The Court of Appeal has upheld a protective costs order in proceedings over the operation of a quarry at Ballinscorney Upper, Brittas, Co Dublin, near the Dublin/Wicklow border. The court dismissed an appeal by Shillelagh Quarries Ltd and five named individual respondents against the order made by the High Court.
Michael McCoy and South Dublin County Council brought proceedings under section 160 of the Planning and Development Act 2000. McCoy contends that the quarry is operating without required planning permission. The quarry respondents admit they have no permission, but say one is unnecessary because the quarry operated continuously before the relevant 1963 planning legislation and its use has not intensified since then.
That planning-permission dispute remained unresolved in this appeal. The Court of Appeal said the High Court was due to hear it over two weeks beginning on 15 April 2015. The issue before the appeal court was whether the proceedings came within the protective-costs provisions of the Environment (Miscellaneous Provisions) Act 2011, and whether the High Court could make such an order at that stage.
The court held that section 4 of the 2011 Act covered proceedings seeking to enforce a statutory requirement, including the alleged requirement to obtain planning permission. It said the High Court could determine the costs-protection question before the underlying planning dispute was decided. Requiring a final decision on the main case first would undermine the purpose of allowing litigants to know the costs risk in advance.
The court also upheld the High Court’s assessment that McCoy had a reasonable prospect of success, taking account of the site’s litigation history. Earlier decisions concerning the quarry had addressed planning permission and intensification, but the Court of Appeal did not determine the current planning dispute.
McCoy’s evidence about his finances was brief: he said he was in full-time education and was not a person of substantial means. The court noted that he had not provided fuller financial details or addressed any fee arrangement with his lawyers. However, those matters were not disputed by the quarry respondents, and the court concluded the omissions were not fatal in the circumstances.
The Court of Appeal dismissed the appeal. Its decision upheld the protective costs order; it did not rule on whether the quarry’s operation was lawful, whether it had caused environmental damage, or the ultimate outcome of the section 160 proceedings.