The High Court has awarded Peter Sweetman half his costs against the State in a judicial review concerning approval of a road scheme, while making no costs order for An Bord Pleanála or Clare County Council.
In a judgment delivered on 25 October 2007, Mr Justice Clarke dealt only with the costs of the proceedings. Sweetman had accepted that he lost the challenge and that the ordinary rule would require him to pay the respondents’ and notice party’s costs. He argued that the case qualified as a public-interest challenge, where the court may depart from the usual rule that costs follow the outcome.
The judge found that the direct challenge to the road approval did not raise issues of sufficient general public importance to justify that exception. That part of the case concerned whether the permission should have included a condition requiring remediation if monitoring showed worse-than-expected effects on a sensitive environment. The possibility that the road could affect a Candidate Special Area of Conservation did not, by itself, make the challenge a public-interest case.
The court reached a different view on issues about Ireland’s implementation of Council Directive 2003/35/EC. Clarke said those questions about costs and access to judicial review in environmental cases could affect many proceedings and were of general public importance. He noted that the earlier substantive judgment had identified possible implications for how courts interpret the “substantial interest” threshold and review the legality of environmental decisions. Sweetman had nevertheless failed in his challenge; the costs judgment did not change that outcome.
The judge also took account of the fact that a material part of the issues supporting the public-interest characterisation had not been adequately pleaded and was raised in late written submissions. He said that, but for this, Sweetman would have received his costs against the State. The order therefore awards half his costs against the State, excluding costs relating to those written submissions. McKechnie J had already directed that no costs be awarded for the submissions.
No order was made for the costs of An Bord Pleanála or Clare County Council. The court considered both public bodies’ involvement necessary in the proceedings and said awarding them costs would conflict with the purpose of the public-interest challenge principle.
The judgment left open whether Sweetman could appeal to the Supreme Court without a certificate under section 50 of the Planning and Development Act 2000; the judge said that question would be for the Supreme Court if an appeal were brought. Consideration of a possible reference to the Court of Justice was also postponed until after the domestic costs issue was determined.