Neutral Citation: [2016] IEHC 9
THE HIGH COURT
[2013 218 MCA]
BETWEEN
MICHAEL MCCOY AND SOUTH DUBLIN COUNTY COUNCIL
APPLICANTS
AND
SHILLELAGH QUARRIES LIMITED, JOHN MURPHY, DECLAN MURPHY, THOMAS MURPHY, SANDRA MURPHY AND (BY ORDER OF THE COURT) MICHAEL MURPHY
RESPONDENTS
NOTICE PARTY
SUPPLEMENTAL JUDGMENT of Ms. Justice Baker delivered on the 19th day of January 2016,
1. This judgment is given in the following:
2. Before I turn to consider those separate applications, a preliminary matter must be dealt with.
3. On the 16th October, 2015 I delivered a written but unapproved judgment in the substantive proceedings and I invited the parties to address me in relation to any errors which might be found in the judgment and to the form of the final orders to be made on foot of the determinations and reasoning therein. The matter of costs was also adjourned on that date. Part of the reasons for my concern in not approving the judgment prior to delivery on the 16th October, 2015 was that I had noted a certain confusion in some of the dates which were not consistent throughout the papers before me.
4. In the events, the matter came back before me on the 28th October, 2015 where the matter of dates and other minor matters were clarified without any difficulty. However, on that date counsel for the respondents indicated that there appeared to be an inadvertent error in the text of para. 17 of the judgment which might have had a consequence for some of the final orders made in the case, namely the order requiring the respondent to restore the lands.
5. Consideration of the final orders was then adjourned to the 11th January, 2016 at which hearing submissions from counsel for all parties were invited, and written legal submissions were directed to be furnished in advance of that hearing.
6. There is no dispute between the parties that, having regard to the findings in my judgment, and the determinations made therein, the applicants are entitled to seek orders in terms of paragraphs 1 and 2 of the motion dated the 19th July, 2013 seeking relief pursuant to s. 160 of the Planning and Development Act, 2000 for the cessation of the activity of the extraction of stone and ancillary activities at the quarry lands.
7. I accept that the judgment did contain an error in that it mistakenly referred to the changes made by s.29 of the Environment (Miscellaneous Provisions) Act 2011 as having the effect that applications could be made in respect of works which commenced before November 2004, when the reference ought to have been to works commenced since that date. Certain conclusions in the judgment which flow from that error are also erroneous.
8. What is in issue is whether I may revisit and revise my judgment in the light of the error in the unapproved version.
Jurisdiction to revisit a judgment
9. The orders that flow from my judgement delivered on 16th October, 2015 have not yet been perfected, and it is quite clear from the sequence of events above described that the judgment that was delivered by me was an unapproved judgment. Counsel agree on the principles that govern the power to revisit and these are set out in the judgment of Clarke J in Re McInerney Homes Ltd. [2011] IEHC 25 where he held that the power to revisit can arise when there was “a simple error on the part of the judge concerned in the judgment” (at para. 3.12). In the light of that decision, and of the later decision of O’Malley J. in Seán Nee v. An Bord Pleanála [2013] IEHC 584, I am satisfied that the power to revisit does arise in the particular context of the error found at para. 17 of my judgment, and counsel for all parties accept this.
10. My judgment did contain an error in that, having found that the quarrying activities had commenced before 15th November 2004, I inadvertently went on to deal with the application for the carrying out of restoration works and omitted to fully consider the effect of section 160(6)(aa)(i). I have corrected the final version and the judgment which is now approved and signed no longer contains that error, or the consequential errors found in later paragraphs of the judgment.
Application for costs
11. Mr. McCoy applied for his costs of the proceedings against the respondents, and as no opposition was offered to that application, an order was made by me on 11th January 2016 that he be entitled to his costs. However the respondents contest the entitlement of the second applicant to its costs and I turn now to consider this issue.
12. South Dublin County Council was joined to these proceedings on its own application on the 1st May 2015, almost two years after the originating motion of Mr. McCoy issued on 29th July 2013.
