High Court of Ireland Decisions

Judgment Title: Jerry Beades Construction Limited v The Right Honourable Lord Mayor Alderman and Burgesses of the City of Dublin & Ors

Neutral Citation: [2005] IEHC 406


High Court Record Number: 1995 283JR & 1996 1239P

Date of Delivery: 07/09/2005

Court: High Court

(1) Having reviewed the facts in a chronological manner, he identified several features of the evidence which he relied upon in order to support his legal submissions;
(2) Every planning application he said must be heard and determined in a fair proper and unbiased way, with no distinction possible where the adjudication was on a retention application;
(3) Dublin City Council, at the relevant time, had no formal procedure for dealing with complaints made by members of the public, including those participating in the process, against planning officials. The informal procedure, such as it was in this case, was seriously flawed in that little or no action was taken, in order to accept by way of verification or reject by way of conclusion, the complaints made by Mr. Beades;
(4) These complaints, in accordance with the undisputed evidence, were unprecedented in the memory of many of the council’s officials and as such ought to have attracted from management a high degree of scrutiny;
(5) The merits of the ultimate planning decision were entirely irrelevant to this case as was the issue as to whether or not Mr. Gough’s views were more preferable to those who held a contrary opinion. It was not the conclusion but the process which was being impugned in this action.
(6) Mr. Gough’s report should have been transmitted to the Assistant City Manager so that he would have had available, at the time of his decision, the alternative opinion which existed within the planning department. Certainly it was not unusual for this to occur where such a difference of view existed.
(7) The notation dated 22nd March, 1994 and signed by Mr. Muldowney, clearly indicated a pre-judgment on his part and on the part of Mr. McDonnell with regard to any planning retention application which Mr. Beades might make.
(8) Neither the complaints made, or this note, or Mr. Gough’s contrary view, were ever transmitted to the Assistant City Manager.
(9) As s. 82 (3A) and (3B) of the Local Government (Planning and Development) Act 1963 was no longer relevant, the only time constraints which were now material to this case, were those contained in the rules of court which provided for a six month period. Though the within proceedings were not instituted within this time, there was good, sufficient and compelling reason for this court to enlarge that period and in the circumstances it should do so.
(10) Given the nature of the complaints and the other matters alleged against Mr. Muldowney and Mr. McDonnell, it was contrary to natural and constitutional justice for either of these individuals to have had any involvement with the planning retention application. Reliance in this regard was placed on In Re Haughey [1971] I.R. 217, Garvey v. Ireland [1981] I.R. 75 and McDonald v. Bord na gCon [1965] I.R. 217. Though the plaintiff company would be justified in asserting actual or subjective bias it did not have to do so. It therefore relied on the appearance of bias or on objective bias. McDonough v. Minister for Defence [1991] ILRM 115 at 120 was referred to where Lavan J. said “the commanding officer’s decision to delegate Captain Holmes to conduct the interview (was unreasonable) having regard to the applicant’s complaints against that officer”. It is claimed that this is particularly apt in the present case.
(11) “Bias” may be either conscious or unconscious and does not necessarily denote “a corrupt state of mind”. Features such as personal attitudes, relationships, and beliefs of the decision maker may give rise to objective bias even where it is conclusively established that such bias did not in fact exist and otherwise did not influence the relevant decision.
(12) Counsel heavily relied on the case of Dublin Well Woman Centre Ltd v. Ireland [1995] 1 ILRM 408 and in particular on the following passage from the judgment of Denham J. in the Supreme Court where she said at p. 423 “ … where many reasonable people in our community hold strong opinions, it is of particular importance that neither party should have any reasonable reason to apprehend bias in the courts of justice. Further, once the question of a possible perception of bias has been raised reasonably on the grounds of
pre-existing non judicial position and actions, it would be contrary to constitutional justice to proceed with a the trial”.
(13) The test to be applied when bias is alleged in the decision making process is the existence of reasonable suspicion and real likelihood of bias. The following passage from the judgment of Murphy J., in Dublin and County Broadcasting Ltd v. IRTC (Unreported, High Court, 12th May, 1989) was open to this court. It reads as follows:
“Certainly it does seem to me that the question of bias must be determined on the basis of what a right minded person would think of the likelihood, of the real likelihood of prejudice, and not on the basis of a suspicion which might dwell in the mind of a person who is ill informed and did not direct his mind properly to the facts … (But) I entirely accept that it would be irrelevant and immaterial in a case such as the present if it was established as a matter of fact that bias was non operative or that the particular person accused of the bias was out voted or whatever. If it is shown that they are on the facts circumstances which would lead to a right minded person to conclude that there was a re-likelihood of bias, this would be sufficient to invalidate the proceedings of the Tribunal”.
(14) Reference was of course also made to Orange Ltd v. The Director of Telecommunications Regulation and Meteor (No. 2) [2000] 4 IR 159 and to Spin Communications Ltd v. IRTC [2001] 4 IR 411. In particular a passage from the judgment of the Chief Justice at p. 185 of the report in Orange was mentioned. Having expressed some doubts about the accuracy of the test propounded by Barron (J)., in that case, in so far as it dealt with the time requirement for the existence of bias and with the necessity for it to be external to the process in question, Mr. Dwyer S.C. nevertheless said that the pre-judgment in this case was in fact external as it was outside the actual merits of the action itself.
(15) Moreover counsel felt that it was purely a semantic argument as to the distinction between bias and natural justice as the underlying requirement of both obliged the decision maker to deal with the issue at hand in a fair and reasonable manner.
(16) No allegation of conscious wrongdoing was being alleged against An Bord Pleanála. The case against the Board was that it was misled by the planning authority’s failure to make known to it the complaints, the pre-judgment, and the existence of Mr. Gough’s report. Accordingly the Board acted under a misapprehension, and therefore for these reasons its decision was also unlawful.
(17) The failure of the Council to make proper discovery which required this court on day 4 of the action to make an order for further and better discovery, was adversely commented upon by the Plaintiff Company, and finally,
(18) Counsel also made some observations on the question of what the appropriate relief might be. These observations, however were not conclusive. It was said that a declaration to the effect that the decision making process of the planning authority was flawed would be of value and in its own right might be sufficient. That submission, however, is not entirely representative of the plaintiff’s view, with its final position being dependent on the ultimate findings made by this Court.

