The High Court has refused a group of applicants’ request to certify points of law for appeal over an earlier costs ruling in proceedings involving Fingal County Council, Ireland, the Attorney General, Dublin Airport Authority and Ryanair.
In a judgment delivered on 21 December 2018, Mr Justice Max Barrett concluded that the proposed points did not involve a point of law of exceptional public importance for which an appeal to the Court of Appeal was desirable in the public interest. The judgment is reported as [2017] IEHC 763, although its text gives the delivery date as 21 December 2018.
The applicants sought certification under section 50A(7) of the Planning and Development Act 2000. Their proposed grounds questioned whether the earlier costs decision could divide the proceedings into environmental impact assessment (EIA) and non-EIA issues for costs protection; whether constitutional property-rights arguments should receive that protection; and whether the court had to consider applicants’ own costs when applying the “not prohibitively expensive” rule.
The judge said the applicable law permitted a court to distinguish between issues covered by the EIA Directive’s public-participation rules and other issues, and to divide a case by reference to the issues raised. He said the applicants’ arguments based on constitutional property rights and the Supreme Court’s decision in Dellway Investments v NAMA did not allege breach of the EIA Directive’s public-participation provisions. He also said the earlier costs decision had not applied the “not prohibitively expensive” rule, making the proposed questions about how to apply it moot.
The judgment addressed the applicants’ reliance on a separate High Court decision in North East Pylon Pressure Campaign. Mr Justice Barrett said the apparent differences did not alter his conclusions, noting that constitutional arguments had added significantly to the hearing and that the court had not applied the costs rule in question. He said Fingal County Council and the Dublin Airport Authority had agreed not to pursue costs related to the Habitats Directive.
The court also declined to refer a question of EU law to the Court of Justice of the European Union, finding that a ruling was not necessary to decide the application. It said the applicants could not renew their application for their own costs, as no request had been made to leave that issue over or to file evidence about the amount incurred. The court ultimately declined to grant the certification or leave sought.