On 10 November 2022, Mr Justice Murray in the Supreme Court delivered judgment in Heather Hill Management Company CLG & McGoldrick v An Bord Pleanála, Burkeway Homes Limited and the Attorney General  IESC 43, overturning an earlier decision of the Court of Appeal and reinstating the decision of Simons J in the High Court. The Supreme Court considered the correct interpretation of Section 50B of the Planning and Development Act 2000 (the PDA). The Court held that the protective costs order (PCO) available under s. 50B applies to any challenge to a decision made pursuant to a statutory provision which gives effect to the Directives listed in the provision, and that there is no basis under s. 50B or the Aarhus Convention for the splitting of costs where some grounds/ issues raised in the proceedings engage those Directives, and others do not.
Heather Hill Management Company CLG and Gabriel McGoldrick (the Applicants) successfully challenged a decision of An Bord Pleanala (the Board) to grant planning permission for a strategic housing development (SHD) of 197 dwellings in Galway. The challenge was made on a number of grounds, including the Habitats Directive, EU Flood Directive, material contravention of the Development Plan and landowner consent deficiencies. The Applicants argued that the entire proceedings attracted the special costs rules governing environmental litigation under section 50B of the 2000 Act.
High Court decision
In the High Court, Mr Justice Simons adopted a literal interpretation of section 50B of the PDA and held that on a literal interpretation of the wording of section 50B, costs protection applies to "proceedings" as a whole, rather than being split between various "grounds" raised. In deviating from earlier High Court and CJEU decisions, Simons J relied on the fact that the word "proceedings" was chosen by the Oireachtas, and the word "grounds" was not included in section 50B. Accordingly, Simons J held that the Applicants were entitled to special costs protection in respect of all grounds raised, due to the environmental nature of the decision which was under challenge.
Court of Appeal decision
The Court of Appeal (COA) overturned the decision of the High Court in October 2021. The COA determined that the protective costs order available under section 50B of the PDA, for cases dealing with issues of national environmental law, will only apply to the issues and grounds of challenge that relate to environmental matters and not to other grounds, such as grounds relative purely to planning points.
Giving the decision of the COA, Ms Justice Costello stated that if the Oireachtas had intended to apply the special costs rules to all proceedings concerned with a decision involving environmental issues, it could have said so in the legislation. The COA held that where the application of national environmental law is not in issue and the court is invited, on classic grounds of judicial review, to quash a decision, then the Court would not be obliged to interpret the 'not prohibitively expensive' obligation contained in the Aarhus Convention to extend costs protection to the entirety of the grounds raised.
Costello J found that the High Court was bound by earlier judgments on the special costs rules. Costello J stated that Simons J's comment that the lack of guidance from appellate courts due to the restrictions on appealing High Court decisions on planning and environmental law, pursuant to section 50A of the PDA, did not justify his departure from precedent.
Supreme Court decision
In this important judgment, the Supreme Court considered the correct interpretation of section 50B of the PDA.
Section 50B 'means precisely what it says' - costs protection for the 'proceedings' as a whole not just specific grounds
Mr Justice Murray relied on a literal interpretation of the 'clear language' of section 50B in finding that the Board had failed to present 'any persuasive alternative analysis' that the Oireachtas intended for section 50B costs protection to apply to specific grounds only. Murray J noted that the Court could not depart from the literal construction of the section, and that costs protection will apply to the entirety of proceedings taken:
"for the purpose of ensuring compliance with or the enforcement of, a statutory requirement where the failure to ensure such compliance or enforcement 'has caused, is causing or is likely to cause damage to the environment''
The Court found that all grounds raised in challenges to the validity of decisions to grant development consent under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016, under section 34 and 37 of the PDA benefit from the costs protection under section 50B.
