The High Court has ruled that John McHugh does not need permission to appeal its refusal of leave to bring a judicial review against Laois County Council. It also ordered him to pay the council’s legal costs, but stayed enforcement while his intended appeal and any subsequent Supreme Court leave application are determined.
Mr Justice Garrett Simons delivered the procedural ruling on 22 February 2021. The application for leave to seek judicial review had already been refused in a written judgment on 1 February, principally because of delay. The February ruling addressed whether permission was needed to appeal and how costs should be handled; it did not reconsider the refusal of judicial review leave.
The dispute concerned a council decision made in January 2006. The court held that the proceedings were governed by the older judicial review rules under Order 84, rather than the statutory planning review procedure introduced by the Planning and Development (Amendment) Act 2006. That meant the statutory requirement to obtain High Court permission to appeal did not apply. The judge declared that permission under section 50A(7) of the Planning and Development Act 2000 was not required.
The council had argued that the older rules should govern the time limit for bringing the case, but that the newer permission requirement should apply to an appeal. The judge rejected that distinction, reasoning that the amended statutory procedure did not apply to pre-commencement decisions in any respect, absent transitional provisions.
On costs, the court ordered Mr McHugh to pay the council’s costs of and incidental to the proceedings, including reserved costs. The amount was not set; costs are to be adjudicated by the Office of the Chief Legal Costs Adjudicator if the parties cannot agree. Adjudication and enforcement are stayed pending the intended Court of Appeal appeal and any subsequent application for leave to appeal to the Supreme Court. The council’s counsel indicated that, if no appeal is filed, the council would not object to a permanent stay, but that was not itself ordered.
The court said the 28-day appeal period would start when the High Court Registrar draws up the order embodying the rulings. It also allowed either party to return to court if the Court of Appeal rules that permission to appeal is required.