The High Court ordered JC Savage Supermarket Limited and Des Becton to pay Lidl Ireland GmbH one third of its costs after they withdrew a judicial review of planning permission for a supermarket in Swords. The award includes Lidl’s costs of the motion for costs.
Mr Justice Charleton ruled that the special rule requiring each party to bear its own costs applied only to proceedings within the categories set out in section 50B of the Planning and Development Act 2000. This supermarket project did not require an environmental assessment, so the ordinary rule that costs follow the event applied.
An Bord Pleanála granted Lidl planning permission on appeal on 11 April 2011 for a supermarket at Rathbeale Road, Swords. The applicants, described in the judgment as a neighbour and the owner of a nearby existing supermarket, sought judicial review, arguing that the Board had acted beyond its powers. Their challenge focused on a condition requiring revised car-park and landscaping plans to be agreed in writing with the planning authority before development began.
The applicants received leave to bring the case on 30 May. Lidl and the Board filed opposition papers in July and August, and a trial was set for 25 October. On 9 September, more than six weeks before trial, the applicants’ solicitors told the other parties they were withdrawing the case. The Board sought only to have it struck out. Lidl sought costs under the ordinary court rules. The applicants argued that the special statutory costs rule applied and, alternatively, that any award should be limited to the opposition papers rather than trial costs.
The judge rejected the argument that section 50B extended to every planning judicial review. He said it covered proceedings concerning specified European environmental law measures, including environmental assessment cases, rather than ordinary planning permissions such as this supermarket development. The court therefore assessed costs under the ordinary rule.
In deciding the amount, the judge said the applicants had recognised, after considering the papers, that they were wrong to bring the case and had notified the other parties promptly. Taking those circumstances into account, he awarded Lidl one third of its costs. The judgment did not set aside the planning permission or decide the underlying challenge on its merits; the proceedings had been withdrawn.