The High Court has ordered the respondents in a planning enforcement dispute to pay John and Mary Lyons two-thirds of their costs incurred up to 29 February 2024, plus all costs from 7 March 2024 onwards. The court also ordered the respondents to pay all costs associated with discovery from Limerick City and County Council. The appeal was withdrawn, and the proceedings were formally struck out.
The dispute concerned commercial premises on Ennis Road, Limerick. The Lyons leased part of the premises for a restaurant; the larger part was used as a bowling alley trading as Funworld. Supermac’s Ireland Ltd owned the premises. The applicants brought a section 160 Planning and Development Act 2000 application, alleging unauthorised development in two respects: the permanent closure of an internal door between the units, and the installation of a commercial kitchen and extractor system.
The Circuit Court refused the application in March 2023. The Lyons appealed. In June 2023, the planning authority said the door closure was exempt development and that the kitchen required permission. The respondents later obtained retention planning permission for the development. The formal grant issued on 29 February 2024, a week before the scheduled High Court appeal hearing.
At the hearing on 7 March, the Lyons withdrew the appeal after receiving an affidavit referring to the planning authority’s June 2023 letter and the retention permission. The High Court then considered costs only. It held that the permission had largely made the proceedings moot, but that the applicants had reasonably pursued the kitchen issue: the need for retention permission vindicated their position that those works were unauthorised. The court therefore said the respondents should bear the costs of that part of the proceedings.
The applicants had also pursued the issue of whether the closed door required planning permission, but withdrew that complaint on the morning of the appeal hearing. The judge said the planning authority’s view was a non-statutory opinion, not a formal determination, and did not prevent the applicants from pursuing the issue in court. The court found, on the balance of probabilities, that the applicants’ architect had not received the June letter at the time, though the evidence showed he knew the authority’s general position by the summer or autumn of 2023. The court reduced the applicants’ recoverable costs before 29 February by one-third to reflect the withdrawn issue.
The judge also found it unreasonable for the respondents to continue litigating when the applicants first learned of the letter, including seeking non-party discovery from the planning authority. The respondents must pay the applicants’ costs from 7 March onwards. If the amount is not agreed, it is to be assessed by the County Registrar. The costs are limited to one counsel and include costs from the Circuit Court, reserved costs, court listings and the applicants’ affidavits. Mr McDonagh may be excluded from the costs order if the respondents notify the registrar by 2 September 2024 and the applicants do not object.