Judicial Enforcement - Planning Injunction - PDA 2024 PDF

Judicial Enforcement Planning Injunction, s. 351 PDA 2024 Standing: PA or any other person (regardless of interest) may apply to CC / HC Interim/interlocutary relief, may join co-applicants – Irish Wildbird Conservancy v Clonakilty Golf & Country Club (1996 HC); prohibitive/mand...

Judicial Enforcement Planning Injunction, s. 351 PDA 2024 Standing: PA or any other person (regardless of interest) may apply to CC / HC Interim/interlocutary relief, may join co-applicants – Irish Wildbird Conservancy v Clonakilty Golf & Country Club (1996 HC); prohibitive/mandatory injunction May order any person to carry out works (including restoration, reconstruction, removal, demolition or alteration of any structure or other feature ) May grant orders against co. directors personally – Sligo Co Co v. Cartron Bay Construction Ltd (2001 HC); Dublin Co Co v. Elton Homes (large amount taken out of co.); Dun Laoghaire Corp v. Parkhill Dev. Ltd (negligence) Burden of proving dev exempted or the existence of pp on the accused - reversal of onus of proof - s.355 Judicial Enforcement - Planning Injunction S. 351 “planning injunction” may require: Unauthorised dev not carried out / continued Land restored to prior condition (as far as practicable) Dev carried out in conformity with any PP Section 351(3)(c) - no stay/adj - applic pp or s.10 dec but court can grant stay/adj where special circumstances - conditions to discourage delay on applic pp or s.10 dec including condit requiring the cessation or restriction of the development Applic for planning injunct shall not be refused solely because of grant of pp after commencement of proceedings - effective deterrence policy s.351(3)(g) - new reverse onus of proof - respondent must prove existence of pp or that dev was exempted Rules of court may provide for a s.351 order against unknown person Judicial Enforcement Planning Injunction, s. 351 PDA Strict construction of planning injunction provisions - Mahon v Butler ; An Taisce v McTigue Quarries (No 1) Court has wide discretion to grant s351 injunction but SCt has suggested there should be ‘exceptional circumstances’ before relief withheld - Morris v. Garvey Discretion more limited where breach of EU involved – EIA, AA Judicial Enforcement Planning Injunction, s. 351 PDA 2024 Court may consider: Technicality / triviality of breach – O’Connell v. Dungarvan Energy Impact on applicant – Grimes v Punchestown Dev – not local res. Hardship to developer – Golden v Westport UDC – fire safety reqs. Conduct of dev – Curley v. Galway Corp – unauthorised landfill Conduct of applicant – O’Connor v. Frank Hetherington (1987) – funded by competitor; S. Buckhingamshire DC v. Perter – PA exercise function Public interest – Leen v. Aer Rianta – Shannon Airport; Stafford v. Roadstone – employees; Galway Co Co v. Connaught Proteins – p. health Awareness / attitude of PA – Grimes v. Punch. ; Altara Dev Ltd v. Ventola Delay - Grimes v Punchestown Dev Judicial Enforcement Planning Injunction, s. 351 PDA 2024 Less Court discretion re question of compliance with EU Law (e.g. EIA, AA) Failure to comply with s. 351 order – committal for contempt of court and/or sequestration of assets 7 year time-limit applies Application for / grant of s.351 planning injunction doesn’t preclude EA enforcement action under Part 11 Permission not required for works required under Part 11 Planning permission is not required in respect of a development required by an enforcement notice or an order under - s. 351(7). Liability for costs of injunction Normal rule – courts have discretion regarding costs (Ord 99 RSC) – general rule is that costs usually follow the event (loser pays principle) unless there are ‘exceptional’ circumstances to justify departure from this rule – high bar Aarhus Convention – Art 9(4) – ‘not prohibitively expensive’ obligation The Environment (Miscellaneous Provisions) Act 2011 – Irish implementation of Art 9(4) ban on prohibitive costs in context of Art 9(3) proceedings to enforce environmental law S. 3(1) 2011 Act sets down special costs rule for certain specified civil proceedings – modelled on S50B PDA framework which governs JR Special costs rule applies to s160 PDA planning injunction proceedings Special Cost rule – s3(1) Environment (Miscellaneous Provisions) 2011 Act Default position – each Party pays its own costs The Court has discretion to award applicant costs of proceedings or a portion of such such costs, to the extent that the applicant succeeds Court also has discretion to depart from special costs rule and order costs in other specified circumstances Special costs rule protects the applicant seeking a planning injunction from the risk of an adverse costs order and the court has discretion under s3(1) of the 2011 Act to award the successful applicant costs to the extent that he/she/it succeeds. New Legal Costs framework for Aarhus cases S.351(7) expressly provides that the court shall, unless it is satisfied there are special and substantial reasons for not doing so, order the person subject to a s.351 order (a planning injunction) to pay the costs and expenses of the action, as measured by the court. But … Part 9 of the PDA 2024 - new legal costs framework for Aarhus cases - scale of fees for costs that can be recovered and the creation of an Environmental Legal Costs Financial Assistance Mechanism (means tested legal aid scheme) - Each party pays own costs - losing (eligible) Aarhus litigant may receive contribution from Legal Costs Financial Mechanism - Successful Aarhus litigant can recover costs from respondent but limited to scale of fees Main concern is the expected low level of scale of fees - diff in obtaining legal representation Designated regional enforcement authority - Section 356 new provision under which the Minister may designate a planning authority as a regional enforcement authority designate a number of enforcement areas and classes of development to be dealt with by the regional enforcement authority, by reason of the likely size, nature or effect on the surroundings of such development.