The Supreme Court has refused An Taisce’s application for 25% of the costs of its unsuccessful appeal over planning permission for a cheese factory at Slieverue, Co. Kilkenny. The Court confirmed its provisional position that each party should bear its own costs.
An Taisce had asked the Court to make the costs order against either An Bord Pleanála or the State. The Board and the Attorney General opposed the application. The parties agreed that the Court could decide the issue without an oral hearing.
The appeal challenged An Bord Pleanála’s decision to grant planning permission for the proposed factory. The Supreme Court had upheld the High Court decision dismissing An Taisce’s judicial review application. The Court described the appeal as raising important, even fundamental, environmental law issues, particularly concerning the operation of the Environmental Impact Assessment Directive.
An Taisce submitted that it brought the case in the public interest, without a personal or financial interest, to uphold environmental law and protection. It also characterised the proceedings as a test case and relied on decisions in which unsuccessful parties had received full or partial costs.
The Court said that an environmental litigant’s lack of personal interest, bona fide pursuit of a substantial issue or involvement in a test case did not, by itself, justify awarding costs to a losing party. It distinguished the cases An Taisce cited, explaining that they involved challenges to legislation or executive action for which State defendants had responsibility.
The Court said An Bord Pleanála, although a State body, had no autonomous constitutional role or responsibility for the legislation it applies. It also found no basis for an order against the Attorney General. In the appeal, he had been joined as guardian of the public interest and had assisted the Court on the interpretation of the directive; he was not defending legislation or standing over executive action on behalf of the State.
The ruling was limited to costs. The Court made no award in An Taisce’s favour and did not alter the outcome of the planning challenge. It confirmed that each party should abide its own costs and said the case did not fall within the exceptional class in which an unsuccessful party receives costs.