(1). Though the two month time limit was no longer material, the decision of the Supreme Court in White v. Dublin City Council did not completely resolve the time factor in this case. Order 84 Rule 21(1) of the Rules of the Superior Court provides that any judicial review application shall be made “promptly” and in any event within three months or six months where certiorari is sought “unless the court considers that there is good reason for extending the period within which the application should be made”. As is clear from the timing of the events outlined earlier in this judgment these proceedings only commenced on the judicial review side on 7th November, 1995. That was well outside the 6 month period specified in Order 84 Rule 21(1) of the Rules and most certainly, it could not be said that the same had been instituted promptly. Therefore the onus was on the Plaintiff Company to establish good reason for obtaining an extension from this court. This the plaintiff had failed to do.

(2). For the purposes of s. 26(4) of the 1963 Act, which contains the “default provisions”, the Supreme Court has decided that despite a decision of the planning authority being ultra vires, that decision, when notified within time, was nonetheless sufficient to prevent the default mechanism from applying. See the State (Abenglen Properties) v. Corporation of Dublin Supreme Court [1984] I.R. 381. In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 Mr. Justice Costello held that a similarly flawed (but equally notified ) decision, was nonetheless a decision for the purposes of s. 26(5) of the 1963 Act, which contains the provision enabling an aggrieved party to appeal to An Bord Pleanála. Moreover the learned trial judge indicated that by virtue of his interpretation of this statutory provision, “the Board should determine the application as if it had been made to it in the first place, and that it should not have any regard to what had happened before the planning authority. It would follow that I should construe this statute as meaning that no defect in the proceedings before the planning authority should have any bearing, or impose legal restraints, on the proceedings before the Board”. (See page 52 of the Report). Accordingly it is claimed that despite any infirmity attaching to the decision making process or to the planning authority’s actual decision of 11th July, 1994, the fact of Mr. Beades’ appeal, coupled with the Board’s determination of it in accordance with s. 26(5) of the 1963 Act, means that the resulting order of 8th December, 1994 is unimpeachable and remains legally valid. See also Inver Resources v Limerick Corporation [1988] I.L.R.M. 47 and Hogan and Morgan “Administrative Law in Ireland” 3rd ed., 456 321.

