 3:

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The entire File No PL09.PC0148 in respect of the Pre Application Consultation Process
and the Application for Strategic Infrastructure Development Status by Element Power
Ireland Limited submitted on or about 16/7/12 for a proposed development of up to 40
wind farms in Kildare/Offaly/Meath/ Westmeath/Dublin/ Carlow/ Wexford and in
respect of which consultation has yet to be concluded.
Category 4:
All notes, documents, memoranda and/or reports and/or attendances, email
communication and/or electronic communication touching upon or concerning the preapplication consultation process requested by the notice parties of the First Named
Respondent and/or meetings held on foot thereof with any party whatsoever in the
context of the pre-application consultation process for the proposed development of 40
wind farms, known as the Greenwire Project, which application was made on or about
the 16th of July 2012 and assigned a file number PL09.PC0148 within An Bord
Pleanla, to include:
i

all documentation submitted by the Notice Parties herein, their servants or

agents;

ii all documentation considered by the by the First Named Respondent herein, its
servants or agents;
iii all documentation generated in the course of the deliberations by the First
Named Respondent herein, its servants or agents, to include all records of all or
any meetings, telephone attendances, e-mail communication or conversations
between inspectors and the board members, between the inspectors themselves,
between the board members themselves or with any other party.
Reasons:
The Applicant claims in these proceedings, and in particular paragraph 27 of the
Statement of Grounds, that the Notice Party is engaging in project splitting. The
applicant contends that, in determining this application for SID status, the first named
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respondent has facilitated project splitting and condoned a procedure which is in

fundamental breach of the requirements of Council Directive 2011/92/EU.
The development the subject matter of this application for SID status is part of a
much larger proposed development for which an application for SID status was
submitted on or about the 16th July 2012. This earlier project is known as the
Greenwire Project a proposal to develop upwards of 40 wind farms in 5 counties in
Leinster for the purposes of entering the export market. The consultation process with
the first named respondent in respect thereof remains to be concluded. These matters
were known to the Board and are referred to in the course of discussions with the
prospective Applicant.
However, in spite of the foregoing, the Notice Party assured the first named
respondent in the pre application consultation process that that the proposed wind
farm is not part of Greenwire and will be for domestic purposes only. A perusal of
the file and maps submitted in both applications will show that the wind turbines are
in identical locations in both and the configuration of the proposed wind farm the
subject matter of this application is one and the same as the wind farm proposed for
North Meath as part of the Greenwire Project.
Accordingly, the Applicant requires to ascertain the documentation in the possession
of the Board relating to this project the extent to which regard was had by the first
named respondent to the Greenwire Project when this application was being
considered. It is on that basis that the documents sought in categories 3 & 4 are
relevant to the matters at issue in these proceeding and necessary for the proper
consideration of same.
Applicant contends that the Notice Parties are engaged in project splitting by seeking
to represent this development as one destined for the domestic market, while all the
time, the Notice Party, Element Power, continues to advance its application for an
interconnector licence to supply the British Energy market through a project known as
Greenlink.

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Category 5:
The entire FilePL09.PC0186 in respect of the Pre Application Consultation Process and
the Application for Strategic Infrastructure Development Status by Element Power
Ireland Limited submitted on or about 13/10/14 for a proposed wind farm of up to 55
turbines in Kildare/Offaly/Meath and in respect of which consultation has yet to be
concluded.
Category 6:
All notes, documents, memoranda and/or reports and/or attendances, email
communication and/or electronic communication touching upon or concerning the preapplication consultation process requested by the notice parties of the First Named
Respondent and/or meetings held on foot thereof with any party whatsoever in the
context of the pre-application consultation process for the proposed development of a
55 turbine windfarm, which application was made on or about 13/1/0/14 and assigned
a file number PL09.PC0186 within An Bord Pleanla, to include:
(i)

all documentation submitted by the Notice Parties herein, their servants or agents;

(ii)

all documentation considered by the by the First Named Respondent herein, its
servants or agents;

(iii) all documentation generated in the course of the deliberations by the First Named
Respondent herein, its servants or agents, to include all records of all or any
meetings, telephone attendances, e-mail communication or conversations between
inspectors and the board members, between the inspectors themselves, between
the board members themselves or with any other party.
Reasons:
The Applicant is aware of a further proposed development which has similarly been
carved from the Greenwire Project and which has, since this application was
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determined by the first named respondent, been the subject of a further pre application
consultation request for SID status by the Notice Party to the First Named Respondent.
This further application relates to the proposed development of a 55 turbine wind farm,
in Kildare/Meath/Offaly which application was made on or about 13/10/14 and
assigned file number PL09.PC0186 within An Bord Pleanla.
The Applicant contends that these piecemeal applications for SID status in respect of
proposed developments carved from the Greenwire Project represent classic project
splitting. This latest request was submitted by the Notice Party on the 13/10/14, one
month after the determination which is now the subject matter of these proceedings and
one week after and the application for planning permission for the proposed
development had been submitted to the First Named Respondent. The proposed wind
farms are approximately 18 miles apart.
The extent to which regard was had to both the Greenwire project and the North Meath
wind farm development when this later proposed development was submitted is highly
relevant and necessary for the purposes of this litigation. The Court needs to know
what the Notice Party has said about the multiple nature of the applications for SID
status and what concerns the first named respondent has considered in relation thereto.
The Applicant requires to ascertain the extent to which regard was had by the first
named respondent to both earlier SID applications when this later application was
being considered. It is on that grounds that the documents sought in categories 5 & 6
are relevant to the matters at issue in these proceeding and necessary for the proper
consideration of same.
All of these files are central to the matters at issue against a background where the
Notice Party continues to advance its application for an interconnector licence to
supply the British energy market through a project known as Greenlink.

The notice

party has represented to the office of the British energy regulator that the energy which
it intends to supply will be generated in Ireland and exported to Britain. The applicant
contends that it will be generated in these wind farms. However, the applicant
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continues to assert to the first named respondent that the wind farms are for the
purposes of supplying the domestic grid and accordingly are capable of being
considered under the provisions of s. 37A2(a)&(b) and being deemed strategic
infrastructure for the purposes of the legislation.
Category 7:
All notes, memoranda, records, emails and\or electronic communication which
has been submitted by the Notice Parties and either of them, their servants or
agents to the First named Respondent in respect of any proposed development of
any other wind farm on the island of Ireland, to include any scoping reports
and\or pre-application consultation enquiries or requests.
Category 8:
1.
2.

Any file created in respect of any such enquiry or request or submission.

Such further or other Order as this Honourable Court shall deem fit.

3.

Such further or other directions or Orders as may appear appropriate to the Court.

4.

An Order providing for the costs of this Application.

Reasons:
The Applicant says that these documents are both relevant and necessary in the context
of this litigation based on the allegations of project splitting contained in the Statement
of Grounds and as outlined in respect of the last categories of documents listed above at
3,4,5 & 6. If the first named respondent has received any documentation falling in to
the categories listed at 7 & 8 above, same must be disclosed to the applicant and
considered by him in light of the clear relevance of same to the matters arising in this
litigation. In light of all the information which the applicant has gathered, the true
intention of the notice parties herein regarding wind generated power in Ireland and
plans to export same must be disclosed. This disclosure is necessary so the Court can
consider whether the provisions of the Planning and Development Act, 2000 as
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amended, dealing with strategic infrastructure, have been misapplied by the first named
respondent and abused by the notice party as contended by the applicant in these
proceedings.

3.

