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URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_631.html
Cite as: [2019]_IEHC_631
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THE HIGH COURT
JUDICIAL REVIEW
2019 No. 239 J.R.
BETWEEN
SPENCER PLACE DEVELOPMENT COMPANY LIMITED
APPLICANT
AND
DUBLIN CITY COUNCIL
RESPONDENT
Judgment of Mr Justice Garrett Simons delivered on 6 September 2019.
Introduction
1. This judgment addresses the question of which party should bear the costs of the within
judicial review proceedings. The proceedings were dismissed in their entirety for the
reasons set out in a reserved judgment dated 30 May 2019, Spencer Place Development
2. There is significant disagreement between the parties as to which of them should bear the
costs of the proceedings. The parties are not even in agreement as to the jurisdictional
basis on which costs should be awarded. The Applicant contends that the proceedings are
subject to the special costs rules applicable to environmental litigation under section 50B
of the Planning and Development Act 2000 (“the PDA 2000”), whereas Dublin City Council
maintains that the conventional costs rules under Order 99 of the Rules of the Superior
Courts apply.
Structure of this Judgment
3. The dispute between the parties centres primarily on whether the proceedings are subject
to the costs rules under section 50B of the PDA 2000. In order to put this dispute in
context, it is necessary (i) to rehearse briefly the procedural history of the case in order
to identify the nature of the “decision” or “action” being challenged; and (ii) to consider
the provisions of section 50B. The detailed discussion of the issues then commences at
page 11, paragraph 29 below.
4. I will use the shorthand “the special costs rules” or “costs protection” when referring to
the costs rules under section 50B of the PDA 2000.
Procedural History
5. The underlying dispute between the parties had concerned the interpretation of a set of
statutory guidelines issued by the Minister for Housing, Planning and Local Government.
The guidelines were issued pursuant to section 28 of the PDA 2000 and have a particular
legal status. The guidelines are entitled “Urban Development and Building Heights” and
were issued in December 2018 (“the building height guidelines”). The dispute centred on
the interaction between the guidelines and statutory planning schemes adopted in respect
of strategic development zones (“SDZs”).
6. The judicial review proceedings were nominally directed to a document prepared by the
Dublin City Planning Officer on 31 January 2019. This document was entitled “Briefing
Note on City Development Plan and Height Guidelines” (“the briefing note”). The briefing
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note was presented to the elected members of Dublin City Council at a meeting on 4
March 2019.
7. In truth, the application for judicial review was anchored upon two planning applications
made by the Applicant which were then pending before the Local Authority. These two
planning applications provided the context for the judicial review proceedings. But for the
existence of these planning applications, the Applicant might not have had the requisite
“sufficient interest” to maintain the proceedings. Moreover, the fact that the statutory
deadline for determining the two planning applications was set to expire on 31 May 2019
was expressly relied upon by the Applicant for the purposes of securing an expedited
hearing and determination of the proceedings. (The proceedings were instituted on 23
April 2019 and were brought to a conclusion some five weeks later, with the delivery of
the principal judgment on 30 May 2019).
8. The relief sought in the Statement of Grounds was somewhat unusual in that an order of
certiorari setting aside the briefing note had not been sought. Instead, a declaration was
sought to the effect that the legal interpretation in the briefing note was ultra vires and/or
incorrect as a matter of law. Two other declarations were sought in respect of the
interaction between statutory guidelines and the determination of planning applications
for development within the area of any SDZ planning scheme.
9. The gravamen of the Applicant’s complaint had been that Dublin City Council had
committed itself to an allegedly erroneous interpretation of the building height guidelines,
and that this error would adversely affect the outcome of the two planning applications.
10. The thrust of the proceedings was thus directed to the future outcome of the two pending
planning applications. The Applicant had sought to obtain declaratory reliefs from the
High Court as to the interaction between the building height guidelines and existing
planning schemes. Had the declarations sought by the Applicant been obtained, then this
would have had the legal consequence that Dublin City Council would be required to apply
the building heights guidelines in a manner beneficial to the Applicant in determining the
two planning applications in futuro.
