Cooper v An Bord Pleanala (Approved) [2023] IEHC 790 (08 November 2023)

Court of Appeal in H. M v. S. M & anor [2018] IECA 396 . In turn, in Garcia Diaz, Roberts J. noted certain important elements in the approach that was to be taken by the High Court that had been highlighted by the Court of Appeal. For the purposes of this review, the following matters are important: a. A review is not an appeal on the merits, but rather is to be conducted in the light on the statutory conjunctive test that an error had to be established in the approach of the Taxing Master and that an injustice has resulted; b. The burden on a party seeking to challenge a ruling of the Taxing Master is heavy and the High Court will be reticent to interfere in the decision; c. The High Court must exercise a considerable degree of judicial restraint in the context of a review, although it must clearly intervene if a failure to do so would result in injustice; and d. The High Court should show deference to the expe1tise of the specialist Taxing Master. 10. In addition, and of importance to this review, the court in Garcia Diaz, made clear that the review court was not to revisit the merits of the underlying proceedings. In that regard the Court stated: "47. In my view, the CLCA cannot be criticised for failing to look behind the costs orders made by the High Court [ ...]. Those costs orders are made. The role of the CLCA is to determine the appropriate quantum of the costs on the basis that the court orders reflect the matters in respect of which costs should be assessed. It forms no part of the CLCA's role to revisit the basis of the High Court's costs orders to determine whether they relate to applications that were necessary or should otherwise be amended in some manner. That would be a matter for the Court rf Appeal had the costs orders been appealed to it, which they were not [ ...]" 11. Respectfully, I agree with those observations, and, a fortiori, if the court cannot look behind the costs orders made by the High Court it certainly cannot look behind costs orders made in the Court of Appeal. DISCUSSION 12. Bearing in mind the relative clarity of the law in this area, this review presents itself as follows: 13. The application is brought by way of a notice of motion which was filed in the High Cou1t on March 2023, and which is grounded on an affidavit sworn by the applicant, who is a litigant in person. The grounding affidavit was sworn by the applicant on 24 March 2023. In his affidavit, the applicant outlines a history of planning applications with which he takes issue. The affidavit contains no evidence or complaint in relation to the process before the LCA, and at the hearing before this court the applicant was clear that he was not taking issue with the approach adopted by the LCA to the determination in respect of costs. Rather, the applicant believed that following the decision of the Supreme Court in Heather Hill Management Company CLG and McGoldrick v. An Bord Planal [2022] IESC 43, the court should direct that a different approach to costs should be adopted. 14. For the purposes of context only, and specifically not for the purpose of revisiting the underlying proceedings, the proceedings that gave rise to the costs orders were an application for leave to apply for judicial review under section 50A of the Planning and Development Act, 2000, as amended. The applicant had sought to appeal a decision of the local authority, but it was claimed that he had failed to comply with the mandatory requirements of section 127 of the 2000 Act. In those premises, the Board contended, and the High Court agreed, that section 127 required the Board to determine that the appeal was invalid. It is clear that there was no application for any form of protective costs order whether by reference to section 50B of the 2000 Act or otherwise. The appeal to the Court of Appeal was dismissed on the basis that the applicant had not sought or received permission to appeal from the High Court and therefore the Court of Appeal considered that it did not have jurisdiction to entertain the appeal. 15. A short chronology of the proceedings is set out in the replying affidavit of Valerie Hourigan who is a solicitor acting on behalf of the second notice party and which is dated 15 June 2023. The applicant was happy that this was an accurate summary of the proceedings: a. On June 2018, the local authority made a decision to grant the second notice party permission for a proposed development in the vicinity of Dundrum Town Centre. b. The applicant sought to appeal this decision to the Board, and he attended at its offices on 6 July 2018 and lodged appeal papers. c. On July 2018, the appeal was examined by the Board. The Board determined that the appeal was invalid, and, on I2 July 2018, the Board wrote to the applicant informing him of this. d. On July 2018, the applicant commenced judicial review proceedings seeking to quash the Board's decision not to accept his appeal. e. On January 2019, the applicant's judicial review proceedings were heard by way of a telescoped hearing. On that date, this court (O'Regan J.) delivered an ex tempore ruling refusing relief and ordered the applicant to pay the costs of the Board and the notice party when taxed and ascertained. f. On February 2019, the applicant filed a notice of appeal in which he sought to appeal the decision of O'Regan J. g. On 5 April 2019, the appeal was struck out by the Court of Appeal at the first directions hearing. This was on the grounds that the applicant had not sought or obtained a certificate to appeal from the High Court, as required by the Planning and Development Act, 2000. As part of that decision, the Court of Appeal ordered the applicant to pay the costs of the Board and the notice party, such costs to be taxed and ascertained in default of agreement. h. On January 2023, the costs of the notice party in both the High Court and the Court of Appeal were adjudicated by the adjudicator. The applicant was not satisfied with the adjudicator's decisions, and he applied for a consideration of same and the making of a determination pursuant to section 161(1) of the Act. 1. The adjudicator considered the applicant's application and decided not to vary his determination. The certificates of determination issued on the 24 August 2023. 16. Ultimately, the adjudicator's determination and respect of the notice party's costs were in the amount of €20,979.30 in respect of High Court costs and €5,557 in respect of the Court of Appeal costs. CONCLUSIONS 17. Bearing in mind the relatively restricted role of the court carrying out a review pursuant to section 161(5) of the 2015 Act and the observations recorded in the Garcia Diaz case, the following matters are significant: a. First, the applicant has adduced no evidence and made no argument that takes issue with the allowances or disallowances set out in the determinations. b. Second, accordingly there is no evidential matrix within which the court can carry out a proper review or make a finding on the justice of the determination. c. Third, the court is not permitted to revisit the costs orders made in this court or the Court of Appeal. Hence, any question about whether the decision of the Supreme Court can have any impact on the applicant's liability seems to be entirely beyond the scope of this process. d. By way of an extremely brief summary, the judgment in Heather Hill addresses the question of how costs are to be addressed by reference to section 50B of the Planning and Development Act, as amended, in the context of the State's international obligations and EU law. If the applicant has any avenue for redress in respect of the matters of which he complains - and the court is making no finding whatsoever that he has - it is not a matter that can be addressed in a review under section 161(5). 18. In the premises, the court has no option but to make an order refusing the application for a review. I will hear from the parties in relation to costs. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII