Irish Court of Appeal

THE COURT OF APPEAL

 

Record Number:    2024 167            

 

                                                                           Neutral Citation Number [2025] IECA 57

Ms Justice Butler

Ms Justice Hyland

Mr Justice Collins

 

 

BETWEEN/

 

HARRY MCHUGH

APPELLANT/PLAINTIFF

 

- AND –

 

 

MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

 

 

RESPONDENTS/DEFENDANTS

 

 

JUDGMENT of the Court delivered on the 11th of March 2025 by Ms. Justice Hyland

Introduction

1.             This appeal brought by the plaintiff, Mr. McHugh (hereafter referred to as the "appellant") seeks to set aside the judgment and Order of the High Court (Nolan J.[2024] IEHC 191) to strike out these proceedings under O.19, r.28 of the R.S.C. and/or pursuant to the inherent jurisdiction of the Court.  The motion was brought by the defendants (hereafter referred to as the "respondents") on 30 March 2023.  It was heard in the High Court on 5 March 2024, judgment was delivered on 11 April 2024 and an appeal lodged against that decision by notice of appeal of 8 July 2024.  Because the motion was heard and determined after 22 September 2023, the day upon which the changes made to O. 19, r. 28 by S.I. 456 of 2023 came into force, the new version of O.19 r.28 applies.  For the purposes of this appeal, nothing turns on the distinction between the previous rules and the new version. 

2.             For the reasons set out in this judgment, I have determined that the proceedings should be allowed to proceed contrary to the conclusion of the trial judge. However, I uphold that part of the decision of the trial judge striking out the appellant's claim that his lands had been unlawfully compulsorily acquired.

Background

3.             These proceedings arise against the background of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) (the "Habitats Directive"), implemented in Ireland first by S.I. 94/1997 (the "1997 Regulations") and then by S.I. 378 of 2005 (the "2005 Regulations"), S.I. 346 of 2009 (the "2009 Regulations"), and S.I. 477 of 2009 (the "2011 Regulations"). The 2011 Regulations replaced the 1997 Regulations.

4.             The scheme established by the Habitats Directive has been described in detail elsewhere (see for example the discussion by Finlay Geoghegan J. in Kelly v. An Bord Pleanala, [2014] IEHC 400) and it is unnecessary in the context of a motion to strike out to describe that scheme in detail.  Suffice to say that there is a three stage process under the Directive whereby Member States shall, for the purpose of identifying sites as sites of community importance ("SCI's") which merit protection because of the presence of rare or vulnerable habitats or species , prepare a list of sites - described in the 1997 Regulations as the candidate list of European sites - indicating in respect of each such site the natural habitat type in Annex 1 to the Habitats Directive which the site hosts and the species in Annex 2 to the Habitats directive that are native to the State which the site hosts.   Under Regulation 4(2)(a), the Minister shall notify every owner and occupier of any land mentioned in the candidate list of European sites of the proposal to include the land in such a list and transmit the list to the Commission.  Regulation 5 provides for a process if the landowner or occupier wishes to object.

5.             That list is then sent to the European Commission. On receipt of that list, the Commission shall within three years of the notification of the Directive to the Member States provide a list of SCI's adopted by the Commission.  Under Regulation 9 of the 1997 Regulations, not later than six years from the date a site is adopted by the Commission, the Minister shall designate the area as a special area of conservation. 

6.             The appellant is the owner of lands in Cashelgolan, Portnoo, County Donegal which were part of a body of lands that were initially identified as a candidate special area of conservation ('cSAC') in March 1997. That body of land is described as "West of Ardara/Maas Road Site Code 000197". At that time, the lands were in the ownership of the appellant's uncle. The appellant became the beneficial owner of the lands after his uncle's death in 2002 and later became the registered owner of the lands. On 24 January 2003, the appellant was notified that his lands might be included in the proposed cSAC.

7.             On 7 December 2004, the lands in question were adopted by the European Commission as an SCI under the Directive.  Under the European Union Habitats (West of Ardara/Maas Road Special Area of Conservation 000197) Regulations 2024 (S.I. 453/2024), the area identified by reference to the mapping Schedule 1 was designated as a special area of conservation (SAC) in accordance with Article 44 of the Directive to ensure the protection of natural habitats and species in Annex I and II to the Directive, including in particular the natural habitat type and animal and plant species specified in Schedule 3 of that Statutory Instrument.  By these Regulations, the Minister has designated those lands as a special area of conservation. 

