McCann v Furlong (Approved)

Factual and Procedural Background

This opinion concerns enforcement proceedings under section 160 of the Planning and Development Act 2000. The applicant initiated these proceedings against the respondent regarding an unauthorised development comprising a milking parlour and ancillary structures. The principal judgment, delivered on 18 June 2024, granted relief including an order for cessation of the unauthorised use, removal of the structures, and reinstatement of the land. This supplemental judgment addresses the issue of legal costs following written submissions from both parties.

Legal Issues Presented

1. Whether the applicant is entitled to recover legal costs under the special costs regime prescribed by Part 2 of the Environment (Miscellaneous Provisions) Act 2011 (EMP Act 2011) following successful enforcement proceedings under section 160 of the Planning and Development Act 2000 (PDA 2000).
2. Whether the respondent’s arguments against a costs order—based on the applicant’s choice to initiate proceedings rather than rely on the planning authority, the alleged absence of material suffering by the applicant, and the respondent’s claimed hardship—are legally sufficient to resist a costs award.

Arguments of the Parties

Respondent's Arguments

• The applicant should bear their own costs because they instigated the proceedings rather than relying on the planning authority, which could have acted without cost to the applicant.
• The applicant has not proven material suffering caused by the respondent’s actions beyond speculative concerns raised by the planning authority.
• The respondent will suffer extreme hardship and significant expense from a costs order, which should lead the court to order that each party bear their own costs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lagan Asphalt Ltd v. Hanly Quarries Ltd [2021] IEHC 450	Clarification that proceedings under section 160 of the PDA 2000 are not to be stayed pending planning authority action, affirming public right to initiate enforcement proceedings independently.	The court relied on this precedent to reject the respondent’s argument that the applicant should have waited for the planning authority to act, emphasizing the statutory right of private individuals to pursue enforcement and recover costs.

Court's Reasoning and Analysis

The court began by confirming that the enforcement proceedings are subject to the special costs rules under Part 2 of the EMP Act 2011, which generally require parties to bear their own costs unless the acts or omissions of the respondent contributed to the applicant obtaining relief. The applicant was entirely successful, securing orders for cessation, removal, and reinstatement related to the unauthorised development.

The court addressed the respondent’s three arguments sequentially. First, it rejected the suggestion that the applicant should have waited for the planning authority, noting the statutory right under section 160 PDA 2000 for any person to initiate enforcement proceedings independently. The court cited Lagan Asphalt Ltd v. Hanly Quarries Ltd to underline that stays pending planning authority action would frustrate legislative intent and public participation in enforcement.

Second, the court dismissed the requirement for the applicant to prove material suffering as a precondition for a costs award, clarifying that the key factor is whether the respondent’s acts contributed to the applicant obtaining relief. The respondent’s breach of planning legislation justified the costs order, and the principal judgment’s findings of interference with neighbouring amenity and water supply supported this conclusion.

Third, the court found the respondent’s claim of hardship insufficient to resist a costs order, especially as the hardship arose from the respondent’s own unauthorised actions and protracted litigation tactics, including multiple adjournments and an unmeritorious appeal, which caused unnecessary legal costs to the applicant.

Accordingly, the court concluded that the applicant is entitled to recover legal costs from the respondent under the EMP Act 2011 special costs regime.

Holding and Implications

ORDERED that the respondent shall pay the legal costs incurred by the applicant in these enforcement proceedings pursuant to Part 2 of the Environment (Miscellaneous Provisions) Act 2011.

This costs order includes all costs before both the Circuit Court and the High Court, reserved costs, costs of written submissions, court listings, and affidavits filed on behalf of the applicant. In the absence of agreement on the costs quantum, the amount is to be taxed by the County Registrar according to the Rules of the Superior Courts. The parties retain liberty to apply.

The decision directly affects the parties by requiring the respondent to bear the applicant’s legal costs due to the respondent’s unauthorised development and conduct. No new precedent beyond the application of existing statutory provisions and case law was established.