Judgment
Title: | Rowan -v- Kerry County Council & anor |
Neutral Citation: | [2015] IESC 99 |
Supreme Court Record Number: | 346/12 |
High Court Record Number: | 2011 895 JR |
Date of Delivery: | 12/18/2015 |
Court: | Supreme Court |
Composition of Court: | McKechnie J., MacMenamin J., Laffoy J., Dunne J., Charleton J. |
Judgment by: | Dunne J. |
Status: | Approved |
Result: | Appeal dismissed |
Details: | Judgment also by Judge McKechnie |
| Judgments by | Link to Judgment | Concurring | Dunne J. | | McKechnie J., MacMenamin J., Laffoy J., Charleton J. | |
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THE SUPREME COURT[Appeal No. 346/2012]
McKechnie J.
MacMenamin J.
Laffoy J.
Dunne J.
Charleton J.
BETWEEN
MICHAEL ROWAN
APPLICANT/APPELLANT
RESPONDENT
NOTICE PARTY
Judgment of Ms. Justice Dunne delivered the 18th day of December, 2015
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).”
together with other ancillary relief.
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.
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:
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.
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
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
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.”
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.”
In turn that notice of motion was grounded on an affidavit sworn by Francis Rowan, the solicitor for the appellant.
The issues
The issues in this appeal arising from the respective notices of motion can be summarised as follows:
The law
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’).”
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.”
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.”
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 is in the interests of justice to do so.”
Section 4(1) of the Act of 2011 provides as follows:
“Section 3 applies to civil proceedings, other than proceedings referred to in subsection (3), instituted by a person –
(a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement attached to a licence, permit, permission, lease or consent specified in subsection (4), or
(b) in respect of the contravention of, or the failure to comply with such licence, permit, permission, lease or consent,
and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment.”
Section 4(2) provides:
“Without prejudice to the generality of subsection (1), damage to the environment includes damage to all or any of the following:
(a) air and the atmosphere;
(b) water, including coastal and marine areas;
(c) soil;
(d) land;
(e) landscapes and natural sites;
(f) biological diversity, including any component of such diversity, and genetically modified organisms;
(g) health and safety of persons and conditions of human life;
(h) cultural sites and built environment;
(i) the interaction between all or any of the matters specified in paragraphs (a) to (h).
Finally section 6 of the Act of 2011 provides, inter alia:
“Section 3 applies to –
(a) proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review, of proceedings referred to in section 4 or 5 , . . .”
Browne v. Kerry County Council
The decision in Browne, an ex tempore judgment of this Court, (Murray J.) is at the heart of this appeal. In the course of the judgment in that case, reference was made to Canty v. Private Residential Tenancies Board [2008] 4 I.R. 592, a decision of this Court, in which Kearns J. (as he then was) considered s. 123(4) of the Residential Tenancies Act 2004 which provides that:
“The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive.”
Section 123 provided for the possibility of an appeal on a point of law from a determination of the Tribunal set up under the Residential Tenancies Act 2004. Thus there was permitted an appeal to the High Court on a point of law and by virtue of s. 123(4) such determination in relation to the point of law concerned was to be final and conclusive.
In Canty, Kearns J. compared the provisions of s. 123(4) of the Residential Tenancies Act 2004 with the then provisions of s. 50 of the Act of 2000 and in particular s. 50(4)(f)(i) as follows:
“The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a 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.”
Kearns J. having referred to the provisions of s. 50 of the Act of 2000 continued (at p. 595, para. 14):
“It seems to me, without in any way deciding an issue which was not before this court, that the word ‘decision’ of the High Court in s. 50 can be taken as including any determination of the issue of costs which forms part of its decision in the case. Similarly, s. 42(8) of the Freedom of Information Act 1997 provides:-
‘The decision of the High Court on an appeal or reference under this section shall be final and conclusive.’