(3). The decision of the planning authority was made by Mr. Derek Brady in respect of whom no allegation of pre-judgment or bias is made. In fact it can be said that strictly speaking, the retention application was not in fact dealt with by Mr. Muldowney at all: rather it was handled initially by Mr. Gough and only when his superior disagreed with his resulting recommendation did Mr. McDonnell have a discussion with Mr. Muldowney and accept the report of the latter. So both the report and the recommendation were those of Mr. McDonnell and not of Mr. Muldowney.

(4). In any event what was complained of by Mr. Beades had the status of “allegations” only. These were never verified as being correct. Mr. Beades it is said is a person who has also made allegations against the planning inspector, Mr. Van Der Kamp and against Miss Patricia Hyde who was an official involved when the repairs were carried out to the public house. Given the fact that both Mr. McCarron and Mr. McDonnell had interviewed Mr. Muldowney in respect of the complaints, it was up to both of these to accept his denial and to conclude that there was nothing substantial in the allegations made. It would accordingly have been improper to remove the file from Mr. Muldowney.

(5). In addition it must be remembered that Mr. Muldowney only found out accidentally about the planning retention application (when a report from another section passed his desk) and that Mr. Rory O’Byrne also recommended the taking of enforcement proceedings in this case.

(6). Furthermore though he was not called to give evidence, Mr. Muldowney had denied all allegations on affidavit.

(7). On what constitutes “bias” this court was referred to a number of decisions in particular to the Orange decision of the Supreme Court. See p. 185 of the judgment of the Chief Justice. According to Barron (J). it is necessary in order to establish bias to show that the factors relied upon pre-dated (either) the application for retention or the date of its determination, but that in any event such factors must be extraneous to the subject matter in question. This was not the situation in the present circumstances and accordingly there cannot be any question of bias having been established. See also the judgment of Murphy (J). in particular at p. 241, and Geoghegan (J). in particular at p. 252, all in the Orange case: and finally

(8). Mr. Brady S.C., asked this Court to dismiss the entire claim of the plaintiff company.

(a) The first contact of relevance between the individuals in question appear to have occurred followed the lodging of the original planning application in May 1993. Mr. Beades makes the complaint that Mr. Muldowney, at that time, continuously linked the licensed premises with site No. 2 and also that he indicated what would and would not be acceptable to him as a planner. This, if he was to make a favourable recommendation on the then outstanding application. In my opinion these are the type of matters which can quite properly form the subject matter of discussions (frequently had) between planners and there making applications. I therefore see nothing objectionable about what occurred at this time and in addition I should also say that I entirely disregard any suggestion that Mr. Muldowney’s tone or attitude were inappropriate.
(b) The phone call of 11th February, 1994, however, is in a different category as is the original letter of complaint dated the same day. In that a more serious allegation is made against Mr. Muldowney. It is claimed that when informed of Mr. Beades intention to apply, the planner said that such a retention application would be treated with contempt by the planning department. In fact the words given in evidence are slightly different from the phrase used in this letter but in essence the point of complaint is the same. For a developer who had considerable and repeated dealings with the planning authority, this must have been highly relevant, and indeed was treated so by Mr. Beades who in fact sent a copy of his complaint to a member of An Dáil Éireann and requested that T.D. to take the matter up with Mr. Muldowney. Whatever about its seriousness from Mr. Beades view, however it must surely have been a matter of deep and urgent concern to Mr. Muldowney. No attempt however was made by the latter to arrange the meeting as suggested by Mr. Beades and no reply issued to this letter for more than four weeks thereafter.
(c) This delay I have to say I consider surprising. All the more so, because during this time Mr. Muldowney is recommending that enforcement proceedings should be taken immediately. See his memo of 14th February.
(d) By letter dated 23rd February Mr. Beades again writes to Mr. Muldowney and further complains about events which took place on the previous Friday and also on that day. On 19th February he alleged that the planner threatened the manager of the public house with legal proceedings in order to gain access to site No. 2, as the former considered that he had been technically denied access. Whilst I am satisfied that this most probably occurred, I have, nonetheless, decided to ignore it given the absence of any direct evidence from the said manager. What is undoubtedly a fact however is that there was an inspection by two members of the building control section on 23rd February, and this at the same time as Mr. Rory O’Byrne, a Planning Inspector, was also present. Though he was informed by fax on the Monday that Mr. Beades would be on site on 23rd February, Mr. Muldowney himself did not show. However I believe that he was instrumental in having the building control unit make the inspection which it did on that occasion. Mr. O’Byrne, a colleague of his in the Planning Section, told an internal inquiry on 6th December, 1995 that “he thought it most unusual that the building control officers should have arrived to inspect No. 2 Hardwicke Place contemporaneously with him”. This document was admitted in evidence without formal proof.

