Costs Awards in Environmental Judicial Review: Insights from Salmon Watch Ireland CLG & Ors v ALAB & Ors [2024] IEHC 700

Introduction

The case of Salmon Watch Ireland CLG & Ors v Aquaculture Licences Appeals Board & Ors (Approved), reported as [2024] IEHC 700, presents a significant judicial review decision from the High Court of Ireland. This case revolves around environmental concerns related to aquaculture licensing, particularly focusing on the issuance of licenses to Marine Harvest Ireland (MOWI) and associated bodies. The appellants, including environmental groups like Salmon Watch Ireland and Inland Fisheries Ireland (IFI), challenged the validity of the aquaculture and foreshore licenses granted by the Aquaculture Licences Appeals Board (ALAB) and the Minister for Agriculture, Food and the Marine.

The central issues in the case include alleged inadequacies in the Environmental Impact Assessment (EIA) conducted during the licensing process, potential breaches of the Water Framework Directive (WFD) concerning Dissolved Inorganic Nitrogen (DIN) limits, and delays attributed to ALAB in processing the applications.

Summary of the Judgment

Justice David Holland delivered the judgment on December 11, 2024, after a 15-day trial. The High Court ruled to quash both the Aquaculture Licence issued by ALAB and the Foreshore Licence granted to MOWI. The reasons for quashing the licenses included:

Inadequate Assessment and Air (AA) Screening regarding the impact on seals in Glengarriff Harbour and Woodland SAC.
Deficient Environmental Impact Assessment (EIA) concerning the risks of salmon escape and structural integrity of salmon cages.
Insufficient reasoning behind the conclusion that the salmon farm would not breach WFD limits on Dissolved Inorganic Nitrogen.

Additionally, the court found that ALAB had unreasonably delayed the AA Screening process over approximately two years, contributing to the overall 11-year duration of the licensing process, which risked bringing the licensing scheme into disrepute.

Importantly, while the licenses were quashed, Salmon Watch Ireland (SWI) obtained no relief against the State. The court also addressed intricate costs orders, navigating through the complexities of the Not Prohibitively Expensive (NPE) rule and the Veolia principles to determine the appropriate costs awards to the successful appellants.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shaped the court’s approach, particularly regarding costs in judicial reviews:

Veolia Water v Fingal County Council (No 2) [2007] 2 IR 81: Established the Veolia principles, emphasizing that costs generally follow the event, and exceptions are rare.
Godsil v Ireland and the Attorney General [2015] IESC 103: Affirmed that "costs follow the event" is the overarching rule unless there’s a material increase in costs due to unmeritorious arguments.
Connelly v An Bord Pleanála [2018] IESC 36: Highlighted the need to discourage parties from unnecessarily prolonging cases with unmeritorious points.
Little v The Chief Appeals Officer [2024] IESC 53: Discussed the evolution of the costs jurisdiction, reinforcing the discretion courts hold in awarding costs.
Flannery v An Bord Pleanála [2022] IEHC 327: Illustrated the balance courts must maintain between discouraging wasteful litigation and ensuring access to justice in environmental cases.

Legal Reasoning

The court’s legal reasoning centered on the application of the Veolia principles within the context of environmental judicial review under Section 50B of the Planning and Development Act 2000 (PDA 2000). Key aspects of the reasoning include:

Costs Follow the Event: Reinforced by Veolia and subsequent cases, this principle posits that the losing party bears the costs unless exceptional circumstances warrant otherwise.
Veolia Orders: The court considered whether the appellants' pursuit of multiple grounds significantly increased litigation costs. It acknowledged that while VEOLIA orders are discretionary, they should be exceptions rather than the norm.
Public Law and Environmental Context: Recognized that environmental litigation has broader public interests, necessitating a more nuanced approach to costs to not deter legitimate environmental challenges.
Unitary Trial Considerations: The decision to conduct a unitary trial for three separate but related proceedings influenced the costs determination, as it led to overlapping issues and shared resources.

The judgment navigated the tension between discouraging frivolous litigation and preserving access to justice in environmental matters. The court emphasized that while the starting point under Section 50B PDA 2000 is that each party bears its own costs, provisions like Section 50B(2A) allow for costs to be awarded to successful applicants to the extent that respondents' actions contributed to the success.

Impact

This judgment has several potential impacts on future judicial reviews, particularly in environmental and planning law:

Clarification of Costs Rules: Reinforces the principle that costs typically follow the event, but also underscores the court’s discretion in applying Veolia orders thoughtfully in complex cases.
Encouragement of Efficient Litigation: By disincentivizing the raising of unmeritorious points, the decision promotes more focused and efficient legal proceedings.
Balancing Access to Justice: Acknowledges the importance of environmental litigation in upholding public interests while ensuring that the costs framework does not become a barrier to legitimate challenges.
Unitary Trial Strategy: Highlights the cost implications of conducting unitary trials for multiple related proceedings, influencing how future cases might be strategized.

Complex Concepts Simplified

Veolia Principles

Originating from the case Veolia Water v Fingal County Council, the Veolia principles dictate that in legal proceedings, the losing party should generally bear the legal costs of the successful party. Exceptions are made only in cases where the proceedings were prolonged by frivolous or vexatious claims that substantially increased costs.

Not Prohibitively Expensive (NPE) Rule

Under the NPE rule, as applied in environmental litigation, the cost of bringing a legal case should not be so high as to discourage individuals or organizations from seeking justice. This principle ensures that parties can challenge decisions without the fear of prohibitive legal costs.

Section 50B of the Planning and Development Act 2000 (PDA 2000)

This section governs the awarding of costs in judicial review proceedings in Ireland. It establishes the default that each party bears its own costs but allows for exceptions where costs can be awarded to successful applicants under certain conditions.

Juxtaposition of Public and Private Law Considerations

The judgment underscores the difference between public law (which often involves broader societal interests) and private law (typically involving individual disputes). In environmental cases, public interest considerations can affect how costs are awarded, aiming to balance access to justice with the efficient use of court resources.

Conclusion

The High Court’s decision in Salmon Watch Ireland CLG & Ors v ALAB & Ors [2024] IEHC 700 marks a pivotal moment in the application of costs rules within environmental judicial reviews in Ireland. By thoughtfully applying the Veolia principles and considering the broader public policy implications, the court has reinforced the delicate balance between discouraging unnecessary litigation and ensuring that legitimate environmental challenges can be pursued without prohibitive costs.

This judgment not only quashes the disputed licenses due to procedural inadequacies and delays but also provides a nuanced approach to costs awards. The emphasis on a holistic view of litigation costs, particularly in complex public law contexts, sets a precedent for future cases, promoting fairness and efficiency in the judicial process.

Ultimately, this case enhances the legal framework surrounding environmental litigation, ensuring that while litigants are encouraged to present meritorious cases, they are not unduly penalized for complexities inherent in challenging significant public decisions.