The High Court has refused a request for statutory costs protection in a judicial review concerning planning permission for 102 homes and a crèche at Rosshill, Galway, but said it would in principle refer seven questions about environmental litigation costs to the Court of Justice of the European Union (CJEU).
Humphreys J’s ruling concerned a protective costs motion brought by Save Roscam Peninsula CLG and three individual applicants. Their underlying judicial review challenges An Bord Pleanála’s 28 October 2021 decision authorising the development. The judgment addressed costs only; it did not decide whether the planning permission was lawful.
The applicants argued that the no-order-as-to-costs protections in section 50B of the Planning and Development Act 2000 or the Environment (Miscellaneous Provisions) Act 2011 covered disputed grounds of challenge. Those grounds included claims about the board’s treatment of the development plan, planning guidelines and policy, and the developer’s interest in part of the site and roadworks. The board disputed protection for some grounds. Galway City Council also opposed protection for a claim concerning its purported consent to road construction works. Some grounds had been dropped or adjourned, while the board accepted that section 50B applied to other grounds.
The judge rejected the applicants’ claim that either statute provided costs protection for the disputed grounds. He said the statutory provisions relied on did not fall within the limited categories covered by section 50B, and the connection between the disputed grounds and preventing potential ecological harm was not sufficiently direct and specific to qualify under the 2011 Act.
The remaining dispute concerned the Aarhus Convention’s requirement that environmental review procedures not be prohibitively expensive. The judge said the issues were not acte clair or already resolved by existing EU law, and that answers were needed to decide the remaining part of the motion. He would therefore refer questions in principle, including whether domestic judicial discretion should follow statutory no-order-as-to-costs rules in certain environmental cases and whether the relevant environmental law includes law relating to sustainable development.
The applicants will not have to pay the respondents’ costs if they are unsuccessful on the costs motion itself: the board and council agreed to that outcome. The court directed that the order be perfected and listed the matter for review on 9 May 2022. The proposed CJEU reference remained in principle; the judgment did not record that questions had already been sent.