THE SUPREME COURT
[Appeal No: 451/2010]
Denham C.J.
O’Donnell J.
Clarke J.
Dunne J.
Charleton J.
McCaughey Developments Limited
Applicant
Respondent
and
Louth Environmental Group
Moving Party/Appellant
and
Ireland and the Attorney General
Respondents to the Application
Judgment of Mr. Justice Clarke delivered the 24th February, 2017.
1. Introduction
1.1 The somewhat unusual description of the parties in the title of this case stems from the unusual nature of the application which gives rise to this judgment. In these proceedings generally the applicant (“McCaughey Developments”) sought to challenge a provision in the Dundalk and Environs Development Plan which provided for rezoning of lands apparently owned by McCaughey Developments. When the matter was before the High Court, a Mr. John Conway, acting on behalf of the moving party/appellant (“L.E.G.”), sought to be joined in the proceedings. On the 6th December, 2010 the High Court (Hanna J.) refused to make the order sought. L.E.G. appealed to this Court against that refusal. However, very little was done to progress the appeal. In the context of measures adopted by the Court to seek to progress stale appeals the matter was listed before the Court. Mr. Conway indicated that he wished to bring an application both in this appeal and in another appeal in which he was personally the appellant (Conway v. Ireland & ors Appeal No. 374/2010) for the purposes of seeking an order which would require the respondents (“the State”) to make provision for legal aid for both appeals. In that regard reliance was placed on the provisions of the Aarhus Convention.
1.2 Subsequently, motions seeking that relief were brought in both this appeal and the Conway appeal. Both applications were listed for hearing on the same day. The Court is also giving judgment today on the application in the Conway appeal.
1.3 However, at the commencement of the hearing, it was suggested by counsel on behalf of the State that these proceedings were moot and were not of a type where the Court ought, exceptionally, entertain an appeal in moot proceedings. Having heard counsel for the State and counsel for L.E.G. on that question, the Court ruled that the appeal was indeed moot and that there were no exceptional circumstances which would justify a hearing of the appeal itself. In those circumstances the Court ruled that no useful purpose could be served by considering whether L.E.G. might, theoretically, be entitled to some form of order relating to the provision of legal aid in the context of an appeal which was not going to proceed.
1.4 However, the Court indicated that it would give its reasons for coming to that conclusion at a later stage. This judgment is directed to the reasons why I supported the Court’s findings on mootness and the consequences thereof.
2. Background
2.1 The underlying proceedings were commenced on the 29th April, 2010 by McCaughey Developments in which they sought to challenge, by judicial review, the zoning of certain lands by the respondent (“Dundalk Town Council”) in the Dundalk and Environs Development Plan 2009-2015. McCaughey Developments claimed that aspects of that development plan had been adopted in breach of fair procedures which contention was disputed in a statement of opposition filed by Dundalk Town Council.
2.2 On the 28th October, 2010 L.E.G. issued a motion seeking to be joined as a party in the proceedings. As already noted that application was refused by Hanna J. on the 6th December, 2010. L.E.G. filed an appeal to this Court on the 22nd December, 2010. However, L.E.G. did not seek either to postpone the hearing of the underlying proceedings in the High Court pending the determination of this appeal nor did L.E.G. apply to this Court either for a form of stay or other order which would have had the same effect or for an order or direction seeking to have this appeal expedited so that it could be decided in time for L.E.G. to participate in the proceedings in the High Court should it be successful on its appeal.
2.3 It, therefore, followed that the trial of the underlying proceedings progressed in the ordinary way and was the subject of a so-called telescoped hearing before Hedigan J. in the High Court. By virtue of the somewhat complex procedures introduced in respect of judicial review challenges in many types of environmental cases the courts were faced with often difficult situations where there was a risk of a substantive leave application followed by a substantive hearing. In such circumstances the courts often, normally with the agreement of the parties, adopted the procedure of conducting a telescoped hearing in which both leave and substantive issues were dealt with sequentially at the same hearing. In any event Hedigan J. rejected some of the grounds relied on by McCaughey Developments but did accept that there had been a denial of fair procedures in the particular circumstances of the case. It followed that the decision of Dundalk Town Council in respect of the relevant zoning was quashed and the zoning issue in question was remitted back to the local authority for further consideration. Neither side sought to appeal the decision of Hedigan J. so that the decision concerned has now stood for a period of in excess of five years.
2.4 Furthermore, as a result of the decision of Hedigan J., Dundalk Town Council was required to carry out the statutory process applicable to the zoning issues which had been remitted to it. That process does, of course, provide for full public participation. The relevant process was conducted in accordance with law with the relevant zoning proposal put on public display between the 20th July, 2011 and the 17th August of that year. L.E.G. participated in that public consultation or participation process. At the end of that process a final plan was made and no challenge has ever been brought to the validity of the plan in the form adopted after that second court directed process.
2.5 Furthermore, by the time the matter came before this Court in the manner just described, the relevant Dundalk and Environs Development Plan was coming to its natural end and was in the course of being replaced by a new plan which in turn required a full process of public participation. It was in those circumstances that counsel for the State argued that the appeal was moot.
