Glaister and Ors v An Coimisiún Pleanála

APPROVED [2026] IEHC 264 THE HIGH COURT PLANNING & ENVIRONMENT Record No: 2025/ 218 JR IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT, 2000 AND IN THE MATTER OF AN APPLICATION Between: JACKIE GLAISTER, PAT DALY, JAMES MOONEY, CHRISTINA MOONEY MARY GILFOYLE-DURKIN AND JANETTE KARADOGAN Applicants and AN COIMISIÚN PLEANÁLA Respondent and DN FARM LIMITED and MAYO COUNTY COUNCIL Notice Parties JUDGMENT of Ms. Justice Emily Farrell delivered the 30th April 2026 Introduction 1. These proceedings involve a challenge to the validity of planning permission granted by An Coimisiún Pleanála, to the first named Notice Party (hereinafter referred to as ‘the Notice Party’). 2. Prior to the application which led to the grant of the permission challenged herein, the managing director of the Notice Party and his wife had applied for and been granted planning permission for a similar development. That permission was challenged by way of judicial review, O’Connor v. An Bord Pleanála, record number 2019/799JR. The Board (as it then was) conceded that its decision was invalid and neither it, nor the proposed developer opposed the grant of relief. That decision was quashed by the High Court on 9th November 2021. An order remitting the application to the Board was not made. 3. The permission granted authorised the construction of a poultry house, service yard, manure shed, silos and associated works at a site in the townland of Doogary, Aughamore, Ballyhaunis, Co. Mayo. The Applicants had appealed the decision of Mayo County Council to grant the permission sought, subject to 19 conditions. 4. The Commission’s Inspector recommended that permission be refused as he considered that it was not open to the Commission to grant permission as it could not be satisfied that the proposed development, individually or in combination with other plans or projects, would not be likely to have a significant effect on five Special Areas of Conservation or SACs or any other European site. The Commission decided to depart from its Inspector’s recommendation and granted permission for the proposed development subject to 12 conditions on 17th December 2024. In doing so, the Commission was satisfied that the proposed development would not adversely affect the integrity of the European sites in view of their conservation objectives and found that there was no reasonable scientific doubt as to the absence of such effects. 5. The Applicants were granted leave to seek an order of certiorari by way of judicial review on five Core Grounds, which are particularised at §6 – 62 of the Statement of Grounds filed on 18th February 2025, on 24th March 2025. The substantive application was brought returnable to 7th April 2025. Time was fixed for the filing of opposition papers on that date and extended on a number of dates thereafter. A hearing date of 21st April 2026 was assigned on 29th September 2025. The latest date by which the Commission was to file its opposition papers was 10th November 2025. The Notice Party had liberty to file opposition papers by 17th November 2025. It was anticipated that it would do so after the Commission had filed its opposition papers. 6. On 23rd February 2026 the Commission notified the Applicants that it would not oppose an order of certiorari quashing the permission which had been granted to the Notice Party on the basis of the plea advanced at §37 within Core Ground 3 of the Statement of Grounds. The Commission accepted that it had failed to provide adequate reasons for disagreeing with 2 the Inspector's recommendation to refuse planning permission, thereby breaching section 34(10) of the Planning and Development Act, 2000, as amended. By letter dated 16th March 2026, the Commission also accepted that the plea at §28 was made out. §28 also related to the adequacy of the reasons given by the Commission for not accepting the recommendation of the Inspector to refuse the permission sought. No concession has made in respect of any of the other grounds relied upon by the Applicants. The Commission has said nothing, either way, about any of the other grounds of challenge. 7. As is the entitlement of the Notice Party, it wishes to defend the proceedings despite the concession of the Commission. The Supreme Court confirmed in Ballyboden TTG v. An Bord Pleanála [2024] IESC 4 that a notice party is not required to meet a test, or surpass a threshold, to defend judicial review proceedings if the respondent forms the opinion that relief should be conceded. A concession by a decision maker does not affect the presumption of validity of an administrative decision and the onus of proof remains on the applicant. As Donnelly J. stated in Ballyboden, “Depending on the nature of the concession by the Board, an applicant for judicial review may have its path to obtaining the relief claimed eased by such concession but it does not obviate the necessity for the applicant to persuade a court that such relief ought to be granted.” (para. 48) 8. It is appropriate that the proceedings be modularised and that the issue whether the ground pleaded at §§28 and 37 of the Statement of Grounds is made out be determined as a preliminary issue. The concession of the Commission bears no more weight than a legal submission. 