The High Court has declared that special environmental costs rules apply to all grounds in a judicial review challenging permission for a 197-home development at Trusky East, Bearna, Co. Galway. The ruling concerns costs only; the challenge to planning permission has not been decided.
Heather Hill Management Company CLG and Gabriel McGoldrick are challenging An Bord Pleanála’s 16 November 2018 decision to grant permission to BurkeWay Homes Ltd. The permission was issued under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016. The board recorded that it had completed an environmental impact assessment and screened the project for appropriate assessment, concluding that a further assessment was not required.
The applicants’ judicial review raises several groups of allegations, including flaws in the Habitats Directive screening, material contravention of the development plan, failure to follow flood-risk guidance and lack of proper landowner consent. These remain grounds advanced in the underlying case, not findings made in this costs judgment.
The applicants sought a declaration that section 50B of the Planning and Development Act 2000 applied, along with alternative costs protection under the Environment (Miscellaneous Provisions) Act 2011 and a pre-emptive limit on their potential liability. An Bord Pleanála and the developer argued that section 50B protection should be confined to the Habitats Directive and EU Floods Directive grounds.
Mr Justice Garrett Simons rejected that proposed division. He held that section 50B turns on the statutory provision under which the challenged decision was made and applies to the proceedings as a whole, rather than only to particular grounds. He found that section 9 of the 2016 Act gives effect to the Habitats Directive, which was sufficient to bring the challenge within section 50B. He also said the development-plan and flood-risk grounds related to national environmental law in fields covered by EU environmental law.
The court declared that the costs of the proceedings in their entirety are subject to section 50B, including all grounds of challenge. Under that regime, each party generally bears its own costs, subject to statutory exceptions; the trial judge will decide the final incidence of costs in light of the outcome and any relief obtained.
The judge did not make a final pre-emptive order barring costs against the applicants. He said he would hear the parties on whether such an alternative order should be made under Order 99 of the Rules of the Superior Courts. The judgment records that leave for judicial review had been granted on 17 January 2019.