A developer must pay Dublin City Council’s costs after the High Court ruled that special environmental costs protection did not apply to its unsuccessful judicial review.
In a judgment delivered on 6 September 2019, Mr Justice Garrett Simons said Spencer Place Development Company Limited was liable for the Council’s costs under the conventional rules. The costs are to be taxed if the parties cannot agree, and include the costs of two sets of written submissions and all reserved costs.
The ruling concerns costs only. The company’s judicial review had already been dismissed in its entirety in a judgment delivered on 30 May 2019.
The underlying dispute concerned the interpretation of ministerial building height guidelines and their interaction with planning schemes for strategic development zones. The company had two planning applications pending before Dublin City Council. It sought declarations that the interpretation set out in a briefing note prepared by the City Planning Officer was legally incorrect, arguing that it could affect the eventual decisions on those applications.
The High Court said the proceedings were brought before the Council had decided either application. The company had maintained during the substantive hearing that the briefing note was not issued under a provision of the Planning and Development Act 2000 and was not itself a decision or action under that Act.
For costs, the company argued that section 50B of the Act applied because the case concerned statutory planning guidelines subject to strategic environmental assessment, and because a future failure to apply the guidelines correctly could breach the Act. The Council argued that the ordinary costs rules applied.
Justice Simons held that section 50B required an identifiable decision, action or omission made or taken before judicial review proceedings began. It did not cover a challenge brought in anticipation of a future decision. The briefing note did not meet that requirement on the basis on which the company had brought its case, and the planning applications were still pending.
The judge said it was unnecessary to decide whether a challenge brought after a planning decision might qualify for section 50B costs protection. He also noted that the company had previously argued that the environmental assessment statement was irrelevant to interpreting the guidelines, and that none of its original grounds relied on the EU directive.
With section 50B inapplicable, the proceedings fell under Order 99 of the Rules of the Superior Courts. Applying the usual starting point that costs follow the event, the judge found no special reason to depart from that rule and ordered the unsuccessful company to pay the Council’s costs.
The judgment addressed the costs of the judicial review. It did not determine the two pending planning applications. The judge expressed only a tentative view that leave to appeal the costs ruling might be appropriate if required; any such decision would await an application.