9. The Notice Party accepts that it would not be entitled to the costs of such a hearing but contends that it should not be required to bear a risk of having to bear the Applicant’s costs if it opts to defend the decision of the Commission and fails. 10. Whilst the Notice Party seeks four substantive reliefs in the Notice of Motion, the third and fourth reliefs are sought in the alternative. The substance of the application is that the Notice Party seeks a pre-emptive protective costs order in respect of the costs of the module relating to the conceded grounds which the Notice Party wishes to defend. The Notice Party seeks confirmation, prior to the hearing of that module, that no order should be made in respect of the costs thereof, or that if costs are awarded against it, such costs must be assessed on a non-prohibitively expensive basis. 3 11. The Supreme Court held in Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43, [2024] 2 IR 222 that all of the grounds agitated in proceedings challenging the validity of decisions made under section 37 of the Planning and Development Act, 2000, amongst other decisions, benefit from the protection of section 50B of that Act. Murray J. held that this interpretation renders section 50B and the Environment (Miscellaneous Provisions) Act, 2011 (“EMPA”) consistent with each other and aligns both with the ‘not prohibitively expensive’ provisions of the Aarhus Convention. 12. The Applicants, Commission and the Notice Party each contend that costs protection under section 50B of the 2000 Act applies in this case. The second Notice Party has taken no part in the proceedings and has not taken a position on the applicability of section 50B to the proceedings. The Applicants sought an order to that effect in the substantive Notice of Motion, which was returnable before the High Court on 7th April 2025 and claimed that section 3 of EMPA applies to the proceedings. The Commission agreed that the proceedings are covered by section 50B of the 2000 Act, and this has been confirmed in its written and oral submissions. 13. Having regard to the interpretation of section 50B in Heather Hill, I am satisfied that the parties are correct in submitting that the proceedings are covered by section 50B. Effect of section 50B 14. Section 50B, as amended, provides: “(1) This section applies to proceedings of the following kinds: (a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of— (i) any decision or purported decision made or purportedly made, (ii) any action taken or purportedly taken, (iii) any failure to take any action, pursuant to a statutory provision that gives effect to— (I) a provision of the Environmental Impact Assessment Directive (within the meaning of the Planning and Development Act 2024) to which, by virtue of paragraph 1 of Article 11 of that Directive, the said Article 11 is subject, 4 (II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, (III) a provision of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) to which, by virtue of paragraph 1 of Article 25 of that Directive, Article 24 of that Directive is subject, or (IV) paragraph 3 or 4 of Article 6 of the Habitats Directive (within the meaning of the Planning and Development Act 2024); (b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a); (c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in relation to a proceeding referred to in paragraph (a) or (b). (2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986) and subject to subsections (2A), (3) and (4), in proceedings to which this section applies, each party to the proceedings (including any notice party) shall bear its own costs. (2A) The costs of proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the actions or omissions of the respondent or notice party, or both of them, contributed to the applicant obtaining relief. (3) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so— (a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious, (b) because of the manner in which the party has conducted the proceedings, or (c) where the party is in contempt of the Court. 5 (4) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so. ...” 15. As provided by subsection (2) the default position is that each party should bear its own costs in proceedings to which section 50B applies. The Notice Party contends that the court should therefore make no order in respect of the costs of the module related to the conceded grounds, and that a pre-emptive declaration should be made to that effect. 16. The general position provided for by section 50B(2) may be departed from in one of three ways: - Where the applicant obtains relief, it may recover costs against a party or parties whose acts or omissions contributed to the grant of relief; - If the Court considers it appropriate to award costs against a party having regard to the claim or counterclaim made or their conduct; - Where in the special circumstances of the case, it is in the interests of justice to award costs in favour of a party in a matter of exceptional public importance. 