High Court allows costs order against developers for unauthorised development remediation work.

[2026] IEHC 484

THE HIGH COURT

PLANNING & ENVIRONMENT

CIRCUIT APPEAL

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

[High Court Record No.: H.CA.2025.0000329]

[Circuit Court Record No.: 2025 5748 Co. Dublin]

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000

NOTICE OF MOTION FOR RELIEF UNDER SECTION 160 OF THE PLANNING AND

DEVELOPMENT ACT 2000

BETWEEN

SOUTH DUBLIN COUNTY COUNCIL

RESPONDENT/PLAINTIFF

AND

THRESHFORD LIMITED, MULLNASSA LIMITED AND BRANACH DEVELOPMENTS LIMITED

APPELLANTS/DEFENDANTS

AND

THE HIGH COURT

PLANNING & ENVIRONMENT

CIRCUIT APPEAL

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

[High Court Record No.: H.CA.2025.0000330]

[Circuit Court Record No.: 2025 5894 Co. Dublin]

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000

NOTICE OF MOTION FOR RELIEF UNDER SECTION 160 OF THE PLANNING AND

DEVELOPMENT ACT 2000

BETWEEN

JOHN O’NEILL

APPLICANT/RESPONDENT

AND

BRANACH DEVELOPMENTS LIMITED AND MULLNASSA LIMITED

RESPONDENTS/APPELLANTS

(No. 3)

Commencement of works: mid-August 2025

Date of Circuit Court order: 19 December 2025

Date of principal judgment: 3 June 2026

Relevant consequential hearing: 9 July 2026

Date draft judgment circulated: 13 July 2026

JUDGMENT of Humphreys J. delivered on Friday 17 July 2026

1. Having made mandatory orders under s. 160 of the Planning and Development Act 2000 to

redress unauthorised development, the issue now is the approval of the method statement and

costs. This judgment sets out for the record the background to the order made on 9 July 2026.

Judgment history

2. In South Dublin County Council v. Threshford Limited and Ors, O'Neill v. Branach

Developments Limited and Anor (No. 1) [2026] IEHC 342 (Unreported, High Court, 3 June 2026), I

dismissed the appeal and affirmed the Circuit Court’s orders, holding that the works constituted

unauthorised development and were not exempt. I ordered the respondents to cease the

development, remove the structures, and restore the lands to their prior condition, with costs

awarded against them.

3. In South Dublin County Council v. Threshford Limited and Ors, O'Neill v. Branach

Developments Limited and Anor (No. 2) [2026] IEHC 407 (Unreported, High Court, 26 June 2026),

I outlined the background and rationale to the order made on 22 June 2026 by way of mandatory s.

160 relief.

4. As noted above, this ruling is dealing with further issues as to the form of the order and

costs.

5. On 13 July 2026, a draft of the present judgment was sent to the parties, pursuant to

paragraphs 15, 195 to 198 and 204 of Practice Direction HC 137 issued by the President of the High

Court, to give an opportunity to address matters such as errors/ambiguities on the basis set out

below.

6. Parties are required to:

(i) Read the draft or have their legal representatives if applicable do so on their behalf.

(ii) Identify any matters falling within the below.

(iii) Positively communicate with the court in writing in response to the draft by the

deadline specified, such responses to be emailed to the court and uploaded to

ShareFile, either stating that they have no comments or setting out the comments.

(iv) Carry out the foregoing without delay – the draft judgment procedure is a concession

which parties can engage with but must do so with immediate dispatch, discipline

and focus – it is not the opening of a new phase of the litigation that gives rise to

“an entitlement to elaborate procedures at every point” (to use a phrase of O’Donnell

C.J. (Dunne, Charleton and Baker JJ. concurring) in O’Sullivan v. Health Service

Executive [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at para. 39);

and still less should the procedure invite the perhaps “serious error, to which lawyers

are prone, to approach any such case on the tacit assumption that only procedures

which approximate to a criminal trial are fair, and anything which departs from that

is somehow dubious” (O’Donnell J. (Clarke C.J., McKechnie, MacMenamin, Dunne JJ.

concurring) in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75,

[2017] 3 I.R. 751, [2018] 1 I.L.R.M. 245, 780).

(v) Keep the draft confidential. Draft judgments are not public domain materials and,

while they can be shared between the lawyers concerned and their clients, subject

to the following, it is inappropriate for any person to refer to them for any purpose

other than to assist the court in relation to the finalisation of the formal judgment.

Therefore anyone with information as to the text, content or proposed outcome of

any draft is required not to publish or transmit such information to others save solely

by way of private transmission for the legitimate purposes of assisting in the

finalisation of the judgment and subject to a similar restriction on any recipient.