15. Section 39 of the Courts of Justice Act 1936 which was re-enacted by s. 48 of the Courts (Supplemental Provisions) Act 1961, provided as follows in relation to appeals to the High Court from the Circuit Court: –
‘The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable.’
16. Again, I have no difficulty in construing these sections as altogether precluding any further appeal, even one confined to costs. By contrast, however, s. 123(4) of the Residential Tenancies Act 2004, which, if I may say so, is unsatisfactorily drafted in a number of respects, is much less clear. If the relevant sub-section simply referred to ‘the determination of the High Court on such an appeal’ one could well argue that the decision of the High Court in relation to costs was incorporated in the determination. However, the wording contextualises the determination of the High Court by reference specifically ‘to the point of law concerned’.
17. The resolution of a point of law may on occasion compel a trial judge to determine a case in a particular way which may be contrary to the factual merits of the case. I am not saying any such situation arises in the instant case, but it is not difficult to imagine other cases where this could occur. In such a situation an appeal confined to the issue of costs might have significant merits.
18. For that reason, I think any statute which purports to remove altogether even a limited right of appeal on an issue such as costs should be so phrased as to make that intention clear. That is not to say that express wording in a statute is a prerequisite for this purpose, but rather that the overall intention that no further appeal should lie from any aspect of the decision of the High Court Judge should be obvious from a reading of the provision in question.”
Murray J. in the course of his judgment in Browne v. Kerry County Council observed as follows:
“This Court has given due consideration to the terms in which the relevant s. 50A(7) is expressed and finds that it is substantially to the same effect as the s. (50)(4)(f)(i) in the 2000 Act referred to by Mr. Justice Kearns.”
Murray J. then went on to make the following observations:
“The Court considers that the determination of the question of costs following a decision on the merits of a case in judicial review is an intrinsic and inherent part of the proceedings, and that the determination of the judicial review, as referred to in s. 50A(7), and in particular the reference to the ‘decision’ of the Court in that section, encompasses the decision of the Court on costs that necessarily follows in one form or the other as part of the determination of the proceedings. Therefore, the Court considers that the question of costs is not an issue which the legislature intended should be capable of being treated as separate from the High Court decision and the subject of a separate appeal without the necessity of a certificate from the High Court to that effect.
The Court considers that the dicta of this Court in the Canty case, obiter as they were, were a correct interpretation of the meaning and effect of a restriction excluding an appeal to this Court from a ‘decision’ of the High Court, unless a certificate has been granted. Such restrictions on appeal to this Court do require to be strictly interpreted, being an exception to the general right of appeal to this Court by virtue of which litigants are denied an opportunity to review a decision of a court of first instance. Having taken account of the principle of strict interpretation, the Court, nonetheless, is satisfied that the meaning and effect of the section in question is to include within the scope of the section the decision of the Court on the application as a whole including the question of costs. Accordingly, the claimant/appellant has no right of appeal to this Court.”
Accordingly the Court in that case was satisfied that it did not have jurisdiction to entertain the appeal of the appellant solely on the question of costs and struck out the appeal.
The decision in the case of Browne v. Kerry County Council was recently considered in the judgment of the Supreme Court in respect of two appeals heard together, Minister for Justice, Equality and Law Reform v. Noel McPhilips and Minister for Justice, Equality and Law Reform v. Gerry McGinley [2015] IESC 47. An issue arose in those cases as to whether the appellant was entitled to appeal the decisions of the High Court in each of the cases on the question of costs only by virtue of the provisions of s. 16(11) of the European Arrest Warrant Act 2003 as amended which provides as follows:
“An appeal against an order under sub-section (1) or (2) or a decision not to make such an order may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decision involves a 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.”