17. Section 50B(2A) can apply only to the benefit of an applicant for relief. This is the only provision within section 50B which distinguishes between the parties to proceedings. As noted by Donnelly J. in Ballyboden a person directly affected by an administrative decision, which may include a person to whom planning permission has been granted, is an appropriate notice party. There is no distinction in the legislation, or in the authorities as to how the costs provisions apply to different types of applicant, whether they are members of the public, environmental NGO’s or developers. The only distinction in treatment of the parties to the proceedings in section 50B and in section 3 of EMPA is that costs may be awarded to a successful applicant, or plaintiff as the case may be, under section 50B(2) or section 3(2) of EMPA. Those provisions also provide that any such costs order shall be made against the party whose acts or omissions led to the grant of relief. 18. In Hunter v. Environmental Protection Agency [2013] IEHC 591, Hedigan J. held that section 50B(2A) applies only to pre-litigation acts or omissions and that subsection (3)(b) applies in respect of the conduct of proceedings. In Rafferty v. An Bord Pleanála [2025] 6 IEHC 19, Humphreys J. stated that subsection (2A) applied in respect of substantive relief and applied to respondents or notice parties who caused or contributed to the error in the impugned decision. In that case, subsection (2A) was found to be a viable route for costs to be awarded against the notice party developer, as it had contributed to the mistake on the part of the respondent, which had led an order of certiorari being granted. 19. None of the parties suggest that the Notice Party has contributed in any way to the act or omission alleged against the Commission at §§28 and 37 of the Statement of Grounds. The obligation to provide reasons for departing from the recommendation of the Commission’s Inspector falls solely on the Commission, for obvious reasons. Therefore, it would not be open to the Court to make an order for costs in favour of the Applicants as against the Notice Party under subsection (2A) if the Notice Party is unsuccessful in resisting the application for an order of certiorari on the conceded grounds. Therefore, subsection (2A) is not relevant to the issue currently before the court. 20. An award of costs may also be made in favour of a party in a matter of exceptional public importance where, in the special circumstances of the case, it is in the interests of justice to do so: under section 50B(4). None of the parties contend that the issues raised in these proceedings, particularly the question of the adequacy of the Commission’s reasons for departing from its Inspector’s recommendation, are such that subsection (4) applies. Orders for costs under section 50B(3) 21. Every party to proceedings to which section 50B applies is potentially at risk of an adverse costs order under subsection (3), which allows costs to be awarded against any party in specified circumstances, each of which relate to the manner in which the proceedings are conducted. 22. The Notice Party has not advanced a counterclaim in the proceedings, nor would it appear that it seeks to do so. Similarly, there is no basis for anticipating that it will be found to have acted in contempt of court. Therefore, the only realistic basis on which it may be anticipated that a costs order may be made against it would be under section 50B(3)(b) – “because of the manner in which the party has conducted the proceeding”. The position of a notice party is no different from that of an applicant or respondent under subsection (3). 7 The conduct of any party may lead to an adverse costs order under subsection (3), and where such costs are awarded against an applicant, the ‘not prohibitively expensive’ provisions of the Aarhus Convention must be applied. Whether costs should be so limited for a notice party is considered below. 23. It is impossible for the court to decide in advance of the hearing and/or determination of the proceedings, or of a particular module of proceedings, whether the conduct of a party is such that it is appropriate that a costs order be made by reason of the manner in which they have conducted the proceedings. I note that both section 50B(3)(b) and section 3(3) EMPA refer to the conduct of the parties in the past tense. 24. The parties appear to have assumed that the Applicants must recover the costs of the module relating to §§28 and 37 if the Notice Party fails to successfully defend the Commission decision on those grounds. The Commission and Applicant have advanced sound public policy arguments for contending that it would not be appropriate for the costs incurred by an application from a contested hearing in respect of grounds conceded by the Commission to be awarded against it. 25. I do not consider that it necessarily follows that the effect of section 50B(2) and (2A) is that the Applicants must recover their costs of that module if the challenge to the impugned decision succeeds. The default position in proceedings governed by section 50B is that there shall be no order as to costs, although the application of subsection (2A) habitually leads to an order for costs in favour of a successful applicant, against the respondent or notice party whose act or omission led to the grant of relief. The risk that an applicant would not recover their costs in full, or at all, is a compromise for the relative immunity from an adverse costs order if an applicant is unsuccessful. The immunity is subject to subsection (3). 