[2025] IEHC 205

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000708]

 

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED) AND SECTION 15 OF THE CLIMATE ACTION AND LOW CARBON DEVELOPMENT ACT 2015 (AS AMENDED)

BETWEEN

 

COLIN DOYLE, FRIENDS OF THE IRISH ENVIRONMENT CLG,

FUTUREPROOF CLARE, MARTIN KNOX AND CHRISTINE SHARP

APPLICANTS

AND

AN BORD PLEANÁLA, THE GOVERNMENT OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

ART DATA CENTRES LIMITED

NOTICE PARTY

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 11th day of April 2025

1.            In Doyle v. An Bord Pleanála (No. 1) [2025] IEHC 158 (Unreported, High Court, 21st March 2025), I dismissed the applicants' case in relation to module I of the proceedings.

2.            That judgment concluded with an order, including a provisional order as to costs, as follows:

                    (i)        the proceedings be dismissed insofar as concerns Module I (sub-grounds 91-93 insofar as they are premised on the other grounds not having merit);

                   (ii)        the matter be listed on Monday 31st March 2025 for mention to arrange the processing of Module II (all remaining grounds, subject to contrary submission) including by way of directions as to dates for filing of further papers);

                 (iii)        subject to contrary submission within 7 days, there be no order as to the applicants' costs in Module I;

                 (iv)        subject to contrary submission within 7 days, the notice party's costs be reserved, on the basis that such costs if awarded would apply by way of set-off only (not leaving a positive balance against the applicants at a level that would be prohibitively expensive); and

                  (v)        the perfection of the order be postponed pending the outcome of the final module.

3.            On the mention date of 31st March 2025, the losing applicants implausibly asked that their costs be reserved instead of being the subject of no order.  A couple of reasons were advanced for that, in essence:

                    (i)        the result on costs should not depend on modularisation;

                   (ii)        the applicants might succeed on the issue of the derogation licence; and

                 (iii)        the need for the order to be "fair and equitable and so on".

4.            There are probably various ways to classify the applicants' complaints but I think the key issues can be fitted within one or more of those headings. 

The complaint that costs should not depend on modularisation

5.            On the first point, I agree that whether something should be modularised is in general terms separate from how costs should fall.  Modularisation is frequently misunderstood and is sometimes seen as unpopular and undesirable, and generally the greater the distance of any given commentator from the Planning & Environment Court, the greater the misunderstanding.  But in practice, it is quite a popular and sought-after order.  Obviously a unitary trial is the default for well-known reasons.  But first and foremost, in about 95-99% of cases where such an order is made, modularisation is by consent or at least without objection.  In an adversarial system, consent of the parties is generally overriding even if there is a default scenario which is being thereby modified.  Secondly, when it arises, modularisation happens for objective reasons - normally where necessary to ensure that consideration of the invalidation of legislation would not happen until the disposal of administrative law challenges.  Relatedly, modularisation arises where it would save costs.  Where one party concedes a point, and another party wants to defend that point, generally one finds that the parties agree to have a modular hearing on the point in question to avoid the first-mentioned party having to incur costs.  There isn't anything wrong with that.  Sometimes a point is under active consideration by an appellate court or Luxembourg, and the court of trial would be cutting across that unless the point was modularised to await developments. 

6.            In the present case, the point conceded by the board was modularised and considered by me on the basis of submissions from the applicants and the developer, without the board's involvement.  The parties agreed with that approach.

7.            The applicants' demand that costs be reserved (on the basis of disregarding modularisation) assumes implicitly that such an order would have been made if the point was not modularised.  But that isn't the case.  Had there been a unitary trial, one of two possibilities would have occurred (we can rule out the applicants winning on everything because we know that isn't happening - they lost on the "conceded issue"):

                    (i)        The applicants would have lost on everything - obviously that's only a hypothesis and I'm not saying it is going to happen.  But in that situation the applicants would get no order as to costs.