8.             In the within proceedings, the appellant seeks damages for alleged loss and damage caused to him by the designation. During the course of his long engagement with the respondents in relation to the designation, the appellant made an application in 2006 for permission to plant forestry on his lands that form part of the cSAC (and since 2024 the SAC), which the Minister refused. That refusal was based on the fact that the proposed forestry would adversely affect a significant area of the SAC. A large part of his damages claim is based on the profits he would allegedly have earned had he been permitted to plant forestry. Because the appellant represents himself, it is difficult to extract from his very long and unwieldy pleadings precisely what is the basis for his alleged entitlement to damages. He would be well advised to engage legal representatives, as he did previously, given the complexity of the claim he seeks to make. 

9.             However, in summary, his complaints appear to fall into the following categories: the failure by the respondents to approve his forestry application, the failure of the respondents  to properly engage with him in relation to the appeals process that they themselves established in respect of designation; the failure to establish that the species and/or habitats being protected were in fact on his land; the failure to establish proper procedures; and a very ill defined claim in respect of the allegedly defective transposition of the Habitats Directive by Ireland.

Related proceedings brought by the appellant

10.         The appellant has two other sets of proceedings that the respondents assert are so closely linked to the present proceedings that these proceedings should be struck out on the basis of double recovery. The first is a set of judicial review proceedings bearing record number 2022/254 JR (the "2022 proceedings"). The appellant had sought to refer his claim for compensation from the Minister to an arbitrator appointed by the Land Values Reference Committee, as provided for under Regulation 20(3) of the 1997 Regulations, discussed further below. On 3 January 2022, the arbitrator, Mr. Paul Good, notified the parties that he had concluded he did not have jurisdiction to deal with the matter and he adjourned the matter sine die on the basis that it was not a suitable matter for reference to arbitration.  By the 2022 proceedings, the appellant seeks to judicially review this decision. The appellant sought to make extensive amendments to those proceedings by but the Court was informed at the hearing of the appeal that the High Court (O'Regan J.) refused leave to amend on 20 February 2025. 

11.         By the second set of proceedings, the appellant apparently seeks to judicially review S.I. 453 of 2024 S.I. referred to above.  No record number has been provided in respect of those proceedings by the respondents, nor have either set of pleadings been put before the Court in this appeal.

Motion to strike out

12.          In summary, the grounds advanced to justify a strike out in this case are that the claims made by the appellant are predicated on erroneous and/or misconceived statements of the law i.e. that his lands have been compulsorily acquired; are statute barred; are not justiciable at the suit of the appellant; constitute a collateral attack; and amount to an attempt at double recovery of damages.

13.         The correct approach to an application to strike out all or part of a claim is well established. In Scotchstone Capital Fund Ltd v. Ireland [2022] IECA 23, the Court of Appeal summarised the various principles applicable to applications to strike out proceedings following an extensive analysis of previous case law (see para. 290). In respect of cases that are described as bound to fail, the Court concluded that they may be described inter alia as devoid of merit or are claims that clearly cannot succeed. The threshold is a high one and a court should not dismiss a case unless it is clear that it will not succeed. The jurisdiction to strike out proceedings is to be used sparingly in clearcut cases.

14.         Before a decision is made to bring a motion to strike out under O.19, r. 28, careful consideration needs to be given to the exercise that the court will be required to engage in. Motions to dismiss have the potential to take up considerable amounts of time, both of the parties and of the court, with all the attendant costs. For example, in this case, the motion led to an extensive exchange of affidavits, with four affidavits being filed on behalf of the State and three affidavits being filed on behalf of Mr. McHugh. The affidavits and exhibits for the motion alone run to over 700 pages.

15.          A matter that is either factually or legally complex is highly unlikely to be suitable for disposal by a motion to strike out.  As has been emphasised in the case law, a motion to strike out should not be treated as being equivalent to an application for summary judgment. Where complexity exists, the most appropriate course may be to press on with the substantive hearing. In this case, certain of the matters raised by the respondents  as justifying a dismissal of the case are sufficiently complex and intricate as to be quite unsuitable for disposal by a motion of this type.