Reference was made in the course of the judgment to the earlier decisions of the Supreme Court in Canty v. Private Residential Tenancies Board and Browne v. Kerry County Council. In his judgment, Murray J. referred at paragraph 30 to the passage from the judgment of Kearns J. in Canty previously referred to as follows:
“30. As regards that sub-section, Kearns J., at paragraph 14 of his judgment, observed:
‘It seems to me, without in any way deciding an issue which was not before this court, that the word ‘decision’ of the High Court in s. 50 can be taken as including any determination of the issue of costs which forms part of its decision in the case.’
31. These observations were obiter, but in the Browne case the Court considered that they were ‘a correct interpretation of the meaning and effect of a restriction excluding an appeal to this Court from a ‘decision’ of the High Court, unless a certificate has been granted.’ I would confirm that I consider that dictum of Kearns J. to be a correct statement of the law. Thus, the determination of the High Court of the question of costs in this case forms part of the ‘decision’ in the case.”
Murray J. in the course of his judgment went on to say at paragraph 37:
“Counsel for the appellant did argue that the issue of costs was a distinct matter from any decision on the merits. Also, he pointed out that the decision on the question of costs was adjourned and dealt with after argument on a separate day to the decision on the substantive proceedings. This tended to highlight, it was submitted, the distinct and separate nature of the question of costs. In my view, the fact that the issue of costs is dealt with separately on a separate day does not affect the interpretation which I have given to the meaning of ‘decision’ in s. 16(11). A decision on costs is an intrinsic part of the court’s decision. It is determined, in one form or another, in conjunction with the other issues on the merits, in each case. The question of costs is not the only matter which can be dealt with on a different and separate day to the handing down of a decision on a substantive aspect of proceedings. It is not unusual for the form of an order, or a particular aspect of an order, which is to be made consequent upon a decision in proceedings to be adjourned for argument on a separate date. Adjourning part of a decision for final determination at a later date does not mean that such part could be treated as not forming part of the court’s ‘decision’ in the proceedings, within the meaning of s. 16(11).”
Finally it is worth noting the observations of Murray J. as to the constitutional limits on the right of appeal. He stated:
“39. Counsel also referred to the provision of the Constitution which gives a right of appeal subject to such limitations as may be imposed by law (other than an issue concerning the validity of any law). He correctly pointed out that it is a well established principle of construction that any statutory provision which restricts a right of appeal from the High Court should be strictly construed.
40. As pointed out earlier, the Oireachtas has expressly restricted any right of appeal to certified questions of law which is of ‘exceptional’ public importance, and where it is also ‘desirable in the public interest’ for such an appeal to be brought. Thus, no appeal may be taken from a decision of the High Court under s.16, even though it may involve an important question of law, or indeed be one of public importance, but not exceptionally so, and so forth. Applying the principle of strict construction of the Act I think it is clear that the Oireachtas had in mind any appeal from the ‘decision’ including all elements of the decision, of the High Court, and it is impossible to conceive that with such a broad restriction it was envisaged that an issue confined to the costs only should be litigated further on some separate form of appeal to this Court to the exclusion of all other components of the High Court decision. That would be writing into the sub-section an exception which simply is not there.”
Accordingly, the appeals in those matters were struck out.
Discussion
The argument made on behalf of the appellant placed emphasis on the constitutional right of appeal provided for in Article 34.4.3 as it was prior to the Thirty-Third Amendment of the Constitution namely:
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
A line of authorities has considered the extent to which appeals from the High Court to the Supreme Court could be restricted or curtailed. Thus in People v. Conmey [1975] I.R. 341, Walsh J. observed (at p. 360):
“. . . any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous.”
That passage has been cited with approval in subsequent decisions such as The People (DPP) v. O’Shea [1982] I.R. 384, Irish Asphalt Limited v. An Bord Pleanála [1996] 2 I.R. 179, Hanafin v. Minister for Environment [1996] 2 I.R. 231 and A.B. v. Minister for Justice, Equality and Law Reform [2002] 1 I.R. 296. As can be seen, it has been emphasised time and again that any restriction on the right of appeal contained in legislation must be clear and unambiguous as was also acknowledged by Murray J. in the passage cited above.
