Summary of High Court Judgment

Factual and Procedural Background

This judgment, delivered by Judge Farrell, concerns a judicial review challenge by the Applicants to planning permission granted by the Respondent (the Commission) to Company A (a Notice Party) for the construction of agricultural buildings and associated works at a site in the Townland in the County. An earlier, similar permission granted to persons associated with Company A had previously been quashed by the High Court in separate proceedings (record number 2019/799JR) and was not remitted to the decision-maker. The Commission's Inspector originally recommended refusal on the basis of likely significant effects on multiple Special Areas of Conservation (SACs). The Commission departed from that recommendation and granted permission subject to conditions on 17 December 2024. The Applicants obtained leave to apply for certiorari on five core grounds and the substantive application was listed and progressed with specified directions for filing. On 23 February 2026 the Commission conceded that two pleaded grounds (§§28 and 37) were made out, accepting it had failed to furnish adequate reasons for departing from its Inspector's recommendation, but the Commission did not concede the other grounds. Company A elected to defend the decision despite that concession. Company A sought a pre-emptive protective costs order in respect of the costs of a preliminary module addressing the conceded grounds and sought a declaration that any adverse costs would be assessed on a "not-prohibitively expensive" basis.

Legal Issues Presented

1. Whether section 50B of the Planning and Development Act 2000 applies to these proceedings and, if so, what effect its costs provisions have on the parties.
2. Whether the proceedings (or a module thereof) should be modularised and the conceded grounds determined as a preliminary issue.
3. Whether Company A (the Notice Party) is entitled to a pre-emptive protective costs order or a declaration that any costs awarded against it would be assessed on a "not-prohibitively expensive" basis.
4. Whether the Aarhus Convention's "not-prohibitively expensive" requirement extends to a notice party defending grounds conceded by the decision-maker.

Arguments of the Parties

Applicants' Arguments

• The Applicants maintained their challenge to the Commission's decision on five core grounds and sought relief including certiorari; they contended that section 50B applies to the proceedings and relied upon the costs protection regime provided thereby and section 3 of EMPA.
• The Applicants argued that costs should not be awarded against them in a manner inconsistent with the "not-prohibitively expensive" principle where applicable.

Respondent's (the Commission's) Arguments

• The Commission conceded that the pleaded grounds at §§28 and 37 were made out insofar as it had failed to provide adequate reasons for departing from its Inspector's recommendation, and accepted that section 50B applies to the proceedings.
• The Commission did not concede any other grounds and did not accept the Applicants' entitlement to all relief sought.

Notice Party (Company A)'s Arguments

• Company A sought to defend the Commission's decision despite the Commission's concession and contended it should not be at risk of bearing the Applicants' costs if it chose to defend the conceded grounds.
• Company A sought a pre-emptive protective costs order or a declaration that any adverse costs would be assessed on a not-prohibitively expensive basis under section 50B, EMPA, or the court's inherent jurisdiction.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court proceeded on the following reasoning, based exclusively on the material in the judgment:

1. The Commission conceded that it had failed to give adequate reasons for departing from its Inspector's recommendation in respect of the grounds pleaded at §§28 and 37. That concession was limited to those grounds; no other concessions were made.
2. The proceeding falls within section 50B, as interpreted in Heather Hill, and the parties agreed that section 50B applies to the entire challenge.
3. Section 50B(2) establishes the default rule that each party bears its own costs in proceedings to which it applies; subsection (2A) permits costs to be awarded to a successful applicant to the extent that the respondent or notice party contributed to the act or omission leading to relief; subsection (3) permits costs to be awarded for frivolous or vexatious claims, for conduct in proceedings, or for contempt; subsection (4) allows awards in exceptional public importance cases.
4. S.50B(2A) applies only in favour of an applicant and only where a respondent or notice party contributed to the error; none of the parties suggested Company A contributed to the Commission's failure to give reasons, so s.50B(2A) could not justify costs against Company A in respect of the conceded grounds.
5. An award under s.50B(3)(b) (because of the manner in which a party conducted the proceedings) remains possible but such an award depends on conduct in the proceedings and cannot be determined in advance; considerations include whether the point involved settled law, whether proceedings were unnecessarily prolonged, and whether the party's conduct impeded efficient disposal.
6. The Court concluded it would be premature to make a pre-emptive costs order immunising Company A from any adverse costs or to declare that any adverse costs would be assessed on a not-prohibitively expensive basis; the question of adverse costs against Company A depends on future findings about its conduct in the proceedings.
7. On the scope of the Aarhus Convention and the not-prohibitively expensive principle, the Court concluded (following CJEU authority) that the obligation to ensure proceedings are not prohibitively expensive applies to those who bring environmental challenges, not to those defending such challenges; therefore the Convention does not require costs awarded against a notice party to be assessed on a not-prohibitively expensive basis.
8. Accordingly, Company A's application for a pre-emptive protective costs order and for a declaration that any costs against it would be assessed as not-prohibitively expensive were refused. The Court proposed "no order" as to the costs of that application itself, while allowing parties two weeks to make written submissions if they sought a different costs order.

Holding and Implications

HOLDING: The application by the Notice Party (Company A) for a pre-emptive protective costs order and for a declaration that any costs awarded against it, if unsuccessful defending the conceded grounds, would be assessed on a not-prohibitively expensive basis, is REFUSED.

Implications:

• Direct effect: Company A may defend the conceded grounds but is not entitled to pre-emptive immunity from adverse costs; any award of costs against it must await determination of whether its conduct in the proceedings justifies an award under section 50B(3).
• Court costs for this application: the judge proposed making no order as to costs of the application itself, subject to any party filing written submissions within two weeks.
• Broader implications: the Court held that the Aarhus Convention's not-prohibitively expensive requirement applies to challengers bringing environmental challenges and does not extend to notice parties defending grounds conceded by the decision-maker. The judgment did not announce a wider novel precedent beyond these conclusions.

Judge Farrell