In respect of the Second Named Respondent, Ireland and the Attorney General, it
seeks three categories of documents:
Category 1:
All documentation in relation to the preparation of the Wind Energy Development
Guidelines 2006.
Reason:
These are the guidelines that An Bord Pleanala indicate will govern the appropriate
setback distances of the windfarm from residents that live in the vicinity of the
windfarm. The applicant was not involved in any of the pre-consultation meetings
between the Notice Party and the first named respondent. The applicant is concerned
about the health impacts of the proposed development on the safety and wellbeing of
both himself and his family. In particular, the applicant is entitled to know the level of
participation of the Dept. of Health and relevant medical professionals in establishing
these guidelines. Furthermore the first named respondent erred in law by relying on
guidelines which do not appear to have any statutory basis and are subject to the
subjective application of the relevant authority. The notice party in their submissions to
the first named respondent indicated that they were aware that the current guidelines
were under review and yet they did not anticipate that the revised guidelines would
require significant changes to their layout as currently presented.
Category 2:

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Copies of all documentation to include all Environmental Impact Assessments and

Strategic Environmental Assessments completed in respect of the National Renewal
Energy Action Plan 2010 (NREAP) and the National Renewable Energy Action Plan
Progress Report 2012 and Renewal Energy Strategy 2012 to 2020.
Reason:
The first named respondent justified the S.I.D. status of the proposed development on
the basis that it would assist the second named respondent in meeting its National
Renewable Energy Targets and Objectives under the national renewable energy
strategy 2012-2020.
An S.E.A is a requirement for such plans and strategies that deal with land use and
energy and is a requirement under Directive 2001/42/EC. An SEA would objectively
assess the impact of these plans and policies on both the communities and
environments that are hosting these onshore windfarms. It also enables the affected
communities to participate in the S.E.A which is also a requirement of the Arrhus
Convention, with due account of the affect on the said communities when the
resulting policy is being formulated.
The first named respondent also alleged that the project being proposed by the Notice
Party would assist the second named respondent in reducing its CO2 emissions. An
S.E.A. would also objectively assess whether the said on-shore wind-farms reduce
CO2 emissions by comparative analysis with different renewable technologies.
The applicant is entitled to establish the legitimacy of both the legitimacy of both
NREAP and its subsequent plans and strategies under the relevant directives.
Category 3:

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1.

All documentation in respect of the preparation of the National Onshore Wind

Farm Plan to include all accompanying documentation and its Strategic
Environmental Assessment.

Reason:
The NREAP Progress Report and subsequent NREAP Progress Report 2012 and
National renew able strategies 2012-2020 represent a significant and identifiable
policy shift towards on-shore wind energy. The targets set out in these reports and
strategies are used by the first named respondent to justify the SI.D. status of the
proposed development. The applicant is entitled to see both the National On-Shore
Windfarm Plan and its accompanying Environmental Assessment and Strategic
Environmental Assessment to establish the legitimacy of such a significant policy
shift to On-Shore Wind energy in these plans and strategies.

4.

In respect of the Third Named Notice Parties, it seeks five categories of documents:
Category 1:
Landowners \ Stakeholders Agreements and related matters.
1.

All or any agreements and/or contracts entered into by the Notice Parties, their
servants or agents with landowners/stakeholders/third parties over whose lands it
is proposed to construct this development, together with any
landowner/stakeholder/third party consents and/or near neighbour agreements
signed with such parties;

2.

Brochures and/or marketing materials and/or annual cash flow projections

produced by the Notice Parties, their servants or agents for the purposes of
encouraging landowners/prospective stakeholders to sign contracts.
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Reasons:
The Applicant raises issues in relation to the agreements entered into by the Notice
Parties, their servants or agents with the landowners and stakeholders in paragraphs 24,
25 and 26 of the Statement of Grounds. The Applicant states that the First Named
Respondent simply accepted the assertions of the Notice Parties that the project would
lead

to

substantial

economic

advantage

and

significant

revenue

to

landowners/stakeholders without, it appears, any consideration of those agreements, the

legal effect of same and the overwhelmingly negative impact which same are likely to
have on the land holdings.
Furthermore, the Applicant claims at paragraph 25 that significant areas of land over
which parts of the development are required to be constructed are not the subject of
landowners agreements and accordingly, that all of the necessary consents are not in
place.
It is contended at paragraph 26 that the First Named Respondent had an obligation to
ensure that all of the necessary consents are in place and that without satisfying itself of
same, the determination of SID status was made on a factually incorrect basis and
amounts to an error of law on the face of the record. In order to establish these facts,
discovery is required of the said categories of documentation.
The Applicant believes that the contracts that the landowners/stakeholders signed are
substantially different in terms of the financial benefits likely to accrue to them when
compared to the economic expectation of financial largesse generated by the marketing
materials of the Notice Parties, their servants or agents. The expectations the marketing
materials generate are grossly disproportionate to the contracts that were signed by the
landowners/stakeholders. These marketing materials contained inducements which do not
reflect the reality of the situation and as one of the considerations required under S37A2(a)
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& (b) is the social and economic benefit to the area of the proposed development, the
Applicant seeks discovery of both the marketing materials and the contracts to present this
comparative analysis.
Accordingly, all of the documents relating to the said landowners/stakeholders
agreements and the marketing materials furnished in respect thereof are relevant to the
said proceedings and consideration of same is necessary to resolve the matters at issue.

Category 2:

Project Splitting
i

Copy of all correspondence relating to, and documents, maps and drawings
prepared in respect of application ref no: PL09.PC0148 (SID- Original Greenwire
Export Project);

ii

Copy of all correspondence relating to, and documents, maps and drawings
prepared

in

respect

of

application

ref

no:

PL09.PC0186

(SID-

Meath/Kildare/Offaly Project);
iii

Copy of all correspondence relating to, and documents, maps and drawings
prepared in respect of application ref no: PL17.PC0178 (SID - North Meath)

Reasons
The Applicant claims in these proceedings, and in particular paragraph 27 of the
Statement of Grounds, that the Notice Party is engaging in project splitting. The
applicant contends that, in determining this application for SID status, the first named
respondent has facilitated project splitting and condoned a procedure which is in
fundamental breach of the requirements of Council Directive 2011/92/EU.

Page 14 of 46

The development the subject matter of this application for SID status is part of a much
larger proposed development for which an application for SID status was submitted on
or about the 16th July 2012 and assigned file number PL09.PC0148 within An Bord
Pleanla. This earlier project is known as the Greenwire Project a proposal to develop
upwards of 40 wind farms in 5 counties in Leinster for the purposes of entering the
export market. The consultation process with the first named respondent in respect
thereof remains to be concluded. These matters were known to the Board and are
referred to in the course of discussions with the prospective Applicant/Notice party
herein.
The Applicant is aware of a further proposed development which has similarly been
carved from the Greenwire Project and which has, since this application was determined
by the first named respondent, been the subject of a further pre application consultation
request for SID status by the Notice Party to the First Named Respondent. This further
application relates to the proposed development of a 55 turbine wind farm, in
Kildare/Meath/Offaly which application was made on or about 13/10/14 and assigned
file number PL09.PC0186 within An Bord Pleanla.
The fact that these 3 proposed developments are inextricably linked is demonstrated by
the fact that the two proposed developments under planning reference numbers PC0178
& PC0186 remain the subject of one application to the first named respondent for SID
status under planning reference number PC0148 (Greenwire Project). Despite that state
of affairs, the Notice Parties deny they are engaged in project splitting. The two
proposed developments PC0178 & PC0186 are said by the Notice Party to be 30/40 km
apart.

The Notice Party assured the first named respondent in the pre application consultation
process for PC0178 that that the proposed wind farm is not part of Greenwire and will
be for domestic purposes only.
Consideration of the documents sought herein in respect of all 3 proposed developments
will show that the configuration of the proposed wind farm the subject matter of this
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application is one and the same as the wind farm proposed for North Meath as part of the
Greenwire Project, and similarly in respect of the wind farm proposed for
Kildare/Meath/Offaly. The wind turbines are in identical locations in these two later
applications as in the Greenwire Project. It is on that basis that the documents sought in
these categories are relevant to the matters at issue in these proceeding and necessary for
the proper consideration of same.
Accordingly the Applicant requires sight of all of the documentation furnished to the
first named respondent and all of the documentation in respect of the said proposed
developments which was not furnished to the First Named Respondent with a view to
having a Court determine the lawfulness of this proposed development.

