Rowan v Kerry County Council and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 05 March 2012
• Neutral Citation: [2012] IEHC 544
• Docket Number: 895 JR/2011
• Court: High Court
• Date: 05 March 2012

Rowan v Kerry Co Council & Mulvihill

BETWEEN

MICHAEL ROWAN

APPLICANT

AND

KERRY COUNTY COUNCIL

RESPONDENT

AND

TIM MULVIHILL

NOTICE PARTY

[2012] IEHC 544

895 JR/2011

THE HIGH COURT

PLANNING & ENVIRONMENTAL LAW

Practice and procedure

Costs - Costs order sought by respondents and notice party where applicant unsuccessful in proceedings - Applicant submitted each side should bear own costs as proceedings instituted for purposes of securing compliance with planning condition - Whether each side should bear own costs - Whether proceedings instituted for purposes of securing compliance with planning condition - Environment (Miscellaneous Provisions) Act 2011 (No 20), s 3 - Costs awarded (2011/895JR - Birmingham J - 5/3/12) [2012] IEHC 544

Rowan v Kerry County Council

Facts: The Court had refused the applicants the reliefs he had sought in planning permission proceedings. The respondent and notice party sought an order for costs in their favour. The application was resisted by the unsuccessful applicant who had submitted that the proper course was that each party would bear their own costs. It was argued that the outcome was mandated by the terms of s. 3(1) Environment (Miscellaneous Provisions) Act 2011. The Court considered whether the proceedings had been initiated for the purpose of securing ‘compliance’ within the meaning of the Act with the provisions thereof.

Held by Birmingham J. that the proceedings were not instituted for the purpose of securing compliance but instead to advance a private agenda to prevent a neighbouring landowner from building a house. The Act of 2011 did not apply to the proceedings and the rule that costs followed the event applied. There would be an order for costs in favour of the respondent and notice party.

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S3(1)

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S3

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S4

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S3(2)

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S3(3)

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S3(4)

ENVIRONMENT (MISC PROVISIONS) ACT 2011 S4(1)

Mr. Justice Birmingham

1 In this case I delivered judgment on 17^th February 2012, refusing the applicants the reliefs that he had sought. In these circumstances the respondent and notice party, the successful parties, sought an order for costs in their favour. However, that application has been resisted by the unsuccessful applicant who has submitted that the proper course is that each party should bear its own costs. On his behalf it is argued that outcome is mandated by the terms of s. 3(1) of the Environment (Miscellaneous Provisions) Act 2011.

2 The operative portion of ss (3) and (4) of the Act of 2011 are in these terms:-

3 (3) Notwithstanding anything contained in any other enactment or in -

4 (a) Order 99 of the Rules of the Superior Court (S.I. No. 15 of 1986) and subject to subsections (2), (3), (4) in proceedings to which this section applies each party (including any notice party) shall bear its own costs.

5 I would just observe that subs (2) deals with the circumstances in which there may be an order for costs in favour of successful applicants subs (3) deals with claims that are frivolous or vexatious and related issues and subs (4) deals with cases of exceptional public importance where it is in the interests of justice to award costs. It is not suggested that subs...