Clarity on the application of Protective Costs Orders in Judicial Reviews of planning applications

• Ireland

• Litigation and dispute management

19-10-2021

Many litigants taking judicial reviews in a challenge to the planning process have sought what are called Protective Costs Orders (‘PCOs’) pursuant to s. 50B of the Planning and Development Act 2000. To secure a PCO, some litigants listed many environmental grounds of challenge to the scheme so as to enhance the possibility of obtaining PCO protection and to broaden the extent of a PCO, even if those grounds never became a major feature of judicial review. Following clarification from the Court of Appeal the ability to secure a PCO for the entire judicial review proceedings has been significantly curtailed.

Background

Following an appeal by An Bord Pleanála (‘ABP’) in Heather Hill Management Company CLG & Gabriel McGoldrick v An Bord Pleanála¹, Judge Costello’s judgment delivered last week has clarified when and how PCOs under the Planning and Development Act 2000 (as amended) may apply to those seeking to judicially review a decision of the planning authority.

The applicants had challenged ABP’s decision to grant planning permission for a strategic housing development (‘SHD’) on a green site in Barna, County Galway. The applicants pleaded 64 grounds on which they asserted ABP’s decision was unlawful, ultra vires, null and void and of no legal effect. The applicants sought a PCO to cover the entirety of the proceedings which would afford the applicants protection against any award of costs against them, on the basis that their action included claims that the environmental directives listed under section 50B had not been adhered to. Both ABP and the developer (the latter represented by Eversheds Sutherland) successfully challenged the applicants ability to be cost-protected on all of grounds cited.

Decision of the Court of Appeal

Costello J’s judgment provides a lengthy history on this area and where the relief originated.

The Court recognised that section 50B of the 2000 Act was inserted to provide the exception to the rule that each party bears their own costs and to create a judicial review procedure that was not prohibitively expensive, so as to ensure that the public was not deterred from appealing matters where they argue it will affect the environment, which is in keeping with the Aarhus Convention and the Public Participation Directive 2003.

The crux of the appeal was whether a litigant is entitled to the benefit of a PCO with regard to all grounds of the litigant’s challenge to certain types of planning decision even though only some and not all of the grounds of challenge relate to environmental matters. The Court of Appeal found that while a decision to grant planning permission may entail an environmental assessment or a screening for an appropriate assessment, this does not result in each such individual decision being a “decision” for the purposes of s. 50B. Where the application of national environmental law is at issue in proceedings, or a decision is challenged on the basis of national environmental law, the courts of member states are required to interpret provisions of national procedural law to the fullest extent possible, consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, so that such proceedings are not prohibitively expensive. The interpretative obligation does not apply to proceedings or grounds of challenge where the application of national environmental law is not in issue or the decision is not challenged on the basis of national environmental law.

Comment

It is now clear that applicants will only be protected from costs as they relate to the portion of grounds covered by section 50B if so granted by the Court.

For more information, please contact

Stephen Barry, Partner in Dispute Resolution & Litigation - StephenBarry@eversheds-sutherland.ie

Neil O’Mahony, Partner in Insolvency & Litigation - NeilOMahony@eversheds-sutherland.ie

Michael Twomey, Associate in Dispute Resolution & Litigation - MichaelTwomey@eversheds-sutherland.ie

Chloe Prendergast, Solicitor in Dispute Resolution & Litigation - ChloePrendergast@eversheds-sutherland.ie

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1. [2021] IECA 259