                   (ii)        The applicants would have won on at least something.  In that event they would get costs but limited to the points on which they succeeded.  That wouldn't include the "conceded point" since they didn't succeed on that.

8.            In neither situation do they end up any worse off than they are now on the basis of no order as to their costs of Module I.

9.            The punchline is that the applicants lost on the issues concerned.  The fact that those issues were modularised only means that it is relatively easy for costs adjudication purposes to determine what part of the hearing they are not entitled to costs for, but that's as far as it goes.  Barring special circumstances which don't apply here, there is no logic, necessity or justice to the concept that applicants should get a cent for making losing points.  So the applicants aren't losing out in costs terms due to modularisation - they are losing out because they lost on the merits of the point.

10.         Hence the applicants are no worse off by reason of the conceded point being dealt with in a modular hearing, because they aren't getting the costs of that point on any plausible scenario.

The complaint that the applicants might win on the derogation licence

11.         Relatedly the applicants seemed to be anticipating making headway on the issue of the lack of a prior derogation licence.  That remains to be seen, but even if they do, that issue didn't fall within the scope of the module for obvious reasons explained in the No. 1 judgment - modularisation must proceed on the assumption that the non-modularised points don't add anything.  That's modularisation 101 - if the applicants didn't think that through, that's too bad, but that's on them because the board didn't concede the issue of the lack of a derogation licence.  Indeed as I mentioned in the No. 1 judgment, this is a bit ironic because the applicants took the misplaced step of sending unnecessarily contentious correspondence to the developer complaining about the latter allegedly going beyond the modularised grounds.  There is certainly no basis for the applicants to have attempted to have gone beyond such grounds themselves.

12.         And again, even if they do succeed on the derogation licence issue, that doesn't change the fact that they failed on sub-grounds 91 to 93 insofar as those sub-grounds fell to be interpreted without reference to the alleged need for such a licence.  That failure is independent of any future success and doesn't warrant costs even if the applicants succeed on some related point later.

13.         The applicants say that the outcome on costs shouldn't depend on assumptions - which sounds plausible even though they never defined what that exactly means.  But it doesn't mean a whole lot.  It is inherent in modularisation that one proceeds on an assumption that the other grounds don't add anything.  If parties don't want that they can object to modularisation.  But if such an order is made then the hearing has to proceed on that assumption - there is no way to have such a hearing otherwise.  That doesn't logically, legally or any other way have the consequence of creating some right to costs for the losing party.  The assumption is going to be revisited so the final order as to costs will not be based on an assumption.  All I am saying now is that the final order won't involve the applicants getting costs of a failed point. 

14.         To put it another way, I amn't making award of costs now.  No such award will be made until all "assumptions" are cleared out of the way.  Thus any order awarding costs will not be based on an assumption.  All we are doing now is making clear that whatever costs the applicants get, if any, that won't include the costs of losing points and thus it won't include their costs of Module I.

The complaint that making no order as to the costs of losing points would not be "fair and equitable and so on"

15.         As regards the final point, the reference to "fair and equitable and so on" wasn't exactly developed in detail so I have had to look into it myself and, having done so, I called the parties back on 7th April 2025 to see if I was missing anything.  That was essentially designed to ensure fairness for the applicants, although inevitably they ended up effectively criticising me for doing so as I will explain later.

16.         I infer that the reference is to art. 9(4) of the Aarhus Convention:

"4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.  Decisions under this article shall be given or recorded in writing.  Decisions of courts, and whenever possible of other bodies, shall be publicly accessible."

17.         The relevant substantive provision is art. 9(2):

2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned

(a) Having a sufficient interest

or, alternatively,

(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,

have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention.  To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above.  Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law."

18.         The implication is that making no order as to a loser's costs is a breach of art. 9(4) in the context of proceedings under art. 9(2).  But that is totally implausible.