Category 3:
Connection to Grid
(i)

All documentation and/or agreements evidencing entitlement to connect to Irish

Grid, together with terms and conditions thereof.

(ii)....All documentation and/or agreements evidencing entitlement to connect to the Irish
Grid at Gorman, together with terms and conditions thereof.
(iii)...All documentation supporting evidence of payment of grid deposit to Eirgrid
(iv)...All documentation including correspondence, and all or any signed agreements or
licenses with Oriel Windfarms together with any terms and conditions;
(v)....All documentation relating to the Commission for Energy Regulation (CER) Gate
3(TG86) connection to the Irish Grid, originally awarded to Oriel Windfarms
permitting connection to the domestic grid, together with terms and conditions
attaching thereto.
Reasons:
The Applicant has set out at paragraph 27 of his Statement of Grounds that this proposed
development has been carved from the original Greenwire Export Energy Project. The
Applicant is aware that this Greenwire project, known to the Office of the British Energy
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Regulator OFGEM as Greenlink, remains on course and that the Greenlink /Greenwire
project has been shortlisted with 4 other projects and has been deemed by OFGEM to be
at a sufficiently mature stage in development to progress to the next stage of the
assessment process. In fact, on the 12 th of November, 2014 OFGEM announced that work
on some of the projects could start as early as 2016.
This deadline explains the urgency being attached to this litigation by the Notice Parties
herein.
It is believed that one of the Notice Parties, their servants or agents has bought a grid
connection from Oriel Offshore Wind Farms. No evidence of that purchase has been
presented by the Notice Party in the context of the SID application. The Applicant is
aware that grid connections are site specific and believes that any grid connection
purchased from Oriel Wind farm is not capable of permitting the Notice Party to
connect to the domestic grid at Gorman, as set out in this proposed development. The
Applicant awaits sight of these documents such as the Notice Parties may have to
support the contention that the energy to be generated from this proposed development
is for the domestic market and is thereby capable of being considered for the purposes
of ascertaining if the development satisfies the provision of section 37A(2)(a) and (b)
of the 2000 Act as amended.
While the Notice Parties allege that they intend to supply the Irish grid, the Applicant is
not aware of any independent evidence available that a connection has been secured to
the Irish grid. The Commission for Energy Regulation (CER) governs and regulates the
grid connections and on this basis the Applicant seeks the documents set out herein. If
the Notice Parties are seriously contending that the energy to be generated from this
wind farm is for the domestic grid, these documents should be readily to hand. These
documents go to the very core of the Applicants case and are relevant and necessary to
this litigation.

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Category 4:
Greenwire Export Project
(i) Copy Hudson Group/Element Power/Greenwire/Greenlink Interconnector
Agreement with UK.;
(ii) Copy of application of Hudson Group/Greenwire/Element Power/Greenlink to
connect to OFGEM in both the UK and Ireland;
(iii)

Copy of Hudson Group/Element Power/Greenwire/Greenlink agreement

to supply OFGEM at Pembroke and Pentir;

(iv)

Copy

of

application

of

Hudson

Group/Greenwire/Element

Power/Greenlink for funding for two interconnectors, one at Dunstwon

Co.Kildare and the other at Woodland, Co. Meath;
(v) Copy of application to the European Transmission System Operator for
connection at Dunstown,Co. Kildare;
(vi)

Copy of Application to the European Transmission System Operator for

connection at Woodland,Co. Meath;

(vii)

Copy of application to the Director General of the Energy Commission

for funding for the 2013 and 2015 projects;

(viii)

Copy correspondence/applications of Hudson Group/Greenwire/Element

Power to EU to be included on their Projects of Common Interest Lists for both

2013 and 2015;
(ix)

Copy Application/Correspondence/Licence/Permission of both Minister

and European Commission for State Assistance under Refit Scheme as per
Section 4 of the Refit Conditions;
(x) Copy

of

all

Contracts

Group/Greenwire/Element

for

Difference

Power/Morth

Meath

Ireland/Uk/EU and or any member state of the EU;

Page 18 of 46

awarded
Wind

to
Farm

Hudson
ltd

by

(xi)

Copy application for licence to OFGEM for connecting to UK

Interconnector and or establishing their own interconnector.

(xii)

Copy of business plans submitted to OFGEM

Reasons:
The S.I.D consultation process commenced on the 16 th July 2012 in respect of the
Greenwire export project is still live with the first named respondent and involves the
following counties/local authority areas:
Westmeath/Offaly/Kildare/Laois/Meath /Dublin

City Council/South

Dublin City

Council/Dun Laoghaire Rathdown County Council/Fingal County Council/Carlow

County Council and Wexford County Council.
All of the documents sought in this category are central to the matters at issue against a
background where the Notice Party continues to advance its application for an
interconnector licence to supply the British energy market through a project known as
Greenlink.

The Notice Party has represented to the Office of the British Energy

Regulator (OFGEM) that the energy which it intends to supply will be generated in
Ireland and exported to Britain. The applicant contends that the energy will be generated
partly in this wind farm. However, the Notice Party continues to assert to the first named
respondent that the proposed development is for the purposes of supplying the domestic
grid and accordingly is capable of being considered under the provisions of
s37A2(a)&(b) of the 2000 Act as amended and being deemed strategic infrastructure for
the purposes of that Act.
If the Applicant is correct in his belief, the SID status application has been decided on an
incorrect premise and without the full facts having been opened to the First Named
Respondent.

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The Notice parties alleged in their meeting with the first named respondent that this
proposed development would assist Ireland to meet its National Renewable Energy
Targets and therefore is entitled to Strategic Infrastructure Status. The First Named
Respondent, its servants or agents accepted that:
the development would be one of the most significant energy projects to be developed
in the region and would make a significant impact in terms of meeting the States
Renewable Energy targets.
However the application of the Notice Parties to connect their Irish projects to the UK
grid and their contact with OFGEM and also their applications to be part of the European
Projects of Common Interests indicate that they appear to be using the Strategic
Infrastructure Status/Application process to obtain permission to develop wind farms for
domestic supply , when all the while they continue with the export project with the
propose of trading in electricity for their own private speculative purposes. For this
reason we are seeking the said documentation.
It is clear from information available through the offices of the British Energy regulator
OFGEM that it continues to progress the Greenwire/Greenlink project and has decided
that the proposal submitted by the Notice Party meets its eligibility criteria. The project
has been shortlisted and s will now move to the Initial Project Assessment (IPA) stage,
According to OFGEM, if successful, work on the project could start as early as 2016.
This information supports The Applicants contention that the Greenwire export energy
project remains firmly on track and that any attempt to distance this proposed
development from same by the Notice Party when asked about same by the first named
respondent in the pre application consultation process is false.
For these reasons, the applicant believes the documentation sought in this category is
relevant to these proceedings and necessary for the proper disposal of same.

Page 20 of 46

Category 5:
Notice Parties and other relevant entities
The Applicant seeks the following documents in respect of the entities known as:
a
b
c
d
e
f
g

Element Power Ireland Limited,

Element Power Limited,
HCD Wind Farms limited, the name by which Element Power was formerly
known;
North Meath Wind Farm Limited,
Greenwire,
Green Link and/or
Hudson Clean Energy Partners (private equity firm):
i Copy memorandum and Articles of Association of each company/entity;
ii Certificates of incorporation;
iii Details of shareholders and/or shareholding agreements between the said
companies.

Reasons:
The Applicant named two Notice Parties on the basis that the personnel who attended
pre-application consultation meetings with the First Named Respondent in respect of
the SID application were stated to be from those entities. An application was made to
the Commercial Court to have North Meath Wind Farm Limited joined as a Notice
Party.
The Applicant does not know and cannot know the precise nature of the relationship
between the said Notice Parties and/or Greenwire and/or Grenlink and or Hudson Clean
Energy Partners.
Both North Meath Windfarm Limited and Element Power allege in their affidavits that
they are Irish registered entities however it appears that they are simply subsidiary
companies which are controlled by a larger multinational called Hudson Clean Energy

Page 21 of 46

Partners which trades in energy throughout different continents for private speculative
purposes.
For the sake of clarity and transparency the Applicant seeks the said documentation and
contends that same is both relevant and necessary so the court can identify the
interrelationship between the various entities and ascertain the exact interest of each
party/entity in this proposed development, the other proposed development carved from
the Greenwire project and the export energy Greenwire/Greenlink project, which
projects are all material and central to the matters at issue herein.