26. It cannot be determined in advance that any party is immune from an adverse costs order, which is effectively what the Notice Party seeks in the first instance. 27. It is premature to determine whether the conduct of a notice party if it proceeds to oppose the grant of relief in this case would justify awarding costs against it under subsection (3), simply by unsuccessfully opposing certiorari on the conceded grounds. Considerations such as whether the issue involved application of well-settled principles to 8 the facts or whether the law on a particular issue was untested or unclear may be relevant to the decision to award, or decline to award costs under section 50B(3)(b), and whether the court was impeded in concluding the proceedings in a timely and efficient manner, consistent with the interests of justice. It may be that the court should lean in favour of granting costs against an unsuccessful notice party who unsuccessfully defends proceedings which have been conceded by the decision maker, but it is premature to make any order in respect of costs at this stage. 28. The submissions made in respect of the timing of the Commission’s concession can be made at the conclusion of the preliminary module or the proceedings unless there is agreement as to the order which should be made in respect of costs. The timing of the concession is not a relevant consideration in deciding whether a pre-emptive costs order should be made, effectively granting the Notice Party immunity from an adverse costs order. 29. The parties have relied on the judgments of Hedigan, Simons and Humphreys JJ. in Hunter v. Environmental Protection Agency, Southwood Park Residents Association v. An Bord Pleanála [2019] IEHC 504 and Rafferty v. An Bord Pleanála in which costs were awarded against a party who had sought to contest proceedings despite the concession of another respondent or notice party. None of these judgments are authority for the proposition that simply opposing the grant of relief is sufficient for the making of an adverse costs order, although it is clear that moral turpitude is not required for a costs order to be made under subsection (3)(b). In Hunter, Hedigan J. held that moral turpitude was not required to fix a party with costs, although an adverse costs order is in the nature of a penalty. 30. As noted above, in Rafferty, Humphreys J. found that costs should be awarded against the notice party under subsection (2A). Furthermore, in that case, and in Hunter, the notice party had sought time to oppose the grant of relief before ultimately conceding the point which had been conceded by the relevant decision maker. The proceedings were prolonged by 5 and 12 months respectively, during which time further unnecessary costs were incurred by the applicants in the expectation and reasonable belief that their applications for certiorari would be opposed, despite the concessions of the decision-makers. 31. In Southwood Park, the notice party who was the beneficiary of the impugned permission accepted that the decision of the Board was invalid by reason of its failure to publish a document which included the results of bat surveys close to the site and included 9 proposed mitigation measures. Simons J. found that the conduct of the Board, in opposing the grant of relief on the basis that the admitted breach of the public participation requirements under Article 301(3) of the Planning and Development Regulations 2001 was de minimis, was unreasonable because of the nature of the breach and the fact that the only party with a direct interest in the planning permission had conceded that it should be set aside. The omitted document included mitigation measures which were incorporated into the permission granted by condition. Therefore, not only was there a breach of the public participation requirements but, Simons J. held, the interpretation of the permission granted was distorted by the failure to publish that document. He described the concession by the notice party that the permission granted was invalid as “sensible” and rejected the Board’s contention that the breach could be regarded as trivial or insubstantial. He found the position taken by the Board was unreasonable and that it had significantly added to the costs incurred by the applicant. On that basis, Simons J. awarded the costs of the proceedings against the Board despite acceptance by the developer that it should bear part of the costs as it had contributed to the invalidity. 32. While Donnelly J. referred, in Ballyboden, to costs being a significant factor in a notice party’s calculation whether or not to seek to defend an administrative decision in their favour especially where a decision maker expressly accepts that its decision was unlawful, she did not consider how section 50B(3) should be interpreted or applied. 