19.         Indeed on the contrary if anyone can complain about lack of "equitable" proceedings it is opposing parties, who are liable to costs if they lose but have no recourse to costs against applicants if they win.  The system is already imbalanced enough without creating a bogus right to payment for making losing points. 

20.         The critical point is that the Aarhus Convention does not oblige winning parties (still less winning private developers in particular) to pay the costs of losing parties, either in whole or in any part, however insignificant.  And if Aarhus applicants win some relief ultimately, the need for proceedings not to be prohibitively expensive does not have the consequence that they should get full costs or anything like it - indeed it doesn't necessarily mean in all cases that they have to get costs at all but we don't need to go there for present purposes.  All we need to be clear on is that it doesn't follow from Aarhus that there is any obligation on opposing parties and particularly on private law opposing parties to pay the entire costs of the proceedings, including in particular the costs of losing points.  If there is some Aarhus precedent to the contrary, the applicants here certainly haven't produced it, so there is no basis established in the present matter for any order different to the order provisionally proposed.  I accept the point that the Compliance Committee has been clear that there needs to be certainty around costs rules (see e.g. Report of the Compliance Committee on compliance by the United Kingdom of Great Britain and Northern Ireland - Part I, 2021 (https://unece.org/sites/default/files/2024-03/ECE_MP.PP_2021_59_E.pdf), at §31), but a rule that losers don't get costs is fairly certain as rules go.

21.         Indeed as the notice party points out, an order that leaves losers' costs pointlessly hanging over the developer's head would not comply with the principle of certainty.  If costs are not going to be awarded - as they should not be in the case of a loser - they should not be reserved.

22.         The English Civil Procedure Rules, r. 46.27, certainly provide no support for the concept that the prohibition on the award of prohibitively expensive costs means some form of negative position whereby winners pay the losers.  It defines the concept thus (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-46-costs-special-cases#enviro):

"(3) Proceedings are to be considered prohibitively expensive for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either—

(a) exceed the financial resources of the claimant; or

(b) are objectively unreasonable having regard to—

(i) the situation of the parties;

(ii) whether the claimant has a reasonable prospect of success;

(iii) the importance of what is at stake for the claimant;

(iv) the importance of what is at stake for the environment;

(v) the complexity of the relevant law and procedure; and

(vi) whether the claim is frivolous."

23.         Obviously the UK deems that to be compliant with Aarhus.  That isn't an infallible assessment (and other aspects of UK legislation have been successfully impugned) - but it isn't nothing either and it certainly hasn't been shown to be an incorrect interpretation of the Convention.

24.         Part 9 of the Planning and Development Act 2024 does provide in certain circumstances for the administrative payment of losers' costs.  Insofar as one can discern, that appears to be an endeavour to balance the fact that winners' costs are going to be limited to a specified scale.  But there is no Aarhus Convention requirement for such a balance.  That seems to be just a domestic policy choice - not a self-evidently unproblematic one given the potential perverse incentives thereby created, but we don't need to get into that now.

25.         In short, the Aarhus Convention requirement in art. 9(4) insofar as costs are concerned is a negative one - it prohibits the imposition of prohibitively expensive costs.  It does not directly or indirectly require winning parties on any given issue to pay a cent to losing parties on that issue.  Indeed, while environmental applicants frequently complain about cases that are "too expensive to win", that is a concept that has been established at a legal level.  The Convention doesn't mean that a partially successful applicant has to get full costs.  Indeed if a party wins 40% of the case, and loses 60%, one could see an argument for set-off of the 60% leaving a negative balance of 20% of costs against the applicant, subject to such liability not exceeding the prohibitively expensive level.  Winning on something doesn't in itself mean costs on anything, if the applicant also loses to an extent sufficient to create a counter-balancing counter-liability.  Again, we don't need to worry too much about that here because the developer isn't (as yet) asking for an order for costs, or in particular a set-off order.  Should that day come in this case or some other case there will be interesting questions about whether a developer's costs in the case of a partially successful applicant should be paid by the applicant out of such costs as the applicant is awarded against a public law respondent.  But we can have that argument if and when it arises.

