An Taisce — National Trust for Ireland v an Bord Pleanála, The Minister for Communications, Climate Action and The Environment, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: O'Donnell CJ,Dunne J,Charleton J,Woulfe J,Hogan J
• Judgment Date: 04 April 2022
• Neutral Citation: [2022] IESC 18
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000091

Between/

An Taisce — National Trust for Ireland

Appellant

and

An Bord Pleanála, The Minister for Communications, Climate Action and The Environment, Ireland and The Attorney General

Respondents

and

Kilkenny Cheese Limited (Formerly Jhok Limited)(No.4)

Notice Party

[2022] IESC 18

O'Donnell CJ

Dunne J

Charleton J

Woulfe J

Hogan J

S:AP:IE:2021:000091

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Costs – Judicial review – Planning permission – Appellant seeking costs – Whether the appellant instituted the litigation in the public interest

Facts: The Supreme Court, on 14th February 2020, delivered a judgment upholding the decision of Humphreys J who delivered a written judgment on the 20th April 2021 dismissing an application for judicial review: [2021] IEHC 254. In those proceedings, the appellant, An Taisce, sought to quash a decision of the first respondent, An Bord Pleanála, dated the 30th June 2020, to grant planning permission in respect of an application by the developer notice party, Kilkenny Cheese Limited, to construct a major cheese factory at Slieverue, Co. Kilkenny. An Taisce applied for 25% of the costs of the proceedings as against either An Bord Pleanála or the State. The application was contained in a letter dated the 2nd of March 2022 from the applicant’s solicitors. The appellant made the case in support of its application for 25% costs by saying first that it took the proceedings purely to vindicate “European and national environmental law and to ensure a high standard of environmental protection. It has no personal or financial interest in the outcome and instituted the litigation in the public interest”. Second, it said that the proceedings were in the nature of a test case. Third, it referred to cases such as Kerins v McGuinness [2017] IEHC 217; in that case, although Ms Kerins had lost before a Divisional High Court, the Court nonetheless made a costs order in her favour given the novelty of the issues raised in that case concerned the powers and functions of an Oireachtas Committee.

Held by the Court that it had already been established that simply because an environmental litigant with no personal interest in the matter bona fide litigates a matter of substance in which they have been unsuccessful this is not in itself a reason to make an award of costs in their favour: Dunne v Minister for the Environment (No. 2) [2007] IESC 60. The Court noted that no order for costs was sought against the private developer and notice party. The Court held that An Bord Pleanála was a State body, having been established by statute, yet it had no powers or functions other than those conferred by law; it had no autonomous constitutional role and no responsibility for either the national or the EU legislation it was called upon to apply. In those circumstances, the Court held that it would not be appropriate to make a costs order against it. The Court held that, as the judgment of the Court delivered on 21st December 2021 made clear ([2021] IESC 83), the fourth respondent, the Attorney General, was joined to the appeal by virtue of his position as guardian of the public interest and not qua his position as legal adviser of the Government. The Court held that the significance of this for costs purposes was that the Attorney General was not seeking to defend either the validity of the legislation or to stand over particular executive actions as part of his participation in the appeal; the Attorney rather simply sought to assist the Court in pointing to what he contended was the proper interpretation of the EIA Directive. The Court held that, in so doing, he was not representing or advancing the cause of the State. The Court considered that there was no basis for making any costs order as against the Attorney General.

The Court held that it was sufficient for the Court to confirm the provisional order already indicated in the judgment, namely, that each party should abide its own costs. The Court did not consider that this case fell within the exceptional class of cases where an award of costs (whether full or partial) is made in favour of the unsuccessful party.

Each party should abide its own costs.

RULING of the COURT as to costs delivered on 4 ^th day of April 2022

1 . This is the ruling of the Court in respect of An Taisce's application for 25% of the costs of the proceedings as against either An Bord Pleanála or the State. This application was contained in a letter dated the 2 ^nd of March 2022 from the applicant's solicitors. While both the Board and the Attorney General opposed this application, all parties were content that this Court should rule...