McCoy & anor v Shillelagh Quarries Ltd & ors

Factual and Procedural Background

This opinion concerns an application pursuant to sections 3 and 7 of the Environment (Miscellaneous Provisions) Act 2011 ("the Act of 2011") in proceedings initiated under section 160 of the Planning and Development Act 2000. The Applicant, a resident of lands adjoining a quarry operated by the Respondents at lands in The City, alleges that quarrying activity is being carried out without planning permission in an area of significant natural beauty and ecological sensitivity. The Applicant seeks a declaration that the provisions of section 3 of the Act of 2011 apply to these proceedings, which would alter the usual rules regarding costs in litigation. The Respondents contest the application, arguing that the quarrying activity predates the requirement for planning permission and thus is not unauthorised development. The local authority, Company A, was joined as a co-applicant during the proceedings.

Legal Issues Presented

1. Whether an application under section 3 of the Environment (Miscellaneous Provisions) Act 2011 is appropriate in proceedings brought under section 160 of the Planning and Development Act 2000 concerning alleged unauthorised quarrying activity.
2. Whether the application for a declaration under section 3 is premature given the stage of the substantive proceedings.
3. Whether the Applicant has a reasonable prospect of success on the substantive issue of whether the quarrying activity is unauthorised development requiring planning permission.
4. Whether the environmental protection interest is sufficient to justify the application, distinguishing public environmental interest from private land enjoyment.
5. The effect of joining the local authority as co-applicant on the appropriateness and scope of the declaration sought.
6. Whether a limited declaration, restricting costs protection to a certain period, would be appropriate given the joinder of the local authority.

Arguments of the Parties

Applicant's Arguments

• The quarrying activity is unauthorised and carried out without planning permission in an environmentally sensitive area.
• The application for a declaration under section 3 is timely and appropriate at this stage of the proceedings, as the legislation contemplates applications before or during substantive hearings.
• The Applicant has limited financial means, being a full-time student, and would face serious financial consequences if ordered to pay costs without protection.
• Previous litigation history and planning decisions support a reasonable prospect of success on the substantive issue.
• The quarrying activity likely causes environmental damage affecting landscape character, water, and air quality, raising matters of public environmental interest.
• The costs of the proceedings are likely to be significant given the complexity and volume of evidence and affidavits filed.
• The joinder of the local authority does not negate the Applicant’s entitlement to a declaration and costs protection.

Respondents' Arguments

• The quarrying activity commenced before the operative date of the 1963 Planning Act and is therefore immune from the requirement to obtain planning permission.
• The proceedings are not aimed at enforcing compliance with a statutory requirement but seek a declaration that no planning permission exists, which they argue falls outside the scope of section 3.
• The application for a declaration is premature and unduly fetters the discretion of the trial judge on costs.
• The quarrying activity does not have a significant adverse impact on the environment, disputing claims of damage to water and air quality and visible amenity.
• The joinder of the local authority, which cannot benefit from a costs declaration, introduces a “deep pocket” and should restrain the court from granting the declaration at this stage.
• The court should consider limiting any declaration to costs incurred before the joinder of the local authority.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the legislative framework established by the Environment (Miscellaneous Provisions) Act 2011 and its incorporation of the Aarhus Convention principles, which promote public participation and access to justice in environmental matters. The court accepted the Applicant’s entitlement to seek a declaration under section 3, rejecting the Respondents’ narrow interpretation that the legislation applies only where a planning permission existed and must be enforced. The disjunctive wording of section 4 was interpreted to include proceedings asserting the absence of planning permission as a failure to comply with statutory requirements.

The court found that the application was not premature, noting the broad discretion granted by the statute to apply for the declaration at any stage before or during proceedings. The protective costs regime is designed to facilitate access to justice, especially for applicants of limited means, such as the Applicant who is a full-time student with limited financial resources.

On the substantive issue, the court held that the Applicant demonstrated a reasonable prospect of success. This was supported by a history of litigation concerning the quarrying activity, including findings that post-1964 quarrying required permission, and planning decisions recognizing intensification of use. The court emphasized that it was not determining the substantive merits but was satisfied there was a substantive issue to be tried.

The court also addressed the environmental interest, finding the proceedings raised matters of public environmental importance rather than mere private land enjoyment. The Applicant’s assertions of likely environmental damage were sufficient at this stage to satisfy the test for environmental protection.

Regarding the joinder of the local authority as co-applicant, the court acknowledged the Respondents’ argument that this might affect the appropriateness of the declaration. However, it reasoned that the court’s discretion over costs remains broad and nuanced. The existence of a co-applicant who cannot benefit from a declaration does not preclude granting the declaration to the Applicant. The court considered that the trial judge would retain the ability to apportion costs and make awards based on conduct and success as the case unfolds.

The court declined to limit the declaration to costs incurred before the joinder of the local authority, noting the local authority had not indicated it intended to take over the case and that the two applicants might conduct the case differently. The court emphasized that the declaration does not remove the court’s power to award costs in exceptional circumstances or where conduct justifies it.

Holding and Implications

The court’s final decision was to GRANT THE APPLICATION FOR A DECLARATION pursuant to sections 3 and 7 of the Environment (Miscellaneous Provisions) Act 2011.

This ruling means that in the absence of special circumstances, each party to the substantive proceedings will bear their own costs, thereby providing the Applicant with protection from potentially ruinous cost orders. The decision facilitates public access to justice in environmental matters, consistent with the Aarhus Convention’s objectives. The court’s order does not preclude costs awards in exceptional cases and preserves the trial judge’s discretion to make nuanced costs orders based on the conduct and outcome of the proceedings. No new precedent was established beyond the application of existing statutory and case law principles to the facts of this case.