Background

This case concerned an appeal to the Supreme Court from the Applicants, Heather Hill and Gabriel McGoldrick. In the first instance, the applicants challenged the decision of An Bord Pleanála (the Board) to grant planning permission for a large-scale development in Barna, Co. Galway. The proposed development was to be accessed via another development, Cnoc Froaigh, of which Heather Hill was the residents’ management company.

They applied for judicial review of the Board’s decision on 64 different grounds, including grounds under the EU Habitats Directive and the county development plan. The applicants made a claim for a protective costs order (PCO) in their statement of grounds. This was based on Section 50B of the Planning and Development Act 2000 (PDA 2000). This provision applies to judicial review proceedings where a decision is made in accordance with a statutory provision which gives effect to certain public participation provisions in:

• The Environmental Impact Assessment Directive (EIA Directive)
• The Strategic Environmental Assessment Directive (SEA Directive)
• The Integrated Pollution Prevention and Control Directive (IPPC Directive), and
• The Habitats Directive

Under this section, each party must bear its own costs, and the applicant may also be awarded costs from the respondent or notice party where the actions or omissions of either, or both, of them contributed to the applicant obtaining relief.

The Board and the Attorney General argued that the EU law obligations go no further than requiring a PCO to be applied to challenges based upon national environmental law only insofar as it implements the requirements of EU law. The applicants argued that EU law requires that Section 50B be interpreted more broadly and as capturing any proceedings in which issues of national environmental law are relied upon, at least if those issues arise in a field covered by EU environmental law.

On 29 March 2019, the High Court, in a judgment by Mr Justice Simons, granted Heather Hill an order in accordance with Section 50B in respect of all the grounds put forward in the proceedings.

High Court

Mr Justice Simons departed from previous High Court judgments which had held Section 50B did not apply to specific grounds that do not fall within the Section 50B ambit. He essentially determined that all decisions taken under the PDA 2000 or the Planning and Development (Housing) and Residential Tenancies Act 2000 fall under the special costs regime of Section 50B. This means that an application for judicial review of a decision, or purported decision, made in accordance with the relevant statutory provisions in the relevant directives attracts the special costs rules, even if none of the grounds is based upon an alleged infringement of those provisions.^[1]

Mr Justice Simons accepted that the special costs provisions in Section 50B applied to the entirety of the proceedings, which was based on a literal interpretation of the language used in Section 50B. He ordered that the costs of the proceedings be subject to Section 50B of the PDA 2000. The declaration applied to all grounds of challenge.

Court of Appeal

The High Court judgment was appealed to the Court of Appeal.

Ms Justice Costello considered the Court of Justice of the European Union (CJEU) decision in Case C-470/16 North East Pylon Pressure Campaign Ltd. v. An Bord Pleanála (NEPPC) and noted it found that the not prohibitively expensive procedures apply only to the costs relating “to the part of the challenge” alleging infringement of the rules on public participation. The Oireachtas had enacted Section 50B to ensure Ireland complied with this requirement.

The applicants, however argued that even when the provisions in Section 50B do not apply, the Court must give effect “to the fullest extent possible” to the provisions of the Aarhus Convention. If it applies, the proceedings must not be prohibitively expensive, so the applicants argued that they were entitled to the benefit of the special costs rules.

The Court of Appeal nevertheless disagreed with the High Court and moved back towards the more limited scope in line with a number of previous High Court judgments which provided that a PCO is available under Section 50B only to the issues and grounds of challenge which relate to certain environmental issues.

Supreme Court

In the Supreme Court on 10 November 2022, Mr Justice Murray overturned the decision of the Court of Appeal, concluding that Section 50B “means precisely what it says.” Mr Justice Murray was of the view that the Board and the Attorney General had failed to demonstrate an alternative interpretation of the section, set out below:

‘(1) This section applies to proceedings of the following kinds:

(a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of—

(i) any decision or purported decision made or purportedly made,

(ii) any action taken or purportedly taken,

(iii) any failure to take any action,

pursuant to a statutory provision that gives effect to—

(I) a provision of Council Directive 85/337/EEC of 27 June 1985 to which Article 10a (inserted by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directive 85/337/EEC and 96/61/EC) of that Council Directive applies,

(II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, or

(III) a provision of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control to which Article 16 of that Directive applies, or

(IV) paragraph 3 or 4 of Article 6 of the Habitats Directive; or

(b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a);

(c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in relation to a proceeding referred to in paragraph (a) or (b).

(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986) and subject to subsections (2A), (3) and (4), in proceedings to which this section applies, each party to the proceedings (including any notice party) shall bear its own costs.

(2A) The costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the act or omissions of the respondent or notice party, or both of them, contributed to the applicant obtaining relief.’

(3) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so—

(a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious,

(b) because of the manner in which the party has conducted the proceedings, or

(c) where the party is in contempt of the Court.

(4) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.’

In a judgment which relied heavily on statutory interpretation and a reading of the text of Section 50B, he set out his reasoning for overturning the decision of the Court of Appeal. He discussed applying the Aarhus Convention. He stated that the contracting states to the Convention must ensure that proceedings in which decisions granting development consent are challenged for non-compliance with national environmental law are not “prohibitively expensive”.

He went on to say that the “no cost rule” of Section 50B is one of two legal mechanisms by which the State has sought to achieve the objective of the “not prohibitively expensive” rule, the Environment (Miscellaneous Provisions) Act 2011 is the other. The Aarhus Convention is a powerful confirmation of the text of Section 50B, and must be read together, in order to give proper effect to the Aarhus convention.

The Supreme Court concluded that the appeal should be allowed, the order of the Court of Appeal set aside, and the judgment made by Mr. Justice Simons in the High Court be reinstated.

Conclusion

If the proceedings seek judicial review of a decision made in accordance with a statutory provision which gives effect to, at the very least, one of four of the Directives specified in Section 50B, the special costs rules under Section 50B of the PDA 2000 apply to the entirety of the proceedings, i.e. to all grounds of challenge. There is therefore no longer an opportunity to separate out the grounds into those which are considered to attract cost protection and those which do not, as it was noted by Mr. Justice Murray in the Supreme Court that this would be “potentially difficult, time consuming and itself costly”.

It was also noted in the Supreme Court that “The decision of the CJEU in NEPPC overhangs many aspects of this case” and that the interpretation provided by the Supreme Court related to matters of domestic law only.

In a judgment delivered by Mr Justice Humphreys in January 2022, Enniskerry Alliance v. An Bord Pleanála and Project East Meath v. An Bord Pleanála and Save Roscam Peninsula CLG v. An Bord Pleanála, a number of matters were referred to the CJEU including clarification on the approach in NEPPC and the sphere of EU environmental law.

While any ruling made by the CJEU may alter the position of the Supreme Court, that decision is likely a number of years away. As matters currently stand, if a decision made in accordance with a statutory provision which gives effect to, at the very least, one of the following:

• the EIA Directive,
• the SEA Directive
• the IPPC Directive, or
• the Habitats Directive,

then the special costs rules under Section 50B of the PDA 2000 apply to the entirety of the proceedings.

For more information on the impact of this case, contact a member of our Planning & Environment team.

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

[1] [2014] IEHC 400