Judicial Review and Discovery

1.

It is accepted by the Irish courts that the same principles apply to discovery in
judicial review proceedings as apply generally in civil proceedings 1.

2.

It is also accepted that discovery is more of a rarity in judicial review proceedings

not because of an application of different rules but because of the nature of
judicial review proceedings. In this regard, in the case of Fitzwilton V Judge Alan
Mahon2 Ms Justice Laffoy observed:
Primarily by reason of the nature of the process, the relief afforded and the
issues which arise in judicial review proceedings, the practical application of
the principles may result in discovery being less frequently ordered in judicial
review proceedings than in other civil proceedings.

1 Per Ms Justice Laffoy in Fitzwilton Ltd. v Judge Alan Mahon [2006] IEHC 48 and Hogan J. in
Evans V University College Cork [2010] IEHC 420 at paragraph 6.
2 Cited above
Page 22 of 46

3.

In a similar vein, Mr Justice Hogan in Evans V University College Cork 3 noted:

. While order 84 rule 25 (1) makes clear that the ordinary discovery rules
apply in judicial review applications, this is tempered by the consideration
that the essential facts are generally not in substantial dispute in judicial
review applications. In addition it should be noted that as judicial review is
normally concerned with procedural matters rather than substance, this will
inevitably limit the range of documents which are both relevant and necessary
in judicial review matters: CF. The reasoning of Geoghegan J. in Carlow
Kilkenny Radio Ltd. V Broadcasting Commission of Ireland [2003] 3IR 528.

4.

Indeed these considerations did lead Geoghegan J. in Carlow Kilkenny to indicate:

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 this 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 a 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.

3 Cited above
Page 23 of 46

5.

It is submitted however that these expressions of the usual unavailability of

discovery save in the circumstances referred to namely, conflict on the affidavits
or prima facie evidence in relation to whether relevant documents were before the
decision maker, are exactly that reflection that that the circumstances may not
normally require discovery outside of those instances. As to the rule to be applied
in judging whether discovery is called for generally, Mr Justice Geoghegan
approved the statement of general principle of Sir Thomas Bingham MR in the
case of R V Secretary of State of Health ex parte Hackney London Borough 4 as
follows:
The basic approach is that discovery and production will be ordered in
judicial review proceedings where they are necessary for disposing fairly of
the application but not otherwise. The rules themselves provide no guidance
as to when discovery should be treated as necessary for disposing fairly of an
action or application, but over the years a practice has developed, that the
broad principles of which are clearly understood, even if the application of
those principles inevitably gives rise to controversy in individual cases. It is
undesirable to attempt any precise definition of the existing practice, but I
think it is broadly true to say that discovery will be regarded as necessary for
disposing fairly of the action, or application, if a party raises a factual issue of
sufficient substance to lead the court to conclude that it may, or will, be able
to try the issue fairly, fairly that is to all parties, without discovery of
documents bearing on the issue one way or the other.

6.

In Hackney LBC, Lord Bingham did go on to warn against directing discovery on

the basis of an unsubstantiated claim where it would assist a fishing expedition
for a basis for grounds made but not justified prior to discovery.

4 Unreported, English Court of Appeal, 24 July 1994 at page 82.

Page 24 of 46

7.

In his judgment in Evans Hogan J. explicitly confirmed that Irish law was never
such that an order for discovery in judicial review was precluded save where there
was a clear contradiction or inconsistency in the affidavits sworn by the
respondent public body. In this regard and referring to the House of Lords
decision in Tweed V Parades Commission for Northern Ireland5 Hogan J says:
Prior to that decision [Tweed] the various courts in the UK had been
reluctant to order discovery in judicial review save by reference to what Lord
Carswell described in Tweed as the restrictive rule that effectively
precluded any orders for discovery in judicial review proceedings save where
there was a clear contradiction or inconsistency in the affidavits sworn by the
respondent public body. This has never been the situation in this jurisdiction,
either in theory or (just as importantly) in practice. It is equally clear that
Tweed is now authority in the United Kingdom for the proposition that
discovery can be more extensive in cases involving a challenge to the
proportionality of any administrative decision.

But that is equally an

unexceptionable proposition insofar as this jurisdiction is concerned. 6

8.

It is submitted that the dicta in Tweed are in fact persuasive authority for a
straightforward application of the rules of discovery to judicial review more
generally than in cases where issues of proportionality arise and in this regard
Lord Carswell opined:
I do consider, however, that it would now be desirable to substitute for the
rules hitherto applied a more flexible and less prescriptive principle, which

5 [2007] 2 All ER 273.

6 At paragraph 5.
Page 25 of 46

judges the need for disclosure in accordance with the requirements of the
particular case, taking into account the facts and circumstances. 7
9.

Lord Carswell did however accept it will not arise in most applications for
judicial review, for they generally raise legal issues which do not call for
disclosure of documents. For this reason the courts are correct in not ordering
disclosure in the same routine manner as it is given in actions commenced by
writ.

10.

It is submitted that the approach to discovery that has evolved and yet remains
remarkably true to the expression of general principle of Lord Bingham MR in
Hackney LBC is that discovery ought to be directed in accordance with the needs
of the particular case and where a party raises a factual issue requiring discovery
for its fair resolution, then discovery should be directed.

11.

It is submitted therefore that the only basis on which discovery in judicial review
should be refused, where it is otherwise necessary for the fair disposal of an issue
or for saving costs, is where a ground of challenge in judicial review is not based
on facts and circumstances properly giving rise to it and where the application for
discovery based on that ground of challenge should therefore be viewed as a
discovery fishing expedition on the basis of a groundless assertion.

12.

It is also submitted that the dicta of Sir John Donaldson MR in R V Lancashire

County Council, ex parte, Huddleston8 is instructive in respect of what should be
the appropriate stance of administrative bodies in terms of explaining their
decision making when their decisions become subject to judicial review:

7 At paragraph 32
8 [1986] 2 All ER 941.
Page 26 of 46

.. just as the judges of the inferior courts when challenged on the exercise
of their jurisdiction traditionally explain fully what they have done and why
they have done it, but are not partisan in their own defence, so should be the
public authorities.

It is not discreditable to get it wrong.

What is

discreditable is a reluctance to explain fully what has occurred and why.

Referring to counsel for the public body resisting a requirement to give
reasons for the decision in the case, Lord Donaldson went on:
.. First she says that it is for the applicant to make out its case for judicial
review and that it is not for the respondent authority to do it for him. This in
my judgment is only partially correct. Certainly it is for the applicant to
satisfy the court of his entitlement to judicial review as it is for the respondent
to resist his application, if it considers it to be unjustified. But it is a process
which falls to be conducted with all the cards face upwards on the table and
the vast majority of the cards will start in the authoritys hands.
13.

It is submitted that the respondents and notice parties in their responses to the
substantive proceedings herein have essentially been non-responsive to the key
issues brought and grounded in the facts by the applicant and that factual issues of
substance therefore arise which call for discovery in order to be fairly resolved.

14.

The legal issue arising relates to the environmental impact assessment obligations
imposed on competent authorities such as the Board.

The nature of those

obligations is of course relevant to consideration of the facts that are relevant and
necessary for its fair resolution.
15.

