The High Court has ordered a company owned by developer Johnny Ronan to pay the legal costs of Dublin City Council over its failed challenge to the local authority's interpretation of building-height guidelines for a docklands development.
The legal action followed the council's refusal to allow extra storeys to be added to the Salesforce Tower development in the city.
Mr Justice Garrett Simons ruled that an application by Spencer Place Development that the proceedings were subject to a special rule on costs was "somewhat opportunistic" and premature.
The development company had contended that each side should bear their own legal costs as the proceedings were subject to a special costs rule applicable under section 50B of the Planning and Development Act 2000.
Lawyers for the council maintained the normal convention of the successful party being entitled to have their costs paid by the losing side should apply in the case.
The dispute over costs arose from the ruling by the High Court last May which dismissed a challenge brought by Spencer Place Development Company against the council’s interpretation that a maximum of 10 storeys was permissible for new developments under the planning scheme for the North Lotts/Grand Canal strategic development zone (SDZ).
The company claimed the council’s interpretation would adversely affect the outcome of two planning applications that were pending for a commercial and residential development within the SDZ for which it wanted a permissible building height of up to 13 storeys, in accordance with general building height guidelines.
Interpretation
It contested the council's legal interpretation of the "urban development and building heights" guidelines published by the Minister for Housing, Eoghan Murphy, in December 2018 were incorrect.
The council had opposed the proceedings, claiming they were premature as it had not issued any decision on the planning applications.
In his ruling on costs, Mr Justice Simons said it was "somewhat opportunistic" and "anomalous" that the company had sought reliance on a European Union directive requirement as the basis for making its costs application when it had maintained throughout the main case that a strategic environmental assessment (SEA) was irrelevant when interpreting building-height guidelines.
“It represents a volte-face for the applicant to now champion the SEA directive,” the judge said.
He said a fundamental obstacle to the developer’s case was that it had brought proceedings against the council in anticipation of a decision being made which would breach the Planning and Development Act 2000.
He said it was clear that, for the special cost rules of Section 50B to apply, it must be possible to identify a decision made prior to seeking a judicial review.
Mr Justice Simons said the company should have awaited the outcome of the planning process before having recourse to judicial review proceedings when it could have argued the special costs rule applied.
The judge said the interpretation and application of section 50B had proved controversial and had given rise to a significant number of High Court rulings, not all of which were consistent with each other.
He said it had resulted in the “undesirable situation” where separate lengthy hearings on costs often followed judgment on the substantive issues in judicial review proceedings.
