Rowan v Kerry Co Co: no right to appeal costs order under Planning and Development Act 2000

The Environment (Miscellaneous Provisions) Act 2011, which was enacted, among other things, to give effect to certain articles of the Aarhus Convention, did not alter, amend or vary s 50A(7) of the Planning and Development Act 2000 so as to allow an appeal of a High Court order for costs to the Supreme Court.

Background

Rowan owns a holiday home accessed by a private lane which runs through farmland near Glenbeigh in County Kerry. The lane serves as access to another holiday home owned by foreign nationals who are not party to this case. Mulvihill (the notice party) owns that farmland, on which he breeds Kerry Bog Ponies and on which he has structures erected for that purpose. In 2007, An Bord Pleanala granted Mulvihill planning permission for a single story family residence on the land, subject to the realignment of the public road–for public safety reasons–to the satisfaction of Kerry County Council. In 2011, The Council confirmed that the realignment was completed to its satisfaction. Rowan challenged that decision in judicial review proceedings before the High Court under s 50 of the Planning and Development Act 2000.

High Court

In the High Court (here), Birmingham J  dismissed Rowan’s application finding that the decision that the Council reached was not unreasonable and was carefully considered. At that stage, the court took further submissions on costs. The Council and Mulvihill sought their costs. Rowan argued that the court should make no order for costs. In a second judgment (here), Birmingham J stated:

4. The starting point for consideration of this issue must be the proceedings actually initiated. The proceedings do not, in themselves, on their face, purport to seek to secure compliance with the terms of the condition of the planning permission. …

7. … They cannot, in my view, be said to be proceedings instituted for the purpose of securing compliance but were issued to advance the applicant’s private agenda to prevent a neighbouring landowner build a house.

Birmingham J made an order for costs against Rowan. Rowan lodged a notice of appeal to the Supreme Court seeking to have the High Court order for costs set aside and seeking an order for costs for the appeal. The Council issued a notice of motion seeking:

(1) An order striking out the notice of appeal served on behalf of the [a]pplicant herein as this Honourable Court has no jurisdiction to hear same, wherein the High Court has not certified that its decision involves a point of law of exceptional public importance as required by s. 50A(7) of the Planning and Development Act 2000 as amended.

Law

Section 50A(7) states:

The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves the point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

 

Supreme Court

As the Supreme Court had previously determined in Browne v. Kerry County Council (Unreported, Supreme Court, 24th March, 2014, Murray J) that an order for costs under under the 2000 Act forms part of the court’s decision, s 50 prohibits an appeal against an order for costs (see also MJELR v McPhilips on whether costs can ever be a matter of exceptional public importance  here). Rowan acknowledged that it would be difficult to persuade the Court to depart from that decision and sought instead to distinguish this case by arguing that s 50A(7) should be interpreted in light of The Environment (Miscellaneous Provisions) Act 2011, which was enacted, among other things, to give effect to certain articles of the Aarhus Convention.

However, Dunne J (here) held that the 2000 Act “did not alter, amend or vary the application of s. 50A(7)” and dismissed Rowan’s appeal.

McKechnie J, MacMenamin J, Laffoy J and Charleton J all concurred.

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