It is a matter of little controversy that the EIA Directive requires the involvement
at the earliest possible stage of the public in the Environmental Impact Assessment
process and it is not disputed that the applicant was excluded in a process where
Page 27 of 46

the competent authority was in fact in consultation with the developer to the
applicants exclusion. This issue was set out at Ground 2 of paragraph E of the
Statement Grounding the Application for Judicial Review.
Many of the issues in respect of the documentation are interrelated as for example
in Ground 3.
The application the subject matter of the proceedings referred to a number of
separate and distinct clusters of wind farms that together constitute the
application the subject matter of the proceedings. However, the nature of the
overall project relates to developments of which the particular development the
subject matter of the decision forms part and these are currently before the
Respondent. The project of which the development forms part covers large parts
of County Meath and other adjoining counties and is the subject matter of an
application similar to that development the subject matter of these proceedings.
If the applicant is correct in his contention, then the entire decision is
fundamentally invalid and void because the attempt to split a project into a
number of component parts is fundamentally in conflict with the carrying out of
an Environmental Impact Assessment in respect of the component parts without
any recognition that there are cumulative impacts and is a procedure that is
fundamentally in conflict and incompatible with European Community law.
It is the applicants contention furthermore that the approach adopted by the
parties in the proceedings is contrary to the requirements of the Directive insofar
as there is no provision for a procedural or substantive review as is required in the
Directive. The applicant will rely on the pleadings in respect of the grounds
raised and the reliefs sought and the categories of documents as identified in
respect of the issues raised and the reasons that have been afforded in that regard.

Costs
Page 28 of 46

The Applicant seeks an Order that Section 50B of the Planning and Development Act 2000
(as amended) and\or the Aarhus Convention and\or Council Directive 2011/92/EU applies to
proceedings record number: 2014\647 JR and \or that the aforesaid provisions relating to
costs protection for an Applicant in cases relating to the protection of the environment
applies to Interlocutory Applications brought in the above entitled proceedings including
applications for Discovery pursuant to Order 31 Rule 12 and Environment (Miscellaneous
Provisions) Act 2011.

The issue as to whether these provisions apply and in particular apply to interlocutory
applications, was raised by the Notice Party.

It appears accepted by the first named

respondent that the provisions apply to interlocutory proceedings but they dispute the
principle as to whether it applies.

1. Section 50B of the Planning and Development Act is construed to mean that only judicial
review proceedings of a proposed development which requires an environmental impact
statement (EIS) and subsequent environmental impact assessment (EIA) or integrated
pollution prevention (IPC) licence and/or a plan, policy or programme which requires
strategic environmental assessment (SEA) are entitled to costs protection or issues that
require for their consideration or consideration of these applies to all environmental
litigation as is clear from the language of s. 50(B) of the Planning and Development Act.
2. Section 50B(1) states that 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

Page 29 of 46

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).
3. Where this arises the default position in section 50B(2) and section 50B(2A) is that each
party (including the notice party) bears its own costs although the applicant may be
awarded costs or a portion of costs 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. The original default position which
was inserted by section 33 of the Planning and Development (Amendment) Act 2010 was
subsequently modified by section 21 of the Environment (Miscellaneous Provisions) Act
2011.
4. Apart from these general provisions which set out the default position that each side pays
its own costs unless the court exercises its discretion and determines that the respondents
and/or notice parties should pay the applicants costs where the applicant is successful and
to the extent that the applicant is successful, there is an additional provision in section
50B(3) which allows the High Court and/or the Supreme Court, as the case may be, to
award costs against a party in proceedings to which s.50B 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. This
Page 30 of 46

discretionary provision applies equally to all parties to the proceedings and may be
applied where the Court intends to impose a punitive mechanism to reprimand a party or
parties for the manner in which the proceedings were conducted. Finally, under s.50B(4)
of the Planning and Development Act 2000, the court may award costs in favour of a party
where a matter of exceptional public importance has been raised or it is in the
interests of justice to do so. It would appear that the court has discretion to decide
whether an issue that has been raised would qualify as such.
5. The meaning of section 50B has been interpreted as being limited to proceedings
involving judicial review of a decision coming under the specific Directives mentioned in
the section. In JC Savage Ltd. and Becton v An Bord Pleanla [2011] IEHC 488,
Charleton J. considered the provisions in s.50B prior to its amendment by s.21 of the
Environment (Miscellaneous Provisions) Act 2011. In that case, one of the notice parties,
Lidl Ireland GmbH, sought its costs from the applicant pursuant to Order 99 of the Rules
of the Superior Courts in circumstances where the applicant withdrew the proceedings
prior to the hearing date and the applicant contended that it should be afforded costs
protection under s.50B of the Planning and Development Act 2000. Charleton J. noted the
statutory history of s.50 and in particular the insertion of the costs provision by s.33 of the
Planning and Development (Amendment) Act 2010 which was necessitated by art.10a of
the EIA Directive, as inserted by art.7 of the Directive 2003/35/EC. Differentiation was
made between mandatory Annex I projects and non-mandatory Annex II projects where
EIA was required following a screening exercise and ordinary permission granted in the
usual way under s.34 of the Planning and Development Act 2000 which also include
public notification and participation requirements but not to the extent necessitated by the
EIA Directive.
6. Charleton J. cited the decision of the European Court of Justice (ECJ) in Case C-427/07,
Commission v Ireland [2009] I-06277, wherein the ECJ determined that Ireland had not
properly implemented art.10a of the EIA Directive as the costs provisions in Order 99
afforded too much judicial discretion in the award or denial of costs to a successful party.
Page 31 of 46

Parsing the language using the relevant rules of statutory interpretation, it was ultimately
held that the costs rules in the original s.50B only applied to the Directives expressly
specified in s.50B, namely the EIA Directive, the SEA Directive and the IPPC Directive,
and did not apply to all ordinary planning cases, notwithstanding the submission by the
applicant who contended that s.50B was the default costs provision for every planning
judicial review. Ultimately, it was held by Charleton J. that 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..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 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.
7. The position in J.C. Savage was subsequently approved by Hedigan J. in Shillelagh
Quarries Ltd v An Bord Pleanla (No.2) [2012] IEHC 402, albeit in circumstances
where it was held that s.50B did apply and each side was required to bear its own costs. It
was held that where an unsuccessful judicial review had been brought by a developer, the
unsuccessful applicant was not obliged to pay the costs of either the respondent or the
notice party on the basis that the project concerned required EIA, as was acknowledged by
the respondent, and therefore fell within the s.50B class. Hedigan J. commented at para.3
that: The obligation is that, in certain planning cases, in order to ensure access to Court
to challenge decisions, the general public must have a cost effective way of doing so. Such
review should be fair, equitable, timely and not prohibitively expensive. Section 50B
attempts to do this by providing that in such cases, the default order that costs follow the
event is set aside and save for certain limited exceptions, no order as to costs should be
made. In that case, there was no order as to costs and each party was obliged to bear its
own costs.

Page 32 of 46

8. In JC Savage, Charleton J. noted at 4.1: "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). This provision was relied upon in Indaver NV t/a
Indaver Ireland v An Bord Pleanla [2013] IEHC 11, wherein the applicant brought
judicial review proceedings seeking to challenge a decision of the respondent to refuse
permission in respect of an incinerator. Ultimately the applicant withdrew the
proceedings and it was contended that the applicant had allowed the legal costs of the
respondent to escalate unnecessarily by failing to act expeditiously. It was held by
Kearns P., in granting an order of costs against the applicant, that the applicant had not
acted promptly in withdrawing the proceedings and that it was evident that after a certain
point the applicant's behaviour amounted to an abuse of process.
9. In the case of Stack Shanahan & Or. v Ireland & Ors. [2012] IEHC 571, O'Malley J.
held at para.14 that the full impact of [s.50B] has yet to become clear but I do consider
that there is cause for disquiet. Fear of an order of costs being made against one may be
a serious matter but so too is the inability to obtain representation, no matter how
meritorious the case, unless one can pay for it up front. It is hard to see how, from the
point of view of legal practitioners, the section could not have a chilling effect on their
willingness or capacity to provide their services.
10. The impact of the new costs provisions where an applicant might partially succeed and
where various pure planning and EIA points were raised was considered in a costs
application following the substantive decision of Herbert J. in McCallig v An Bord
Pleanla [2013] IEHC 60. The issue that was sought to be determined is where an
applicant institutes judicial review proceedings wherein the grounds for the reliefs
sought are an admixture of pure planning points, EIA points and environmental
grounds which are not expressly listed in s.50B, for example habitats arguments under
Part XAB of the Planning and Development Act 2000, as amended.

