Supreme Court: 33rd Amendment to the Constitution has no retrospective effect in planning dispute

About this case:

• Judgment:
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The man sought to argue that the 33rd Amendment to the Constitution could be applied retrospectively as the issues were procedural in nature, however the five-judge Court was unanimous in ruling that absent a certificate of leave to appeal from the High Court, the decision was a final decision which could not be revived by the Amendment.

Background

In 2011, Michael Rowan brought judicial review proceedings against Kerry County Council, regarding planning permission obtained by Timothy Mulvihill for a single domestic dwelling. Mr Rowan was unsuccessful in those proceedings, and costs were awarded against him.

Delivering the leading judgment of the Supreme Court, Ms Justice Elizabeth Dunne explained that since then there had been numerous applications to the Superior Courts brought by Mr Rowan, which allowed the proceedings to be protracted for over 7 years.

The issue for the Supreme Court was the extent, if any, to which the 33rd Amendment to the Constitution may be retrospective in the sense that the new constitutional measures thereby introduced could be held to apply to potential appeals in respect of orders of the High Court which were made prior to the 33rd Amendment coming into force.

Accordingly, there was an issue of significant constitutional principle concerning the proper interpretation of the 33rd Amendment.

Grace and Sweetman v An Bord Pleanála

Grace and Sweetman v. An Bord Pleanála IESC 10 resolved one of the issues that arose as to the extent of the jurisdiction of the Supreme Court following the 33rd Amendment, clarifying the law in relation to a “leap frog” appeal to the Supreme Court in circumstances in which the party seeking to appeal does not have a certificate of leave to appeal but nonetheless can meet the Constitutional threshold.

Justice Dunne was satisfied that Grace and Sweetman v. An Bord Pleanála did not assist Mr Rowan’s case as it concerned a decision of the High Court and a refusal of a certificate made following the enactment of the 33rd Amendment.

Retrospective effect

The issue raised in these proceedings was the extent, if any, to which the 33rd Amendment could have retrospective effect – i.e. could a party to proceedings in the High Court which were concluded, and which could not be appealed to the Supreme Court without leave of the High Court prior to the 33rd Amendment, subsequently rely on that Amendment to initiate a leapfrog appeal to the Supreme Court.

Considering Sweetman v. Shell E&P Ireland Limited 1 I.R. 742, Justice Dunne stated that it was clear that “a change in the law during the currency of proceedings is presumed to be prospective, unless the contrary is clear from the legislation itself. If the change is procedural and does not affect vested rights then, as a general rule, the change brought about by new legislation is retrospective”.

Mr Rowan contended that the changes brought about by the 33rd Amendment were procedural and did not affect substantive acquired rights of Kerry County Council or Mr Mulvihill – thus he argued that the 33rd Amendment could be applied retrospectively.

Kerry County Council did not agree that the changes were only procedural and submitted that the appeals procedures provided for in the 33rd Amendment applied in cases where no final decision or order had been made.

Citing s. 79 of the Court of Appeal Act 2014, which states: “The continuity of the administration and enforcement of justice shall not be interrupted by the coming into operation of any provision of this Act”; the Council submitted that once the costs order was made, the Council acquired a vested right to costs and an entitlement to enforce the order made in its favour and was likewise entitled to rely on the fact that, barring the issue of a certificate for leave to appeal, the litigation was at an end.

Mr Rowan contended that the within proceedings were pending at the time when the 33rd Amendment came into effect by virtue of the appeal he had lodged to the Supreme Court

However, when the order of costs was made against him in 2012, Mr Rowan did not request a certificate in accordance with the provisions of s. 50A(7) of the Planning and Development Act 2000 (as amended) in respect of the substantive decision or in respect of the order for costs made against him. Rather he issued a notice of appeal directly to the Supreme Court in relation only to the award of costs against him.

Justice Dunne said it was clear from the provisions of s. 50A of the Planning and Development Act 2000 that absent a certificate of leave to appeal from the High Court pursuant to the provisions of s. 50A(7), the decision of the High Court was a final decision, and therefore the proceedings were at an end (Browne v. Kerry County Council considered).

Refusing the application for leave to appeal, Justice Dunne was satisfied that the Amendment to the Constitution which was made subsequent to the final order did not revive the proceedings “despite the fact that there was an uncertified appeal in existence” when the Amendment came into force.

Justice Dunne concluded that the Supreme Court simply had “no jurisdiction to embark on an appeal at this stage”.

Mr Justice Donal O’Donnell agreed with the orders proposed by Justice Dunne, stating that the proceedings “already occupied too much court time”. He added that the 33rd Amendment “should not be interpreted as permitting the revival of controversies that have long since been determined”.