First protective costs order under Aarhus Convention granted by High Court

Hedigan J granted a protective costs order to an applicant wishing to use Section 160 of the Planning and Development Act to prevent alleged unauthorised development at a waste facility close to her home.

Protective costs orders originate from Article 9 of the Aarhus Convention which provides that litigation in certain environmental matters should not be prohibitively expensive. This provision was implemented in Ireland through Part 2 of the Environment (Miscellaneous Provisions) Act 2011 which protects an applicant from having costs awarded against them should they be unsuccessful.

This is the first time in Ireland that such an application has been successful and importantly the Court clarified the information that should be provided to ground a motion for a protective costs order.

The Court referred specifically to Article 9 of the Aarhus Convention as well as the recent ECJ judgment in Edwards -v- Environment Agency (Case C-260/11) which clarified the meaning of prohibitively expensive under European law.

This judgment is significant not just in terms of planning law but also for access to environmental information law since persons appealing to the High Court against decisions of the Commissioner for Environmental Information may also apply for protective costs orders.

Hunter -v- Nurendale Limited t/a Panda Waste

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