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O'Connor v. Nenagh UDC [2002] IESC 42 (16th May, 2002)
THE
SUPREME COURT
Denham
J.
Murphy
J.
McGuinness
J.
1995
No. 142 JR
Appeal
No. 270, 272, 292/96
BETWEEN/
JOSEPH
O’CONNOR
APPLICANT/APPELLANT
and
NENAGH
URBAN DISTRICT COUNCIL
RESPONDENT
and
DUNNES
STORES LIMITED
NOTICE PARTY
Judgment
delivered on the 16th May, 2002 by Denham J. [Nem Diss.]
1.
On the 16th July, 1996 the High Court (Geoghegan J.) refused the application of
the applicant/appellant (hereinafter referred to as the applicant) for Judicial
Review. It was ordered that the notice party recover costs as against the
applicant. A stay was put on the order for costs pending appeal. The court
made no order as to costs in respect of the respondent.
2. Against
that order the applicant filed a full appeal. However, the appeal now relates
solely to the issue of costs.
3. Nenagh
Urban District Council, the respondent, cross appealed against the failure of
the High Court to grant an order for costs to the respondent against the
applicant. This cross appeal has been withdrawn.
4. Dunnes
Stores Limited, the notice party, cross appealed against the order of the High
Court insofar as it declared that the applicant had
locus
standi
to maintain the application for judicial review and further that the
certificate dated the 27th day of September, 1994 issued by the respondent was
of a sufficiently public nature as to render it amenable to judicial review.
However, this was not pursued.
5. Thus
the sole issue on this appeal is whether the notice party is entitled to costs
against the applicant.
6. Counsel
for the applicant filed written submissions which I have considered. In oral
submissions counsel stressed that the application for judicial review was a
matter of public interest, in relation to a public document, and that it was a
matter of public importance. Counsel for the applicant submitted further, that
it was a matter between the applicant and respondent and not the notice party.
He submitted that any absence of planning permission was damaging - not any
absence of such certificate as was in issue. Further, counsel submitted that
the applicant failed on a technicality, and he should not be penalised by an
order for costs. Counsel conceded that the notice party was entitled to be in
court and to be heard. But, he submitted, the applicant should not be at risk
of costs.
7. Counsel
for the notice party filed written submissions which I have considered. In
oral submissions counsel stressed the nature of the original orders sought on
the application for judicial review and their potential affect on the notice
party. Counsel for the notice party submitted that if the certificate were
quashed it would have a serious impact on the notice party, it would affect any
defence to a prosecution under the planning code. Further, counsel contended
that even though time limits as to prosecutions have expired, if a development
is unauthorised it is not rendered authorised by the lapse of time. He
submitted that the certificate could be relevant to a sale or to compensation
under a compulsory purchase order.
8. Essentially
the matter of costs is at the discretion of the court. Order 99, R. 1(1)
provides:
“The
costs of and incidental to every proceeding in the Superior Courts shall be in
the discretion of those courts respectively.”
1. In
general costs follow the event Order 99, Rule 1(4) provides:
“The
costs of every issue of fact or law raised upon a claim or counterclaim shall,
unless otherwise ordered, follow the event.”
2. The
specific situation of a person affected by the avoidance of a decision was
referred to in
O’Keeffe
v An Bord Pleanala
[1993] 1 IR 39 at p. 78. Finlay C.J. stated:
“If
application is made for liberty to issue proceedings for judicial review and
the claim includes one for
certiorari
to quash the decisions of a court or of an administrative decision-making
authority the applicant must seek to add as a party any person whose rights
would be affected by the avoidance of the decision impugned. If liberty is
granted the court should except for special reasons ordinarily add such person
as a party.”
3. The
court was referred to
F.
v Ireland and the Attorney
,
Supreme Court, (Unreported), 27th July, 1995. In that case Hamilton C.J. stated:
“The
question of the costs of any proceedings before the Court is a matter for the
discretion of the judge hearing and determining such matter.