13. Counsel for South Dublin County Council, the second applicant, points to the fact that the local authority had sent enforcement notices to the respondents under the then relevant legislation in 1988 and 1989 and that it had engaged fully with the respondent in the context of its application for registration after a statutory requirement arose that this be done. She argues that, had the Council sought to bring enforcement proceedings after the introduction of the requirement for the registration of quarries, it would have been met with a plausible argument that the registration process should at least be permitted to conclude. She also argues that any application that might have been brought for relief under s. 160 or its legislative predecessor, s. 27 of the Act of 1963, would, at that time, have arguably been statute barred.
14. In the course of my substantive judgment I determined that the local authority had been guilty of culpable delay, and that it had offered no satisfactory explanation with regard to the delay between 1997 and its application to be joined to the proceedings in 2015, but counsel argues that that delay must be seen in the context of the approach of the Oireachtas, both as a result of the introduction of a requirement to register, and in the context of the amended statutory limitation periods introduced by the Act of 2011.
15. She also argues that it is well established in the case law that a court hearing an application for a planning injunction on the part of a private citizen will have regard to the attitude of the local authority, and she mentions by way of example the judgment of Hedigan J. delivered on 25th January 2012 in Smyth v. Dan Morrisey Ireland Ltd., [2012] IEHC 14.
16. She also points to the fact that the local authority had assisted in the conduct of the case, and had made some documents available which would not readily been available to Mr. McCoy, had they been available to him at all.
Discussion
17. Counsel for the respondent argues, in my view correctly, that the statutory provisions introduced by s. 160 of the Act of 2000 allows members of the community to invoke the statutory process for the purposes of protecting the interests of the community. He also argues, also in my view correctly, that the local authority could have assisted Mr. McCoy other than by seeking to be joined to the proceedings, whether by way of the offering of documentation, the furnishing of an affidavit or affidavits to the Court, or indeed by the simple activity of writing a letter to Mr. McCoy in support of his application.
18. I consider that counsel for the respondents is correct and that South Dublin County Council was not a necessary party to these proceedings. While its attitude to the s. 160 application might have informed the Court, there were various means by which this attitude or its general approach to the quarrying activity could have been notified to the Court. There were many ways by which the County Council could have assisted in the prosecution of this litigation without becoming a party.
19. Thus it seems to me that, as South Dublin County Council was not a necessary party to the proceedings, it ought not prima facie at least be entitled to its costs. It was a party, but not a necessary party, and it did not in my view bring any additional element to the case as litigants, which could not have been brought by the other means identified above.
20. Furthermore it seems to me that the culpable delay of the local authority in seeking orders directed to the respondents that they would cease the quarrying activity on this site is culpable, and that the considerations of delay are relevant to the exercise of my discretion in regard to costs. I regard that delay as significant and consider that it is of a sufficient degree of importance to add further weight to my conclusion that South Dublin County Council ought not to be awarded its costs of these proceedings. Accordingly I refuse the County Council its costs of the proceedings.
Application for a stay
21. Counsel for the respondents seek that any order directed to the respondents that they cease quarrying activity should be stayed. The application for a stay is made on a number of bases, and it is not merely an application pending an appeal to the Court of Appeal or the Supreme Court, as the case may be. He argues that a stay pending an appeal would not be overly prejudicial to the applicants as one would expect the appellate court to deal with a substantive claim within a period of 12 months or thereabouts.
22. He asserts that the defendant genuinely believed they were working out a pre-1964 development, and that a long stay would not cause any obvious hardship other than the absence of good order with regard to planning matters. He also argues that as the respondents have now, albeit late in the day, sought to regularise their position under a new statutory regime introduced by the European Union Environment Impact Assessment and Habitats (No. 2) Regulations 2015 S.I. 320 of 2015 under which inter alia an application by may be made for leave to apply for substituted consent, that the operative date of any order of this court should await the conclusion of that process.