I can find no response to this letter and no satisfactory evidence has ever been given to explain these events. This is again surprising given the seriousness with which Mr. Beades had treated the situation and his contemporaneous commitment to writing in respect thereof.
(e) On 1st March Mr. Muldowney recommended that High Court proceedings be taken and that before the building was complete, an interim injunction should be obtained so as to have the extra apartment removed.
(f) The public representative above referred to wrote to Mr. McCarron and copied Mr. Beades’ letter of 11th February to the City Planner. That prompted Mr. McCarron to send a memo about the matter to Mr. McDonnell which he did on 22nd February. It is probable that the latter spoke with Mr. Muldowney, as he thinks that the executive planner telephoned Dáil Éireann and spoke with the said public representative and may also have spoken with Mr. Beades. In any event a memo was sent by Mr. Muldowney to the City Planner dated 10th March in which he denied any question of discourtesy as well as claiming that the contempt allegation was totally untrue. He considered the matter serious and intended seeking a retraction.
(g) On 16th March Mr. Muldowney sent a registered letter to Mr. Beades which I am satisfied, that for entirely innocent reasons on both sides, was not received by him. Having quoted from the relevant portion of the letter of complaint dealing with the contempt allegation Mr. Muldowney in that letter said:
“You know that this statement is wholly untrue. Furthermore, I regard it as a slur on my personal character and professional standing within Dublin Corporation. I have always treated you and your agent in a courteous fashion. I am now seeking an unreserved retraction of the sentiments expressed in your letter.”
It is acknowledged that in or about this time Mr. Muldowney had obtained independent legal advice.
(h) On 15th March, 1994 Mr. Beades wrote to the Principal Officer in the Planning Section namely Mr. Joe Scully. He referred to the visit on 23rd February by the Building Control Department. He alleged that “the actions of the planner (were) an unprecedented step of trying to get the other regulatory authorities to act against me”. He then claimed that he was being victimised by Mr. Muldowney. He requested a meeting and expressed concern at the way in which the senior executive planner would deal with the application which he intended to make for planning retention.

(e) the repeated indication by the plaintiff company of its intention to apply for planning retention (see also the letter to Mr. O'Byrne dated 4th March),
(f) the written allegation that the Council was acting in a heavy handed manner, and
(g) the most serious written allegation that Mr. Beades was being victimised by Mr. Muldowney in the planning process with the result, that the developer expressed acute concern at the way in which his planning retention application would be dealt with by that senior executive planner.

(b) he in turn had requested Mr. McDonnell to take certain steps in respect thereof,
(c) Mr. McDonnell, in response, speaks with Mr. Muldowney who denies the allegations contained in the letter of 11th February; though I cannot identify any reply to the intimidation allegation as contained in the letter of 15th March,
(d) the Senior Executive Planner believes that these complaints are a personal slur on his character and also a slur on his professional standing within the Council, and
(e) in respect thereof he seeks an unreserved retraction and also obtains independent legal advice on these issues.

“This matter has been considered at length and discussed with Mr. P McDonnell D.D.P.O. the recommendation in relation to the extra apartment at roof level will be to refuse and similarly in relation to the top hung sash windows.
James Muldowney
22/3/94”.

(a) On receipt of the complaints addressed to Mr. Muldowney the letters in question were sent to him by way of internal distribution and not copied to any senior member of staff. The city planner most likely would never have known about this matter unless the public representative had copied to him Mr. Beades’ letter of 11th February. His response was to write a memo to Mr. McDonnell on 22nd February, 1994. In that he sought certain information and directed that “the development proposed (be) considered further as a matter of urgency”. He was also aware of the victimisation claim as on his copy of that letter (dated 15th March, 1994) he made a handwritten note addressed to Mr. Scully which is dated 21st March. In that he suggested a meeting which never took place and what Mr. Scully’s response to the note was, remains quite unclear. Certainly Mr. McDonnell believes that he never saw it and neither does Mr. Gough. In any event I do not believe that Mr. McCarron ever received a reply to either his memo or his note. This, apart from a memo dated 10th March from Mr. Muldowney. Otherwise I do not think that the city planner was involved or that there was any follow up to his directions.
(b) Mr. McDonnell spoke to Mr. Muldowney about the contents of this memorandum which, incidentally was never sent directly to Mr. Muldowney. He the Deputy City Planner thinks that a phone call was made to the public representative and also to Mr. Beades. I doubt strongly if matters were taken any further by Mr. McDonnell. This save perhaps from some vague conversation which he may have had with Mr. Muldowney.
(c) With regard to the Senior Executive Planner, I am satisfied that he did not keep Mr. McDonnell informed in any progressive way, as to what was transpiring between himself and Mr. Beades.