11. The Applicant had been careful, in advancing its proceedings, to emphasise that the
briefing note had not been issued pursuant to any “provision” of the PDA 2000. The
Applicant’s position in this regard is summarised as follows in its written legal submissions
of May 2019.
“20. The Briefing Note itself does not invoke any provision of the 2000 Act nor does the
Council plead that the Briefing Note was prepared under the 2000 Act. As such
there is no basis for contending that the application for leave to apply for judicial
review is governed by the procedures contained in section 50 of the 2000 Act.
Furthermore, it cannot be said that Section 50(2) is clearly and definitively capable
of being construed as applying to acts of the planning authority which are not
contemplated by any statutory provision under the planning code.
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[…]
22. This rationale does not apply to the issuing of a Briefing Note purporting to provide
a legal interpretation of Ministerial Guidelines which is not issued pursuant to any
statutory provision of the 2000 Act. It is submitted that where a restriction is being
imposed upon the exercise of a right in a statute, it should be capable of being
construed in a clear and definite fashion. It cannot be said that Section 50(2) is
clearly and definitively capable of being construed as applying to acts of the
planning authority which are not contemplated by any statutory provision under the
planning code.”
*Footnotes omitted.
12. On this basis, the Applicant contended that it was unnecessary for it to comply with the
procedural requirements under section 50 and 50A of the PDA 2000. Thus, for example,
the application for leave to apply for judicial review was made on an ex parte basis.
Similarly, a subsequent appeal against the principal judgment has been filed with the
Court of Appeal without seeking a certificate for leave to appeal pursuant to section
50A(7) of the PDA 2000. As discussed presently, the absence of a challenge to an
identified “decision” or “action” under the PDA 2000 is relevant in determining whether
the special costs rules apply to the proceedings.
Strategic Environmental Assessment Directive
13. There is one other aspect of the procedural history which should be highlighted at this
stage. As appears from the principal judgment, the proceedings gave rise to an issue of
EU law. More specifically, an issue arose as to whether, in interpreting the building height
guidelines, it would be legitimate to have regard to the outcome of the strategic
environmental assessment carried out as part of the process leading up to the issuing of
the guidelines in December 2018. One of the steps required as part of the assessment of
draft guidelines is the publication of a document referred to as an “SEA Statement”. As
explained at paragraphs [98] to [107] of the principal judgment, the SEA Statement
published in respect of the building height guidelines was directly relevant to the disputed
interpretation of the guidelines.
14. The obligation to carry out a strategic environmental assessment (“SEA”) arises as a
matter of EU law under Directive 2001/42/EC on the assessment of the effects of certain
plans and programmes on the environment (“the SEA Directive”). The requirement to
subject planning guidelines to an SEA has been transposed into domestic law by way of
an amendment to section 28 of PDA 2000 introduced under the Planning and
Development (Amendment) Act 2018.
15. The relevance of all of this to the within costs application is as follows. It is a prerequisite
to the availability of the special costs rules that the proceedings entail a challenge to a
decision or action made or taken pursuant to a statutory provision which gives effect to
one or more of four specified EU Directives. The SEA Directive is one of the four.
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16. It has to be said that the Applicant’s reliance on the SEA Directive for the purposes of the
within costs application is somewhat opportunistic. The Applicant had maintained the
position throughout the substantive hearing in May 2019 that regard should not be had to
the SEA Statement when interpreting the guidelines. In particular, counsel on behalf of
the Applicant had submitted that the building height guidelines must be interpreted on
their own terms, and that it was not permissible to have regard to an “extraneous”
document, such as the SEA Statement, as an aid to interpretation. None of the grounds
of challenge pleaded by the Applicant in its Statement of Grounds had sought to invoke
the SEA Directive.
17. Put shortly, the Applicant had adopted the position in May 2019 that the SEA Statement
and the SEA Directive were irrelevant to the issues in dispute in the proceedings. In no
sense can the Applicant be said, therefore, to have brought these proceedings in order to
vindicate an alleged infringement of the SEA Directive. It represents a volte-face for the
Applicant now to champion the SEA Directive.
