EU and international law not applicable to costs order in proceedings challenging grant of fish farm licence

Judicial review – costs - third judgment given in respect of judicial review proceedings involving a decision of the Acquacultural Licenses Appeals Board (“the Board”) dated 31st October, 2012 - the Board had confirmed an earlier decision of the Minister for Agriculture, Fisheries and Food on 22nd March, 2011, to grant a temporary licence for the amendment of operating procedures to the notice party, Silver King Seafoods Ltd. (“Silver King”) in respect of the latter’s salmon farming site at Deenish Island, Ballinskelligs Bay, Co. Kerry – application for leave to apply for judicial review dismissed - court then made certain orders for costs in favour of the two respondents and the notice party - applicant subsequently brought a motion dated 6th October 2014 seeking a declaration that such costs as were ordered against it in these proceedings should not be, having regard to the provisions of Article 11 of Directive 2011/9EU, “prohibitively expensive” - application raises the manner in which the Aarhus Convention (1998) has been transposed into our domestic law - Section 7(1) of the Environment (Miscellaneous Provisions) Act 2011 (“the 2011 Act”) envisages that any such application for a modified costs order (or some variant of this, such as a protective costs order) should be made “at any time before or during the course of the proceedings” - Article 9(3) and Article 9(4) of Convention - Oireachtas did not make the Aarhus Convention part of domestic law as such - Oireachtas sought to approximate our law to the requirements of Article 9(3) and Article 9(4) of the Aarhus Convention by providing in ss. 3 to 7 of the 2011 Act for the modified costs rule - the licensing regime which obtains under the Fisheries (Amendment) Act 1997, and which was the subject of the present judicial review application, simply does not come within the scope of the special costs rules contained in ss. 3, 4 and 6 of the 2011 Act - Article 9 has not, as such, been made part of the law of the State - applicant argues has always rested on the potential impact of Directive 2011/92/EU (“the 2011 Directive”) - Article 11(4) of the Directive does not state that all judicial review proceedings involving the licensing of intensive fish farming should benefit from the application of the modified Aarhus Convention costs rules - Article 11(4) makes it clear that these provisions apply only insofar as such proceedings allege material non-compliance with a procedural or substantive requirement of the 2011 Directive in respect of an Annex II category project such as intensive fish farming - these judicial review proceedings do not involve compliance with the requirements of the 2011 Directive in any shape or form - it follows that the specific provisions of Article 11(4) of the 2011 Directive have no application to the present case - follows that the ordinary costs rules must continue to apply to the costs orders already made in the present case.