The decision in A.B. v. Minister for Justice, Equality and Law Reform is an example of a decision in which it was found that there was ambiguity in the legislation in relation to the question of a right of appeal against a refusal to extend time to apply for judicial review and the right to appeal that issue was not restricted by the general policy considerations to be found in s. 5 of Illegal Immigrants (Trafficking) Act 2000.
It is undoubtedly the case that in order to restrict a right of appeal, the language used in a statute must be clear and unambiguous. The interpretation and effect of the statutory provision at issue in this case, s. 50A(7) of the Act of 2000, was considered in the decision of this Court in the case of Browne v. Kerry County Council. The judgment of Murray J. in that case expressly adopted the dicta of Kearns J. set out in Canty v. Residential Tenancies Property Board referred to above on the interpretation of the similar terms used in s. 50(4)(f)(i) of the Act of 2000. Subsequently, the decision in Browne was considered again by this Court in the case of McPhilips and McGinley referred to above. The Supreme Court in Browne was satisfied that the determination of the question of costs following a decision on the merits of the case in judicial review is an intrinsic and inherent part of the proceedings and that the reference to “decision” of the Court in s. 50A(7) encompasses the decision of the Court on costs and that accordingly the question of costs was not an issue which could be the subject of a separate appeal without the necessity of a certificate from the High Court to that effect.
Given the decision of this Court in Browne v. Kerry County Council, a decision which has been applied most recently in the case of McPhilips and McGinley, it follows that this appeal must be struck out in circumstances where there is no certificate of the learned trial judge certifying a point of law unless this Court could be persuaded to depart from its decision in Browne or alternatively can distinguish the decision in Browne v. Kerry County Council from the circumstances of this case. The jurisprudence of this Court in relation to departing from its earlier decisions has been set out in a number of important decisions over the years. These include Attorney General and Anor. v. Ryan’s Car Hire Limited [1965] 1 I.R. 642 in which it was made clear that the Supreme Court could depart from an earlier decision where that decision was wrong. As Kingmill Moore J. stated at pp. 653 to 654:
Subsequently in Mogul of Ireland v. Tipperary (North Riding) County Council [1976] I.R. 260, Henchy J. set out the applicable principles which have since been considered on many occasions and applied. He stated (at p.272):
“Therefore, the primary consideration is whether this Court is clearly of opinion that the decision in Smith's Case was erroneous. If the point were res integra, one might reach the opposite conclusion, but I do not think it is possible to assert a clear opinion that Smith's Case was wrongly decided. . . . A decision of the full Supreme Court (be it the pre-1961 or the post-1961 Court), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous.
Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies.”
Thus it is clear that in order to depart from the decision in Browne it would be necessary for this Court to conclude that the decision of the Supreme Court in that case was erroneous, or to use the phrase used previously by Kingsmill Moore J., clearly wrong.
In reaching the decision in Browne, the Supreme Court had regard to the earlier decision of the Supreme Court in Canty and the decision in Browne itself has subsequently been followed by the Supreme Court in the case of McPhilips and McGinley. The core of the decision in Browne is to the effect that (per Murray J. at p. 4) “the determination of the question of costs following a decision on the merits of a case in judicial review is an intrinsic and inherent part of the proceedings” and consequently the determination of the question of costs cannot be treated as separate from the High Court decision and consequently cannot be the subject of a separate appeal without an appropriate certificate from the High Court pursuant to the provisions of s. 50A(7). I can see no basis upon which that decision could be described as “clearly wrong”. Far from being clearly wrong, it seems to me to be the correct interpretation of the s 50A(7). Accordingly I see no reason for departing from the decision in Browne v. Kerry County Council.
Counsel on behalf of the appellant in the course of their submissions fairly acknowledged that it would be somewhat difficult to persuade this Court to depart from the decision in Browne v. Kerry County Council and consequently, sought to distinguish the decision in Browne from the present case.