Page 33 of 46

11. Ultimately, it was held in the first costs decision in McCallig v An Bord Pleanla
[2014] IEHC 353 that it was reasonable and proportionate to award costs to the
applicant in respect of the planning issue, namely where the court had found that the
applicants lands had been wrongfully included in the grant of planning permission
without her consent. It was further held that the 2011 amendment did not operate
retroactively and the relevant costs provisions were those which applied when the
proceedings were instituted. The position in that case was different as the legislative
scheme in that case was different ad when the proceedings were commenced no party,
even if successful, was entitled to costs.

It was held by Herbert J. that s.50B as

originally enacted applied as the proceedings commenced prior to the Environment

(Miscellaneous Provisions) Act 2011 coming into operation. Accordingly, s.50B only
applied to the part of the proceedings based on EIA grounds and the normal rule that
costs follow the event applied to the distinct and severable non-EIA planning grounds.
In the circumstances, it was held that the applicant could not avail of the exception of
exceptional public importance as the issues raised were not particularly distinctive and
the board and notice party were jointly and severally liable for the applicants costs in
respect of the non-EIA grounds.
12. In the subsequent decision in McCallig v An Bord Pleanla [2014] IEHC 354, Herbert
J. noted that, given the separate and discreet issues that were raised by the applicant,
costs should be awarded on an issue basis rather than on overall effective success
basis. The court identified five separate issues and awarded costs in respect of the three
planning issues and directed that each party bear its own costs in respect of the two
EIA issues, having regard to the default position that applied pursuant to the Planning
and Development (Amendment) Act 2010. That judgment is of relevance particularly to
when the applicant is entitled to costs.
13. In Kimpton Vale Developments Limited v An Bord Pleanla [2013] IEHC 442,
wherein Hogan J. evaluated the costs provisions in both the Planning and Development
(Amendment) Act 2010 and the Environment (Miscellaneous Provisions) Act 2011 in
Page 34 of 46

circumstances where an application was made for security for costs under s.390 of the
Companies Act 1963. A parallel consideration was the extent to which and the manner in
which art.9(4) of the Aarhus Convention (with its requirement that environmental
litigation which comes within the scope of that Convention should not be prohibitively
expensive) has been transposed into national law. It was held that had matters had
remained as they were after the enactment of the 2010 Act, I would have unhesitatingly
followed the judgment of Charleton J. in JC Savage, irrespective of any views I might
have taken of the issue had the matter been res integra. That judgment was a reserved
one and it fully considered a difficult question of statutory interpretation on which there
is perhaps a good deal to be said on both sides. While the matter is of considerable
importance, it does not raise fundamental constitutional questions touching on personal
liberty such as in Li v. Governor of Cloverhill Prison [2012] IEHC 493, [2012] 2 I.R.
400 . In these circumstances I would have considered myself bound to follow JC
Savage for all the reasons touching on stare decisis in matters of statutory interpretation
which I ventured to set out in AG v. Residential Institutions Redress Board [2012] IEHC
492.

14. Hogan J. noted that the Aarhus Convention had not been completely transposed at EU
level, with the exception of Directive 2003/35/EC (the Public Participation Directive)
and the specific recognition given to the EIA Directive, the SEA Directive and the IPPC
Directive. In relation to those Directives, the Aarhus Convention is directly enforceable
in national courts. Hogan J. also noted the dualist nature of Irelands constitutional
system and particularly Art.29.6 which states that international agreements of this kind
do not form part of the domestic law "save as may be determined by the Oireachtas". In
particular, it was noted that s.8 of the Environment (Miscellaneous Provisions) Act 2011
requires the Court to take judicial notice of the Aarhus Convention and the Long Title
to the Act declares that one of the objects of the Act is to give effect to certain articles
in the Convention and the relevant provisions of the 2011 Act should be interpreted in
a manner which best gives effect to the corresponding provisions of the Convention.
Page 35 of 46

Thus, for example, the new costs rules contained in ss. 3, 4, 5 and 2l of the 2011 Act are
obviously designed to give effect to Article 9 of the Convention.
15. Hogan J. referred to the decision of Charleton J. in J.C. Savage and the decision of
Hedigan J. in Shillelagh Quarries and noted at para. 20 that Both judges stressed that
these changes did not change the costs rules generally in planning and environmental
cases, other than in the three specific areas where Article 9 of the Aarhus Convention
had been transposed by the three separate Directives. Having then analysed the
changes to the costs rules in s.50B as affected by the Environment (Miscellaneous
Provisions) Act 2011 at paras.22-30 and the implications of s.50B at paras.30-31, Hogan
J. then offered his observations within the context and constraints of the previous
decisions in J.C. Savage and Shillelagh Quarries at paras.39-41: First, it seems clear
from the terms of the Aarhus Convention that the requirements of Article 9(a) apply to
proceedings involving an application for judicial review of planning decisions where the
underlying decision came within the scope of Annex 1 of that Convention. Second, the
language of s. 50B (as introduced by the 2010 Act) is broad enough to apply to judicial
review proceedings seeking to quash any type of planning decision. The amendments to
s.50B were effected by s. 33 of the 2010 Act which is contained in Part II of that Act. But
s. 1(2) of the 2010 Act provided that Part II of that Act should be collectively cited and
construed with the 2000 Act and the amendments thereto. The effect of the collective
citation and interpretation clause is that the 2000 Act and the subsequent amendments
thereto are all deemed to be the equivalent of one Act, in this instance, the 2000 Act.
Here it is important to note that the judicial review proceedings seek to impugn a
decision (or purportedly taken) under the 2000 Act. Nevertheless, as we have just seen,
having regard to the collective citation and construction provisions of s. 1(2) of the 2010
Act, it was the 2000 Act which is deemed in law to have been the mechanism whereby
the three EU Directives were transposed into national law. It is for this reason, therefore,
that the present challenge is to the validity of an administrative decision taken "pursuant
to a law of the State that gives effect to" the three Directives to use the language of the
passerelle provisions of s.50B(1)(a) of the 2000 Act. In other words, as the challenge is
Page 36 of 46

to a decision taken pursuant to the 2000 Act and as it is that Act which is deemed by s.
1(2) of the 2010 Act to be the Act that gives effect to the three Directives in question, the
literal language of s.50B(1)(a) might suggest that the new "no costs" default rule thereby
introduced applied to all judicial review proceedings involving a challenge to the
validity of a decision taken under the 2000 Act, irrespective of whether it involved a
decision taken under the authority of the three Directives or otherwise.
16. It was then held at paras.44-45 that if the matter were res integra and leaving the
question of the possible effects of the 2011 Act aside for one moment I would have
inclined to a different view of the relevant statutory provision than that adopted by
Charleton J. in JC Savage. In my view, for the reasons I have already endeavoured to set
out, the bare language of s.50B(l)(a) is sufficiently broad enough to embrace the
application of all judicial review proceedings of planning decisionsIf matters had
remained as they were after the enactment of the 2010 Act, I would have unhesitatingly
followed the judgment of Charleton J. in JC Savage, irrespective of any views I might
have taken of the issue had the matter been res integra. Finally, at para.46 it was held
that It is true the 2011 Act has not amended the scope of application of s. 508(1)(a),
even if other related subsections were amended at the same time. The enactment,
however, of the 2011 Act has now created the potential for anomaly should JC Savage
remain the law.
17. In essence, therefore, it was held that while the learned judge might have been inclined
to expand the costs provisions provided for in s.50B into a more global application
which applied to all planning decisions as a result of the provisions introduced by the
Environment (Miscellaneous Provisions) Act 2011, he felt bound by the decision of
Charleton J. in J.C. Savage in accordance with the doctrine of stare decisis and
accordingly acceded to a request for an order for security for costs pursuant to s.390 of
the Companies Act 1963.

