The High Court has explained why John Conway and Louth Environmental Group were awarded their costs against An Bord Pleanála, but not against the developer, in a dispute arising from a quashed planning permission.
Humphreys J’s judgment, delivered on 25 March 2022, concerned costs in Conway v An Bord Pleanála, one of three judicial review cases challenging the board’s most recent permission for a housing development. The court had quashed that permission in separate proceedings. The costs issue was that the board was prepared to pay all the applicants’ costs, while the applicants sought an order against both the board and notice party Crekav Trading GP Limited.
The judge said the parties had agreed at an early stage to proceed on the basis that section 50B(2A) of the Planning and Development Act 2000 applied. He would act on that assumption, although he said it did not in fact apply to the domestic-law points on which the case had been decided.
The applicants argued that the developer should bear some costs because the error arose from inadequate documentation it had submitted. The judge said defects in a developer’s material do not, by themselves, automatically justify either certiorari or a costs order. In general, it is the decision-maker’s failure to refuse an application or lawfully seek further information that may give rise to a ground for certiorari.
The applicants also relied on the developer’s participation in defending the proceedings. The judge accepted that this prolonged the case, but said the effect was reduced because Conway and the related Clonres case were heard together. He was not satisfied that the developer’s participation had substantially lengthened the Conway hearing beyond its involvement in Clonres, or that it had raised a large set of unique points beyond the board’s submissions.
The judgment said the court could make an apportioned costs order against a developer where circumstances warranted it, including where participation substantially extended proceedings. But section 50B(2A) did not require an automatic apportionment in every case. The board had not sought apportionment here, and the judge saw no pressing need to order costs against the developer.
The order made on 7 March 2022, for which the judgment gave reasons, awarded the applicants their costs against the board, including reserved costs. There was no order for costs against the notice party. The judgment addressed costs only; it did not revisit the earlier decision quashing the planning permission.