Counsel on behalf of the appellant has sought to argue that s. 50A(7) should now be construed in the light of the provisions of ss. 3 and 4 of the Act of 2011 set out above. It was contended that the proceedings initiated herein by the appellant were for the purpose of ensuring compliance with Condition 1(1) of the decision of An Bord Pleanála to grant planning permission to the notice party. Condition 1(1) is as follows:
“Development shall not commence until the public road to the south of the site has been realigned to the satisfaction of the planning authority.”
The condition concerned was imposed in the interests of traffic safety.
Thus it was argued that the condition imposed fell within the provisions of s. 4 of the Act of 2011 as the condition was related to s. 4(2)(g), “health and safety of persons and conditions of human life” and accordingly came within the provisions of s. 4(1) of the Act of 2011. This issue was considered by the learned trial judge when he was dealing with the issue of costs. In the course of his decision on costs (Rowan v. Kerry County Council (No. 2) [2012] IEHC 544), Birmingham J. made the following observation having referred to Condition 1(1) of the decision to grant permission stating:
“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. Rather the proceedings were directed at challenging the decision of Kerry County Council of the 7th September 2011 which concluded that realignment had taken place to its satisfaction.
5. An examination of the pleadings would not suggest that they fall within the scope of subs of (3) and (4). However, that is not the end of the matter because it must be acknowledged that the arguments advanced in support of the challenge saw the applicant contending that in permitting work to commence that the respondent was sanctioning non compliance with the condition, a condition which An Bord Pleanála had stated was being imposed in the interests of traffic safety.
6. It seems to me that given the structure of the proceedings and the nature of some of the arguments advanced that it is necessary to consider whether as a matter of reality and substance the proceedings were designed to ensure compliance with a condition, because of concern that non compliance will result in damage to the environment in the sense of jeopardising the safety of people.”
He then went on to observe (at para. 7):
“In that respect, it must be appreciated that the junction of the public road/private road or lane which already exists would remain active irrespective of the outcome of the proceedings. It would continue to be used amongst others by the applicant. The actions or omissions of the applicant would continue to impact adversely on sight lines. In substance these proceedings were not designed to secure compliance with a condition lest non compliance result in damage to the environment. 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.”
On that basis the learned trial judge concluded that the proceedings were not ones to which the Act of 2011 applies and in those circumstances concluded that the ordinary rules in relation to costs remained in force. It was on that basis that he made the order for costs at issue in these proceedings. Notwithstanding that conclusion by the learned trial judge the argument was made on behalf of the appellant that the hearing on costs should be regarded as having been an application under s. 7 of the Act of 2011 and as such an application for a determination falling within the scope of s. 7 should not be regarded as being the same as an application under s. 50 of the Act of 2000 and therefore is not one which requires a certificate for an appeal.
Section 7 of the Act of 2011 provides as follows:
“(1) A party to proceedings to which section 3 applies may at any time before, or during the course of, the proceedings apply to the court for a determination that section 3 applies to those proceedings.
(2) Where an application is made under subsection (1), the court may make a determination that section 3 applies to those proceedings.
(3) Without prejudice to subsection (1), the parties to proceedings referred to in subsection (1), may, at any time, agree that section 3 applies to those proceedings.
(4) Before proceedings referred to in section 3 are instituted, the persons who would be the parties to those proceedings if those proceedings were instituted, may, before the institution of those proceedings and without prejudice to subsection (1), agree that section 3 applies to those proceedings.
(5) An application under subsection (1) shall be by motion on notice to the parties concerned.”