33. I am satisfied that the “manner in which the party has conducted the proceedings” does not equate with failing to defend the point successfully. No authority was relied upon in which an order for costs was made against a notice party who defended a ground conceded by another party, solely on the basis that it had failed in its defence of that ground. To the extent that it was submitted that Humphreys J. did so in Rafferty, what he stated, at para. 33(ii) was that “sub-s. (2A) doesn't eliminate the general rule that a party can be ordered to pay costs if they inflict costs on other parties, due to making unnecessary and unsuccessful applications”. He also stated, at para. 46 that it is not necessary to establish that the party has acted frivolously or vexatiously, abused the process, or acted in contempt of court. I agree – those circumstances are covered by subsection (3)(a) and (c) respectively. 10 34. While Holland J. found that section 50B did not apply to the proceedings EPUK Investments UK v. Environmental Protection Agency [2023] IEHC 138, the following dictum, which must be treated as obiter, is of note: “It seems to me that the concept of conduct in s. 50B(3) must be interpreted in the context of the categories which precede and succeed it. Preceding it is a reference to frivolous and vexatious proceedings and succeeding it is a reference to contempt of court. These references suggest that the conduct which the section contemplates, while it might not necessarily amount to what one could formally call misconduct, is at least conduct fit to be significantly deprecated by the court to an extent meriting, in effect, punishment in costs despite a norm of costs protection. I accept that, as counsel for EPUKI put it, the bar to the application of s. 50B(3) is “fairly high”. In the similar context of the reference to “conduct” in s. 169(1)(a), 14 Murray J in Chubb considered it as concerned, as had been the pre-existing law, with “ improper behaviour proximately related to the action itself”.” (§14) 35. While this judgment was not opened or referred to by any of the parties to this application, the dictum accords with, rather than influenced, my interpretation of subsection (3)(b). 36. It is true that the costs protection provisions of section 50B and the EMPA are skewed, or, as Humphreys J. stated in Doyle v. An Bord Pleanála (No. 2) [2025] IEHC 205, seriously imbalanced, in favour of applicants. That is the choice made by the Oireachtas in giving effect to the Aarhus Convention. I am satisfied that the Aarhus Convention does not require national law to be applied in the manner contended for by the Notice Party. Not-prohibitively expensive costs 37. It is not in dispute that the court is required to interpret the costs protection provisions of section 50B of the 2000 Act and section 3 of the EMPA in a manner consistent with the Aarhus Convention. 38. The Notice Party has not advanced a particular basis on which a costs order made against a notice party rather than an applicant for judicial review should be not-prohibitively expensive, save as to refer to the Aarhus Convention generally. It was submitted that, having regard to North East Pylon Pressure Campaign Ltd v. An Bord Pleanála (No. 5) [2018] 11 IEHC 622, the NPE order which could be made is no order as to costs applying section 50B(2). In that case Humphreys J. held that no order as to costs was “perfectly consistent” with the not-prohibitively expensive principle both as regards to the discretion of the State, including both the legislature and the judiciary, and for pragmatic reasons. That does not advance the Notice Party’s argument that the not-prohibitively expensive principle applies if costs are be awarded against it if it is unsuccessful in defending the grounds conceded by the Commission, nor in obtaining a pre-emptive declaration that no order will be made in respect of the costs of that module. 39. No authority has been relied upon in which costs were awarded against a party other than an applicant on a not-prohibitively expensive basis. Of course, that is not indicative of the proposition not being well-founded, but the onus is on the Notice Party to persuade the court that its novel proposition is correct. It has been unable to do so. 40. In C-470/16 North East Pylon Pressure Campaign Ltd v. An Bord Pleanála ECLI:EU:C:2018:185 the CJEU held: “Article 9(3) and (4) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005, must be interpreted as meaning that, in order to ensure effective judicial protection in the fields covered by EU environmental law, the requirement that certain judicial procedures not be prohibitively expensive applies to the part of a challenge that would not be covered by that requirement, as it results, under Directive 2011/92, from the answer given in point 2 of the present operative part, in so far as the applicant seeks, by that challenge, to ensure that national environmental law is complied with. Those provisions do not have direct effect, but it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with them.” 41. I am satisfied that the requirement in the Aarhus Convention that proceedings not be prohibitively expensive applies only to those who bring challenges and not to the defence of such challenges. The Convention is concerned with access to justice for the purposes of ensuring compliance with environmental law, not for the defence of administrative decisions which have been made, whether by the person in whose favour that decision was made or 12 any other party. Article 9(3), refers to the obligation of the contracting parties to ensure that “where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.” 