Trial participants should take reasonable steps to keep drafts confidential. On this

topic, see Attorney General v. Crosland (No. 2) [2021] UKSC 58, [2022] 1 W.L.R.

367, [24/01/2022] T.L.R. 1 (Briggs, Kitchin, Burrows, Rose, Arden SCJJ) which

discusses why restriction on publication of draft judgments is in the interests of the

administration of justice; see also Baigent v. Random House Group Ltd [2006] EWHC

1131 (Ch), [2006] 5 WLUK 45, (2006) 150 S.J.L.B. 603 (Smith J.); R. (Counsel

General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy

[2022] EWCA Civ 181, [2022] 1 W.L.R. 1915, [2022] 4 All E.R. 599 (Sir Geoffrey

Vos MR; Davies and Dingemans LJJ. concurring); Public Institution for Social

Security v. Banque Pictet & Cie SA and others [2022] EWCA Civ 368, [2022] 3 WLUK

291, [2022] B.L.R. 349 (Carr LJ; Jackson and Simler LJJ. concurring); Itkin v. Wood

[2023] JRC 101 (Unreported, Royal Court of Jersey, 22 June 2023).

7. The foregoing constitutes an immediately effective direction of the court to the parties and

anyone having notice of the draft judgment with effect from the date of circulation of the draft.

8. The responses should not be to reargue the substance (submissions to that effect will be

disregarded) but are confined to matters such as:

(i) informing the court as to whether the party prefers an alternative to a formal written

judgment as proposed, and if the party so considers, whether that party considers

that the entire matter or some specified part of it can be disposed of (a) by order

without a reasoned judgment, or (b) by ex tempore reasons without a written

judgment;

(ii) informing the court, assuming that the court proceeds with a formal judgment, as

to whether the party wishes to propose any corrections to the draft such as:

(a) any apparent typographical, factual, legal or other errors in the draft;

(b) any apparent ambiguity or other matter in the draft that could unnecessarily

multiply issues or complicate the further processing of the matter;

(c) any redaction of personal or other information that a party wishes to request;

(d) in the event that the court proposes to refer to any matter (whether factual,

legal (including reference to authorities or other legal material), obiter comment

or otherwise) not referred to at the hearing, any submission as to why such

reference is not relevant or otherwise should not be included or as to why such

matter if included should not lead to the proposed conclusion;

(e) any other matter in the draft judgment that the party considers should be

omitted;

(f) any matter not included in the draft judgment that the party considers should

be added to it (including where the party considers that procedural, factual or

legal points not set out in the judgment should be addressed or where the party

considers that reasons for any aspect of the decision are not set out or where

an overall ground is disposed of but detail of the ground or sub-ground is not

expressly addressed, or where an issue arose the disposition of which would be

obiter but on which the party concerned considers that there would be a benefit

in the court expressing a view); and

(g) any other proposals as to the wording (as opposed to substance) of the decision

if the proposed wording causes any issue for a party for any identified reason;

and

(iii) assisting the court by providing views on such matters if any on which views are

specifically invited in the draft judgment.

9. In particular, parties should draw the court’s attention to any apparent error or ambiguity

whether they have been successful on the point or not.

10. The rules of engagement in such a situation are that the draft is without prejudice to the

right of the court ultimately to issue a judgment in whatever form or with whatever content it

considers appropriate. It is then entirely a matter for the court as to whether to give judgment with

or without amendment including any amendment that appears appropriate to the court whether

arising from submissions or not. Any judgment may be given without further notice following the

expiry of the specified period, whether comments are made or not. That period will not be extended

save in exceptional circumstances.

11. The deadline for such comments from the parties was to be 16:00 on Wednesday 15 July

2026. Responses were as follows:

(i) council: no comments.

(ii) Mr O’Neill: no comments; and

(iii) respondents: no comments.

Method statement

12. The method statement was acceptable to the council subject to certain amendments as set

out in the annex.

13. The respondents initially proposed various qualifications about weather and contractor

availability and about timelines being indicative but ultimately agreed that liberty to apply would

cover matters. In particular a statement that all timelines would be indicative would make the order

essentially unenforceable.

14. Given the extent to which there is now broad agreement as to the steps required I did not

consider it necessary to list the matter for further mention and will simply leave it to the parties to

see to it that the order is executed. That will also help to keep down any further legal costs.

Obviously there is liberty to apply in the event of any default or other issue.

Costs vis-à-vis the council

15. At a previous point in the proceedings there was an issue as to whether the council’s costs

in the High Court should be on the High Court scale (per the council) or the Circuit Court scale (per

the respondents) but that has fallen away by virtue of agreement to the former.

