Court of Appeal: Not ‘independent research’ for judge to compare material hyperlinked in expert report to briefing note

About this case:

• Citation:
  [2024] IECA 46
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Nuala Butler

Delivering judgment for the Court of Appeal, Ms Justice Nuala Butler stated: “If material is hyper-linked in an expert’s report, then it constitutes part of the reference material upon which the report is based and a court is, at very least, entitled (if not expected) to look at it where it has concerns regarding the content of the report itself. This is not ‘independent research’ but rather an attempt to understand an expert report in its own terms.”

Background

The appellant, Stateline Transport Limited, occupied a site in Ballymun owned by the respondent, Tesco Ireland Limited, since January 2020. Shortly after entering occupation, the appellant launched a commercial operation involving the storage of thousands of freight containers for which it had no planning permission.

Following the issuing of a warning letter on 7 December 2020, the planning authority served an enforcement notice under s.154 of the Planning and Development Act 2000 (as amended) (PDA) in August 2021. The respondent advised the appellant that its non-compliance with the enforcement notice was a breach of its lease which could lead to its forfeiture.

On 29 July 2022, the respondent issued proceedings seeking reliefs for the cessation of the storage operation pursuant to s.160 of the PDA.

The parties settled the proceedings the day prior to hearing, with the appellant consenting to an order requiring the cessation of the unauthorised use and the execution of a deed of surrender of the lease. The terms of settlement also provided that whilst it was a matter for the court, Tesco would consent to the respondent’s application for a stay on the order for a period not exceeding 5 October 2024.

The hearing was adjourned to allow the appellant to file affidavits in respect of its stay application, with Mr Justice Garrett Simons directing inter alia that the Attorney General and the planning authority would be put on notice that the appellant was invoking the public interest in support of its stay application.

The appellant’s affidavits stressed the importance of the appellant’s business to the Irish transport logistics infrastructure, a contention supported by inter alia the affidavit of the appellant’s economics expert.

The High Court

In the course of hearing the stay application, the court considered the principles in Meath County Council v. Murray [2018] 1 IR 189, relying upon Leen v. Aer Rianta [2003] 4 IR 394 as requiring factors in addition to the public interest to support the grant of a stay where it has been established that an unauthorised development has taken place.

The court also examined the economist’s report, noting that as per Duffy v. McGee [2022] IECA 254, it was not obliged to accept the evidence of any expert, even where their evidence was uncontradicted by the other parties.

The court made the orders consented to by the parties and refused the 12-month stay requested by the appellant, instead allowing six weeks for removal of the containers from the lands. The court stated that the public interest could not prevail where the development was wholly unauthorised having no planning permission, and that the public interest in this context “is only effective when combined with an additional discretionary factor”.

The appellant appealed on the basis that the court’s requirement for factors additional to the its claimed public interest was an incorrect application of Murray, as to the weight that should have been attached to the uncontradicted expert testimony adduced, and asserted that the court erred in the weight that it attached to the respective positions of the planning authority and of Tesco, and the extent to which it took into account the concerns expressed by the planning authority.

The Court of Appeal

Ms Justice Butler considered that: “It seems to me that Simons J.’s conclusion that an additional factor or factors is required is based on the fact that no decided authority was identified in which a claimed public interest weighed sufficiently heavily with the court so as to lead to the refusal of s.160 relief without there being at least one — and usually more — discretionary factors which also weighed in the developer’s favour. As such, I think that whilst the proposition may go too far as a statement of legal principle, it is substantively correct as an analysis of the decided jurisprudence.”

The court found that “the approach taken by the trial judge was appropriate where the public interest claimed was by some margin below the degree of urgency and importance that would warrant, without more, overriding the public interest in the integrity of the planning system. The appellant does not contend, and indeed could not realistically contend, that there is any other factor which weighs in its favour… Leen illustrates that even a very strong public interest (such as in the operation of an international airport) required the added weight of a number of other factors for the court to be satisfied to refuse relief under s.160.”

Ms Justice Butler noted that the appellant’s expert was a highly qualified and well-respected economist, but that the High Court had doubted the basis upon which he was instructed as his report was produced in less than six days and was based upon data provided to him by the appellant, with phrases such as “per company supplied information”, “company stated”, “based on company reports” and “based on previously cited company’s results” appearing frequently in the report.

The appellant complained that the trial judge had engaged in independent research rather than addressing his concerns to the appellant, finding discrepancies between the briefing note and the information hyperlinked to the report. Rejecting that assertion, the Court of Appeal stated: “If material is hyper-linked in an expert’s report, then it constitutes part of the reference material upon which the report is based and a court is, at very least, entitled (if not expected) to look at it where it has concerns regarding the content of the report itself. This is not ‘independent research’ but rather an attempt to understand an expert report in its own terms.”

Ms Justice Butler disagreed with the appellant that “expert evidence should automatically have been accepted because it was uncontradicted”, finding that assertion inconsistent with Duffy. The court refused to accept that this position had changed in light of RAS Medical Ltd. v. College of Surgeons in Ireland [2019] 1 IR 63.

Turning to the appellant’s assertions as to the weight afforded to the positions of the planning authority and Tesco, the court considered that the planning authority had acted as the legitimus contradictor on appeal and availed of the opportunity appropriately afforded to it to be heard on the stay application. The court continued that Tesco’s qualified agreement in respect of the stay application could not “necessarily be read as supportive of the applicant’s application for a stay”.

Observing that “where the development was entirely unauthorised in a sense of not having any planning permission” and where “the reasons for refusal of planning permission included a ground related to the possibility of the effluent run off from the development”, the judge opined that “a trial court in a s.160 application is entitled to have particular regard to the views of the planning authority as to potential environmental and ecological concerns which are strictly regulated under European law”.

Conclusion

Accordingly, the appeal was refused.

Tesco Ireland Limited v. Stateline Transport Limited [2024] IECA 46