A company's conduct of its action over being refused permission for a waste incinerator in Co Cork amounted to an abuse of process and it must pay the substantial legal costs of a residents' group and An Bord Pleanála, the High Court has ruled.
While Indaver NV, trading as Indaver Ireland, withdrew its judicial review challenge on the eve of hearing last October, its conduct of the case allowed the legal costs of the Board and residents escalate almost as if the case was going to full hearing, the President of the High Court, Mr Justice Nicholas Kearns, said.
While Indaver would ordinarily be protected under Planning and Development Act 2000 from a costs order against it, the court would apply a special provision of that Act permitting an award of costs against a party due to the manner in which it conducted proceedings, he ruled.
That provision - Section 50B.3 - encompasses unnecessary prolonging of proceedings when the party no longer has a bona fide belief in its case, he said.
Section 50B was inserted following a European Court of Justice finding in 2009 that Ireland had failed to fulfil certain "access to justice" measures aimed at ensuring it is not prohibitively expensive for the public to seek judicial review regarding major development projects with potential to seriously affect the environment.
Chase (Cork Harbour Alliance for a Safe Environment) participated in the planning process concerning Indaver's application and the judicial review action "at very great personal and financial cost to its members and the communities supporting it", Mr Justice Kearns said.
The Board had refused permission in June 2011 for the hazardous and non-hazardous waste to energy facility proposed by Indaver for Ringaskiddy. Indaver initiated judicial review against An Bord Pleanála in July 2011, Chase was joined as a notice party in October 2011 and the case was listed for hearing on October 23rd 2012.
In its action, Indaver claimed material changes to the waste management plan for Co Cork occurred before An Bord Pleanála refused permission but those changes were not taken into account by the Board. On October 12th 2012, it indicated it was seeking a waste management plan evaluation referred to in Council minutes of September 2012.
The Board claimed the judicial review was an attempt by Indaver to persuade the Board the policy context favoured a grant of permission when Indaver could have achieved the same outcome by making a fresh application for permission.
Indaver had confirmed it intended to lodge a third application for permission for the incinerator development and in August 2012 asked for pre-application consultations with the Board. The Board replied Indaver should bring a fresh planning application if it considered the context had changed but Indaver did not do so until the eve of hearing.
The board alleged Indaver, from the time the Board filed its opposition to the case in February 2012, had no intention of continuing with its case. Mary O'Leary of Chase claimed it did not have the resources to actively participate in the process surrounding a third planning application by Indaver.
Today, Mr Justice Kearns found Indaver delayed in applying for an adjournment of the case on grounds "supposedly new evidence" had come to light - a waste management plan evaluation document referred to in minutes of Cork County Council in September 2012. That evaluation document later became the reason for withdrawing, not continuing, the action, he said.
He found Indaver prolonged the case without intending to continue it and withdrew it "at the last moment". Indaver had no bona fide belief in the case after September 10th 2012 and its conduct of the case after that "can only be seen as an abuse of the court process", he found.
Garrett Simons SC, for Indaver, asked for a certificate permitting appeal of the costs order and the judge adjourned that issue for argument at a later date.