26.         The applicants argue that reserving their costs would enable a fairer outcome.  The scenario they envisage is that if they ultimately get costs against the developer, the applicants would want full costs against the developer rather than have that mitigated in some way.  That is illogical unfortunately - there's nothing wrong with setting off a loser's costs.  Indeed set-off is expressly recognised in O. 99 r. 6 RSC.

27.         The problem with the applicants' reasonable-sounding proposition that costs should be reserved is that in practice, reserving all costs can lead almost without much deliberation, if not even by accident in many cases, to a general order being made that the winner gets costs including reserved costs.  That sounds familiar and normal, but it is highly illogical if that includes applications or hearings or other discrete bundles of chargeable costs where the ultimate winner lost.  Those costs should not land in their lap by some sort of windfall. 

28.         The applicants majored on a technical argument that a set-off constituted an adverse costs order which was impermissible under the 2000 Act.  That's a misunderstanding.  Costs protection covers the final outcome - it isn't a one-way ratchet system that doesn't allow any mitigation of a complete and total award of all costs whatsoever to an applicant who manages to obtain at least some relief on at least some ground.

29.         To return to the issue here, the reason why the provisional order should not be revisited is that there is no basis to reserve costs of a party that makes a losing point because the applicants aren't going to be getting those costs in any event.  It doesn't follow that the developer is going to get any or all of their costs - that is an argument for another day.  So the applicants aren't prejudiced to any extent that would contravene Aarhus principles. 

30.         The applicants say that costs should be considered "in the round", which again sounds reasonable enough on a first pass, but the first problem with that is that statutory policy leans against such an approach in the sense the applicants argue for which is of reserving all of their costs all of the time (except presumably when they win, although that has yet to arise in these proceedings).  Order 99 r. 2(3) RSC provides that the court should award costs as it goes along (the applicants make a technical point that a modular trial is not an interlocutory matter but the point is that the current of legal policy is clear).  That policy however can't apply in unmitigated form to planning and environmental cases because of the prohibition on a prohibitively expensive adverse costs order in most circumstances, together with the statutory policy that an applicant should only get costs to the extent that they obtain relief.  So while the final costs disposition should await the end of the case, and to that extent the case will be considered in the round at that point, the court can respect the normal costs principles and the spirit if not letter of O. 99 r. 2(3) RSC, by only reserving the winner's costs as it goes along.  If the applicants don't get relief at the end of the day, the worst that can happen is a not-prohibitively-expensive order as to costs against them.

31.         There is a loose analogy here with Phelan J.'s insightful (if I may say so) judgment in G.T. v. Minister for Justice [2025] IEHC 207 (Unreported, High Court, 8th April 2025), in which she pointed out that insofar as a costs order may have a chilling effect, it would only be felt "where proceedings lack merit and otherwise lack factors which would warrant a departure from the statutory default rule".  Unmeritorious applications are the sort of thing that should be chilled at least to some extent, and the need to do so is particularly visible if the main instrument of control, the adverse costs order, is neutered, as it is in Aarhus proceedings.  In such a context, making no order as to a loser's costs is the minimum the court can do in the interest of fairness (disregarding exceptional circumstances which certainly don't apply here).  That said, and acknowledging that litigation is not a desirable activity in itself, there is a public interest served by wide access to environmental justice, so excessive chilling of that would be undesirable, even for cases that don't succeed.  But the chilling we are talking about here is modest because the protection from prohibitively expensive costs orders remains at all times.  No order as to costs for losers is merely a bracing Autumn breeze, not a Baltic Winter blizzard.

