A new fees scale aimed at slashing legal costs payable by public bodies in environmental law cases is to come into effect next week.
Ministers had proposed the cuts as part of Government efforts to speed up delivery of water, transport and electricity for housing, industry and infrastructure projects.
The new fee scale will apply to High Court cases taken under the Aarhus Convention, an international agreement which requires that access to justice in environmental matters should not be prohibitively expensive.
More than 1,400 submissions were made during a public consultation process regarding the fees and almost all of these opposed the proposed scale, which capped fees between €40,897 and €65,805, on grounds including these would harm environmental protection.
Following the consultation, changes introduced included a different fee breakdown for standard, complex and very complex cases, and a section to reflect a fee structure where the case is broken down into several modules.
In a letter to the Taoiseach last October, Minister for the Environment Darragh O’Brien said steps were taken to update the proposed scale of fees after the Attorney General identified significant legal risks across some proposals.
Legal sources said they expected challenges to be taken over the new measures.
On Tuesday, O’Brien and Minister for Public Expenditure Jack Chambers signed regulations to give effect to the new scale from May 18th.
The regulations were provided for in section 294 of the Planning and Development Act, passed by the Oireachtas in 2024.
Ireland’s “strong record in Europe for compliance with environmental law” will not change, O’Brien said.
“Introducing manageable and predictable legal costs ensures a streamlined system that balances environmental concerns with the greater public good,” he said.
“This makes the system more practical and can also support positive environmental outcomes. This includes the renewable energy development we so badly need to offset the volatility of imported fossil fuel costs.”
Chambers said implementation of the regulations was “a critical element” of the reforms agreed by Government in the Accelerating Infrastructure Report and Action Plan.
“Specifically, it creates a clear, predictable cost framework, replacing a system that is uncertain, inconsistent and costly. It does so while ensuring that successful applicants still recover their costs under a transparent scale of fees, preserving access to justice. This will support infrastructure delivery, including that infrastructure we need to improve environmental outcomes,” he said.
Prior to the new fees scale, a public body was liable for the legal costs of a successful applicant who took a judicial review on environmental law grounds.
The regulations identify the type of judicial review proceedings to which these apply and specify a scale of costs to be awarded to applicants, subject to judicial discretion for a successful applicant.
In its submission as part of the public consultation, the Law Society of Ireland said the proposed fee scale was contrary to European Union law, would “harm environmental protection” and make litigation “prohibitively expensive”.
It said a “sustained political campaign” in the lead up to the proposed scales had faulted the justice system for delays in housing and infrastructure delivery, but it said no evidence was provided to support that.
The blame placed on judicial reviews taken by individuals “masks the real root causes” of the issues impeding development, including “chronic lack of investment” in the justice system and practical challenges such as capacity constraints in the energy grid and lack of adequate water infrastructure, it also said.
The solicitors’ representative body also opposed the proposed, or any legal fees scale, and said the best approach was to have non-binding guidelines on legal costs.
The Bar of Ireland, which represents barristers, said the measures risked making meritorious challenges “economically unviable” and imposing the legal costs of fixing the errors of State agencies and public bodies on those who raised legitimate concerns.
It said the “perverse” policy outcomes included increased numbers of lay litigants which would delay, not speed up, the hearing of planning cases.
