The Court of Appeal has ordered Diamrem Limited and the Cliffs of Moher Visitors Centre Limited and Clare County Council to bear their own costs of an appeal concerning a car park at the Cliffs of Moher Visitor Centre. It also ordered the respondents to pay Diamrem’s costs of written submissions on the costs issue.
The ruling, delivered by Mr Justice Woulfe on 4 October 2023, dealt only with costs following the court’s 2021 dismissal of Diamrem’s appeal. The appeal had challenged the High Court’s refusal to grant orders under section 160 of the Planning and Development Act 2000 concerning relocation of a public car park. The High Court had refused relief because the application was not brought within the statutory time limit.
After the appeal was dismissed, the Court of Appeal indicated that the respondents were provisionally entitled to their appeal costs, while allowing the parties to make submissions on a different order. Diamrem argued that the Environmental (Miscellaneous Provisions) Act 2011 applied, meaning each side should bear its own costs. It said the proceedings concerned compliance with planning requirements and alleged environmental effects from the relocated car park, including loss of grassland and effects on Chough habitat.
The respondents disputed that the environmental costs provisions applied. They argued that the case was commercially motivated and that the evidence did not establish environmental damage. Their environmental report disputed the claim that the car park had removed suitable foraging habitat or harmed the Chough population. The court noted the experts’ disagreement.
Justice Woulfe found that the proceedings fell within the categories covered by section 4 of the 2011 Act: they sought compliance with conditions attached to the 2002 planning permission and related to alleged contravention of that permission. He assessed the proceedings by their objective purpose and did not take account of Diamrem’s alleged underlying commercial motivation.
The judge said the statutory test required a stateable argument that an alleged failure had caused, was causing, or was likely to cause environmental damage. Applying a broad interpretation of damage and a low threshold, he found that the evidence made out at least a stateable argument of adverse effects on soil and land, and probably biological diversity. He said it did not matter that the relevant evidence was introduced months after proceedings began, provided it was adduced at some stage.
The court therefore concluded that section 3 applied and each party would bear its own appeal costs. Because Diamrem had succeeded on the costs issue, the respondents were also ordered to pay its costs of the written submissions on costs. The ruling did not alter the earlier dismissal of the planning appeal.