Does the appellant have standing?

16.          The first issue addressed by the trial judge was whether the appellant has locus standi because the property was not his at the time of its designation as a cSAC.  The respondents' argument is that the designation occurred in 1997 when the appellant's uncle, Peter McHugh, owned the property and that the appellant therefore has no standing to challenge the designation or any of the consequences that flow from it. The respondents relied upon Cahill v. Sutton [1980] IR 269, referred to at para. 47 of the High Court judgment.  At para. 52 the trial judge concluded that when the lands were originally designated, the appellant was not the owner and if there was any merit in challenging the designation that should have been done in 1997.   The trial judge notes that "by the time the appellant became the beneficial owner in 2002, time had passed".  The trial judge concluded that the appellant did not have locus standi.  At the hearing of the appeal, counsel for the respondents changed the position his clients had adopted in the High Court and indicated that they no longer sought to argue that the appellant did not have standing to bring the claim. 

17.         Nonetheless, given that it is pleaded at paragraph 6 of the defence that the appellant lacks locus standi to bring the proceedings, I have decided to determine this aspect of the appeal. The issue raised by the motion is whether a person who acquires a legal interest in land is entitled to challenge a designation of that land made prior to his acquisition on the basis that it affects his right to deal with the land as he wishes. The requirement to demonstrate an interest as a pre-condition to litigating a matter is to prevent hypothetical cases being tried i.e. a person is not entitled to litigate a claim that does not affect him or her personally. Here, the appellant has a direct interest in challenging the designation because it restricts how he deals with his land in certain respects. Equally, he has a direct interest in the outcome of any challenge to designation. For the purpose of standing, it is irrelevant whether the designation was imposed during the period of the appellant's ownership or that of his uncle, although that might be relevant to the application of limitation periods. Moreover, the correspondence before the court shows clearly that the appellant made a compensation claim and was dissatisfied with the outcome. No argument can be made that he does not have standing to agitate that issue. In the circumstances, I conclude that the appellant has sufficient interest to bring these proceedings and the decision of the trial judge should be set aside in that respect.

Is the claim time barred?

18.          The next issue is whether the trial judge was correct in concluding that the appellant was out of time to bring these proceedings such that they should be dismissed as bound to fail. Leaving for another day the question whether it is appropriate to determine whether a claim is statute barred through the prism of an application under O.19, r.28, it is necessary to consider in a little detail the reliefs sought.  In the amended statement of claim, the first relief is as follows: "Damages for the loss and future loss of his lands 86 hectares by compulsory confiscation, taking, and exclusive dedication to a public purpose as an annexed and priority habitat SAC since 2007".  The remainder of the reliefs sought are declarations, save for a plea for the "appointment of an arbitrator under the 1919 Act" (para. 19), damages for "disproportionate interference with the appellant's right to own and enjoy his property" (para. 20) and a claim for interest (para. 33). The proceedings were very significantly amended in 2018, with 32 additional reliefs inserted as opposed to the original 2 reliefs sought in 2008.

19.         At para. 53 of his judgment, the trial judge stated that the notification of designation of the boundary changes after review and following consultation with interested parties did not give rise to a cause of action or reignite some latent cause of action, being a revision of boundaries only. He explained at para. 54 that the appellant's lands were not part of the revisions which took place in 2003 or 2006 and, if any cause of action arose, it arose to somebody who was materially affected by having their lands redesignated in 2003 or 2006, who was not the appellant. The trial judge concluded at para. 60 that the appellant's case was out of time, referring in this respect to the amendments made in 2018.

20.         Despite having lodged a respondents' notice that stood over the findings of the trial judge on the time point, at the hearing of the appeal, counsel for the respondents conceded that time in fact began to run in 2003/2004 when submissions were sought from the appellant in relation to the proposed designation of his land by the respondents and it was thus accepted that he was within time given that he had issued the proceedings in 2008. As with the previous ground, the respondents are therefore no longer seeking to stand over the decision of the trial judge. However, as with the previous issue, it is pleaded in the defence that the respondents  will rely on the statute of limitations and that the appellant is out of time. For that reason, I propose to decide this aspect of the appeal.

