The High Court has refused a Baldoyle residents association’s request for costs protection under section 50B of the Planning and Development Act 2000 and the 2011 Act, while adjourning the remaining parts of its application pending the outcome of a European court reference.
The costs application arose from the association’s judicial review challenge to An Bord Pleanála’s November 2021 grant of permission for 1,221 homes on lands at Baldoyle, Dublin 13. The developer and Fingal County Council had already been adjourned from the costs application, as had the State. The application before the court was between the association and the board.
The association argued that several grounds challenging the permission qualified for statutory costs protection. These included alleged conflicts with the Baldoyle-Stapolin Local Area Plan and claims about environmental assessment and public participation. The board accepted that the Aarhus Convention’s rule against prohibitively expensive proceedings applied to the environmental assessment and public participation grounds, but disputed its application to other grounds.
Mr Justice Humphreys held that section 50B did not cover any of the contested grounds. He said a challenge under the provision had to be based on a statutory rule giving effect to the Strategic Environmental Assessment Directive, rather than merely concern something that had been subject to strategic assessment. He also rejected the association’s argument that alleged Local Area Plan breaches amounted, in general, to the tangible ecological harm required for protection under the 2011 Act. The court said excessive density did not itself constitute that kind of harm.
The judge left the Aarhus-related parts of the costs motion unresolved. The questions raised overlapped with issues referred to the Court of Justice of the European Union in Enniskerry v An Bord Pleanála. He adjourned those parts pending the outcome of that reference, with the possibility of revisiting the adjournment if the reference does not proceed. The question of protection under Order 99 of the Rules of the Superior Courts was also left pending clarification of the Aarhus interpretative obligation.
The court ordered that the association would not be liable for the board’s costs to the extent that its costs motion was unsuccessful, by consent. It directed that the order be perfected immediately and listed the matter for review on 25 July 2022. The judgment determined only the costs protection application; it did not decide the underlying challenge to the planning permission.