Tuesday 26 July 2011

€86,000 planning board costs bill reflects economic reality - judge

A small farmer in Sligo who challenged plans for a dead animal processing plant near his farm has lost his appeal against a ruling that he must pay An Bord Pleanála €86,000 in legal costs. Volkmar Klohn moved from Berlin in 1985 and bought the 14-hectare Crimlin Farm in Tubbercurry where he grows vegetables for sale.

In 2006, he sought a judicial review of a decision by the planning board upholding planning permission for a fallen animal unit at Achonry, Co Sligo. In 2008, the High Court found in favour of An Bord Pleanaála after a four-day hearing.

The taxing master assessed the planning board’s legal costs at €86,000, including solicitors’ fees of €32,580 - reduced from €45,000 - senior counsel’s fee of €20,000 and junior counsel’s fee of €14,250.

Klohn said his own legal fees amounted to €32,550, and the board’s costs should have been even less. The taxing master also failed to take into account his very limited resources as a small farmer and a means-tested medical card holder.

Klohn also claimed that the taxing master should have taken into account Article 10a of the 1985 EIA Directive which guarantees that legal proceedings challenging planning decisions about Environmental Impact Assessments ‘‘shall Not be prohibitively expensive’’.

The Aarhus Convention, signed by Ireland in 1998, also says that the costs of challenges to environmental decisions should not be too dear.

The farmer said that, before he launched the proceedings, he was told there was ‘‘no fear of prohibitively high legal costs’’ because of the directive.

But the board said that the directive related only to applications and decisions made after June 2005. In this case, the planning application was made in 2003, and An Bord Pleanála gave its ruling in April 2004.

Mr Justice John Hedigan said the High Court had no more powers than the taxing master, which were limited to assessing and deciding the value of work done.

He said the High Court had already decided that Article 10a of the directive did not have direct effect as it was ‘‘lacking in clarity and precision’’. The Aarhus Convention was not applicable, as Ireland had not formally ratified it.

The judge said the taxing master’s allowance was not excessive in the context of a four day judicial review hearing in the High Court.

‘‘The costs, as assessed, appear to reflect economic reality for litigants in the state," said Hedigan.

Sunday Business Post


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