The interpretative obligation means that section 50B must be interpreted in conjunction with the Aarhus convention and the Environment (Miscellaneous Provisions) Act 2011
Murray J stated that the Court must interpret section 50B in a manner that gives effect to the 'not prohibitively expensive' (NPE) rule set out in Article 9(4) of the Aarhus Convention. This is because both Part 2 of the Environment (Miscellaneous Provisions) Act 2011 (the EMPA) and the 2011 Amendment to section 50B were introduced to fully implement the provisions of Article 9(4) of the Aarhus Convention.
The Court held that the combined effect of Articles 9(2), 9(3) and 9(4) of the Aarhus Convention is that Contracting States must ensure that proceedings challenging non-compliance with national law that relates to the environment are not prohibitively expensive. Murray J noted that the concept of 'national law relating to the environment' referred to in Article 9(3) is "autonomous and intended to be given a broad, not a strict, interpretation as evident – if nothing else – from the use of the wide and general term 'relating to'."
Murray J clarified that due to the nature of administrative law being 'parasitic upon specific decisions (…) made pursuant to identified statutory regimes', grounds which may be considered to be 'classic grounds of judicial review', and thus not overtly environmental grounds, may fall within the scope of the special costs rule where the statutory scheme that the decision is made under is itself part of the State's environmental law. He held that in this case each of the grounds were part of national environmental law.
The Court noted that there will be challenges to the validity of development consent decisions that are not covered by EMPA including because the applicant cannot establish "damage to the environment" or because they are entirely historic breaches of statutory duty where no environmental damage has been caused. Murray J concluded that section 50B should not be interpreted to limit the grounds attracting cost protection only to those arising from the listed Directives or as strictly required by EU law, as unlike section 50A of the PDA, there is no reference to 'grounds' in section 50B.
The Court of Justice (CJEU) decision on section 50B
The Court stated that the recent CJEU decision in Case C-470/16 North East Pylon Pressure Campaign Ltd v An Bord Pleanála (‘NEPPC’) overhangs many aspects of the case and in particular the obligation to interpret national procedural law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and Article 9(4) of the Aarhus Convention in "certain circumstances". Murray J agreed with the High Court's decision in that case, that the interpretative obligation does not solely arise where rights are created by EU law but also where parts of national law impact 'fields covered by EU environmental law'. Whilst he noted that the extent to which the interpretive obligation applies is not clear, as he based his conclusion on the interpretation of domestic law, he decided it was not necessary to refer any questions to the CJEU in this case.
Impact of the Supreme Court decision
For the reasons set out above, the Supreme Court allowed the Applicant's appeal, set aside the order of the COA and reinstated the order made by Simons J in 2019.
This decision is hugely significant. It will be welcomed by public interest groups and individuals who are seeking to rely on special costs rules to bring challenges to decisions which relate to environmental law. It may present real challenges to developers who are seeking to progress large scale development projects including large scale residential development and the development of strategic infrastructure. The impact of this judgment will be felt across a number of industries, and stakeholders will eagerly track the effect on the volume of challenges to development over the coming months and years. Whilst the Court's conclusion was based on an interpretation of domestic law, it is evident that the Court was concerned that adopting an overly narrow interpretation of Section 50B, could undermine the Oireachtas' intention to implement the NPE rule into the Irish costs regime in compliance with the State's obligations under the Aarhus Convention.
This issue had been considered by the High Court on at least seven different occasions, and also by the CJEU. Whilst the clarity of this decision is to be welcomed, a number of other cases have been appealed to the Supreme Court on a variety of issues in respect of the interpretation of section 50B including:
- whether section 50B could apply to cases arising from a screening rather than a full Environmental Impact Assessment (EIA);
- whether the provision was applicable where there was a full EIA but public participation grounds were not pleaded as being in issue;
- how points that might have been (but were not) pleaded as public participation grounds should be treated; and
- what level of ‘environmental damage’ was required before the provisions of EMPA were applicable.
It is hoped that once these matters are decided by the Supreme Court, the full extent of the application of the special costs rules will be clear.