3. Reasons
3.1 It seemed to me that the appeal in which L.E.G.’s application in respect of legal aid was brought was moot for at least two reasons. First the purpose of the appeal was to overturn the decision of Hanna J. refusing L.E.G. leave to participate in the underlying proceedings and thus its only object could have been to secure that L.E.G. would be able to so participate. However, those proceedings had come to a conclusion over five years before L.E.G.’s application to this Court for legal aid. No useful purpose could possibly have been served by hearing the substantive appeal, for even if L.E.G. were correct in its view that it should have been permitted to participate (and I would wish clearly to emphasise that I am expressing no view one way or the other on that potentially important question), there was no practical way in which L.E.G. could now actually participate in these proceedings. It would have been, of course, wholly inappropriate to attempt to undo the result of the proceedings in the High Court not least because that result led to a further public participation process and a zoning decision which no-one has suggested was unlawfully arrived at. All of those events happened five years ago and it would be not only inappropriate but also impractical to even attempt to undo that process at this remove. The proceedings have been concluded and legal certainty requires that the result of those proceedings now be respected.
3.2 It also has to be noted that much of the reason for that state of affairs lies with L.E.G. itself. It did not suggest that the High Court proceedings should be delayed in order to allow it to progress its appeal. It did not suggest to the Supreme Court that the appeal might be expedited so that a decision could be taken prior to the anticipated hearing date in the High Court. Indeed it took no steps to progress its appeal to this Court.
3.3 It might, of course, be said that the very point which L.E.G. now wishes to argue, concerning the absence of legal aid, placed it at a disadvantage in being able to make an appropriate application to either the High Court or this Court which might have led to a determination of this appeal prior to the High Court case going ahead. But there was surely nothing to prevent L.E.G. bringing this application in respect of legal aid immediately after it had filed its appeal. If that had been done it was at least realistic to expect that the Court would have given that application an early hearing and would also have been prepared to consider expediting the substantive appeal irrespective of the result of the legal aid hearing. It follows that there was no practical reason why arrangements could not have been put in place which might have allowed this appeal to be determined in advance of the High Court hearing. The reason why that did not happen was that L.E.G. did not seek to invoke any of the procedural measures which might have facilitated such a situation and, perhaps equally if not more importantly, did not seek to bring the legal aid type application which it has now brought until so long after the High Court proceedings had concluded that there was no longer any conceivable basis for re-opening them.
3.4 There is, however, a second and even more fundamental reason why I considered that this appeal was moot. Even if there might have been some circumstances where a court might have been prepared to consider re-opening the underlying proceedings, the particular delay which occurred by reason of LEG’s inaction on this appeal led to a situation where the very development plan which it sought to uphold (by opposing McCaughey Developments challenge) had in any event come to a natural conclusion. The zoning of all lands of the planning authority concerned will henceforth be determined by a new development plan which will stand or fall on its own merits. The appeal was, therefore, in my view, doubly moot and I fully supported the Court’s view to that effect.
3.5 Counsel for L.E.G. did accept that there were considerable difficulties with the situation in which he found himself. However, in the legal submissions filed it was indicated that the application for legal aid type relief raised important questions which should be answered even if the proceedings were moot. There is no doubt that there are certain circumstances where a court may properly consider a moot question which is important and likely to arise again. However, it is also important to emphasise that courts are often properly reluctant to determine important issues outside the context of a particular live case. For the reasons set out in the judgment of this Court given today in the Conway appeal, the question of whether a party may be entitled, in some circumstances, to legal aid, in the context of proceedings potentially involving issues under either the Aarhus Convention or the Public Participation Directives, by which the European Union gave effect to its obligations as a subscribing party to that Convention, gives rise to issues which are important, complex and difficult. In those circumstances it is appropriate that they should only be determined in a concrete case where those issues have the potential to actually affect the outcome. For that reason it did not appear to me that this appeal would be an appropriate case for the Court to consider those difficult and important issues notwithstanding that L.E.G.’s appeal was clearly very moot, so that no useful end could be served by making provision for legal aid.
3.6 For those reasons I fully supported the view of the Court that this appeal itself was moot and that, therefore, no useful purpose would be served by considering whether L.E.G. might have been entitled to any form of order concerning legal aid to assist it in pursuing what has become a moot appeal.
4. Conclusions
4.1 For the reasons set out in this judgment I supported the view of the Court, already enunciated, that the appeal brought by L.E.G. against the refusal of Hanna J. to permit them to participate in the underlying proceedings was moot. I have also set out the reasons why I supported the Court’s view that this was not one of those exceptional cases where it might be appropriate for the Court to entertain an appeal even though it was moot.
4.2 Given that there was no basis, therefore, on which this underlying appeal could proceed, I agreed with the view of the Court that no useful purpose would be served by entertaining an application in respect of possible legal aid which related to an appeal which could not go on in any event. In those circumstances I agreed that it was appropriate both to refuse the application then before the Court and also to treat the substantive appeal as moot with the result that the appeal should be dismissed.
