Rowan v Kerry County Council

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date18 December 2015
Neutral Citation[2015] IESC 99
Docket Number[Appeal No. 346/2012]
CourtSupreme Court
Date18 December 2015
Between
Michael Rowan
Applicant/Appellant
and
Kerry County Council
Respondent

and

Timothy Mulvihill
Notice Party

[2015] IESC 99

McKechnie J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

[Appeal No. 346/2012]

THE SUPREME COURT

Administrative & constitutional law – Judicial review – Planning & development – Public road – Realignment – Order of certiorari sought – Costs in case – S50A, Planning and Development Act 2000

Facts: The appellant owned a property in Kerry that was reached by means of a private lane from a public road. The Notice Party had property nearby which he used for stabling ponies. He sought to build a home on the land, and planning permission was granted on the basis that the public road was to be realigned to the satisfaction of the local planning authority. The authority decided that the realignment was satisfactory, but the appellant disagreed and issued proceedings. The High Court had refused the application for review and awarded costs against the appellant. The matter now came on appeal to the Supreme Court on the issue of costs.

Held by Ms Justice Dunne, the other Justices concurring, that the appeal would be dismissed. In order to distinguish the earlier relevant case of Browne v Kerry County Council, the Court had to satisfied that the decision of the Supreme Court in that case regarding S50A of the Act of 2000 was ‘clearly wrong’. The passage of the Environment (Miscellaneous Provisions) 2011 did not alter the effect of s 50A of the Act of 2000, and the jurisprudence of the Court requiring that an appeal on costs required a certificate was unaffected. Browne v Kerry County Council (Unreported, 25th March 2014) considered.

McKechnie J also issued a judgment in the matter.

Judgment of Ms. Justice Dunne delivered the 18th day of December, 2015
1

The applicant/appellant (‘the appellant’) brought proceedings in the High Court by way of judicial review seeking:

‘An order of certiorari quashing the decision made by the respondent on or about the 7th day of September 2011 whereby the respondent purported to confirm that the public road (L-4022) to the south of the site at Doolahig, Glenbeigh, County Kerry had been realigned to its satisfaction in accordance with Condition 1 of planning permission register reference 04/654 (appeal reference PL08.218394).’

2

together with other ancillary relief.

3

The background to this matter is set out in the judgment of the High Court (Birmingham J.) but it would be helpful to set out some details of the background as described by the learned trial judge. The notice party is the owner of farmland at Doolahig, Glenbeigh, County Kerry. There is, and has long been, a private road or laneway running through these lands and joining the public road network at Doolahig. The appellant and other members of his family are the owners of a holiday home in Doolahig which is close to the lands owned by the notice party. Access to the public road network for the appellant and others using the holiday home is by means of the same private laneway or road. The lane in question, apart from providing access to the public road network for the occupants of the Rowan holiday dwelling and those visiting or having business at the lands of the notice party, is also used by the occupants of another dwelling. The owners of that dwelling are foreign nationals and have taken no part in the present proceedings.

4

The notice party has erected a structure on his lands which he uses for stabling as one element of his family business is the breeding of Kerry Bog Ponies. The notice party for a long period of time was anxious to erect a family home on his lands. On the 17th January, 2007, An Bord Pleanala decided under s. 37 of the Planning and Development Act 2000 as amended (the Act of 2000) to grant planning permission to construct a single storey dwelling on his lands at Doolahig, Glenbeigh. The permission was subject to seven conditions of which one was central to this case. The condition was as follows:

‘Development shall not commence until the public road to the south of the side has been realigned to the satisfaction of the planning authority.

Reason: In the interest of traffic safety.’

5

The respondent herein was the planning authority referred to in Condition 1 and subsequently, by a decision dated 7th September, 2011, confirmed that the public road had been realigned to its satisfaction in accordance with Condition 1 of the planning permission. It was that decision that the appellant sought to have quashed.

6

The learned trial judge delivered judgment on the 17th February, 2012 ( Rowan v. Kerry County Council (No. 1) [2012] IEHC 65) refusing the relief sought by the appellant herein and subsequently on the 12th March, 2012 ordered the appellant to pay to the respondent and to the notice party the costs on the motion and the said order when taxed and ascertained.

Notice of appeal
7

A notice of appeal was lodged by the appellant in respect of the order of the High Court made in these proceedings. The appellant in the notice of appeal has sought an order setting aside the order directing that the costs of the High Court proceedings be paid by the appellant to the respondent and notice party and has asked that no order as to costs should be made instead and the appellant applies for an order for costs in relation to the appeal.

Notices of motion
8

A notice of motion was then filed on behalf of the respondent seeking, inter alia, the following relief:

(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.’

9

The notice of motion was grounded on an affidavit of Rosemary Cronin, solicitor for the respondent and referred to the provisions of s. 50A(7) of the Act of 2000 and referred to an ex tempore judgment of this Court in the case of Browne v. Kerry County Council ( Unreported, Supreme Court, 24th March, 2014, Murray J.). The judgment and order in that case concerned the question as to whether an appeal against a costs order in judicial review proceedings under the Act of 2000 required a certificate from the High Court Judge dealing with the matter certifying that the decision of the High Court involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The response to that notice of motion was a further notice of motion, this time issued by the appellant herein in which the following relief was sought:

‘A direction that the issue as to whether or not a certificate of leave to bring the within appeal is required from the learned trial judge be determined as a preliminary issue.’

10

In turn that notice of motion was grounded on an affidavit sworn by Francis Rowan, the solicitor for the appellant.

The issues
11

The issues in this appeal arising from the respective notices of motion can be summarised as follows:

(1) Is it necessary to have a certificate for leave to appeal as required by s. 50A(7) of Act of 2000 where the order sought to be appealed is in respect of costs only?

(2) Is the decision in Browne v. Kerry County Council in which it was held by this Court that a certificate of leave to appeal from the trial judge was required for the purpose of appealing an order for costs capable of being distinguished by reason of the fact that these proceedings came into existence after the Environment ( Miscellaneous Provisions) 2011 (the Act of 2011) became operative while the proceedings in Browne v. Kerry County Council pre-dated the coming into operation of the Act of 2011?

The law
12

Section 50(2) of the Act of 2000 provides as follows:

‘A person shall not question the validity of any decision made or other act done by –

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986) (the “Order”).’

13

Section 50A(7) of the Act of 2000 provides as follows:

‘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.’

14

The Environment (Miscellaneous Provisions) Act 2011 was enacted for the purpose of, inter alia, giving effect to certain articles of the Aarhus Convention. Section 3(1) of the Act of 2011 provides as follows:

‘Notwithstanding anything contained in any other enactment or in –

(a) Order 99 of the Rules of the Superior Courts ( S.I. No. 15 of 1986),

(b) Order 66 of the Circuit Court Rules ( S.I. No. 510 of 2001), or

(c) Order 51 of the District Court Rules ( S.I. No. 93 of 1997),

and subject to subsections (2), (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.’

15

Section 3, sub-sections (2), (3) and (4) provide for other options available to a court in considering the question of costs. Thus, s. 3(4) provides as follows:

‘Subsection (1) 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...

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