21.         When one considers the extensive correspondence exhibited in the affidavits, the respondents' concession comes as no surprise. A designation process is clearly ongoing in 2003/2004. There is correspondence from 2003 onwards in relation to the proposed designation and submissions are explicitly sought from the appellant in that respect.  In particular, by letter of 24 January 2003, Dr. Craigue of the National Parks and Wildlife Service wrote to the appellant indicating that it appeared that the appellant might own or use land in a cSAC and a map of the relevant candidate site was enclosed.  Dr. Craigue indicated he was directed by the Minister to notify the appellant that his land might be included on the area indicated on the map, and that he could object on scientific grounds to the inclusion of all or part of his land in the proposed SAC and he included  a booklet containing details on the procedures for objections and appeals. It was further indicated that he could continue farming in a sustainable manner but if he wished to make any change he should get the written agreement of the Minister and that compensation would be available for actual losses in income arising out of restrictions imposed as a result of the designation.  It was indicated the designation had no effect on land ownership. A similar letter was written on 4 March 2004, the only difference being that there was a reference to both the 1997 Regulations and the Habitats Directive, whereas the previous letter only referred to the Directive. 

22.         The appellant did object and various interactions took place in this respect between him and the respondents, the details of which need not be set out here.  Contrary to what is identified in the decision of the trial judge, the 2003 notification was not in relation to a revision of the boundaries or certainly not exclusively in relation to boundary revisions.  The notification of revision took place by letter of 4 December 2006, where there was some revision to the candidate SAC 000197 as identified in the letter from Ciaran O'Keefe of the National Parks and Wildlife Service.  That letter indicates that in 2003, the maps of the West of Ardara/Maas Road cSAC were published but in August 2004 the government and farming organisations negotiated a new agreement on SAC boundaries for rivers.  It is pointed out that the farmland included within site 000197 is now greatly reduced from the cSAC proposed in 2003.  Again there is an identification of the entitlement to appeal and a legend that designation has no effect on land ownership.  A detailed scheme of compensation is set out at p. 9 of the accompanying booklet.  Under the heading "Compensation for Actual Losses Occurred", it is pointed out that if an offer of compensation is issued and the applicant is dissatisfied, the case will be referred to an independent arbitrator who will review the matter and make a final decision.

23.         On 8 December 2006, in what is described as an "informal appeal", the appellant's proposal that 60 of his hectares would be excluded from the cSAC was refused on the basis that the lands at Cashelgolan included 2 priority habitats, being fixed dunes with herbaceous vegetation and blanket bog, as well as other annexed habitats.  The recommendation was that the area contained a diverse range of both coastal and terrestrial habitats, including two priority habitats which were in excellent condition and there were no scientific grounds for excluding it from the cSAC. This conclusion was arrived at following a site visit on 5 February 2004.

24.         It appears that the trial judge was under the mistaken impression that there had been a final decision to designate the lands in 1997, and was not brought to the correspondence in 2003/2004/2006 referred to above, which gives quite a different picture and strongly suggests that time only began to run from that period. However, it is true that many of the matters in respect of which the appellant now seeks damages were only identified in 2018. Attempting to disentangle those claims that may be statute barred from those that may not be is a complex task and one that is entirely unsuitable for determination in the context of an application under O.19, r. 28. For that reason, I uphold the appeal in respect of this ground, and conclude that the appellant's claim cannot be treated as bound to fail at this stage. This matter can be dealt with at trial if the respondents decide to rely upon the pleas in their defence in this regard.

25.         The position in respect of the wide range of declaratory reliefs that the appellant seeks (introduced for the first time in 2018) is undoubtedly more nuanced. Certain of those reliefs would normally be sought in the context of judicial review proceedings and thus subject to the normal 3 month time limit under O.84 R.S.C. The respondents have pleaded at para. 5 of their defence that, insofar as the appellant appears to seek judicial review of the lawfulness of decisions or actions of the first named defendant, any other Minister of government, the property arbitrator and/or the Land Values Reference Committee, the appellant has failed to comply with the requirements of O. 84 of the R.S.C.  That argument was recited by the trial judge at para. 45 of his judgment.  However, presumably because of his conclusions on the other issues before him in the context of the motion, he did not rule on whether the declaratory reliefs sought were out of time as opposed to the action for damages.

