The Supreme Court dismissed Michael Rowan’s appeal over a High Court costs order in a planning judicial review case, holding that he could not appeal the costs decision without a certificate from the High Court.
The appeal concerned a €— [no amount stated] order requiring Rowan to pay the costs of Kerry County Council and notice party Timothy Mulvihill. The Supreme Court judgment, delivered by Ms Justice Dunne on 18 December 2015, addressed whether the costs-only appeal required certification under section 50A(7) of the Planning and Development Act 2000, as amended.
The underlying judicial review challenged the council’s 7 September 2011 decision that a public road near Mulvihill’s lands at Doolahig, Glenbeigh, had been realigned to its satisfaction under a planning condition. An Bord Pleanála had granted permission in 2007 for a dwelling on Mulvihill’s land, subject to a condition that the road be realigned before development began. The High Court refused Rowan’s application in February 2012 and later ordered him to pay the council’s and Mulvihill’s costs.
Rowan argued that the Environment (Miscellaneous Provisions) Act 2011 affected the appeal rules because the proceedings concerned compliance with a planning condition imposed in the interests of traffic safety. The High Court had rejected the argument that the 2011 Act’s environmental costs regime applied, finding that the proceedings were directed at challenging the council’s confirmation and were, in substance, brought to prevent a neighbouring landowner from building a house.
The Supreme Court considered its earlier decision in Browne v Kerry County Council, which held that a costs decision forms part of the court’s decision in judicial review and cannot be appealed separately without the required certificate. It also referred to a later ruling applying that interpretation in appeals under the European Arrest Warrant Act.
The court found no basis to depart from Browne. It held that the 2011 Act’s different costs regime did not change the certification requirement in section 50A(7), and that costs remained an intrinsic part of the proceedings. As no High Court certificate had been issued, the court dismissed the appeal. It did not reconsider the merits of the original judicial review or change the High Court’s costs order.