The
Court has considered the judgment of the learned trial judge on the question of
cost as contained in Counsel’s note of his ex-tempore judgment on the
question of costs.
The
Court is satisfied that the learned trial judge exercised his discretion in
this matter judicially and in a proper manner and see [
sic]
no grounds for interfering with the order made by him in respect of the
proceedings before him.
This
Court has a discretion with regard to the costs of the proceedings before it.
There
is no doubt but that the appeal before this Court involved issues of
considerable public importance and that it was desirable, in the public
interest, that a decision on the issues involved be reached as early as
possible having regard to the situation, in respect of many orders made
pursuant to the provisions of the Act which would arise if the
Plaintiff/Appellant had been successful in his challenge to the impugned
provisions of the Act.
There
is no doubt but that the Attorney General regarded this case as a “test
case” and was anxious that the matter be disposed of as quickly as
possible.
By
notice of motion dated the 19th day of October, 1993, the Attorney General
sought an order directing that the Circuit Court appeal be disposed of prior to
the determination on the constitutional issues raised in these proceedings.
That
application was refused in the High Court (Johnson J.)
The
Attorney General by notice dated the 4th day of January, 1994 appealed to this
Court against such decision but by letter dated the 18th day of February 1994
withdrew that appeal.
His
action in that regard was a clear indication of his desire that the issues
raised in these proceedings be determined.
While
this case was of considerable importance to the parties involved, it was also
of considerable importance to the parties involved in at least three thousand
cases in which orders had already been made under the Judicial Separation and
Family Law Reform Act, 1989.
It
was conceded that the wife was entitled to the benefit of the Attorney
General’s scheme and the Court will make any necessary recommendations in
that regard.
In
the particular circumstances of this case, the Court considers that it should
exercise its discretion with regard to the costs of the proceedings before it
by awarding the costs of the appeal to the Plaintiff/Appellant against the
Attorney General.”
9. In
this case the learned High Court judge held:
“.
. . It is difficult to know what the just costs Order should be, but contrary
to Mr. O’Sullivan’s submissions in my opinion, I have no doubt at
all that the Notice Party, Dunnes, should be entitled to their costs. It is
true they were not named as Respondent originally but they had to be a Notice
Party, they had to be in on the proceedings. They were absolutely entitled to
be represented and to appear and to participate in the entire of the
application. In my view, their interests were, in one way or another, at
stake. I do not accept the submission at all that they should have simply
relied on whatever arguments the Urban District Council put forward. I have no
hesitation in granting Dunnes their costs against the Applicant.
I
am going to make no Order as to costs as against the Nenagh Urban District
Council for a combination of reasons in a sense. First of all, on some major
issues the Applicant has been successful -- by major issues I mean issues that
took up quite a bit of time of legal argument in the court -- the Applicant was
successful. That of itself is not a reason for making no Order as to costs.
Normally if a party wins on one of his grounds he is entitled to his costs, the
mere fact that he loses on some other grounds does not mean that there should
necessarily be no Order as to costs. I do feel that that factor combined with
the fact that I am satisfied that despite Mr. O’Connor’s obvious
self interest in this matter having regard to the fact that he was a competitor
in Dunnes Stores, I am also satisfied that he did consider this was a matter
that should go to court on the basis of what he saw in the planning file and
saw the maps; he was a public representative himself. The document that the
Urban Council used and used as part of a certificate was itself quite an
ambiguous document because it appears that distinctions are being made between
certifying that there has been compliance and, on the other hand, certifying
that there is no objection. That was bound to lead to considerable confusion.
I think Mr. O’Connor cannot be blamed for not comprehending all of that.
I think on balance that a fair costs Order would be to make no Order as to
costs as against the Urban Council but Dunnes are entitled to their costs
against the Applicant.”
10. There
is no doubt that the notice party would have been affected if the original
orders sought on judicial review by the applicant had been granted. The
applicant sought originally,
inter
alia
:
“(a)
An Order of Certiorari pertaining to the said Certificate that it should be
brought before this Honourable Court and quashed on the grounds that the
premises as built do not comply with the Planning Permission provided in 1974,
and the development is an unauthorised development.
