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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Duffy -v- Laois County Council [2014] IEHC 469 (29 October 2014)
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Cite as: [2014] IEHC 469
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Judgment Title: Duffy -v- Laois County Council Neutral Citation: [2014] IEHC 469 High Court Record Number: 2013 720 JR Date of Delivery: 29/10/2014 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2014] IEHC 469 THE HIGH COURT [2013 No. 720 J.R.] BETWEEN MICHAEL DUFFY APPLICANT AND
LAOIS COUNTY COUNCIL RESPONDENT JUDGMENT of Mr. Justice Hogan delivered on 29th October, 2014 1. Has an engineer who is based some 160 km away from Co. Laois sufficient standing to challenge an administrative practice of Laois County Council which provides that only Council personnel are authorised to perform a statutory site assessment as a part of the planning permission process? This is, in essence, the principal question which this Court is now required to determine as a preliminary issue. The issue arises in the following way. 2. Article 22(2)(c) of the Planning and Development Regulations 2006 (SI No. 685 of 2006)(“the 2006 Regulations”) provides that in the case of any planning application “where it is proposed to dispose of wastewater from the proposed development other than to a public sewer” then “information on the on-site treatment system proposed and evidence as to the suitability of the site for the system proposed” shall accompany the proposal. 3. Mr. Duffy is a chartered engineer based in north Co. Clare, a distance of some 159km from Borris in Ossory, the nearest point of Co. Laois from the applicant’s residence. It is clear, as a chartered engineer, Mr. Duffy falls into that category of persons eminently qualified to carry out such a site assessment. Indeed, such is tacitly recognised by Article 9 of the Building Control (Amendment) Regulations 2014 (S.I. 9 of 2014), the schedule for which provides that persons named on a register maintained pursuant to s. 7 of the Institution of Civil Engineers of Ireland (Charter Amendment) Regulations Act 1969(“the 1969 Act”) (i.e., a chartered engineer) are among those qualified to give the appropriate certificate of compliance in relation to the design of building works. 4. In these difficult economic times it is plain that Mr. Duffy is anxious to get work of this nature from the general public where he can, including the provision of site assessments for a fee in areas (such as Co. Laois) a little distant from his home. Some local authorities previously operated what was described as a panel system whereby only those consultants who were on a panel were entitled to do this type of site assessment work. Mr. Duffy challenged the legality of this practice in proceedings involving Sligo County Council (2012, No. 469 JR) and by decision of this Court (Cooke J.) on 21st January 2013 the practice was held to be unlawful. In the wake of this decision it appears that several other local authorities who maintained such a practice thereafter abandoned it. 5. This decision of this Court in that case can scarcely have come as a surprise. Article 28A.2 of the Constitution provides that the powers of local authorities “shall be exercised and performed in accordance with law.” There was, however, no legal basis whatever for the practice which Sligo Co. Council had adopted and it was plainly unlawful. 6. At some point thereafter, however, Mr. Duffy learnt that Laois County Council operates a variant of this system, save that in Co. Laois only authorised Council personnel are permitted to carry out the site assessment. The Council now presently charges applicants a fee of some €550 in respect of the provision of this service. On 14th June 2013 Mr. Duffy wrote to the Council to protest, complaining that this practice was not authorised by the terms of the 2006 Regulation and calling upon it to desist from a practice which he contended was ultra vires. 7. The applicant subsequently received a detailed letter (dated 3rd July 2013) in response. This letter explained the rationale for the practice:
The application of the charge for such assessments is an executive function of the County Manager, based on the administrative and technical costs to the Council of providing the assessment. I also wish to advise that all staff engaged in such assessments are competent and have received appropriate training.” 9. First, it is said that the applicant had no previous involvement with the Council in relation to planning or site assessment matters and that his first interaction with the Council was when he corresponded in June, 2013 regarding the legality of the practice. Second, it is said that it was neither feasible nor commercially practicable for an applicant resident in north Co. Clare to have any real interest in site assessments in Laois. The Council contends - and there is, admittedly, no evidence on affidavit to contradict this - that site assessments involve a series of site visits and that the process is a time consuming one. In effect, therefore, the case is made that this process could not be commercially viable in the case of an engineer resident in north Co. Clare. The Council contend, therefore, that the applicant cannot realistically be expected to have any interest in the matter and that the case raises purely theoretical concerns. 10. If that were indeed the case, then applicant’s interest would be altogether too slender to justify the conclusion that he had the requisite locus standi. But is this really so? As it happens, given the nature of the present proceedings, the applicant’s standing cannot be entirely divorced from the case which he would otherwise seek to make, namely, that if the Council were to be entitled to have an exclusive system whereby only Council personnel could perform such tasks, this would have to find express provision in the relevant statutory scheme. The challenge, accordingly, is to the exclusivity of the procedure adopted by the Council so far as the kind of persons who are entitled to perform this function is concerned. 