Page 37 of 46

18. In Nee v An Bord Pleanla [2013] IEHC 532, the applicant challenged the decision of
the respondent as being contrary to the provisions of s.37(2) and s.34(10) of the Planning
and Development Act 2000 as well as a breach of the Habitats Directive. In particular, it
was contended that the planning authority at first instance had refused permission
because the proposed development would constitute a material contravention of the
development plan and the Board had failed to provide adequate reasons as to why it
departed from the recommendations of the Inspector. OMalley J. refused the reliefs
sought by the applicant following which he sought to rely on an expanded interpretation
of the costs provisions in s.50B in circumstances where an EIA point had not been
advanced. Ultimately, however, OMalley J. held that s.50B only applied to the
particular circumstances adumbrated in s.50B and, in effect, held that the wider
provisions of art.9 of the Aarhus Convention did not have direct effect, notwithstanding
s.8 of the Environment (Miscellaneous Provisions) Act 2011 as well as the associated
jurisprudence of the European Court of Justice (ECJ) and the Court of Justice of the
European Union (CJEU). It should be noted that the judgment of OMalley J. relating to
costs was ex tempore and does not reconcile the difficulties raised by Hogan J. in
Kimpton Vale.
19. In terms of the broad application of the Aarhus Convention, the courts have consistently
held that this only has application insofar as it has been transposed by domestic law; see
In the Matter of an Application by Dymphna Maher [2012] IEHC 445 per Hedigan J.
and NO2GM Ltd. v Environment Protection Agency [2012] IEHC 69 and OConnor
v Environmental Protection Agency [2012] IEHC 370 per Hogan J. which confirmed
the provisions in Article 29.6 of the Constitution which require an international
convention to be directly transposed.
20. This point was also made in Kimpton Vale wherein Hogan J. gave extensive
consideration to the 1998 Aarhus Convention, the full title of which is the Convention on
Access to Information, Public Participation in Decision-making and Access to Justice in
Environmental Matters. Ireland signed the Convention on the 25 th June 1998 and ratified
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it on the 20th June 2012. The Convention entered into force on the 18 th September 2012.
Article 20(3) of the Convention provides entry into force 90 days after ratification.
21. The European Union also approved the Convention by means of Council Decision
2005/370/EC of 17th February 2005. Article 6(1)(a) of the Convention provides that
each Contracting Party shall "apply the provisions of this article with respect to
decisions on whether to permit proposed activities listed in Annex 1." The activities
listed in Annex 1 include energy production, minerals, chemicals, waste management,
waste water treatment plants, pulp and paper production, major road and rail
construction, ports, petrol and gas extraction and production, dams, oil and gas pipelines,
intensive pig and poultry production, quarries and opencast mining, construction of
overhead power lines and the tanning of hides and slaughterhouses. Paragraph 19 of
Annex 1 provides that the provisions of the Convention will also apply where public
participation is provided for under an environmental impact assessment procedure in
accordance with national legislation. Article 9(2) of the Aarhus Convention guarantees
that interested parties or members of the public concerned (a) having a sufficient
interest or, alternatively, (b) maintaining impairment of a right, where the administrative
procedural law of a Party requires this as a precondition must have "access to a review
procedure before a court of law and/or another independent and impartial body
established by law, to challenge the substantive and procedural legality of any decision,
act or omission subject to the provisions of Article 6." Article 9(4) further requires that
these procedures shall be fair, equitable, timely and not prohibitively expensive." The
scope of application of the Aarhus Convention and its transposition into national law in
Ireland were considered in the context of dualist constitutional system in Art.29.6 which
requires international conventions and agreements to be given effect by Acts of the
Oireachtas. The decision of Hogan J. also noted that s.8 of the Environment
(Miscellaneous Provisions) Act 2011 requires that judicial notice be taken of the Aarhus
Convention.

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22. In Case C-240/09, Lesoochranrske zoskupenie VLK v Ministerstvo ivotnho

prostredia Slovenskej republiky [2011] I-01255 (the Slovakian Brown Bear Case), the
European Court of Justice examined whether art.9(3) of the Aarhus Convention had
direct effect and observed that its provisions do not contain any clear and precise
obligation capable of directly regulating the position of individuals and members of the
public who meet certain criteria laid down by national law are entitled to take part in the
proceedings in question. This provision therefore requires the adoption of a subsequent
measure for its application. However, the Court pointed out that the national courts must
interpret their national law in accordance with the objectives of this provision and that of
effective judicial protection of the rights conferred by Union law. In particular, it was
held at para.49 that if the effective protection of EU environmental law is not to be
undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted
in such a way as to make it in practice impossible or excessively difficult to exercise
rights conferred by EU law and at para.51 that it is for the referring court to interpret,
to the fullest extent possible, the procedural rules relating to the conditions to be met in
order to bring administrative or judicial proceedings in accordance with the objectives
of Article 9(3) of the Aarhus Convention and the objective of effective judicial protection
of the rights conferred by EU law, so as to enable an environmental protection
organisation, such as the zoskupenie, to challenge before a court a decision taken
following administrative proceedings liable to be contrary to EU environmental law.
23. The interaction between the Aarhus Convention and section 50B was considered in
Browne v Fingal County Council [2013] IEHC 630, wherein Peart J. held that In this
country, it appears that what is provided for in relation to costs in cases of this kind
gives even greater protection to an unsuccessful applicant than is required under the
Aarhus Convention. That protection is what appears in Section 50B of the Planning &
Development Act, 2000 as amended. Under these provisions no order as to costs may be
awarded against an unsuccessful applicant. The Court is required to make no order as to
costs in such a case. The Court may of course under Section 50B (2A) of the Act of 2000,
as inserted, make an order for costs in favour of a successful applicantNeither the
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Aarhus Convention, nor the Edwards case, mandate that legal aid be available to
impecunious applicants as part of the requirement that access to justice should not be
prohibitively expensive. Paragraph 38 of Edwards makes a brief reference to legal aid
schemes in member states as being something, inter alia, to be taken into account.
Clearly, if legal aid had to be available, or some sort of pre-emptive order for costs in
advance of an application, this would have been clearly stated, and it is not.I am
satisfied that while Aarhus applies, and the State must meet its obligations under it,
Section 50B as amended more than meets those obligations as properly understood in
relation to costs orders.I am not satisfied that under Aarhus the applicant is entitled to
the sort of blanket costs indemnity order he now seeks in advance of bringing his
application for leave to seek judicial review. Neither am I satisfied that this Court has
jurisdiction under Statute or otherwise to make the order which he is seeking. The
jurisdiction to in certain circumstances make a protective costs order, which is identified
by Laffoy J. in Village Residents Association Ltd v. An Bord Pleanala[2000] 4 IR. 321,
and referred to by Kelly J. in Friends of the Curragh Environment Ltd v. An Bord
Pleanala [2006] IEHC 243 is not so wide as to encompass what the applicant seeks
herein.
24. The statutory costs regime in the original s.50 of the Planning and Development Act
2000 was amended by s.33 of the Planning and Development (Amendment) Act 2010
and s.21 of the Environment (Miscellaneous Provisions) Act 2011 partially to give effect
to Case C-427/07, Commission v Ireland [2009] I-06277 wherein the ECJ ruled that
the requirement for legal certainty, clarity and specificity in EU law also applied to costs
rules and found that Ireland had failed to fulfil the requirements of art.10a of Directive
2003/35 and had failed to ensure that access to justice was not prohibitively expensive.
In Case C-260/11, Edwards v Environment Agency & Ors, Judgment of the Court
(Fourth Chamber) of 11 April 2013, it was held that under art.9(4) of the Aarhus
Convention, art.10a of the EIA Directive, as amended by Directive 2003/35/EC, and
art.15a of the IPPC Directive, as amended by Directive 2003/35, it is incumbent on

