Introduction

The case of Flannery & Ors v An Bord Pleanála (Approved) ([2022] IEHC 327) represents a significant judicial review undertaken by the High Court of Ireland. Heard on June 8, 2022, this case delves into the complex arena of cost apportionment in environmental litigation, particularly under the framework of the Planning and Development Act 2000 and its interplay with the Aarhus Convention. The plaintiffs, James Bernard Flannery, Jim Nolan, and Patsy Kearns as Trustees of Kevin's GAA, alongside Barry Carroll in a separate application, challenged decisions made by An Bord Pleanála, Ireland's national planning authority. Central to the case was the determination of legal costs following partial successes in their respective challenges.

Summary of the Judgment

Justice Humphreys delivered the judgment addressing the apportionment of costs between the applicants and An Bord Pleanála. The court examined the board's proposal to divide costs based on the number of points won or lost in the cases, following a Scott Schedule that itemized 45 points with 13 being successful. For the Flannery applicants, 57% of costs were to be awarded, while 50% was proposed for Carroll, recognizing partial successes. The judgment explored the applicability of the Aarhus Convention in influencing cost apportionment and evaluated the appropriateness of discounting costs in environmental litigation, contrasting it with commercial contexts. The court ultimately emphasized the necessity of maintaining full cost awards in environmental cases where applicants achieve substantial success, given the public interest nature of such litigation.

Analysis

Precedents Cited

The judgment extensively references pivotal cases that have shaped the legal landscape regarding cost apportionment:

• Veolia Water UK Plc. v. Fingal County Council (No. 1) [2006] IEHC 137: Established that in complex commercial cases, courts may apportion costs based on the success or failure of issues raised.
• Connelly v. An Bord Pleanála [2018] IESC 36: Highlighted the need for a “softer” approach to cost apportionment in environmental cases, discouraging the penalization of successful applicants for losing minor points.
• Star Elm Frames Ltd. & Companies Act 2014 [2016] IEHC 666: Demonstrated instances where cost apportionment was justified based on the impact of unsuccessful submissions on overall proceedings.
• Quinn Insurance Limited (Under Administration) v. PricewaterhouseCoopers [2021] IESC 15: Emphasized the balance between clarity of rules and the practical objectives of cost apportionment.

These precedents informed the court’s approach in distinguishing between commercial and environmental contexts, underscoring the unique considerations inherent in public interest litigation.

Legal Reasoning

Justice Humphreys navigated the intersection of domestic law and international obligations under the Aarhus Convention. Recognizing that Section 50B of the Planning and Development Act 2000 accommodates the principles of Aarhus, the court approached cost apportionment with flexibility rather than rigidity. The judgment highlighted that environmental litigation serves societal interests, promoting sustainable development and holding public authorities accountable.

The court contrasted the permissive nature of cost awards under Section 50B with the more stringent approaches in commercial litigation, advocating for full cost awards in environmental cases where applicants secure substantial victories. This stance aligns with the broader public interest objectives and the necessity for accessible justice in environmental matters.

Additionally, the judgment addressed procedural efficiencies, noting the compactness of the hearings and the absence of “kitchen-sink” tactics, thereby justifying the maintenance of full cost awards without the need for substantial discounts based on partial successes.

Impact

This judgment reinforces the protective stance towards applicants in environmental litigation, ensuring that the fear of incurring excessive legal costs does not deter public participation in safeguarding environmental interests. By affirming that partial successes do not necessitate proportional cost discounts, the court upholds the accessibility and fairness of environmental judicial review.

Furthermore, the decision may influence future cases by setting a precedent that favors full cost awards in public interest cases, especially where the litigation serves broader societal and environmental goals. It underscores the judiciary's recognition of the essential role that environmental litigation plays in promoting sustainable development and holding public entities accountable.

Complex Concepts Simplified

Aarhus Convention

The Aarhus Convention is an international treaty that grants the public rights regarding access to information, public participation, and access to justice in environmental matters. It aims to empower individuals and communities to engage actively in environmental decision-making processes.

Scott Schedule

A Scott Schedule is a document used in legal proceedings to itemize and detail the points of contention between parties. It facilitates a structured approach to identifying which specific issues are agreed upon and which remain disputed.

Interlocutory Application

An interlocutory application is a procedural motion filed during the course of litigation, addressing specific issues that arise before the final judgment. It is not a final decision but rather a step to resolve interim matters.

Section 50B of the Planning and Development Act 2000

Section 50B pertains to the awarding of costs in judicial reviews related to planning matters. It outlines the circumstances under which costs may be granted to the applicant based on the success of their claims.

Conclusion

The High Court's judgment in Flannery & Ors v An Bord Pleanála underscores the judiciary's commitment to balancing cost apportionment with the public interest objectives of environmental litigation. By affirming that full cost awards are appropriate when applicants achieve substantial success, the court ensures that environmental advocacy remains accessible and robust. This decision not only aligns with the principles enshrined in the Aarhus Convention but also sets a precedent that could influence future judicial approaches to cost apportionment in similar public interest cases. Ultimately, the judgment reinforces the vital role of environmental litigation in promoting sustainable development and holding public authorities accountable, thereby contributing significantly to the evolution of environmental and planning law in Ireland.