11. In this regard, the comments of Murphy J. in O’Neill v. Minister for Agriculture [1998] 1 IR 539 are perhaps especially relevant. In that case the applicant wished to provide an artificial insemination system for bovines, but the Minister had maintained a system of regional monopolies throughout the State so that only one private entity (typically a dairy co-operative) was licensed to provide such a service in each regional area. The Supreme Court held that in the absence of such express statutory words this system of regional artificial insemination monopolies was ultra vires the Livestock (Artificial Insemination) Act 1947. As Murphy J. stated. ([1998] 1 I.R. 539, 556):
13. All of this has relevance so far as the applicant’s standing is concerned. It is clear from O’Neill that any suitably qualified citizen has the right, in principle at least, to apply to be permitted to discharge any function provided for by law. The principle identified in O’Neill applies in the present case because the applicant, qua chartered engineer, is enrolled under the 1969 Act, is just as qualified in law to perform this site assessment service as much any other suitably qualified professional. 14. In this regard, it is irrelevant that the applicant has not yet performed these site assessment functions in Co. Laois. Given the policy of exclusivity which the Council has adopted, he could not, in any event, have availed of any opportunity to do so. This, after all, is the whole point of this litigation. 15. It is likewise irrelevant that the Council considers that there were good reasons for the policy or that it believes that it would not be economically viable for an engineer based in Co. Clare to offer to perform these services in Co. Laois given the distances he would be required to travel in order to conduct the site assessment surveys. In O’Neill the fact that the Minister considered that this system of regional monopolies was in the public interest was held by the Supreme Court to be irrelevant to the fundamental question of whether the policy of exclusivity had a lawful basis. The critical point which emerges from O’Neill is that a suitably qualified person is entitled to challenge the legality of an exclusionary policy adopted by a public body, irrespective of whether the statutory body which adopts the policy considers it to be a good policy or that the practice is thought to be justified on the ground that it would not be economically viable for any potential entrant into this market to attempt to do so. 16. It must, of course, be stressed that the principle in O’Neill applies only to persons which are in principle qualified by law to perform these services. Mr. Duffy would have no standing, for example, to complain about the manner in which the Council organised its legal services, just as much as a solicitor based in Portlaoise could not lawfully invoke the O’Neill principle to challenge the present policy regarding the performance of site assessments surveys. 17. Council for the respondent, Mr. Fennelly, queried where an applicant’s standing to challenge such a practice began and ended. He posed the question as to whether this meant that, for example, an engineer based in London or Paris could challenge such a practice. That particular example raises questions of the freedom of services under EU law which do not arise here. If there were ever such a challenge, the implications of such leading free movement decisions of the Court of Justice such as Case 33/74 Van Binsbergen [1974] ECR 1299 would have to be considered in any assessment of the standing of such an individual. 18. In the present case, however, it is sufficient to say that O’Neill is authority for the proposition that all suitably qualified citizens are entitled to seek to perform tasks and functions regulated by law, save where the contrary is clearly provided for by law. That, in essence, is the legal principle which Mr. Duffy says has been contravened in the present case and, since he is plainly such a qualified person with an interest in providing the service, it follows, accordingly, that he has sufficient standing to challenge the practice. Whether the applicant is out of time 20. It is true that the time limits now contained in O. 84 since the coming into force of the new version of that Order (Rules of the Supreme Court (Judicial Review) 2011 (SI No. 691 of 2011) are somewhat stricter than that which previously obtained. It must be noted, however, that time only runs from the date the cause of action accrued (“when grounds for the application first arose”). O. 84, r. 21 provides in relevant part as follows:
(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding. (3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:-
(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either- (ii) could not reasonably have been anticipated by the applicant for such extension.” 21. If the present case related to a specific, individual decision of the Council, then the applicant would have been out of time, albeit by a just a matter of days. The present case does not, however, concern itself with a decision of this kind. Rather, the policy applied by the Council is a general one which has been in operation since about 1991, albeit with some temporary interruptions in the late 1990s and at some stage between 2009 and 2010. In these particular circumstances there is, in effect, a fresh daily accrual for time purposes of the case of action for so long as the policy is applied. It follows, therefore, that the applicant was within time when he commenced these proceedings because, for example, the policy applied just as much in October, 2013 as it had in July, 2013. Conclusions |