The High Court has ordered Kerry Fish (Ireland) Unlimited Company to pay Kerry County Council’s costs after refusing the company’s request for environmental costs protection following its unsuccessful judicial review challenge over traffic calming measures in Tralee.
Mr Justice Anthony Barr ruled on 1 March 2022 on the final order and costs arising from an earlier judgment delivered on 21 January 2022. The parties agreed that the final order should record that all the relief sought by the company was refused. The earlier judgment was reported as [2022] IEHC 29.
The company argued that costs protection under section 50B of the Planning and Development Act 2000 applied because its challenge included an alleged breach of the Habitats Directive. It sought no order for costs or, alternatively, an award that would not be prohibitively expensive under the Aarhus Convention. It also relied on European and Irish case law on environmental litigation costs.
The council disputed that the statutory protections applied. It argued that the earlier judgment had found that the relevant regulations were not raised in the company’s pleadings and that lifting the suspension of the traffic calming measures was not a “project” under those regulations. The council also argued that the company had not provided relevant emails at the ex parte stage and that its conduct should weigh against costs protection.
In his ruling, Justice Barr said the case concerned the lifting of a suspension of traffic calming measures on two Tralee streets in 2020. The company traded on one of the streets. He noted that the company had abandoned 15 grounds at the contested hearing, leaving a Habitats Directive ground on which the court had ruled against it in the earlier judgment.
The judge said there was no evidence that the reintroduction of the road closures could have an adverse effect on Tralee Bay Special Protection Area or another European site. He concluded that the challenge was not, in reality, about environmental protection and that the costs-relief provisions in the 2000 and 2011 Acts and the Aarhus Convention did not apply.
The court ordered that all relief be refused and awarded the council the costs of the action, including submissions, with the amount to be adjudicated if the parties could not agree. The costs order is stayed for 28 days. If the company lodges an appeal, the stay continues until the Court of Appeal finally determines the matter.