The Supreme Court remitted a challenged planning application to An Bord Pleanála for a new determination in accordance with law as interpreted in the Court’s judgment. It also awarded Kathleen Connelly 75% of the costs of the High Court proceedings and the Supreme Court appeal, while making no order for costs on a separate High Court certificate application.
The ruling, delivered by Chief Justice Clarke on 30 July 2018, dealt with the final order and costs after the Court had sought further submissions on whether and how the planning application should return to the Board. The parties agreed that it should be remitted, though they differed on the terms.
The Court chose a general remittal order, saying a more prescriptive direction could make matters worse. It noted that no one had challenged the process before the Board decided, following an inspector’s report, to seek further information and a Natura impact statement. The Board could take that history into account when deciding what procedures to follow next.
The Court also left any potentially changed circumstances to the Board. It said it could not comment on whether circumstances had changed since the original decision, whether any changes were material, or what effect they should have on the procedure. The ruling expressed no view on how the Board should address that question.
On costs, the Court said the starting point was the outcome. Connelly had obtained the relief sought in the High Court, where the planning permission was quashed, and successfully resisted the Board’s appeal. However, the Court said significant issues, including issues connected with environmental impact assessment, on which Connelly failed had materially increased High Court costs and added somewhat to the Supreme Court costs.
It awarded her 75% of the costs of the High Court proceedings and the Supreme Court appeal. The Supreme Court appeal costs include the costs of filing her respondent’s notice. The Court made no order for costs relating to the Board’s unsuccessful application in the High Court for a certificate permitting an appeal to the Court of Appeal. It also made no order for costs involving the two notice parties, Clare County Council and McMahon Finn Wind Acquisitions Ltd.