18. It would seem anomalous that a developer who, far from alleging a breach of EU law, had
steadfastly maintained the position that the SEA Directive was irrelevant should seek to
avail of costs protection. Certainly, as a matter of EU law, it is arguable that costs
protection is principally intended for “members of the public concerned” (as defined) who
allege an infringement of the public participation provisions of EU environmental law or a
contravention of national environmental law in a field covered by EU law. As discussed
below, however, the costs protection provided for under national law is more widely
available than strictly required by EU law. This is as a result of the manner in which the
Oireachtas has framed the special costs rules under section 50B of the PDA 2000.
Section 50B of the PDA 2000
19. Insofar as relevant to these proceedings, the key provisions of section 50B (as most
recently amended in October 2018) are as follows.
“50B.(1) This section applies to proceedings of the following kinds:
(a) proceedings in the High Court by way of judicial review, or of seeking leave
to apply for judicial review, of —
(i) any decision or purported decision made or purportedly made,
(ii) any action taken or purportedly taken,
(iii) any failure to take any action,
pursuant to a statutory provision that gives effect to—
[…]
(II) Directive 2001/42/EC of the European Parliament and of the Council of
27 June 2001 on the assessment of the effects of certain plans and
programmes on the environment, or
[…]
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(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts
(S.I. No. 15 of 1986 ) and subject to subsections (2A), (3) and (4), in proceedings
to which this section applies, each party to the proceedings (including any notice
party) shall bear its own costs.
(2A) The costs of proceedings, or a portion of such costs, as are appropriate, may be
awarded to the applicant to the extent that the applicant succeeds in obtaining
relief and any of those costs shall be borne by the respondent or notice party, or
both of them, to the extent that the actions or omissions of the respondent or
notice party, or both of them, contributed to the applicant obtaining relief.”
20. As appears, the normal rule under Order 99 of the Rules of the Superior Courts is
disapplied. Instead, the default position is that each party bears its own costs. An
applicant who has been successful in the proceedings may be awarded all or part of their
costs.
21. The interpretation and application of section 50B has proved controversial, and has given
rise to a significant number of High Court judgments, not all of which are consistent with
each other. This controversy has resulted in an undesirable situation whereby a separate
lengthy hearing in respect of costs is often required subsequent to the delivery of
judgment on the substantive issues in judicial review proceedings. The parties thus incur
further costs in determining the incidence of the original costs. It is to the credit of the
parties in the present case that they adopted the pragmatic approach of having the issue
of costs determined solely on the basis of written legal submissions. This obviated the
need for a separate hearing in respect of costs, and thus reduced the amount of
additional costs incurred.
Heather Hill Management Company CLG v. An Bord Pleanála (No. 1)
22. For the reasons set out in my judgment in Heather Hill Management Company CLG v. An
the language of section 50B (as amended) that the qualifying criteria for costs protection
under the section are directed to the type of decision or action which is the subject of the
judicial review proceedings. The decision or action must be one made or taken pursuant
to a “statutory provision” which gives effect to one or other of four EU Directives
enumerated under section 50B. If the proceedings come within section 50B, then costs
protection applies to the “proceedings” in their entirety. There is no requirement to
apportion costs as between different grounds of challenge. This follows from the fact that
there is no reference whatsoever in section 50B to the “grounds” of challenge.
23. Notwithstanding that the special costs rules are located within the PDA 2000, the benefit
of the rules is not necessarily confined to decisions or actions made or taken under the
planning legislation. The term “statutory provision” is defined under section 50B(6) as
meaning a provision of an enactment or instrument under an enactment. It follows that a
challenge to a decision made under an Act other than the PDA 2000 will be subject to the
special costs rules where that decision can properly be characterised as having been
made pursuant to a “statutory provision” which gives effect to one of the enumerated EU
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Directives. Thus, for example, judicial review proceedings which challenge a decision to
grant an industrial emissions licence under the Environmental Protection Agency Act 1992
(as amended) would, in principle, be subject to the special costs rules.