26.         In the respondent's notice, the respondents have identified certain additional grounds on which the decision of the trial judge should be affirmed. However, they have not argued that the decision should be affirmed on the basis that the declaratory type reliefs sought are out of time.  This issue is not before the court on this appeal and therefore it is not proposed to determine it.  Suffice to say that, since it has been pleaded in the defence, it will no doubt will be dealt with at the substantive hearing of the action and the respondents may raise it at that stage. I pause to observe that it is a question of some complexity, since it may involve a consideration of the type of damages claim that is at issue, and the extent to which such a claim encompasses an action for illegality giving rise to a claim for damages.

Collateral Attack

27.         The next ground advanced by the respondents to justify a dismissal is that the appellant is launching a collateral attack on the Directive and its implementation in Ireland through the proceedings.  That matter was not decided by the High Court judge. Contrary to the position in relation to the time point, the respondents put forward as an additional ground on which the decision should be affirmed based on the fact that the proceedings comprised a collateral attack on the decision of the property arbitrator to refuse jurisdiction, on the designation proposal of the cSAC pursuant to the 1997 Regulations and on the transposition of the Habitats Directive.  However, at the hearing of the appeal, on it being put to counsel for the respondents that, far from the proceedings being a collateral attack on the implementation of the Directive and the designation of the appellant's lands, they were in fact a direct attack on same, counsel for the respondents  indicated that this ground was no longer being pursued.  In the circumstances, this ground of appeal need not be considered further. 

Double Recovery

28.         Finally, the respondents argued that the appellant was seeking double recovery and that in those circumstances the proceedings should be dismissed since, in the 2022 and 2024 judicial review proceedings, he was seeking the same or similar relief.  At para. 62 the trial judge referred to the 2022 judicial review proceedings and concluded that the appellant was litigating two cases which had as their purpose the award of compensation to him in relation to the same matter which gives rise to the risk of double recovery.  At para. 68 he found that the appellant was seeking double recovery by litigating the same matter in different proceedings and observed that was not permissible.

29.         I have already referred to the fact that neither of the two sets of proceeding have been exhibited or put before the court, making it extremely difficult, if not impossible, to adjudicate fairly on this ground of appeal.  There is no doubt that there is a multiplicity of proceedings brought by the appellant, all of which arise out of the same set of facts, and that there is considerable confusion between the reliefs sought in the different proceedings, presumably because the appellant is no longer legally represented. However, bearing in mind the high threshold that must be surmounted in order to dismiss proceedings, when one digs down into the two sets of judicial review proceedings (to the extent that is possible given the absence of the pleadings), it appears that the respondents have not met that threshold. On the basis of the description of the 2022 judicial review proceedings, the appellant is seeking to judicially review the decision of the arbitrator to adjourn the proceedings on the basis that they were not properly before him.  Even if he is successful in those judicial review proceedings, the extent of the relief the appellant can obtain is to quash the decision of the arbitrator to adjourn the matter, and a remittal back to the arbitrator. Even if the arbitrator accepted that the matter was a suitable one to be heard before him, the height of the relief the appellant is entitled to is compensation under Regulation 20(3) of the 1997 Regulations i.e. for the refusal of consent to an operation under Chapter III of the Regulations. The arbitrator has no jurisdiction to adjudicate upon other claims made in these proceedings i.e. for the alleged loss caused by the decision to designate the appellant's lands for the purpose of the Regulations or the alleged failure to transpose the Habitats Directive adequately.

30.         Therefore, even on a superficial analysis, it is not possible to conclude that these proceedings which are, at this stage, quite well advanced, should be dismissed on the basis that they effectively pursue the same reliefs as those sought in the 2022 judicial review proceedings since they go considerably beyond the reliefs sought there. However, it is true that the point of the reference to arbitration appears to be to obtain compensation for the refusal of the Minister to permit the appellant to plant forestry and/or to designate the appellant's lands. The same relief is sought in these proceedings. Therefore, as a matter of logic, it would seem sensible that these proceedings, which encompass the compensation claim as well as other issues, would be determined before any further steps are taken in the 2022 judicial review proceedings given the degree of overlap between the two sets of proceedings.

