The High Court has referred questions about the costs protection available in environmental planning cases to the Court of Justice of the European Union (CJEU), adjourning parts of two judicial reviews pending its guidance.
In a judgment delivered on 14 January 2022, Humphreys J considered applications by Enniskerry Alliance and Enniskerry Demesne Management Company CLG, and by Protect East Meath Limited. The cases challenge planning permissions for separate developments. The applications before the court concerned the costs rules that would apply if the applicants were unsuccessful; the court did not decide the underlying challenges to the permissions.
The Enniskerry case concerns permission for 165 homes, a childcare facility and associated works on Cookstown Road, granted by An Bord Pleanála on 13 August 2021. The Drogheda case concerns permission for 275 apartments, a crèche and site works near Scotch Hall Shopping Centre, granted on 29 June 2021. The judgment says environmental impact assessment was required in Enniskerry but screened out in Protect East Meath. Appropriate assessment was not required in either case.
The judge refused to declare that section 50B of the Planning and Development Act 2000 applied to any of the other grounds in either case. In Enniskerry, he declared that the Environment (Miscellaneous Provisions) Act 2011 applied to one part of a ground concerning alleged damage to hedgerows if the development proceeded in breach of planning law. He refused that declaration for the other grounds. In Protect East Meath, he refused a declaration that the 2011 Act applied to any other ground.
The court recorded agreements on costs protection for certain grounds. In Enniskerry, all parties agreed there would be no order as to costs if the applicant lost on its bat-protection ground. In Protect East Meath, all parties agreed to the same approach for the bat-protection ground; the board also agreed there would be no order for its costs if the applicant lost on a separate ground concerning a required regulatory statement. The judge did not determine the legal basis for the agreements.
For the remaining grounds, the judge said questions about the EU-law obligation to keep environmental proceedings from becoming prohibitively expensive were suitable for referral to the CJEU. He adjourned those issues pending its decision. The judgment also provides that the not-prohibitively-expensive costs rule will apply, by consent, to the costs of arguing the costs issue if an applicant ultimately fails on any aspect of that application. The planning challenges themselves remained unresolved at this stage.