The High Court has awarded Margaret McCallig costs for part of her successful challenge to a planning permission, while ruling that a later change to environmental litigation costs did not apply to her pending case.
Mr Justice Herbert’s judgment of 9 April 2014 concerned costs following a 15-day judicial review hearing in June 2012. The underlying judgment had been delivered on 24 January 2013. The current judgment addressed how costs should be allocated; it did not quash the planning permission.
The court said the planning permission was void insofar as it purported to affect any part of McCallig’s land, which the court found had been included in the planning application and permission without her consent. It found she succeeded on that planning issue but not on her environmental impact assessment grounds.
The parties disputed whether a 2011 amendment allowing courts to award costs to an applicant in environmental proceedings applied to this case. The judicial review began in April 2011, before the amendment took effect on 23 August 2011. Justice Herbert ruled that applying the amendment to proceedings already pending would be unfair without a clear legislative direction. The earlier rule therefore applied to the environmental issues: each party, including any notice party, bore its own costs, subject to statutory exceptions the court found did not arise.
The judge also ruled that the environmental costs rule applied only to the part of a judicial review challenging decisions or actions within the statutory categories. It did not govern the separate planning issue about McCallig’s land. She was therefore entitled to costs on that successful issue under the ordinary costs rules. The court rejected her request for costs under the exception for matters of exceptional public importance, finding that test was not met.
McCallig was awarded costs relating to the wrongful inclusion of her land and to two related issues on which the respondent and second notice party were unsuccessful: whether a condition meant the permission no longer affected her land, and whether an earlier permission would take effect if the challenged permission were invalid. The respondent alone was liable for costs on the latter issue; the respondent and second notice party were jointly and separately liable on the first two issues. No costs order was made for or against Donegal County Council, the first notice party, which took no part. Each party bore its own costs on the environmental impact assessment issues.