After considerable ambiguity in respect of environmental costs protection, the Supreme Court’s decision in Heather Hill Management Company CLG & McGoldrick v An Bord Pleanála, Burkeway Homes Limited and the Attorney General  IESC 43 has brought some much-needed clarity to the rules around costs implications of challenges to large scale developments on environmental grounds.
On 10 November 2022, Mr. Justice Murray handed down a judgment on behalf of the Supreme Court on the interpretation of section 50B of the Planning and Development Act 2000, overturning an earlier decision of the Court of Appeal and agreeing with the decision of the High Court judge.
The Supreme Court held that the protective costs order available under section 50B applies to any challenge to a decision made pursuant to a statutory provision which gives effect to specified EU Directives listed in the provision. The Supreme Court held that there is no basis for the splitting of costs by reference to the issues and grounds in proceedings where some grounds/issues raised engage those EU Directives and others do not. This means that applicants who take judicial review proceedings will in the normal course be entitled to their full costs where the challenge involves environmental grounds.
While the judgment has brought certainty on the question of costs, it remains to be seen whether the judgment will result in an increase in the number of judicial review applications. The impact of this judgment will certainly be felt across a number of industries including property development and construction and stakeholders will eagerly track the effect on the volume of challenges to development over the coming months and years.
For further information on this topic, please contact Niamh Collins, Solicitor, Alan Roberts, Partner, or any member of A&L Goodbody’s Environmental and Planning team.