The High Court ordered SC SYM Fotovoltaic Energy SRL to pay two thirds of Aeolus Wind Farms Limited’s costs after ruling on the outstanding costs issue in a planning judicial review case. The costs were to include reserved costs and the costs of submissions, and to be taxed if the parties could not agree them.
The judgment, delivered by Mr Justice David Barniville on 4 May 2018, followed two earlier judgments. In January, the court refused the applicant an extension of time to seek judicial review of Mayo County Council’s 6 June 2017 decision. The Council had declared the proposed development exempted development. The applicant had indicated that it wished to appeal the refusal.
The remaining dispute was whether special costs protections under section 50B of the Planning and Development Act applied. The applicant argued that there should be no order as to costs. Aeolus sought an order under the ordinary costs rules. Mayo County Council said it would bear its own costs and did not participate in the costs hearing.
In February, the court concluded that section 50B applied to the ground alleging that the Council’s decision avoided an environmental impact assessment and the associated public participation requirements. The court had deferred its final costs decision pending a Court of Justice of the European Union judgment in North East Pylon. After considering that judgment and further written submissions, Justice Barniville concluded that it supported separating that ground from the other two.
The applicant had also alleged that the Council failed to follow fair procedures by not notifying affected landowners of the application or allowing submissions, and failed to give adequate reasons. The judge held that these were purely national law grounds, not grounds alleging breach of the public participation rules or contravention of national environmental law. He therefore rejected the applicant’s argument that the non-prohibitive-expense requirement should apply to the whole case.
The court’s final orders refused the extension of time and set aside the leave to seek judicial review previously granted by Mr Justice Noonan. It made no costs order between the applicant and the Council. The judge also ruled that a certificate under section 50A(7) was not required for the applicant’s intended appeal. He said he would hear counsel on whether any additional matters needed to be included in the order.