A few observations may be made in relation to the provisions of s. 7 of the Act of 2011 at this point. First of all, it is apparent that s. 7(5) provides that an application for a determination that s. 3 of the Act of 2011 applies shall be made by motion on notice to the parties concerned. No such motion was brought in this case. Notwithstanding the fact that no such motion was issued, that was the substance of the application made on behalf of the appellant in the course of the costs hearing and the application was heard notwithstanding any procedural deficit. Given that the application was considered (and rejected) notwithstanding the failure to bring an application for a determination that s. 3 applies in accordance with the provisions of s. 7(5), it is not necessary to consider the consequences, if any, for the failure to comply with the provisions of s. 7(5) of the Act of 2011.
The second point to note is that s. 7(1) permits an application under the section to be brought “at any time before, or during the course of, the proceedings”. Indeed, the parties concerned “may, at any time” agree that s. 3 applies to the proceedings and such agreement may be made prior to proceedings being instituted (see s. 7(4)). Thus it can be seen that considerable latitude has been given by the legislature in relation to the manner in which s. 3 can be applied in respect of proceedings that fall under the umbrella of the Aarhus Convention.
Could it be said that the approach to costs provided for in the Act of 2011 has a bearing on the interpretation of the provisions of s. 50A(7) of the Act of 2000 or indeed could it be said that the fact that s. 7(5) provides for the possibility of a determination on foot of a notice of motion in relation to an application for a determination that s. 3 applies bring such application outside the scope of s. 50A(7)?
Section 50A(7) has the effect of limiting the right of appeal in planning matters. The legislature has provided for similar restrictions in other legislative schemes, for example, in the area of immigration and the surrendered persons under European Arrest Warrants, to name but two. The fact that the Act of 2011 makes provision for a different cost regime to apply to proceedings instituted by a person to ensure compliance with or the enforcement of, inter alia, conditions in planning permissions in order to prevent damage to the environment has, in my view, no bearing whatsoever on the statutory provisions contained in s. 50A(7) restricting the right of appeal. The provisions of the Act of 2011 undoubtedly change the landscape in relation to costs in proceedings to which they apply but it is very difficult see how a change in the regime as to the provision of costs in such proceedings of itself changes the interpretation of s.50A(7). Put very simply, the rule in relation to costs is to be found in O. 99 of the Rules of the Superior Courts which provides that costs follow the event. That could be described as the default rule. The Act of 2011 provides for a different default position, namely, that each party shall bear its own costs. The default position may be varied by the Court in circumstances provided for in the Act of 2011. Clearly, any such decision on costs must be an intrinsic part of the decision in the proceedings. Costs orders do not arise as standalone decisions divorced from the proceedings giving rise to the order for costs. Notwithstanding the changes brought about by the Act of 2011, I fail to see how a party dissatisfied by a decision on costs under the Act of 2011 in judicial review proceedings brought under the Act of 2000 could appeal the decision in the absence of a certificate from the trial judge. There is nothing in the Act of 2011 to give rise to such a possibility. If the legislature had intended otherwise, no doubt provision would have been made in the Act of 2011 for such a change in the existing regime.
It should be noted in passing that Murray J. in the course of his judgment in Browne observed:
“Reference was made by counsel on behalf of the appellant to a decision of the European Court of Justice interpreting and applying the [Aarhus] Convention as concerns the question of costs in cases in litigation involving environmental matters. It does not, in the Court’s view, appear that that has any material bearing on the issue of the jurisdiction of this Court under s. [50A(7)]. The issue here concerns national law only.”
Conclusion
The issue in this case concerns the question as to whether or not it is possible to appeal a decision on costs alone in circumstances where an appeal is not permissible in the absence of a certificate of the High Court that the decision at issue involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken. The jurisprudence of this Court as can be seen from decisions such as Canty v. Private Residential Tenancies Board, Browne v. Kerry County Council and more recently the decision in Minister for Justice, Equality and Law Reform v. McPhilips and McGinley make it plain that the determination on the issue of costs forms part of the decision in the case and thus cannot be appealed in the absence of a certificate. The Act of 2011 did not alter, amend or vary the application of s. 50A(7) of the Act of 2000. Accordingly for the reasons set out above, I would dismiss the appeal.