The High Court has reserved decisions on most costs in a planning enforcement case remitted to the Circuit Court, leaving the statutory costs protection issue for that court to determine.
In a judgment delivered on 8 February 2022, Ms Justice Siobhán Phelan ordered that the costs of the High Court proceedings to date be reserved for the Circuit Court judge. She also reserved the respondents’ costs of their successful motion to remit the case, subject to that judge’s determination on whether Part 2 of the Environment (Miscellaneous Provisions) Act 2011 applies. The court made no order on the applicant’s costs of opposing the motion.
The underlying proceedings were brought by Kilsaran Concrete Unlimited Company under section 160 of the Planning and Development Act 2000. The company seeks to restrain alleged unauthorised use of lands owned by O’Reilly Oakstown Limited at Oakstown, Trim, County Meath, in connection with making ready-mix concrete for sale off-site. It also seeks removal of structures it says were erected without authorisation. Those claims remain undecided.
The respondents, O’Reilly Oakstown Limited and O’Reilly Bros Ltd, had successfully sought to have the proceedings remitted to the Circuit Court on the basis that the land’s market value was below €3 million. The High Court had indicated it would remit the case in a ruling on 18 January 2022. The costs judgment dealt only with the consequences of that decision; it did not determine the section 160 application on its merits.
The central question was whether costs protection under the 2011 Act could apply to the remittal motion, which was brought within the planning proceedings. The applicant argued that if the protection applied, each party should generally bear its own costs. The respondents argued that the Act did not cover the motion, or alternatively that they qualified as the applicant for that motion and could recover costs.
Justice Phelan rejected the respondents’ arguments on the motion’s status and their claimed status as an “applicant” under the Act. She held that the remittal motion formed part of the section 160 proceedings and would be governed by the Act’s default costs rule if that rule ultimately applies to the case. But she did not decide whether the Act applies.
The judge said it was not possible to decide liability for the remittal costs fairly before that issue was resolved. If costs protection applies, the parties would bear their own costs of the motion; if it does not, the respondents may be entitled to their costs. The Circuit Court judge will address the reserved costs alongside the unresolved planning case and the costs protection question.