(b)
A Declaration that no reasonable Planning Authority could not have a
reasonably founded objection to the development as developed on the grounds
that not only is the development an unauthorised structure and development, but
also is developed contrary to the Town Plan for Nenagh, and in particular is
built in circumstances where:
(i)
The proposed development does endanger public safety by reason of traffic
hazard because the site is located on a National Primary Road, carrying a heavy
volume of traffic and the traffic movements generated by the development would
interfere with the safety and free flow of traffic on the road.
(ii)
The proposed development is considered premature pending the provision of a
public sewerage scheme for the area, and pending the improvement of the public
water supply which is inadequate to serve such a commercial development and for
fire fighting purposes.
(c)
An Order that the use and occupation of the building and grounds without
proper water disposal and dispersal assistance, and in particular without any
or any proper sewerage system, is contrary to the proper development of the
area and in particular to the development plan for the Town of Nenagh.
(d)
An Order of mandamus requiring the Respondents to take appropriate steps to
prevent occupation and use of the building for the reasons:
(i)
The proposed development does endanger public safety by reason of traffic
hazard because the site is located on a National Primary Road, carrying a heavy
volume of traffic and the traffic movements generated by the development
interfere with the safety and free flow of traffic on the road.
(ii)
The proposed development is considered premature pending the provision of a
public sewerage scheme for the area, and pending the improvement of the public
water supply which is inadequate to serve such a commercial development and for
fire fighting purposes.
(e)
The reasons for refusal of the Application for Planning Permission in 1981
were in particular that the lands where it was intended to carry out this
development did not have sewerage facilities available and did not have water
disposal or dispersal arrangements necessary to satisfy the needs of the
development or indeed any development on the site. Subsequently, the
development has been carried out without taking into consideration the
requirements as set out above, and in the Winter of 1994/95, the premises has
been flooded on a number of occasions and the sewerage has over-flowed. An
unsatisfactory position now pertains damaging the reputation of the business
community of Nenagh in the eyes of the public and detracting from Nenagh as a
shopping town.
(f) The
Applicant further states that in carrying out development at his own premises
he was required by Nenagh Urban District Council to carry out a significant
water disposal and dispersal requirement, including the expense of significant
sums of money to comply with the proper planning and development of the area
He was further required to make significant changes to his own development in
order that it would comply with the proper planning and development of the
area, which said requirements the Applicant fulfilled. The Applicant claims
that all applications for Planning Permission should be dealt with on the same
basis and that failure to comply with Planning Permission should be addressed
by the Planning Authorities on the basis that all parties are equal, and
required to maintain the same standards.”
4. Consequently,
it was appropriate that the notice party be joined in the action. Further, it
was not appropriate for the notice party to withdraw during the trial on the
application for the judicial review to be limited, at the applicant’s
request, to the
certiorari
and declaration.
5. While
there is an element of public interest in this case it was a situation where
initially the remedies sought if granted would have had a profound affect on
the notice party. I would distinguish this case from
F.
v Ireland and the Attorney General
.
This case is not a test case, there are not 3,000 cases relevant to its
outcome, and it does not involve issues of considerable public importance.
6. A
court gives great weight to the views of the learned trial judge. I am
satisfied that the trial judge in this case applied the correct principles. I
would not interfere with the exercise of his discretion. It is clear that:
(a) whereas
there was an element of public interest, the application as originally drafted
sought specific remedies potentially detrimental to the notice party;
(b) the
notice party was a necessary party;
(c) the
notice party participated fully in the trial;
(d) the
notice party was an entirely innocent party and acted in good faith at all times;
(e) the
notice party was successful in the proceedings;
(f) no
compelling reasons have been established as to why costs should not follow the
event;
(g) the
learned trial judge exercised his discretion in accordance with law.
11. For
the reasons stated I would not interfere with the exercise of the discretion of
the learned trial judge. I would dismiss the appeal.
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