Glanbia and its 4,500 milk suppliers won a significant victory in the Supreme Court last week, as An Taisce lost its latest appeal against the cheese plant at Slieverue in south Kilkenny.

The company had already won in the High Court, where An Taisce had appealed the decision of An Bord Pleanála, confirming the grant of permission by Kilkenny County Council in November 2019. An intermediate round at the Appeal Court was avoided, since the High Court denied leave to appeal thereto, so An Taisce applied directly to the Supreme Court, which agreed to hear the case.

The Supreme Court decided that the parties would bear their own costs, not the normal routine in commercial litigation, where the losing side pays the winner’s costs as well as their own.

Where the court concludes, in cases that are not run-of-the-mill commercial squabbles, that a substantial matter of public interest has been raised, the loser is not billed for the winner’s costs, but An Taisce will have to pay for its own.

Glanbia may even have got off lightly

The Supreme Court additionally declined to provide a path of appeal to the European Court, so the odyssey through the planning and legal systems appears to be finished, 28 months after the grant of permission by the responsible planning authority, Kilkenny County Council.

Glanbia may even have got off lightly – the full obstacle course for developers potentially runs to six fences; the county council, An Bord Pleanála, the High Court, the Appeal Court, the Supreme Court and the European Court.

The fourth and sixth fences have been avoided and An Taisce, on this occasion, appears to have run out of road.

Unpromising commercial litigation is discouraged by the fear of having to pay two sets of costs when you lose and cases often get settled on the steps of the court in order to avoid the increased liability when a case goes into a full hearing.

The delay to the project involves a lot more than bills for lawyers

The absence of this hazard for objectors in planning cases is a concern, since it stimulates the pursuit of cases which impose costs unequally. An Taisce will have lawyers to pay but Glanbia may have suffered greater damage, although they have won twice with the planners and twice in court, including a five-nil unanimous verdict in the Supreme Court appeal.

A delay of 28 months to a major project, which was fully designed and ready to go when the initial permission was granted, must have cost Glanbia millions. The delay to the project involves a lot more than bills for lawyers.

The same is true for builders seeking planning permission for residential units. In the inner suburbs of Dublin, where rents for modest two-bed apartments have reached €2,000 per month, there are derelict sites aplenty where development has been held up, not just in the planning process itself, but in subsequent appeals to An Bord Pleanála and then on to the High Court. Further replays can then proceed in the Supreme Court, the Appeal Court and, on rare occasions, the European Court in Luxembourg.

The planning system has become asymmetric, with the dice loaded against any project to which objections are likely to be raised

The effect is that objectors can impose, at modest cost to themselves, enormous costs on would-be developers, to the point where small-scale operators are reluctant to consider housing projects in Dublin at all.

The planning system has become asymmetric, with the dice loaded against any project to which objections are likely to be raised.

In every area of Dublin, and increasingly throughout the country, this has come to mean almost every housing project, including projects in areas already zoned for residential development. And this in the middle of a national housing affordability crisis, acknowledged on all sides.

The Attorney General has been asked to review the planning legislation and will report later this year. The planning acts confer on the general public the right to raise objections to proposed developments and to have them heard. The process, in place since 1963, is understandably seen as a democratic entitlement.

Once their judgements have been rendered, the prolongation of the process into the courts entails insufficient risk of cost to unsuccessful objectors

But the democratic right enshrined in the system is the right to a hearing, not the right to a veto. Nor was it ever intended to create a right for objectors to impose large costs on developers at no great cost to themselves. Local councils employ professional planners, as does An Bord Pleanála.

Once their judgements have been rendered, the prolongation of the process into the courts entails insufficient risk of cost to unsuccessful objectors.

There must be a means to seek adjudication by the courts where the planners have failed to comply with Irish or EU law, but the resort to judicial review has become too widespread and too costly for housing policy.

The Attorney General’s review should consider whether losing litigants should pay for court overhead costs, and whether lawyers should be forbidden to offer no-foal-no-fee deals to objectors.