The High Court ruled that John Conway does not need leave to appeal its decision rejecting his challenge to planning legislation and ministerial guidelines. It made no order on his leave application, while allowing him to renew it if an appellate court later decides leave was required.
In a judgment delivered on 30 June 2023, Humphreys J. dealt with leave to appeal and costs following the court’s earlier dismissal of Conway’s challenge to the constitutional validity of section 28(1C) of the Planning and Development Act 2000 and the legal validity of two guidelines made under that provision.
The judge said leave was not required to appeal the ruling on the validity of the primary legislation. He also concluded that the statutory leave requirement for certain planning decisions did not apply to the Minister’s adoption of the guidelines. The fact that the proceedings had initially included a challenge to a decision of An Bord Pleanála did not extend that leave requirement to the separate challenge to the guidelines.
The court noted that the parties had agreed to remove the developer from the specific board-order challenge so the case could proceed without requiring a challenge to that order. The judge said that arrangement was not intended to worsen Conway’s position on costs and that the parties had agreed he would retain costs protection under section 50B.
Conway sought his costs despite losing the substantive case. The judge acknowledged that some of his sub-points had merit and that costs awards may be possible in exceptional constitutional challenges. But he said the case did not meet the standard for awarding costs to an unsuccessful applicant.
In explaining that conclusion, the judge described the challenge as somewhat abstract, said the development did not affect Conway in a practical way, and considered the argument selectively focused on the Minister’s role while failing to address similarly broad powers held by other actors, including local authorities. These were the judge’s reasons for refusing costs.
The court ordered no costs for the proceedings or the applications dealt with in this judgment. It directed that the substantive order dismissing the proceedings be perfected forthwith, and made the costs order and other parts of its order effective forthwith.