Environment & Planning Group Update – Domestic News, May 2018

Domestic Cases

Following the recent CJEU decision in North East Pylon Pressure Campaign Ltd. and Maura Sheehy v. An Bord Pleanála & Ors, C-470/16 (NEPP) (accessible here), there have been two decisions of the Irish High Court on costs in cases wholly or potentially involving environmental grants. Both cases had been adjourned pending the determination of the CJEU in NEPP, and provide welcome guidance on the interpretation of the NEPP case.

Merriman & Ors. v. Fingal County Council, Ireland and the Attorney General, Dublin Airport Authority and Ryanair DAC [2017] No. 201 JR - 17 May 2018, Barrett J.

High Court makes split costs order, finds that Order 99 applies to costs relating to grounds of challenge under the Habitats Directive.

This judgment concerned the allocation of costs in relation to the unsuccessful judicial review by local residents of the decision of Fingal County Council to extend the "life" of the planning permission for development of the new Northern Runway at Dublin Airport. The challenge made in the course of the case involved three different categories of argument relating to:

The failure to carry out an Environmental Impact Assessment (EIA); The failure to carry out an Appropriate Assessment (AA); and The residents' property rights under the Constitution and the European Convention on Human Rights (ECHR). The Applicants argued that under NEPP, all of their costs should be recoverable on the basis of the "not-prohibitively-expensive" requirement. Fingal County Council, daa, the State and Ryanair variously sought either some or all their costs adopting differing interpretations of NEPP.

Barrett J., in making costs orders, considered the three heads of challenge set out above.

EIA costs: EIA costs were subject to Article 11 of the EIA Directive and Section 50B of the Planning and Development Acts 2000 to 2017 (the Planning Acts) and accordingly made no order as to costs. AA costs: Barrett J. held that while Order 99 of the Rules of the Superior Courts applied here (where costs "follow the event" unless there is special cause (Order 99 Rule 3)), so did the "interpretive obligation" described by the CJEU in NEPP. The CJEU held that Article 9(3) and (4) of the Aarhus Convention must be interpreted as meaning that where the application of national environmental law is at issue, it is for the national court to give an interpretation of national procedural law which is consistent with the objectives contained in the Aarhus...