The Supreme Court has ruled that litigants challenging planning permissions on environmental grounds are entitled to a special pre-emptive protective costs order (PCO) for the entirety of their claim.
The decision, which overturns a decision of the Court of Appeal, has wide-reaching consequences for judicial review planning actions that cite European law, as it means an applicant who loses their case would not be liable for the successful party’s costs.
The core issue in the appeal was the correct approach to be taken by the courts in determining pretrial PCO applications in planning and environmental litigation.
The appeal arose from a challenge, based on 64 grounds, by Heather Hill Management Company, a firm of local residents, and Gabriel McGoldrick to An Bord Pleanála’s permission for a strategic housing development of 197 residential units in Bearna, Co Galway.
The High Court overturned the permission. It decided the applicants were entitled to a PCO under section 50B of the Planning Development Act, which concerns the entitlement to public participation in planning decisions, for all of the grounds of their challenge, including points that do not relate to environmental issues.
An Bord Pleanála and the Attorney General appealed the PCO element, and the Court of Appeal found the PCO could apply only to the applicants’ environmental grounds.
On Thursday, a five-judge Supreme Court allowed Heather Hill’s appeal, finding the effect of section 50B is that all grounds in proceedings challenging the validity of certain development consents benefit from costs protection.
Mr Justice Brian Murray said An Bord Pleanála and the Attorney General argued that section 50B applied only to the costs of grounds that engaged public participation issues under four EU Directives together possibly with other challenges based on EU environmental law.
The judge said that, if Heather Hill, represented by Neil Steen SC, with Alan Doyle and Niall Handy, was correct, they would have been entitled to an order in advance of the trial that they could not be found liable for the costs of the respondent or the notice party if they lost their action.
Heather Hill and Mr McGoldrick based their challenges on grounds under the Habitats Directive, alleged circumvention of ministerial guidelines relating to flood risk, alleged contraventions of the county development plan and alleged landowner consent deficiencies.
Mr Justice Murray said certain provisions of the Aarhus Convention require contracting states to take the necessary legislative measures to ensure that environmental law proceedings are “not prohibitively expensive”.
The respondents did not advance “any persuasive alternative analysis of the text” of section 50B that could displace its “literal construction”, said Mr Justice Murray.
The court’s interpretation renders the section consistent with the Environment (Miscellaneous Provisions) Act 2011 and causes it to align with the Aarhus Convention’s requirement that such proceedings are “not prohibitively expensive”, he said.
He said this conclusion will in many cases “match with the State’s obligations under European law”.
The Chief Justice Donal O’Donnell, Ms Justice Iseult O’Malley, Mr Justice Séamus Woulfe and Mr Justice Gerard Hogan indicated their agreement with the judgment.