24. Whereas neither party in the present case has strenuously argued that Heather Hill was
incorrectly decided, it should be noted that that judgment is under appeal to the Court of
Appeal (Court of Appeal 2019 No. 204). There is an alternative analysis of section 50B
abroad which insists that the special costs rules only apply to those grounds of challenge
which allege an infringement of the provisions of one or other of the four EU Directives
enumerated under section 50B. On this analysis, costs have to be apportioned between
different grounds of challenge, with some grounds attracting costs protection but others
being subject to the conventional costs rules under Order 99.
25. Were this alternative analysis to be applied to the present case, then the Applicant would
undoubtedly be disqualified from benefiting from costs protection. As explained earlier at
paragraphs 13 and onwards, far from seeking to vindicate an alleged infringement of the
SEA Directive, the Applicant asserted that the Directive had no relevance to the
proceedings. None of the Applicant’s grounds of challenge related to the SEA Directive.
26. For the purposes of the present judgment, I propose to proceed on the working
assumption that the principles in Heather Hill should be applied. Thereafter, the parties
would appear to have an unrestricted right of appeal against any costs order made. The
parties would be entitled, in the context of such an appeal, to dispute the correctness of
the judgment in Heather Hill.
27. The Applicant has already filed an appeal in respect of the principal judgment in the
present case (Court of Appeal 2019 No. 309). If there is to be an appeal on the costs
issue, then, presumably, it can be listed together with the substantive appeal.
28. In the event that either party considers that this costs ruling is subject to a requirement
for leave to appeal under section 50A(7) of the PDA 2000, then my initial tentative view
would be that leave should probably be granted. The correct interpretation of section 50B
is uncertain given inconsistencies in the case law from the High Court, and an
authoritative judgment from the Court of Appeal would appear to be in the public interest.
Of course, any decision on whether to grant leave to appeal must await an application to
the court. I reiterate that the view expressed above is tentative only, and expressed
without the court having had the benefit of argument from both parties on this issue.
Detailed Discussion
Jurisdictional Basis for Cost Order
29. The first issue to be addressed is to identify the jurisdictional basis for the making of any
costs order. More specifically, it is necessary to determine whether the special costs rules
under section 50B of the PDA 2000 apply or those under Order 99 of the Rules of the
Superior Courts.
Page 7 ⇓
30. The qualifying criteria for costs protection under section 50B are directed to the type of
decision or action which is the subject of the judicial review proceedings. The decision or
action must be one made or taken pursuant to a “statutory provision” which gives effect
to one or other of four EU Directives enumerated under section 50B.
31. In order to determine whether the special costs rules apply, therefore, it is necessary first
to identify the “statutory provision” pursuant to which the decision or action impugned in
the proceedings was made or taken. The administrative measure challenged in the
present case consisted of the issuing of a briefing note to the elected members of Dublin
City Council. The briefing note had been prepared by the City Planning Officer and
addressed the interpretation of building height guidelines issued by the Minister for
Housing, Planning and Local Government. There is no obvious statutory basis for the
issuing of such a briefing note by a planning authority.
32. The Applicant had advanced these proceedings on the explicit basis that the briefing note
had not been issued pursuant to any “provision” of the PDA 2000. On this basis, the
Applicant contended that it was unnecessary for it to comply with the procedural
requirements under sections 50 and 50A of the PDA 2000.
33. The consistent position of the Applicant throughout the hearing before this court in May
2019 had been that the briefing note was not itself a measure taken pursuant to any
“provision” of the PDA 2000. It was not a “decision” or “action” for the purposes of
sections 50 and 50A. Rather, the Applicant’s case was premised on a concern that Dublin
City Council would, by relying upon an allegedly erroneous interpretation of the
guidelines, contravene its obligation to comply with the building height guidelines when it
came to adjudicate on the two planning applications then pending before it. Put shortly,
the case was directed to the future outcome of the planning applications.
