Conservationists seek costs after defeat

A limited company formed by conservationists which lost a legal challenge to a hotel and office development in central Dublin has said it is entitled to the costs of the action because of the major issues of public interest involved.

Lancefort Limited, of Upper Ormond Quay, Dublin, yesterday asked the Supreme Court for the costs of its unsuccessful action against An Bord Pleanala (ABP) and the State over the development by Treasury Holdings Limited (THL), Lower Grand Canal Street, Dublin, at a site bounded by College Street, Westmoreland Street and Fleet Street.

In July last year, by a majority of four to one, the Supreme Court dismissed Lancefort's appeal against the High Court's rejection of its challenge to the THL development. The majority found Lancefort did not have locus standi to mount such a challenge. Ms Justice Denham disagreed.

Planning permission for the development was granted by ABP on December 11th 1996, to THL. Legal proceedings were initiated by Lancefort in early 1997 and the developer has claimed it has lost "millions" in the litigation.

Following its judgment, the Supreme Court adjourned the issue of costs. The High Court had ordered that Lancefort pay the legal costs incurred by the developer, estimated at more than £300,000.

Yesterday, Mr James Macken SC, for An Bord Pleanala said his client had decided not to apply for its costs of the Supreme Court hearing but now learned Lancefort was seeking costs against the board. In those circumstances, he was formally applying for the board's costs, but it was a matter for the court.

Mr Rory Brady SC, for THL, said his clients had intended not to seek the costs of the Supreme Court hearing against Lancefort until they learned Lancefort was applying for its costs against Treasury. THL was now seeking its High Court and Supreme Court costs against Lancefort.

Counsel said the use of "front" companies by environmental activists carries within it a risk of having to provide security for costs. He said the effect of the litigation, and the stay on planning permission for the THL development, had caused serious financial loss for THL. Two joint venture partners, Hilton and Sheraton Hotels, did not proceed because of the litigation. THL had to bear the costs of maintaining the site while the litigation went on and would never be compensated for that.

In the legal action, Lancefort claimed An Bord Pleanala was required to assess whether the development required an Environmental Impact Assessment and had failed to do so.

The arguments of the Board and Treasury Holdings were substantially confined to the locus standi of Lancefort - whether a limited liability company with no material property or assets likely to be affected by the development was entitled to maintain the proceedings.

Giving the majority Supreme Court judgment, Mr Justice Keane said that, because he found Lancefort had no locus standi, it was not necessary to express a view on whether ABP should be required to assess whether an EIA is required in respect of a development which the Board considers is likely to have a significant effect on the environment but which falls below the fixed thresholds at which an EIA is required under the 1985 Directive and the Irish regulations.

He added he had not arrived at the conclusion that Lancefort lacked locus standi because of the fact they were a company limited by guarantee, owning no property affected by the permission. He accepted, as a general proposition, that such bodies may be entitled to locus standi in such proceedings.

Applying for Lancefort's costs of the action yesterday, Mr Paul Callan SC, with Mr Colm MacEochaidh, said these were public interest proceedings taken in the interests of 3.8 million people. Lancefort had acted bona fide and there should be no question of a costs order against it. Mr Callan argued that the Supreme Court's reliance on the locus standi issue to defeat Lancefort's case was questionable having regard to Lancefort's argument that the court must apply European Community law and, if necessary, disapply the rules on locus standi to permit the court to deal with a challenge to ABP's decision based upon EU laws. Lancefort argued the Supreme Court had made findings of fact in the case not supported by any evidence. It also argued that the Supreme Court, in failing to refer to the European Court of Justice certain questions relating to Environmental Impact Assessment's, acted in breach of community law.

The company further submitted that the Supreme Court must provide a procedure to review its own failure to refer questions to the ECJ for a preliminary ruling and requested this review be carried out by a differently constituted Supreme Court

The hearing will resume on October 7th.