Mr. Tom Flynn:

There is a special cost rule under the Planning and Development Act. The question was to what extent did that rule apply to all decisions made under the Planning and Development Act or just to decisions that related to specific cases. That is essentially the question. The High Court took a wide view, the Court of Appeal took the narrow view and the Supreme Court took a wide view in relation to it. The consequence, in practical terms, is that the majority of decisions that are challenged under the Planning and Development Act have the benefit of the costs rule. There may be refinement and nuancing around that and there is some level of uncertainty as to precisely whether all decisions are covered but there is a degree of certainty now.

To explain how this operates in practice, most developers in most cases now simply do not make an issue of this. They accept that the special costs rule applies and they do not want to delay the matter. The matter simply proceeds and people accept that the special costs rule applies. There is a carve-out within the special costs rule for exceptionality if, for example, a case is frivolous or vexatious or because of the way in which the case is conducted such as if there was foot-dragging or misconduct by an applicant, the court can make provision for costs and take that into account and reverse the ruling in relation to costs. So there is a carve-out built into the system. But we have a level of stability arising from the Heather Hill judgment in relation to it and in practice, there is a kind of truce after many years of uncertainty.