34. Having consciously chosen to frame the case as one which did not seek to challenge an
extant planning decision, the Applicant cannot now invoke section 50B on the basis that
the PDA 2000 was, in fact, engaged all along. The Applicant is not entitled to approbate
and reprobate.
35. For the purposes of the costs application, the Applicant now adopts a more nuanced
approach. The Applicant puts forward two related contentions as follows.
(i). The proceedings concerned the correct interpretation of the building height
guidelines. The making of statutory guidelines under section 28 of the PDA 2000 is
now—as a result of amendments introduced under the Planning and Development
(Amendment) Act 2018—subject to assessment for the purposes of the SEA
Directive. The SEA Directive is one of the four EU Directives enumerated under
section 50B. On this basis, it is contended that section 28 represents a “statutory
provision” which gives effect to the SEA Directive and thus the special costs rules
under section 50B are triggered.
Page 8 ⇓
(ii). The Applicant seeks to characterise the case as one which had been concerned in
substance with a “threatened” contravention of section 28(1C) of the PDA 2000.
That subsection provides that planning authorities shall, in the performance of their
functions, comply with specific planning policy requirements. The argument runs to
the effect that were Dublin City Council to fail to interpret the building height
guidelines correctly when adjudicating on the two planning applications pending
before it, then this would have contravened section 28(1C). On this argument, the
proceedings fall within the scope of section 50B as interpreted in the light of article
9(3) of the Aarhus Convention. (See, in particular, paragraphs 26 and 32 of the
supplemental written legal submissions).
36. The first of these two contentions can be disposed of shortly. It is a prerequisite to the
triggering of section 50B that the judicial review proceedings seek to challenge a
“decision” or “action” made or taken pursuant to a statutory provision which gives effect
to one or other of the four enumerated EU Directives. This prerequisite is simply ignored
in the Applicant’s first contention. It is not sufficient that proceedings concern the
“interpretation” of a statutory provision which gives effect to one of the four EU
Directives. Rather, there must be an identified “decision” or “action”.
37. There is more substance to the second of the Applicant’s two contentions. Certainly, had
the Applicant awaited the outcome of the decision-making process in respect of the two
planning applications before instituting proceedings, an attractive argument could then
have been made to the effect that judicial review proceedings—which challenge a decision
to refuse planning permission on the basis that the decision does not comply with the
building height guidelines—might, in principle, fall within section 50B. It could be argued,
for example, that the decision to refuse planning permission is a “decision” made
pursuant to section 34, section 170 and section 28(1C) of the PDA 2000. Alternatively, it
could be argued that a failure to properly interpret and apply the building height
guidelines represents a failure to take “action” pursuant to section 28(1C). It might then
be said that these sections represent “statutory provisions” which give effect to the SEA
Directive.
38. It is unnecessary for the purposes of this judgment to attempt to resolve any of these
interesting issues of statutory interpretation. This is because there is a fundamental
obstacle to the Applicant relying on section 50B. The fact that the judicial review
proceedings had been brought on a quia timet basis, i.e. in anticipation of a decision
being reached in contravention of section 28(1C), precludes any reliance on the special
costs rules. It is clear from the express language of section 50B that for the special costs
rules to apply it must be possible to identify a decision, action or omission which had been
made or taken prior to the institution of the judicial review proceedings.
39. It follows, therefore, that on its ordinary and natural meaning, section 50B does not apply
to proceedings which merely allege an apprehended contravention of section 28(1C). If
an applicant wishes to avail of costs protection, they must await an actual “decision” or
“action”.
Page 9 ⇓
40. It is necessary next to consider whether the ordinary and natural meaning must be
departed from in favour of a purposive interpretation of section 50B. This is addressed
under the heading below.
Aaarhus Convention
41. The Applicant has sought to call in aid the provisions of the Convention on Access to
Information, Public Participation in Decision-Making and Access to Justice in
Environmental Matters (“the Aarhus Convention”) in support of its interpretation of
section 50B of the PDA 2000. Relevantly, the Aarhus Convention provides that certain
proceedings must meet a “not prohibitively expensive” requirement. This requirement is
replicated in certain EU environmental legislation, e.g. the Environmental Impact
Assessment Directive (2011/92/EU) (“the EIA Directive”) and the Industrial Emissions
Directive (2010/75/EU).
