The Supreme Court has refused Michael Rowan’s application for leave to appeal over a costs order arising from a judicial review of Kerry County Council’s handling of a planning condition. The Court held it had no jurisdiction to hear the proposed appeal because the High Court proceedings had ended with a final order in March 2012, before the constitutional changes on which Mr Rowan relied.
Mr Rowan had challenged the Council’s confirmation that a public road south of a site at Doolahig, Glenbeigh, had been realigned in accordance with a condition attached to planning permission for a single dwelling obtained by Timothy Mulvihill. The High Court dismissed the judicial review in February 2012. In a later costs decision, it rejected Mr Rowan’s argument that the environmental costs provisions applied, and made a costs order against him.
Mr Rowan appealed directly to the Supreme Court against the costs order without first obtaining the certificate required under section 50A(7) of the Planning and Development Act 2000. In December 2015, the Supreme Court dismissed that appeal because the certificate was required. Mr Rowan later sought a High Court certificate to appeal the decision that the environmental costs provisions did not apply. The High Court refused, and the Supreme Court also declined to grant leave to appeal that refusal.
The Supreme Court then considered whether the Thirty Third Amendment to the Constitution could allow a direct appeal in a case concluded before the amendment took effect. Mr Rowan argued that the changes to appeal procedures were procedural and could apply retrospectively. The Council submitted that the litigation had concluded before the amendment, and that it had acquired rights arising from the costs order and the end of the proceedings.
The Court said it did not need to decide whether the constitutional changes were procedural or affected substantive rights. Under section 50A(7), the High Court decision was final without a certificate. Mr Rowan’s purported appeal could not make the concluded proceedings pending, and the later constitutional amendment could not revive them. The Court therefore refused leave to appeal. Its decision addressed jurisdiction to hear this proposed appeal; it did not reconsider the underlying planning decision or the merits of the original judicial review.