31.         Insofar as the 2024 proceedings are concerned, these seem to be directed at quashing S.I. No. 453 of 2024. It was not clear whether any argument was made to the trial judge in respect of these proceedings, and he certainly made no finding in that regard. Nor is it included in the additional grounds on which the decision should be affirmed in the respondents' notice. They are therefore not part of this appeal and I do not propose to deal with them.

32.         There was also an attempt made to argue at the hearing of the appeal that, because of the way in which the appeal process proceeded, the appellant had failed to exhaust his remedies - although it was not put in that way - and that, in particular, he had failed to take up an offer of the internal Ministerial appeal procedure being made available to him in 2015 on a without prejudice basis.  This is an issue that may well go to the conduct of the proceedings and/or costs, but it certainly does not appear to be a basis for dismissing the claim. In any case, no finding was made in this respect by the trial judge and it was not one of the additional matters upon which the decision of the trial judge was sought to be affirmed. In the circumstances, I do not propose to deal with this argument.

Compulsory acquisition

33.         Finally, para. 57 of the respondents' written submissions argue that the proceedings fail to disclose a reasonable cause of action insofar as the appellant argues in his proceedings that designation as a cSAC involves compulsory acquisition for which he must be compensated.  It is argued that the appellant has claimed under the Acquisition of land (Assessment of Compensation) Act 1919 for compulsory acquisition of property rights by designation, and reference is made to the appellant's conclusion at para. 12.1 of his submissions where he asks whether the Minister executed a compulsory acquisition of the disputed lands.  Paragraph 59 of those submissions argue that the action is bound to fail where it hinges entirely on a fundamental misconception about the 1997 Regulations that the effective designation of the lands as forming part of a cSAC constitutes a form of compulsory acquisition for which he must be compensated, which error permeates the entire case as pleaded.  At paragraph 16 of the defence it is pleaded that the designation of a site as a cSAC does not entail the compulsory acquisition of land and has no effect on land ownership and that it is denied that the appellant's lands were compulsorily taken by designation as a cSAC.  Paragraph 31 of the defence pleas that the appellant was not entitled to the appointment of an arbitrator under Regulation 20(3) of the 1997 Regulations or under the Acquisition of Land (Assessment of Compensation) Act, 1919 as alleged at para. 34 of the statement of claim. 

34.         The trial judge did not rule upon those matters. However, in the Respondent's notice of appeal, one of the additional matters upon which it was argued that the decision of the trial judge should be affirmed was that the proceedings were framed on the fundamentally misconceived premise that, by virtue of the lands concerned being included in a cSAC, they have been compulsorily acquired.

35.         Under the 1997 Regulations, Regulation 20(3) provides that any claims for payment of compensation under the Regulation shall in default of agreement be determined by arbitration under the 1919 Act and s. 69 to 83 of the Land Clauses Consolidation Act, 1845 as if the claims arose in relation to compulsory acquisition of land.  The Minister therefore selected the mechanism used to determine compensation in respect of the compulsory acquisition of land as a means for determining compensation under the Regulations, either for a refusal to consent to an operation/activity on lands that have been designated or the modification/revocation of a lease or licence (see Regulation 20(1)(a) and (b)).

36.         The appellant has availed of this option and has sought to refer a compensation claim to arbitration. However, possibly because the reference mechanism is primarily used in the context of compulsory acquisition, he has also argued in his pleadings that his lands have been compulsorily acquired. For example, at paragraph 5 of the amended statement of claim, it is pleaded that on or around 4 March, 2004 the first named defendant, his servants or agents, formally notified the appellant of their intention to compulsorily take by designation 86 hectares of the appellant's land as cSAC incorporating 100% exclusive control subject to objection and appeal, and issued a list of notifiable actions that would require the first named defendant's future consent.  At paragraph 23 it is pleaded that "the first named defendant asserted their power to exclude the lawful owner which coupled with 100% exclusive control of the appellant's property (86 Ha) legally confirmed the first named respondents (sic) legal possession and compulsory confiscation of the appellants (sic) lands by an act of law".  At paragraph 25 it is pleaded that the first named defendant "served a compulsory acquisition notice in the form of a legal mechanism/ instrument "Notice of intention to designate West Ardara/Maas Road SAC" on 4 December, 2006.  At paragraph 30 it is pleaded that the first named defendant "transmitted details of legal possession of 86 Ha of the appellants (sic) land to the European Commission as a European asset voiding all the appeals previously filed by the appellant against designation".  At paragraph 32 there is a reference to the compulsory taking of the lands and a compulsory acquisition notice, at para. 35 there is a reference to compulsory taking and at para. 62, the letter of 4 December 2006 is referred to as being a compulsory acquisition notice.  At para. 76 it is pleaded that the first named respondents have neglected to pay any form of compensation for taking full legal possession and confiscating 86 hectares of the appellant's land. 