42. The Aarhus Convention identifies two types of proceedings to which the “not prohibitively
expensive” requirement applies. The first concerns challenges to decisions, acts or
omissions in respect of development consent (“permits”). These requirements are
reflected in EU environmental legislation such as, for example, the EIA Directive and the
Industrial Emissions Directive. The structure of section 50B of the PDA 2000 is broadly
similar, save for the important distinction that costs protection under the section is
directed to the type of proceedings rather than to the grounds of challenge.
43. The second type of proceedings which attract costs protection under the Aarhus
Convention are proceedings which challenge acts and omissions which contravene
provisions of national law relating to the environment. This is provided for under article
9(3) as follows.
“3. In addition and without prejudice to the review procedures referred to in
paragraphs 1 and 2 above, each Party shall ensure that, where they meet the
criteria, if any, laid down in its national law, members of the public have access to
administrative or judicial procedures to challenge acts and omissions by private
persons and public authorities which contravene provisions of its national law
relating to the environment.”
44. The provisions of article 9(3) are not directly applicable within the domestic legal order. A
national court is, however, under an obligation to interpret national procedural law, to the
fullest extent possible, in a manner which is consistent with its provisions. See Case C
470/16 North East Pylon, [58]. This interpretative obligation is subject to the contra
legem principle.
45. The Applicant contends that the term “contravene” under article 9(3) must be interpreted
as including not only actual contraventions of national law but also threatened
contraventions. In support of this contention, the Applicant cites the following passage
from the “Aarhus Convention: An Implementation Guide” (2nd ed., 2014) at page 194.
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“What can be reviewed? Under the Convention, members of the public have the right to
challenge acts and omissions by private persons and public authorities which
contravene provisions of national law relating to the environment. First, as regards
‘contravening national law relating to the environment’, it does not have to be
established prima facie, i.e., before the review, that there has been a violation.
Rather, there must have been an allegation by the member of the public that there
has been an act or omission violating national law relating to the environment (see
ACCC/C/2006/18 (Denmark) discussed above).* Second, national laws relating to
the environment are neither limited to the information or public participation rights
guaranteed by the Convention, nor to legislation where the environment is
mentioned in the title or heading. Rather, the decisive issue is if the provision in
question somehow relates to the environment. Thus, also acts and omissions that
may contravene provisions on, among other things, city planning, environmental
taxes, control of chemicals or wastes, exploitation of natural resources and
pollution from ships are covered by paragraph 3, regardless of whether the
provisions in question are found in planning laws, taxation laws or maritime laws.
This was illustrated in the Compliance Committee’s findings on communication
ACCC/C/2005/11 (Belgium),424 where the Committee assessed Belgian planning
laws under article 9, paragraph 3, and in its findings on Bulgarian planning law in
communication ACCC/C/2011/58.425.”
*Emphasis (italics) added.
46. With respect, I do not think that the sentence emphasised above bears the interpretation
contended for by the Applicant. The sentence merely indicates that a contravention of
national law relating to the environment does not have to be proved or established before
proceedings can be instituted. It is sufficient that a contravention is alleged. The
sentence does not address the separate issue of the timing of a contravention. It
certainly does not indicate that costs protection must be available in the case of a
threatened or apprehended contravention, i.e. on a quia timet basis. Such an
interpretation cannot be reconciled with the express reference to “acts” or “omissions” in
the qualifying words “acts and omissions by private persons and public authorities which
contravene provisions of its national law relating to the environment”. The wording of the
Aarhus Convention indicates that some event—an act or omission—must have occurred
which involves a contravention of national environmental law.
