The Supreme Court has proposed making no order as to costs after rejecting an environmental activist’s constitutional challenge to a planning law provision.
In a costs ruling delivered electronically on 17 December 2024, the Court said John Conway’s case did not qualify for an award of costs to an unsuccessful constitutional challenger. The Court had rejected his challenge in judgments delivered on 23 July 2024.
Conway challenged section 28(1C) of the Planning and Development Act 2000. The provision allows the Minister for Housing to issue binding directions, described as guidelines, to planning authorities and An Bord Pleanála on aspects of the planning process, including building heights. The judgment said those guidelines can enable planning authorities and the Board to depart from local development plans.
The proceedings originally also challenged An Bord Pleanála’s grant of permission to Silvermount Ltd for a proposed development at Concord Industrial Estate, Naas Road, Walkinstown, Dublin 12. It comprised 545 build-to-rent apartments, commercial, retail and office units, a childcare unit and associated site works.
During the High Court hearing, the case became focused solely on the constitutional challenge. Conway agreed not to pursue the challenge to the planning permission, and the Board and Silvermount were released from the proceedings. In return, the State parties agreed not to dispute his standing to bring the constitutional challenge.
Neither the Board nor Silvermount sought costs against Conway. The State parties also did not seek costs and submitted that there should be no order as to costs. The remaining issue was whether Conway should receive costs, in whole or in part.
The Supreme Court considered the categories of unsuccessful constitutional cases that may justify a costs award, as identified in Collins v Minister for Finance (No. 2) and expanded in Little v Chief Appeals Officer (No. 2). It said the appeal did not involve conspicuously novel issues or questions of far-reaching importance with general application. Conway had not succeeded on a significant issue in the appeal, and the Court found no extraordinary circumstances to justify costs outside those categories.
The Court therefore proposed no order as to costs in respect of the appeal. The ruling addresses costs; it does not revisit the earlier rejection of the constitutional challenge or the planning permission challenge that Conway had agreed not to pursue.