37.         Clarke J. in Keohane v. Hynes [2014] IESC 66 explains the approach a court may take in respect of factual allegations. At para. 6.8 he observes as follows:

6.8       What the Court can analyse is whether an appellant's factual allegation amounts to no more than a mere assertion, for which no evidence or no credible basis for believing that there could be any evidence, is put forward.  ...

6.10   ... [I]t is an abuse of process to maintain a claim based on a factual assertion in circumstances where there is no evidence available for that assertion and, importantly, where there is no reasonable basis for believing that evidence could become available at the trial to substantiate the relevant assertion. 

38.         Insofar as the appellant's claim is based on an assertion that the land has been acquired either under the scheme of the 1919 Act or in some other way, there is no basis in fact or law for such a claim. His lands have not been acquired, either on a compulsory basis or in any other way. They remain within his ownership. None of the hallmarks of compulsory acquisition are present: there is no compulsory purchase order, no notice to treat, no notice of entry and no entry into possession by the respondents. Thus I am satisfied that the pleas in respect of the land having been acquired are mere assertion, for which no evidence or no credible basis for believing that there could be any evidence, is put forward.  Rather they seem to be based on a fundamental misunderstanding of the concept of compulsory acquisition. Nothing that was said by the appellant at the hearing of the appeal gave me any reason to believe that he could sustain either in fact or law his assertion that his land had been compulsorily acquired as that term is understood in law, i.e. the subject of a compulsory purchase order under the applicable legislative framework.

39.         In all of those circumstances, any claim based on the appellant's lands having been compulsorily acquired is bound to fail. To that extent I would accede to the respondents' application to affirm the decision of the trial judge on the basis that, insofar as the proceedings are premised or include pleas that the lands have been compulsorily acquired, that claim is bound to fail and therefore should be excised from the pleadings and should form no part of the case as it goes forward.

40.         I therefore direct that the appellant provide a copy of the plenary summons and amended statement of claim to the respondents within 21 days of the Order of this Court on this motion with all references to compulsory acquisition/purchase, or loss of ownership or taking of the appellant's lands, struck through so the deletions can be identified. For the avoidance of doubt, the appellant is not entitled to add anything to his pleadings as part of this exercise.

41.          On the other hand, the appellant is entitled to continue with the claim made that his property rights under the Constitution have been affected by the designation to the extent that such a claim may be found within the existing pleadings. It will be for the trial judge to consider the extent, if any, of the impact on his property rights of designation, and the legal consequences, if any, of any such impact. It is of course well established that the use to which land can be put may be limited by law, an obvious example of this being the planning code. Nonetheless, this argument cannot be treated as one that is bound to fail at this stage of the proceedings.  

Obligations under the Habitats Directive

42.         Finally, the trial judge found at paragraph 59 of his judgment that the Member State is not obliged to carry out an examination of the appellant's land before it is designated.  He goes on to say that he cannot agree with the appellant's interpretation of the requirement on the respondents to furnish him with actual evidence of the various species which may or may not be on his land or its habitat.  At paragraph 69 he finds that the respondents were not obliged to identify the species on the appellant's property and therefore no cause of action arises from the fact that they were not so identified.

43.         Although submissions may have been made by counsel and the appellant on these issues in the context of explaining the background to the motion, these were not matters that required to be decided by the trial judge in the context of the application to dismiss. In fact, as referred to earlier in this judgment, the appellant's lands were examined in the course of the designation process and the species justifying designation were identified to the appellant. As to whether the respondents had obligations in this respect, it is likely that the trial judge will be obliged to grapple with that question at the substantive hearing of these proceedings. Accordingly, those questions should not be treated as having been determined by the trial judge.  

