The High Court ruled that SC Sym Fotovoltaic Energy SRL does not need a certificate to appeal the refusal of extra time to seek judicial review of a Mayo County Council planning declaration. It deferred its final decision on costs until after an expected ruling by the Court of Justice of the European Union (CJEU).
Mr Justice David Barniville had refused the company’s application to extend time on 24 January 2018. He said he had applied the statutory time test and had not considered the merits of the proposed challenge. Although the High Court had earlier granted leave on an ex parte basis after finding substantial grounds, he concluded that the refusal to extend time was not a determination of the judicial review application requiring a certificate under section 50A(7) of the Planning and Development Act 2000.
The proposed challenge concerned a Council declaration made on 6 June 2017 that development was exempt. The company had sought to argue, among other grounds, that an environmental impact assessment (EIA) was required for a grid connection associated with the Bunnyconnellan wind farm and that the Council therefore could not make the declaration. It also proposed grounds concerning notice to affected landowners and the adequacy of the Council’s reasons. Those were allegations the company intended to pursue; the court did not decide their merits in this judgment.
The dispute before the court concerned whether special environmental costs rules in section 50B applied to the unsuccessful time extension application. Aeolus Wind Farms Ltd., a notice party, argued that the rules did not apply and sought its costs under the ordinary rule that costs follow the event. The company argued that section 50B applied because its proposed challenge included the claim that an EIA should have been required.
Justice Barniville concluded that section 50B could apply to an application for extra time where the decision being challenged was subject to the EIA Directive’s public participation rules, or where the applicant’s case was that it ought to have been. He also said the section’s reference to “proceedings” was broad enough to include an extension application. He noted that the earlier ex parte leave decision had found substantial grounds, subject to the time issue.
However, the proposed challenge included two grounds based solely on Irish law as well as the EIA ground. The judge said he might otherwise have applied section 50B to the EIA ground and awarded Aeolus two-thirds of its costs for the other grounds. But an Advocate General’s opinion in a separate case had raised doubt about separating environmental and national-law grounds for costs, and a CJEU judgment was expected on 15 March 2018.
The court listed the case for mention on 21 March 2018 and deferred final orders, which had been agreed apart from costs, until then or shortly afterwards. No final costs order was made in this judgment.