42. Article 9(2) of the Convention also refers to the obligation to provide “access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention. ...” (emphasis added) That those procedures “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive” is required by Article 9(4). 43. At para. 42 of North East Pylon Pressure Campaign Ltd, the CJEU also referred to this requirement that certain challenges not be prohibitively expensive, and stated that “any interpretation of that requirement, within the meaning of Directive 2011/92, which extended its application beyond challenges brought against decisions, acts or omissions relating to the public participation process defined by that directive would exceed the legislature’s intent.” The interpretation obligation identified in that judgment, and considered in Heather Hill, does not extend the not-prohibitively expensive principle to any order for costs which may be made if a notice party is unsuccessful in defending proceedings, or a module thereof, subsequent to the decision-maker conceding that its decision is invalid. 44. The purpose of requiring the costs of bringing a challenge to such a decision, act or omission is to ensure that members of the public concerned can “challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment” this is to ensure that members of the public are not prevented or dissuaded from instituting proceedings which challenge the validity of those acts and omissions, by the prospect of a prohibitively expensive costs order being made against them if they fail to establish that the impugned act or omission contravened the law relating to the environment. The entitlement of a party who benefits from such a decision, act or omission to defend such a challenge is not encompassed by the obligation 13 to ensure that such access to administrative or judicial procedures is not prohibitively expensive. 45. In Ballyboden, both the High Court ([2023] IEHC 114) and the Supreme Court rejected the contention that section 50 applied to the decision of the Board to concede that its decision was invalid, describing it as a litigation decision, and not one made under the Act. The fact that defending the point conceded does not amount to a challenge to a decision to which the Aarhus Convention applies underscores my finding that the not-prohibitively expensive requirement does not apply. Conclusion 46. There is agreement that section 50B applies to the entirety of the proceedings brought by the Applicants to challenge the validity of the Commission’s decision to grant the Applicant planning permission. There is no need for a declaration to that effect. 47. Similarly, it is agreed that the court is obliged to interpret section 50B in a manner compatible with the Aarhus Convention. 48. It is not in dispute that the Notice Party did not contribute to the act or omission which would lead to the grant of certiorari if the court ultimately finds that it is appropriate to quash the Commission’s decision on grounds §§28 and 37 of the Statement of Grounds. 49. Therefore, the only basis on which a costs order could be made against the Notice Party is if a costs order is made under section 50B(3). It is premature to decide whether circumstances exist which would justify the making of an order under that subsection. That question cannot be decided until the conclusion of the proceedings. 50. The principle that costs should not be prohibitively expensive applies to the party who challenges a decision, act or omission on the ground that it contravenes environmental law. This does not apply to the defence by the Notice Party of grounds conceded by the Commission. 51. The application was argued primarily by reference to section 50B, but I am also satisfied that the Notice Party is not entitled to a pre-emptive order effectively immunising it from a costs order, or declaring that any costs awarded would be calculated on the not- 14 prohibitively expensive basis, in the event that it is unsuccessful in defending the grounds conceded by the Commission, under the EMPA, or the inherent jurisdiction of the court for the reasons set out herein. Order 52. The application by the Notice Party for a pre-emptive costs order and application for a declaration that the Notice Party is entitled to proceed on the basis that any costs awarded against it, if it is unsuccessful in defending the conceded grounds, would be assessed on a not-prohibitively expensive basis, are refused. 53. It seems to me, having regard to Order 103 RSC rule 37, that the appropriate order in respect of the costs of this application is no order. Therefore, I propose making no order for the costs of this application. Should any party wish to contend that a different order should be made, written submissions (not to exceed 1,500 words) may be filed within two weeks of the date of this judgment. Emily Farrell 15