New Appeal: EU law, environmental protection and costs for judicial review of planning decisions

In this determination, Sweetman v An Bórd Pleanála & Eirgrid, the Supreme Court granted Sweetman leave to appeal directly from the High Court against that court’s order that he pay the Bórd’s and Eirgrid’s costs for his failed judicial review action. The Court limited the appeal to consider two issues:

(a) That the trial judge was incorrect to hold that these proceedings were not governed by s 50B of the Planning and Development Act 2000 as amended (which would mean no order for costs); and

(b) That, even if the trial judge was correct to so hold, applicable measures of European Union law required the trial judge to exercise his discretion in respect of costs in a manner other than the way in which that discretion was actually exercised.

 

Background

In October 2016, Sweetman brought judicial review proceedings challenging the Bórd’s decision to grant Eirgrid permission for certain works of overhead power lines in County Mayo. The High Court (Hedigan J) dismissed those proceedings and awarded the Bórd and Eirgrid orders to recover their costs from Sweetman. Hedigan refused Sweetman certification to appeal the costs orders to the Court of Appeal.

Sweetman applied to the Supreme Court for leave to appeal to that court. Article34 of the Constitution provides for an appeal directly from the High Court to the Supreme Court where: (1) the case involves an issue of general public importance; and (2) there are exceptional circumstances which warrant such an appeal.

Granting Sweetman leave to appeal, the Court determined that, firstly, the case did raise an issue of general public importance: whether it is necessary to interpret s 50B in a manner compatible with EU law (including the Aarhus Convention) or whether certain relevant provisions of EU law have direct effect. And secondly, as an appeal to the Court of Appeal was not available, that provided the exceptional circumstances to warrant an appeal directly to the Supreme Court.

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