Costs protection clarified in CPO judicial reviews

The High Court has determined that a CPO for the Connemara Greenway is not a development consent and does not form part of a multi-stage consent process. As a result, the applicant was denied costs protection under section 50B of the Planning and Development Act 2000. The judgment provides welcome clarity around costs protection in judicial reviews of CPOs.

What you need to know

• An Bord Pleanála granted planning consent for the Connemara Greenway in 2013.
• Galway County Council subsequently made a Compulsory Purchase Order (CPO) for part of the applicant’s land.
• The applicant applied for judicial review of the CPO decision and made a costs protection application.
• The respondents argued that the CPO decision merely enabled the original development consent.

Background

An Bord Pleanála, as it was then, granted planning consent under section 175 of the Planning and Development Act 2000 for the Connemara Greenway (Oughterard–Clifden) in 2013. The application for consent was supported by an Environmental Impact Assessment Report (EIAR) and Natura Impact Statement (NIS).

The applicant, Oliver Joyce, owns lands forming part of the old Clifden railway line, through which the Greenway passes. When the planning consent was granted in 2013, he had no objection to the Greenway passing through his lands. He maintained the consent was made on a ‘permissive basis’. It was set out in the Inspector’s Report for the 2013 decision that CPO powers might be used if agreement with landowners was not reached.

CPO

Galway County Council confirmed a CPO for a 6.75 km strip of land which included part of the applicant’s property in 2024. The applicant contended that a fresh EIAR and NIS were required. He argued that the CPO represents a fundamentally different scheme from that approved in 2013 because:

• The 2013 scheme assumed permissive access, not compulsory acquisition, and
• The proposed fencing, access changes and severance effects on the applicant’s lands were not assessed in the original EIAR/NIS

He set out that the CPO decision was effectively part of a development consent. As such, he argued that it required at least preliminary examination or EIA screening and Stage I screening under the Habitats Directive (Directive 92/43/EEC). He commenced judicial review proceedings and leave to apply was granted on 21 July 2025. The applicant argued that the challenged decision was made under a statutory provision giving effect to EU environmental directives. He claimed that this entitled him to a costs protection declaration, under Section 50B of the 2000 Act.

An Coimisiún Pleanála (the Commission) and the Council, as respondents, submitted that the CPO simply follows and gives effect to the 2013 development consent. They argued that it is neither a development consent nor part of a multi-stage development consent procedure. They sought to rely on Clancy (No.2)[1] and Clancy (No. 3)[2]. The Council submitted that the decision to affirm the CPO was not made under a statutory provision giving effect to any of the EU legislation listed in section 50B. As a result, it argued that section 50B was not engaged. It also submitted that the decision did not involve issues of EU environmental law.

Conditions for costs protection under section 50B

An applicant who satisfies the following three conditions is entitled to benefit from costs protection under section 50B:

1. The proceedings comprise an application for judicial review or for leave to seek judicial review
2. The decision of which judicial review is sought is made under a statutory provision, and
3. The statutory provision is one which gives effect to one of four named EU environmental Directives (the Environmental Directives).

As was clarified in Heather Hill[3], once these conditions are satisfied, costs protection applies to the entirety of the proceedings. As found in King v An Bord Pleanála[4], it is not necessary that the grounds relied on involve issues of EU law. The Court agreed that conditions 1) and 2) were satisfied in this case, as the Environmental Impact Assessment Directive (Directive 2011/92/EU) and the Habitats Directive (Directive 92/43/EEC) are listed. The Court therefore considered whether the “decision to confirm the CPO was made pursuant to a statutory provision which gives effect to one of the four EU Directives named in section 50B”. Ultimately, it held that the decision to confirm the CPO did not give effect to one of the Environmental Directives in question.

Does the CPO form part of the development consent?

The Court also considered whether the CPO was a development consent or part of a multi-stage consent process. In setting out the reasoning that the CPO was simply to enable the development, it noted that the 2013 approval:

• Authorised the Greenway route, including the applicant’s land
• Anticipated the acquisition of the land by CPO if agreement was not reached
• Considered the erection of fencing along the entire route, with flexibility as to the type of fencing to be erected

The Court set out that the sequencing of the planning permission and the CPO is critical to the question of whether the CPO is, or is part of, the development consent. The Court differentiated this case from King, as the development consent for the Greenway was granted in 2013 and the CPO was made to enable the authorised development to proceed. The CPO did not modify the project, and the Commission had no power to alter the Greenway design at CPO stage. This decision mirrors Clancy, where the nature and location of the development were described as a ‘done deal’.

Conclusion

The Court held that the applicant was not entitled to costs protection under section 50B as the decision to confirm the CPO did not give effect to one of the Environmental Directives. The Court also held that the CPO did not amount to development consent nor form part of a multi‑stage consent and therefore did not require fresh EIA or AA screening. This judgment provides sought after clarity around costs protection for judicial reviews related to CPOs. Following King it confirms that sequencing of the planning permission and CPO is a fundamental consideration in the applicability of costs protection to such proceedings.

For guidance on the implications of this decision, please reach out to a member of our Planning & Environment team.

People also ask

[1] Clancy v An Bord Pleanála (No.2) [2023] IEHC 464

[2] Clancy v An Bord Pleanála (No.3) [2025] IEHC 528.

[3] Heather Hill Management Company v An Bord Pleanála [2024] 2 I.R. 222; [2022] 2 I.L.R.M. 313; [2022] IESC 43

[4] King v An Bord Pleanála [2024] IEHC 6

The content of this article is provided for information purposes only and does not constitute legal or other advice.