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Member States to determine costs provisions for judicial proceedings involving

environmental matters.
25. However, those measures must ensure that the objectives of the Aarhus Convention are
satisfied in a sufficiently clear and binding manner in each individual case and, at the
same time, observe the principles of effectiveness and equivalence and the fundamental
rights under EU law. In examining whether costs of proceedings are prohibitive, account
must be taken of the objective and subjective circumstances of the case, with the aim of
enabling wide access to justice, and the insufficient financial capacity of the claimant
may not constitute an obstacle to proceedings. It is necessary, therefore, to take due
account of the public interest in environmental protection in the case at issue. This
decision largely followed the Opinion of Advocate General Kokott of the 18 th October
2012 who opined that although the discretion afforded to Member States under the EIA
Directive and the IPPC Directive is broad, it is not unlimited and that Member States are
responsible for ensuring that judicial proceedings are not prohibitively expensive. This
requires consideration of both objective and subjective circumstances, including the
personal circumstances of the litigant, his or her interest in the proceedings and the
public interest.
26. In Case C-530/11, European Commission v United Kingdom of Great Britain and
Northern Ireland, Judgment of the Court (Second Chamber) of 13 February 2014, the
CJEU found that the UK was non-compliant with Directive 2003/35/EC and reiterated
the guidance it gave in Case C-260/11. The Court recognized at para.54 that it should
be stated first of all that the discretion available to the court when applying the national
costs regime in a specific case cannot in itself be considered incompatible with the
requirement that proceedings not be prohibitively expensive. Furthermore, the possibility
for the court hearing a case of granting a protective costs order ensures greater
predictability as to the cost of the proceedings and contributes to compliance with that
requirement. At para.57 it was held that the very conditions under which the national
courts rule on applications for costs protection do not ensure that national law complies
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with the requirement laid down by Directive 2003/35 in several respects. First, the
condition, laid down by the national case-law, that the issues to be resolved must be of
public interest is not appropriate and.could not be taken into account by the Court
in the present case. Second, in any event particular interest of the claimant is involved.
These various factors lead to the conclusion that in practice the rules of case-law
applied do not satisfy the requirement that proceedings not be prohibitively expensive
within its meaning as defined in Edwards and Pallikaropoulos. At para.58, it was held
that It is also apparent from the foregoing that that regime laid down by case-law does
not ensure the claimant reasonable predictability as regards both whether the costs of
the judicial proceedings in which he becomes involved are payable by him and their
amount, although such predictability appears particularly necessary because, as the
United Kingdom acknowledges, judicial proceedings in the United Kingdom entail high
lawyers fees. Finally, at para.59 it was held that United Kingdom expressly concedes,
moreover, in paragraph 70 of its defence that until the judgment of the Court of Appeal
in R (on the application of Garner) v Elmbridge Borough Council and Others the
principles governing protective costs orders did not comply in every respect with
European Union law.

27. Accordingly, the question that is proposed to be determined is whether s.50B has a more
general application by virtue of the wording pursuant to a law of the State that gives
effect to the three Directives referred to and recited in s.50B(1) or whether it is limited
to decisions or activities which, for example, require environmental impact assessment
(EIA) or an integrated pollution prevention and control (IPPC) licence or programmes or
plans which require strategic environmental assessment. If the Supreme Court
determines that a more general interpretation should be afforded to s.50B, as suggested
by Hogan J. in Kimpton Vale, then costs protection would extend to cover the within
proceedings, notwithstanding the fact that no EIA was carried out on the impugned
development.

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28. This question was certified by Nill J. on the 3 rd June 2014 and a subsequent decree
was issued by the Supreme Court office that this matter will be determined by the Court
of Appeal. There is no cross-reference in the Court of Appeal Act 2014 to section 50 of
the Planning and Development Act 2000, as amended. Section50A(11) makes express
reference to the Supreme Court where a point of law is certified and is of exceptional
public importance. It could be argued that should the certificate application be refused a
stay should be placed on the costs application pending the determination of the appeal in
Harrington and until such time as the interpretation of section 50B has been resolved.

29. The Environment (Miscellaneous Provisions) Act 2011, which amended s.50B of the
Planning and Development Act 2000, also introduced additional costs provisions in Part
2 thereof. Under s.3(1) of the 2011 Act, the default position is that the costs of
proceedings in certain circumstances will also be borne by each party, including any
notice party. This applies throughout the jurisdictional hierarchy and notwithstanding the
normal costs provisions in Order 99 of the Rules of the Superior Courts; Order 66 of the
Circuit Court Rules and Order 51 of the District Court Rules. However, s.3(2) states that
the costs of the proceedings, or a portion of such costs, as are appropriate, may be
awarded to the applicant, or as the case may be, the plaintiff, to the extent that he or she
succeeds in obtaining relief and any of those costs shall be borne by the respondent, or
as the case may be, defendant or any notice party, to the extent that the acts or omissions
of the respondent, or as the case may be, defendant or any notice party, contributed to
the applicant, or as the case may be, plaintiff obtaining relief.
30. In addition, s.3(3) allows the court to exercise its discretion and award costs against a
party in circumstances where the court considers that a claim or counter-claim is
frivolous or vexatious or where a party has conducted the proceedings in a particularly
reprehensible or obstructive manner or where a party is in contempt of court. Finally,
s.3(4) includes the disclaimer that this does not affect the courts entitlement to award
costs where a matter of exceptional public importance has been raised or where it is in
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the interests of justice to do so. In effect, s.3 of the 2011 Act replicates the provisions in
s.50B of the Planning and Development Act 2000, which applies to judicial review
proceedings, insofar as plenary proceedings are concerned.
31. Section 4(1) of the 2011 Act provides that the costs provisions in s.3 apply where a party
institutes civil proceedings, as opposed to judicial review proceedings, 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 s.4(4). Section 4(1) also states that s.3 applies where there is a perceived
contravention or failure to comply with a condition of a licence, permit, permission,
lease or consent and where the failure to ensure compliance with or enforcement of a
statutory requirement or condition or such a contravention or failure has caused, is
causing or is likely to cause damage to the environment. A description of what is
considered to be damage to the environment is set out in s.4(2). Section 4(3) states that
s.4 applies to civil proceedings except for proceedings where damages or sought or
proceedings instituted by a statutory body or Government Minister. Section 4(4) sets out
an extensive list of licences, permits and consents to which s.3 applies, including the
very general provision of a permission or approval granted pursuant to the Planning
and Development Act 2000, as well as, inter alia, water pollution licences granted
under ss.4 and 16 of the Local Government (Water Pollution) Act 1977 and waste
collection permits granted pursuant to s.34 of the Waste Management Act 1996.
32. Section 6 of the 2011 Act provides that s.3 applies to judicial review proceedings of
proceedings referred to in s.4 (licence and consent enforcement) and s.5 (proceedings
relating to the European Communities (Access to Information on the Environment)
Regulations 2007 (S.I. No.133 of 2007)) as well as any appeals from the District Court,
Circuit Court or High Court and interim or interlocutory proceedings. Section 7 allows
for an application for a preliminary determination on whether Part 3 costs protection
applies. In the event that a potential applicant or plaintiff is seeking assurances over costs
protection, s.7 allows a party to proceedings to which s.3 applies to apply to the court for
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a determination that s.3 applies. Such an application may be made at any time before or
during the course of proceedings and is made by motion on notice to the parties
concerned, c.f. s.7(5) of the 2011 Act. Finally, and critically, s.8 states that Judicial
notice shall be taken of the Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters done at Aarhus,
Denmark on 25 June 1998.
The proceedings here fall within the ambit of these authorities even on the narrowest
construction. The issues are clearly issues relating to the protection of the environment, are
issues that invoke and rely on a range of environmental legislation expressly contemplated in
those provisions. They are equally of a type which the relevant provisions contemplated give
rise to the protection in respect of costs contemplated by the provisions referred to in the
above cases.
In those circumstances the applicant is entitled to an order of Discovery in terms of
paragraph 1 of the Notice of Motion and an order in terms of paragraph 2 of the Notice of
Motion.
Michael ODonnell BL

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