23. Counsel for the respondents further argue that the respondents will be prejudiced, that fixed plant on the site would have to be dismantled, that the ten local persons directly employed on site and those for whom the operation generates indirect employment would lose their jobs, that the operating company would suffer a loss of cash flow which could be catastrophic for its survival, and more especially that the market which has been established over a long history of the operation of this quarry could be lost, and that the losses of employment, of cash flow and of the market might not be capable of remediation, even were the application under S.I. 320 of 2015 be successful.
24. The applicants contest the application for a stay and argue that the delay in concluding the proceedings has benefited the respondents and they point to my findings in that regard in the substantive judgment.
The law
25. Clarke J. in Danske v. McFadden 2010 IEHC 119 sets out the principles applicable to the exercise by the court of its discretion to grant a stay on the coming into operation of an order. That decision was given in the context of an application for a stay pending an appeal but I consider that the principles therein enunciated are applicable to the jurisdiction of the court to grant a stay, either in the event of an appeal, or in the exercise of its general discretion in regard to the coming into operation of its own order, and in the particular discretion that is in play when the court is exercising its jurisdiction to grant an injunction whether under the statutory regime provided by s. 160 of the Act or in the exercise of its equitable jurisdiction.
26. Clarke J. at para. 2.4 of that judgment expressed the general proposition that the court should “conduct a process analogous to the balance of convenience test which the court is required to apply in determining whether to grant an interlocutory injunction”.
27. He quoted with approval the words of McCarthy J. in Redmond v. Ireland & Anor [1992] 2 I.R. 362 that the court was required to “maintain a balance that justice will not be denied to either party”, and further considered that the court was obliged to consider the possible effects on both parties on the grant of a stay or the refusal to grant a stay as the case may be, and “the degree of permanency” that might result from the decision of the court.
Discussion
28. Were the application of the respondents for a stay to be merely for a stay pending appeal, then the appropriate order would be a stay pending an appeal, and once an appeal was lodged any question of a further stay would be a question for the Court of Appeal or the Supreme Court, as the case may be. The consideration of the appellate court in that case would involve consideration of the merits or genuineness of the appeal.
29. However the respondents also argue that I may, in the exercise of my general discretion in the granting of equitable relief, grant a stay and urge me to do so having regard to the long history of this site. I turn now to consider these factors.
30. The particular factors that weigh in my discretion in this case include the commercial prejudice that may be caused to the respondents by the closure of the quarry, and the wider interests of the community in the continued employment directly on the site, and those persons whose economic wellbeing is likely to be either partially or wholly impacted by the closure.
31. Another factor must be the possibility that the respondents would achieve liberty to apply for substituted consent under S.I. 320 of 2015. I am advised that the respondents have now sought such leave, but not as to when this occurred nor whether any correspondence or notices have been served by the planning authority with regard to that application.
Decision
32. Taking all of these matters into account, it seems to me correct to grant a stay, albeit a short stay, and not the stay for twelve months sought by counsel on behalf of the respondents. I take that view because the respondents have, in effect, had much longer than might have been anticipated since these proceedings commenced in 2013. The case did not come on for hearing before me until the 14th day of April, 2015, and the hearing concluded on the 23rd day of April, 2015. The difficulty that arose as a result of the error in my judgment on 16th October, 2015, took time to resolve and the matter had to be re-listed for further argument. Accordingly, the respondents have had an unexpected de facto stay on the prohibitory order which I intended to make on 16th October, 2015. They have also had the benefit of the time it took for the case to run and for me to deliver my judgment. That time must be taken into consideration in the determination of the length of any stay.
33. S.I. 320 of 2015 was promulgated on 22nd July, 2015, some six months ago, and the respondents have had since the unapproved judgement was delivered on 16th October 2015, at the latest, to seek to take advantage of a possible regularization in their planning status.
34. A further stay of two months on the order seems to me to do justice to all parties, the environment would be protected as it is mandated by statute, and the respondents would have the opportunity to seek to regularize what is now an unlawful development in that time. While I anticipate that the first respondent ought to have been in a position to give protective or other similar notice to its employees in anticipation of the conclusion of the litigation, a further two months would give those persons an opportunity to seek further employment elsewhere, or arrange their financial affairs. .
35. I will order accordingly.