47. The Applicant had advanced its case at the substantive hearing in May 2019 on the
explicit basis that the issuing of the briefing note per se did not breach any provision of
the PDA 2000. On the Applicant’s case, a contravention of national environmental law
would only crystallise if the (allegedly mistaken) interpretation of the building height
guidelines set out in the briefing note were to be relied upon in determining the two
planning applications. No “act” or “omission” had yet occurred as of the date the
proceedings were instituted. The Applicant cannot therefore rely on the special costs
rules under section 50B.
Page 11 ⇓
48. There is no inconsistency between an interpretation of section 50B which requires an
applicant to await the making of a “decision” or “act” before qualifying for costs protection
and the provisions of the Aarhus Convention. The wording of section 50B is consistent
with that of article 9(3) of the Aarhus Convention insofar as it refers to “actions” or
omissions”. This language can only be understood as referring to actual decisions, i.e. it
does not authorise pre-emptive challenges.
49. Moreover, the interpretation does not preclude an applicant from ever relying on the
special costs rules to challenge an alleged failure to comply with statutory guidelines by
reference to the requirements of the SEA Directive. Rather, it simply indicates that the
special costs rules cannot be relied upon in the case of proceedings which are premature.
This is consistent with the proper administration of justice.
50. For the reasons set out at paragraphs [30] to [37] of the principal judgment, an
application for judicial review on this basis was premature. The Applicant should, instead,
have awaited the outcome of the planning process before having recourse to the courts
by way of judicial review.
51. Had the Applicant awaited the outcome of the planning process, and instituted judicial
review proceedings at that stage, it could have argued that the special costs rules
applied. Dublin City Council would, at that stage, have made a “decision” pursuant to
section 34 and section 170 of the PDA 2000. This “decision” would in principle be subject
to the requirements of section 28(1C) of the PDA 2000. The Applicant could then argue
that any or all of these three sections represented a “statutory provision” which gave
effect to the SEA Directive.
52. Finally, for the sake of completeness, it should be noted that the approach of the
Applicant in the present case is distinguishable from the applicant company in North East
Pylon Pressure Campaign Ltd. v. An Bord Pleanála (No. 5). In the latter case, the
applicant company had expressly sought to characterise certain administrative measures
taken by An Bord Pleanála in advance of an oral hearing on a planning application as
constituting “decisions”, “actions” or “omissions” for the purposes of section 50 of the PDA
2000. There was then a dispute as to whether the legislation clearly defined these
concepts. By contrast, the Applicant in the present case has been consistent in saying
that the briefing note had not been issued pursuant to any provision of the PDA 2000.
Findings of Court on Jurisdictional basis for Costs Order
53. For all of the reasons set out above, I am satisfied that the special costs rules under
section 50B do not apply to these proceedings.
Order 99
54. These proceedings are subject to the conventional costs rules under Order 99 of the Rules
of the Superior Courts. The Supreme Court has recently confirmed in its judgment in
Godsil v. Ireland [2015] IESC 103; [2015] 4 IR 535, [52] that the general rule that
costs follow the event represents the starting point for any costs application. No special
reason has been advanced as to why the Applicant, as the unsuccessful party in the
proceedings, should not be liable to pay Dublin City Council’s costs. In circumstances
Page 12 ⇓
where the Applicant was unsuccessful and the judicial review proceedings were dismissed
in their entirety, the Applicant is liable to pay the costs incurred by Dublin City Council in
respect of the proceedings.
Conclusion and Form of Order
55. The special costs rules under section 50B do not apply on a quia timet basis, i.e. in
anticipation of a decision being reached in contravention of a “statutory provision” which
gives effect to one or other of the four EU Directives enumerated under the section.
Rather, for the special costs rules to apply it must be possible to identify a decision, act or
omission which had been made or taken prior to the institution of the judicial review
proceedings.
56. The within proceedings are subject to the costs rules under Order 99 of the Rules of the
Superior Courts. The costs thus follow the event.
57. I propose to make an order directing that the Applicant do pay the costs of Dublin City
Council in respect of and incidental to the within proceedings, such costs to be taxed in
default of agreement. The costs are to include the costs of the two sets of written legal
submissions and all reserved costs.