32.         On the basis above, the provisional order should stand.

Costs of the costs hearing

33.         It logically follows that there should in addition be no order as to the applicants' costs of the application to vary the provisional order, with the developer's costs of that application being reserved including the two listing dates on 31st March 2025 and (after I raised certain queries) 7th April 2025.  If the applicants think that the costs of the further mention date of 7th April 2025 shouldn't be awarded against them in due course (or of both dates), they can make that argument in due course - all I am doing is reserving the winner's costs for now.  Further argument will be welcome in due course.  That argument may depend on the issues raised at the appropriate time.  Most opposing parties don't particularly want to push the envelope on costs issues - occasionally some do.  If say in a given case a developer asks for a full order for its costs to be paid by an applicant out of costs awarded to a given applicant against the board in the case concerned or even in some other case, that's an interesting discussion we can have at the appropriate time.  This isn't the appropriate time - reserving costs just means we can have that discussion if we need to have it.  There's no point reserving the losing applicants' costs because there is nothing to discuss - they lost.  So they aren't going to be getting their costs of the issue on which they lost.

34.         The applicants' response to the notion of reserving the costs of the second mention date of 7th April 2025 was somewhat ingenuous and amounted to a claim of being punished for endeavouring to assist the court.  What's notable about this type of attitude, by no means confined to these applicants, is its lack of any conspicuous sense of ownership of the situation.  Why are we here?  We are here because the applicants first proposed a spurious point that the permission should be quashed because of failure to take into account a bat roost, even though all potential roosts had already been accounted for, and then made a spurious objection to no order as to their costs of the losing point.  That is why I had to consider that and write the present judgment (for the avoidance of doubt, the imposition of work on the other parties rather than on me is what is relevant here).   That is also why I called the parties back to inform them of the limited material I was aware of on the issue (now referred to in the judgment) and to double-check, in particular, if the applicants had any authority for the proposition that losers had some right to costs.  In fact they didn't have any such authority - but they can't pretend that they aren't responsible for my having had to consider that issue in the first place.   

35.         What's notable about textbook applicant rhetoric - by no means confined to these applicants - is that when they are looking for costs it is a matter of indignant "entitlement", but when there is any suggestion of no order as to costs, not to mention a set-off, the response is dumbfounded condemnation of a "punitive" order.  This is obvious nonsense to anyone outside the bubble of like-minded free-riding applicants.  The court isn't punishing these applicants for making losing points - all I am doing right now is saying that they won't be getting their costs of doing so.  Whether the notice party gets any costs is something for another day, hence such costs will be reserved.  But if there is to be any reasonable fairness in the system, one has to reject the implicit notion that a costs-protected applicant can inflict costs on other parties without consequence.  Such consequences won't include an award of prohibitively expensive costs, but the applicants would be irresponsible if they embarked on litigation believing that there can't be any consequences at all.  That isn't the case, albeit that such consequences would normally be limited to a reduction in the costs that an applicant might otherwise obtain.  There is no such thing as a free lunch - the quid pro quo for an applicant's costs protection is that they have to avoid inflicting unnecessary costs on other parties or else pay some sort of legally permissible price for doing so.

36.         Overall we can't lose sight of the of the fact that the costs system is already seriously imbalanced against opposing parties and particularly private sector developers who have to pay all of their own costs as they go with minimal meaningful comeback against applicants who lose in whole or in part.  The system should not be viewed as a complete gravy train whereby any attempt to consider mitigation of complete and total costs in favour of an applicant is castigated as being unfair, inequitable and a breach of domestic, European and international law.  For a court to succumb to that unfounded rhetoric would be to legitimise the double standards referred to above and to inadvertently render the system even more one-sided and imbalanced against opposing parties than it already is.

Order

37.         For the foregoing reasons it is ordered that:

                    (i)        the provisional order as to costs in the substantive judgment be permitted to stand;

                   (ii)        there be no order as to the applicants' costs of the application to vary the provisional order, with the developer's costs of that application being reserved including the two listing dates on 31st March 2025 and 7th April 2025; and

                 (iii)        in line with the direction in the substantive decision, the foregoing order not be perfected until the conclusion of the proceedings.