The Planning Bill – Costs in Planning Judicial Reviews

The return of satellite litigation and delay

Michael Furminger BL is presently giving presentations on the Planning Bill at any location where there is sufficient demand, or online.

Like most aspects of the Planning Bill, its provisions in relation to costs (and/or their implications) are complex. The basic position, however, can be briefly stated.

The General Rule on Costs

The general rule in Ireland regarding costs has long been that 'costs follow the event'. In other words, the unsuccessful party in litigation will generally be ordered to pay the costs of the successful party – as assessed by the Court, if not agreed.

The Present Position on Costs in Planning Cases

Planning and environmental litigation is an exception to this general rule. The Aarhus Convention provides that legal remedies must be adequate, effective, fair, equitable, timely and not prohibitively expensive. This last requirement is presently implemented by s50B PDA 2000 and by Part 2 of the Environmental (Miscellaneous Provisions) Act 2011 (“EMPA”).

The effect of these provisions was uncertain and in little more than the ten years after EMPA, arguments over costs in planning litigation generated at least 35 reserved judgments of the High Court, four of the Court of Appeal and three references to the Court of Justice of the EU. What became known as 'satellite' litigation orbited around substantive planning law issues adding significantly to cost and delay.

Heather Hill v An Bord Pleanála [2022] IESC 43 started life as an unassuming challenge to the Board's permission for a 197 unit SHD at Truskey East, Bearna, Co Galway (approximately 10km west of Galway City) (302216). The Applicant for Judicial Review applied for a Protective Costs Order (“PCO”), providing that it could only be liable for its own costs, win or lose. The Respondent and Notice Party agreed that under s50B and/or EMPA a PCO applied to some but not all grounds.

The Supreme Court ruled that the modification of the general rule on costs effected by s50B PDA 2000 applied in respect of all grounds of challenge to a planning consent, and that the EMPA provisions should be read consistently.

The present position, therefore, is that an unsuccessful party challenging a planning consent will only be liable for their own costs but such a party, if successful, should expect to recover their costs from the Respondent and/or Notice Party.

As is often the case in appellate courts of last (domestic) resort, a decision can be seen as much in 'policy' as in legal terms. As it was put on behalf of the Supreme Court;

“Some may have a view that it is not fair on planning authorities or those developing their property to have to face litigants who can pursue cost free litigation...Others may feel that environmental litigation is so important that this is an acceptable burden to impose on respondents as the price of...development.” (para 150)

Heather Hill resolved ten years of uncertainty (and consequent delay and cost) on 10 November 2022.

The “Outline of the proposed Planning and Development Bill” was published the following month...

Paid Subscribers can continue reading how the Planning Bill will change provision for costs in Planning Judicial Reviews.