16. The provisional orders of relevance were:

“(xiii) in each case, there be an order for costs in the High Court (including reserved costs

and the costs of written submissions) being awarded to the applicants against the

respondents jointly and severally and any issue as to the extent of such costs be determined,

in default of agreement, by way of legal costs adjudication;

...

(xv) in the SDCC case, pursuant to s. 161(2) of the 2000 Act, the order for costs in the

High Court shall include all costs or expenses reasonably incurred by the applicant in relation

to the investigation and detection of the unauthorised development as well as in the

proceedings, including costs incurred in respect of the remuneration and other expenses of

employees, consultants and advisers in respect of those matters.”

17. These are now agreed. There was an issue as to whether the order should expressly cover

the costs of legal costs adjudication but that was not pressed by the council. Such a term is only

really needed if the order is as to partial costs, which is not the case here.

Costs vis-à-vis Mr O’Neill

18. The relevant provisional orders were:

“(xi) in the O’Neill case, the order of the Circuit Court as to costs be affirmed on the basis

that there be an order for costs in the Circuit Court (including reserved costs and the costs

of written submissions and including a certificate for junior counsel as granted by that court)

being awarded to the applicant against the respondents jointly and severally to be taxed in

default of agreement;

...

(xiii) in each case, there be an order for costs in the High Court (including reserved costs

and the costs of written submissions) being awarded to the applicants against the

respondents jointly and severally and any issue as to the extent of such costs be determined,

in default of agreement, by way of legal costs adjudication;”

19. The respondents argued that costs were discretionary and that only a portion should be

awarded in favour of Mr O’Neill. However no pressing basis for that is made out. It was entirely

open to Mr O’Neill to take his own proceedings and that was neither precluded nor deprived of value

by the fact that the council instituted their proceedings. Any one case can derail or settle for a

variety of reasons, and Mr O’Neill had his own cause of action independent of any other actual or

potential plaintiff, in which he has been entirely successful. The various matters in the No. 1

judgment which there is no need to rehearse again do nothing to provide a basis for anything other

than a full order for costs and no such contrary basis is otherwise apparent. As Mr O’Neill pointed

out in submissions, this is a “simple, straightforward, costs following the event” situation.

20. Mr O’Neill did not press for measurement of costs or for an order as to the costs of legal

costs adjudication being expressly provided for (as above, this is really only necessary in the event

of partial costs). So I confirmed the particular provisional orders specified above.

Payment on account

21. Mr O’Neill applied for payment of costs on account.

22. Practice Direction HC 125 provides:

“Payment on Account of Costs Pending Adjudication

HC125 | High Court

This Practice Direction is issued in accordance with the general authority of the President of

the High Court and ss. 11(12) and (13) of the Civil Law and Criminal Law (Miscellaneous

Provisions) Act 2020.

This Practice Direction replaces Practice Direction HC71 (Payment on account of costs

pending taxation) dated 28th March, 2017. Practice Direction HC71 is revoked with effect

from Tuesday, 6th February, 2024, and is replaced, with effect from that date, by this

Practice Direction.

The attention of practitioners is drawn to the provisions of Order 99, r. 2(5) of the Rules of

the Superior Courts and to the power of the Court to make orders requiring the payment of

an amount in respect of costs on account.

I hereby direct that in all cases where there is no dispute as to the liability for the payment

of costs and in any other case which a judge thinks appropriate, an order may be made

directing payment of a reasonable sum on account of costs within such period as may be

specified by the judge pending the adjudication of such costs. Such orders may be made on

an undertaking being given by the solicitor for the successful party that, in the event of

adjudication realising a smaller sum than that directed to be paid on account, such

overpayment will forthwith be repaid.

This Practice Direction shall come into effect on Tuesday, 6th February, 2024.

Dated 31st January, 2024

David Barniville

President of the High Court”

23. In this case the three relevant criteria are satisfied:

(i) the costs order has been made and as the respondents are not proposing to appeal

to the Supreme Court (but even if they were, this comes within the category of “any

other case which a judge thinks appropriate”, subject to debating the timing of that,

but that is academic in the present case);

(ii) the sum proposed by the applicant is reasonable in this context (€60,000) and is in

my view (based on general knowledge of costs but also having regard to the bill of

costs prepared by Mr O’Neill’s legal costs accountant) likely to be less than the

amount which the applicant will secure on adjudication; and

(iii) the necessary undertaking has been furnished.

24. Furthermore the overall balance of fairness and justice militates in favour of an order for

payment on account to Mr O’Neill as the successful party, again without rehearsing everything

already stated in the principal judgment. The respondents are on the hook for costs to be paid at

some point so fairness and efficiency dictate that we should simply get on with that.