Conclusion

44.         For the reasons set out in this judgment, the appeal will be allowed, save that the part of the appellant's claim that asserts a compulsory acquisition, compulsory purchase or an acquisition or taking of all or part of his lands the subject of the cSAC shall be dismissed as bound to fail.  I propose the appellant be entitled to 80% of his expenses of defending this motion in the High Court, and bringing this appeal. I do not propose to make any Order on costs, the appellant having no legal representation.  If either of the parties wish to contend for any other Order, I will allow a period of fourteen days from the date of delivery of this judgment within which either of them may file and serve a short written submission (not to exceed 1,500 words).

45.         Because the appeal is, largely, being allowed it follows that the costs order made against the appellant in the High Court will also be set aside.  However, the Court has some serious concerns about that costs order and the manner in which it came to be made.  The appellant indicated that at a costs application subsequent to the delivery of judgment in the High Court, he applied for a "protective costs order" under the Aarhus Convention.  The appellant informed this Court that the High Court judge said he was not familiar with the Aarhus Convention and made a costs order on the basis that it would be a matter for the Court of Appeal to rectify if he was wrong to do so.

46.         Under Article 9 of that Convention contracting states (of which Ireland is one) must ensure that persons wishing to challenge certain types of environmental decision making have access to a review procedure to challenge, inter alia, the acts of public authorities and that that procedure must be "not prohibitively expensive".  Article 9 of the Aarhus Convention was given legislative effect in the EU in the Public Participation Directive 2003/35/EC (and subsequent directives) and in this jurisdiction by a range of different statutory provisions.  Most of the domestic provisions operate by providing that an order for costs shall not be made against an unsuccessful litigant in a qualifying environmental case unless certain exceptional circumstances, apart from having lost the litigation, exist.

47.         A protective costs order is one which is usually applied for at an early stage in litigation before substantial costs have been incurred.  It is designed to ensure that the applicant can proceed with the litigation secure in the knowledge that if it is unsuccessful he will not be made personally liable for the other side's costs. Obviously when the litigation is over - as it was on foot of the High Court order striking it out - it would not be appropriate to apply for a protective costs order. However, the appellant's basic premise - that he should be entitled to costs protection under the Aarhus Convention - is potentially correct even if he incorrectly identified the type of costs order he needed to secure that protection.

48.         It would of course always be open to the respondents to dispute the appellant's entitlement to costs protection under the Aarhus Convention or the relevant domestic legislation.  This approach does not appear to have been adopted. Instead, the respondents do not appear to have made any submission regarding the Aarhus Convention and allowed the trial judge proceed on the mistaken premise that it did not make a difference to the usual rules as to costs under Part 11 of the Legal Services Regulation Act 2015.  Consequently as the appellant had lost the motion and the proceedings were struck out, he made an order for costs against him.

49.         This was not an appropriate stance for the respondents to take, particularly as the respondents in these proceedings are, effectively, the State and the appellant is a litigant in person. There is an onus on parties appearing before a court and on their legal representatives to present or oppose applications fairly.  That in turn requires that a trial judge be correctly advised as to the law and its potential relevance to any decision that he or she is proposing to make. In this case as these are environmental proceedings the appellant correctly identified that the Aarhus Convention could have a bearing on the High Court's jurisdiction to make a costs order against him.  The respondents should have advised the trial judge, who was clearly unaware of the Convention, that this was in fact correct, subject of course to any specific argument they might have wished to make as to why it might not apply in the particular circumstances.

50.         This is not a criticism of the trial judge for not being aware of the Aarhus Convention. No judge can be expected to be familiar with every area of the law and this is quite a specialized area in which few will have practised before appointment as a judge. Rather, it is to emphasise the duty on legal practitioners, and especially those acting on behalf of public authorities which are themselves subject to a duty of candour, to ensure that a judge is "kept right" on the law and not led into error by the failure to draw something relevant to the judge's attention. 

51.         As this judgment is being delivered electronically, Butler and Collins JJ. have authorised me to say that they agree with it.