(c) of the letters sent by Mr. Beades to various officials within the planning department,
(d) of Mr. McCarron’s involvement,
(e) of the fact that Mr. Muldowney had written to Mr. Beades categorising the complaints as constituting a serious slur on his personal and professional integrity and had sought a full retraction in respect thereof,
(f) of the fact that Mr. Muldowney had obtained or was about to obtain legal advice,
(g) of the existence of the note of 22nd March, 1994,
(h) of Mr. Gough’s decision (for the reasons above stated) to personally deal with this file,

(j) of the circumstances in which his juniors involvement had come about,
(k) of the existence of the contrary report,

“21(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari unless the court considers that there is good reason for extending the period within which the application shall be made”.

“The courts have an inherent jurisdiction to dismiss proceedings where the party instituting them has been guilty of inordinate and inexcusable delay. However, even where the delay is both inordinate and inexcusable, the court must decide whether, having regard to the facts of the particular case, the balance of justice is in favour of, or against, its being permitted to proceed. Finally, as stated by Finlay C.J. in Toal v. Duignan (No. 1) [1991] 1 ILRM 135 at p. 139 …
“those principles are of general application. In the case of proceedings by way of judicial review seeking an order of certiorari such as the present, it is also well established that the applicant for certiorari may be held to disentitle to relief where he has been guilty of unreasonable delay”.

“In such cases, the courts proceed on the assumption that, where there is a reasonable apprehension of bias, the decision must be set aside, although there is not the slightest indication that the decision maker was in fact actuated by any bias. That view of the law is also made clear by the recent decision of this court in Radio Limerick One Limited v. IRTC [1997] 2 I.R. 291. As it was pointed out in that case at p. 315, the bias may take a variety of forms:-
‘The decision maker may have a financial or propriety interest in the outcome of the litigation. He or she may be related by family, social or business ties to one of the parties. He or she may have on some other occasion so prejudged the matters in dispute as to be incapable of reaching a detached decision or, at all events, a decision which reasonable people would regard as free from even the suspicion of bias’.”

“(1) in cases where objective bias on the part of a decision maker is alleged, the courts proceed on the assumption that the decision must be set aside if there is a reasonable apprehension of bias, although there is not the slightest indication that the decision maker was in fact actuated by bias. The test to be applied in determining what constitutes objective bias on the part of an adjudicator – whether in the context of judicial proceedings, administrative or quasi judicial proceedings before tribunals, or other administrative bodies – is whether there is a reasonable apprehension or suspicion that the decision maker might have been bias: i.e. whether, although there was no actual bias, there is an appearance of bias. In order to establish objective on the part of the adjudicator it must be shown that prior to the making of the decision, there existed some factor which was external or extraneous to the decision–making process and could give rise to a reasonable apprehension that the decision-maker might have been bias.
(2) There is a clear distinction between the existence of factors external or extraneous to the decision-making process in which an adjudicator is engaged and the manner in which that process is conducted on the basis of factors which are relevant or material to the decision to be made. External factors should not affect the decision nor should they appear to affect the decision so as to give rise to a reasonable apprehension of bias. If a decision maker pursues a line of enquiry concerning a matter relevant to the decision to be made in a tendentious or unfair manner this does not in itself permit, as a matter of law, the decision to be impugned on the grounds of bias, but rather it falls to be reviewed in accordance with the requirements of fair procedures and natural justice. This is because the “factor” involved is internal and not external or extraneous to the decision-making process …”.

“6. Where an appeal is made to the Board the planning authority concerned shall, within a period of 14 days beginning on the day on which a copy of the appeal is sent to them by the Board, submit to the Board –
(b) a copy of any report prepared by or for the planning authority in relation to the planning application and …”