The High Court has ordered An Bord Pleanála to pay 25% of Sabrina Joyce Kemper’s costs in her judicial review of permission for the Greater Dublin Drainage Project, after she succeeded on one narrow ground but failed on most of her challenges.
Mr Justice Allen’s judgment on costs, delivered on 21 January 2022, directs that the applicant’s costs be adjudicated and that the Board pay 25% of the amount once assessed. The order excludes costs of the recusal application, the remittal application and an abortive costs hearing on 25 June 2021. The court made no order for costs against the State respondents, Ireland and the Attorney General.
The original challenge concerned An Bord Pleanála’s 11 November 2019 decision to grant Irish Water permission for the project. In an earlier judgment, the court found the Board had failed to comply with a statutory obligation to seek Environmental Protection Agency observations on the likely impact of the development on wastewater discharges. The permission was quashed, and Irish Water’s application was remitted to the Board for reconsideration from the point when the inspector’s report had been submitted. The judicial review claim against the State respondents was dismissed.
The applicant sought all her costs, arguing that she had obtained the principal relief and that environmental proceedings must not be prohibitively expensive. The Board accepted that she should receive some costs but argued that her success was limited: she had succeeded on only one of eleven areas of challenge, and other grounds, along with the recusal and remittal disputes, had added materially to the proceedings. The State respondents argued that no relief had been obtained against them and their conduct had not contributed to the relief granted.
Justice Allen found that the applicant had not achieved complete success. She obtained certiorari quashing the permission, but none of the declarations she had sought. The court concluded that pursuing the unsuccessful issues significantly increased the costs and that the Board’s 25% proposal was a proportionate contribution to the costs of the issues on which she succeeded.
The judgment said the applicant’s costs application did not establish a basis for shifting her unsuccessful claim against the State respondents onto them. The court also provisionally considered that there should be no order as to the costs of the costs application, because the applicant had obtained no more than the Board had offered earlier. It listed the case for mention on 3 February 2022 in case either the applicant or the Board wished to argue for a different order on those costs.