25. Accordingly I made the order sought. That order does not require a finding that the

respondents are likely to be insolvent or the like but obviously the fact that the remediation is going

to be expensive doesn’t assist their defence of the application. So the order under this heading was:

“On the undertaking of the solicitor for Mr O’Neill that, in the event of adjudication realising

a smaller sum than that directed to be paid on account, such overpayment will be repaid

within 28 days of conclusion of adjudication, the respondents be jointly and severally

required to pay to such solicitor the sum of €60,000 on account of the costs of the

proceedings within 28 days of 9 July 2026.”

Costs of the hearing of 9 July 2026

26. Given the minimal extent to which the costs orders against the council were contested and

the limited dispute on other issues I generally made no order as to costs of the hearing of 9 July

2026.

27. However, as to the costs of the application for costs and payment out, Mr O’Neill was wholly

successful so should have the costs of the costs-related hearing.

Order

28. For the foregoing reasons, the order made on 9 July 2026 was that:

(i) in each case, the method statement be approved as modified by the Annex to the

order;

(ii) in each case, all results of investigations or surveys be copied to each the applicants

as they become available;

(iii) in each case, there be an order for costs in the High Court (including reserved costs

and the costs of written submissions) being awarded to the applicants against the

respondents jointly and severally and any issue as to the extent of such costs be

determined, in default of agreement, by way of legal costs adjudication;

(iv) in the SDCC case, pursuant to s. 161(2) of the 2000 Act, the order for costs in the

High Court shall include all costs or expenses reasonably incurred by the applicant

in relation to the investigation and detection of the unauthorised development as

well as in the proceedings, including costs incurred in respect of the remuneration

and other expenses of employees, consultants and advisers in respect of those

matters;

(v) in the O’Neill case, the order of the Circuit Court as to costs be affirmed on the basis

that there be an order for costs in the Circuit Court (including reserved costs and

the costs of written submissions and including a certificate for junior counsel as

granted by that court) being awarded to the applicant against the respondents jointly

and severally to be taxed in default of agreement;

(vi) in the O’Neill case, on the undertaking of the solicitor for Mr O’Neill that, in the event

of adjudication realising a smaller sum than that directed to be paid on account,

such overpayment will be repaid within 28 days of conclusion of adjudication, the

respondents be jointly and severally required to pay to such solicitor the sum of

€60,000 on account of the costs of the proceedings within 28 days of 9 July 2026;

(vii) in the SDDC case, there be no order as to the costs of the hearing on 9 July 2026;

(viii) in the O’Neill case, there be no order as to the costs of the hearing on 9 July 2026

other than that there be an order for costs in favour of Mr O’Neill for the costs of the

costs application and payment on account application, and any issue as to the extent

of such costs be determined, in default of agreement, by way of legal costs

adjudication; and

(ix) there be liberty to apply.

ANNEX – STEPS TO BE TAKEN

Date Period Action

6 July 2026 6 July 2026 – 17 - All investigations, surveys, scoping completed and appended

August 2026 to the Method Statement

- Appointment of contractors for demolition works

- Commencement of certain demolition works including

removal of windows, doors, roof tiles and any other

salvageable materials

17 August 2026 17 August 2026 Demolition/deconstruction of all units; treatment/removal of any

– 21 September invasive species; breakout and removal of all foundations, slabs and

2026 plinths (incl. green-field foundations) to the depth confirmed by the

geotechnical investigation; removal of new roads, new hardstanding,

new footpaths, new drains and service trenches to facilitate the 29

units; on-site segregation and concrete crushing; progressive off-site

disposal to licensed facilities; compilation of the independent waste-

tracking log and tipping dockets

21 September 21 September Post-clearance visual validation inspection by an SDCC engineer

2026 2026 – 28 confirming complete removal of all structures, foundations and buried

September 2026 waste (if any) before any topsoil is placed

Date Period Action

28 September 28 September Soil remediation and profile reinstatement per the designed

2026 2026 – 12 drainage/slope-stability solution: installation of the French-drain /

October 2026 SuDS network; deep sub-grade de-compaction / sub-soiling and

subsoil ripping to 450mm; placement of 150–300mm certified BS 3882

topsoil; grading and profiling to the pre-development ground condition

12 October 12 October 2026 Landscape reinstatement: native hedgerow bed preparation, mulch

2026 – 2 November mats and protective fencing (IS 435); SuDS swales, check dams and

2026 wet-mix seeding; grass/wildflower seeding; hedgerow and semi-

mature tree planting (subject to the planting-season point at 6.4);

erection of stock-proof fencing

2 November Inspection by SDCC engineer confirming approval of landscaping plan

2026