Connelly v An Bord Pleanala & ors

Factual and Procedural Background

The Supreme Court issued an ex tempore ruling on the form of the final order and on costs following its earlier judgment in which the Applicant succeeded in having planning permission quashed. The challenged permission had been granted by the Respondent (a national planning authority). Two notice parties, Entity B (a local authority) and Company A (a wind-energy developer), were also joined. The present ruling determines (a) how the planning application is to be dealt with after quashing and (b) how costs are to be apportioned at High Court and Supreme Court levels.

Legal Issues Presented

1. Whether the quashed planning application should be remitted to the Respondent for re-determination, and if so, on what terms.
2. How costs should be allocated between the parties, including the costs of:
   • High Court proceedings,
   • the Supreme Court appeal,
   • an application in the High Court for a certificate to appeal to the Court of Appeal, and
   • the filing of a respondent’s notice in the Supreme Court leave-to-appeal process.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

Remittal of the Planning Application: The Court sought to minimise future disputes while avoiding an overly prescriptive order. It therefore decided to remit the application to the Respondent “to determine the planning application in accordance with law as interpreted in the Court’s judgment,” expressly noting: (a) no challenge had been made to the procedure up to the point where the Respondent sought further information and a Natura Impact Statement; and (b) any potential changes in circumstances since the original decision were matters for the Respondent to consider.

Costs: The Court reiterated that the primary criterion is the overall result—here, the Applicant’s success in quashing the permission and resisting the appeal. Relying on Veolia Water, the Court emphasised two corollaries:

• Parties should be discouraged from raising excessive unmeritorious points (“kitchen-sink” litigation).
• A successful party should lose costs only where it is clear that unmeritorious issues materially increased expenditure; a broad-brush assessment suffices.

Applying that test, the Court observed that the Applicant lost several significant issues (notably environmental-impact-assessment points) that added to costs. Balancing success and additional expense, the Court fixed the Applicant’s recovery at 75% of the costs of both the High Court and Supreme Court proceedings, inclusive of costs for filing the respondent’s notice.

Regarding discrete procedural steps:

• No costs were awarded to the Applicant for resisting the High Court application for a certificate to appeal, because the Respondent had legitimate grounds and partial success on appeal issues.
• The costs of the respondent’s notice form part of general appeal costs absent exceptional circumstances, which were not present.
• No order for costs was made in favour of, or against, the notice parties, as none were sought.

Holding and Implications

Holding: The Court ordered that the planning application be REMITTED to the Respondent for re-determination in accordance with the Court’s judgment, and awarded the Applicant 75% of the costs of the High Court proceedings and the Supreme Court appeal (including the respondent’s notice), with no order as to costs on the High Court certificate application and no costs orders concerning the notice parties.

Implications: The decision clarifies the Supreme Court’s practical approach to formulating remittal orders in planning-law cases and re-affirms the “broad-brush” methodology for apportioning costs under the Veolia Water line of authority. It signals to litigants that success may still be tempered by cost reductions where unnecessary issues have been pursued, while also confirming that filing a respondent’s notice is normally treated as an integral part of appeal costs.