The Court of Appeal has rejected Spencer Place Development Company Limited’s appeal against a High Court order that it pay Dublin City Council’s costs of judicial review proceedings. The court affirmed the High Court order and gave a provisional view that the developer should also pay the costs of its appeal, subject to a possible further hearing on costs.
The dispute concerned the developer’s interpretation of ministerial building height guidelines for planning authorities. The developer sought declarations that a specific planning policy requirement in those guidelines applied to planning applications in the North Lotts and Grand Canal Strategic Development Zone, including applications to increase the height of a development for which it already had planning permission.
The High Court dismissed the judicial review application in May 2019. In a separate costs judgment that September, it ruled that the special costs regime in section 50B of the Planning and Development Act 2000 did not apply. It ordered the developer to pay the Council’s costs under the usual rules, which generally require the unsuccessful party to pay the successful party’s costs.
The developer appealed that costs decision. It argued that section 50B applied because the guidelines had been adopted under a statutory provision subject to strategic environmental assessment, and because it had sought declaratory relief through judicial review. The Council’s position was that the ordinary costs rules applied.
The Court of Appeal said the question of section 50B protection depended on the grounds on which relief was sought. The developer’s grounds did not refer to EU law or the relevant directives, and did not challenge the validity of the environmental assessment or the decision to adopt the guidelines. The court said that proceedings seeking a declaration alone, without challenging the legality of a decision or the process leading to it, did not qualify for the special costs rules.
The court also noted that the developer had sought no relief concerning the Council’s briefing note and that its proceedings were premature insofar as they concerned anticipated decisions on the pending planning applications. It concluded that section 50B did not apply to any part of the proceedings.
As there was no challenge to the High Court judge’s exercise of discretion under the ordinary costs rules, the Court of Appeal rejected the appeal and affirmed the order for the Council’s High Court costs. Its view on the appeal costs was provisional: the developer could seek a different order by contacting the court within 14 days to request a hearing. If it did not succeed in changing the proposed order, it could be liable for the costs of that further hearing.