The High Court has allowed John and Sheena Clancy costs protection for a further hearing on whether extinguishing rights of way under a compulsory purchase order (CPO) for Ennistymon’s inner relief road could engage EU habitats law. The court did not decide that legal question or the underlying challenge to the CPO.
In a judgment delivered on 28 July 2023, Mr Justice Humphreys refused the applicants’ costs protection application against An Bord Pleanála and the State except for the rights-of-way issue. He directed that the matter be listed on 9 October to set a date for a hearing on that issue, with costs protection against all opposing parties, including Clare County Council. The order was to be perfected forthwith on the basis that the applicants’ costs were reserved, unless a submission to the contrary was made within seven days.
The applicants are challenging the board’s 20 September 2022 approval of the CPO for the N67/N85 Inner Relief Road at Blake’s Corner, as well as its refusal to award them costs for their objections. Their pleaded grounds include claims about the legal tests applied, proportionality, compensation, environmental law and constitutional rights. Those remain claims, not findings in this judgment.
The judge considered whether the CPO process could qualify for statutory costs protection under section 50B of the Planning and Development Act 2000. He rejected the applicants’ arguments that the CPO was itself a development consent or that other features of the process, including its relationship to the road project, brought it within environmental costs-protection rules.
The remaining arguable point concerned the CPO’s provision for extinguishing rights of way. The judge said it was arguable that this could constitute a “project” for the purposes of the EU Habitats Directive. Because that point had reached the threshold for costs protection and Clare County Council was not present at the July hearing, he said its substantive merits should not be decided then. A later hearing involving all opposing parties would address whether the applicants were correct.
The judgment also refused costs protection for the challenge to the board’s refusal to award costs, and for the applicants’ challenges to legislation, the board’s costs policy and the Road Safety Strategy, subject to the rights-of-way issue. The court made no ruling in this judgment on whether the CPO was valid or whether the proposed road could proceed.