A High Court judge has warned that the costs system should not be viewed as a “complete gravy train” and that the system was already seriously unbalanced against private sector developers.
Mr Justice Richard Humphreys – who presides over the planning and environment division of the High Court – made his comments in a costs judgment concerning a case where he had already ruled that a Bord Pleanála report error in referencing a Leisler Bat being located in a barn outside Ennis was insufficient to halt plans for a €1.2 billion data centre campus.
In April 2024, the planning board granted permission for the six data halls covering 145 acres on lands adjacent to the Tulla Road on the eastern outskirts of Ennis near the M18 motorway connecting Galway to Limerick.
However, opponents of the data centre, Colin Doyle, Friends of the Irish Environment CLG, Futureproof Clare, Martin Knox and Christine Sharp sought a High Court judicial review of the appeals board granting of planning permission for the data centres.
Last October, the planning board conceded to the objectors’ claim seeking to quash its data centre planning permission where it was admitted that the board erred in law in failing to consider adequately the environmental effects of the proposed development on bat fauna.
However, applicants for the data centre, Art Data Centres Ltd, brought a case contesting the appeals board’s High Court judicial review concession to the objectors.
Art Data Centre was, last month, successful in the first part of their challenge when the judge dismissed the objectors’ grounds over the Leisler Bat.
Now, in a costs ruling concerning the Leisler Bat module of High Court action, the judge has ruled that he would make no order for costs for the applicants – or data centre objectors – meaning that they will have to pay their costs for that module.
He said the losing side asked implausibly that their costs be reserved instead of being the subject of no order.
He said that one of the reasons advanced was that the objectors to the data centre might succeed on a second strand of their High Court judicial review challenge on the issue of a derogation licence.
The judge said that what’s notable about the textbook applicant rhetoric, which is by no means confined to these applicants, is that when there is any suggestion of no order as to costs, “the response is dumbfounded condemnation of a punitive order”.
He added: “This is obvious nonsense to anyone outside the bubble of like-minded freeriding applicants.
“The court isn’t punishing these applicants for making losing points; all I am doing right now is saying that they won’t be getting their costs of doing so.
“Overall, we can’t lose sight of the fact that the costs system is already seriously unbalanced against opposing parties and particularly private sector developers who have to pay all of their own costs as they go with minimal meaningful comeback against applicants who lose in whole or in part.
“The system should not be viewed as a complete gravy train whereby any attempt to consider mitigation of complete and total costs in favour of an applicant is castigated as being unfair, inequitable and a breach of domestic, European and international law.”
The judge added that for a court to succumb to that unfounded rhetoric would be to inadvertently render the system even more one-sided and unbalanced against opposing parties (developers) than it already is.
