O'Connor v. Nenagh U.D.C. [1996] IEHC 4 (16th July, 1996)

Judgment of Mr. Justice Geoghegan delivered the 16th day of July, 1996 1. This Application in its original form sought by way of Judicial Review a number of reliefs against Nenagh Urban District Council. But ultimately, the Applicant has confined his reliefs to an Order of Certiorari quashing a certificate given by the Town Clerk of Nenagh Urban District Council on the 27th September, 1994 certifying the correctness of certain information given to the Notice Party at the time of an intended purchase by the Notice Party of supermarket premises in the town of Nenagh or, alternatively, a declaration that certain statements contained in the information certified to be true was not true. For reasons which will become apparent, I do not intend to review in detail all the surrounding circumstances of this case. It is sufficient for the purposes of this judgment to state that the predecessor in title of the Notice Party, a Mr. Mulqueen, obtained a planning permission from the Urban Council for the erection of a supermarket premises in 1974. Before he had carried out development pursuant to that permission, Mr. Mulqueen in 1981 sought permission for a somewhat altered development. That permission was refused by the Urban Council and on appeal by Bord Pleanala. The primary allegation being made by the Applicant is that Mr. Mulqueen then proceeded to develop in purported pursuance of his original 1974 permission and not only did the development not comply with that permission but was, in the view of the Applicant, similar to the development in respect of which permission had been refused. The siting and orientation of the buildings were different than those envisaged in the 1974 permission. The Applicant then goes on to complain that when the Notice Party purchased the premises from Mr. Mulqueen in 1974, the Urban District Council issued to the Notice Party the certificate sought to be quashed which in the view of the Applicant was a wrongful certificate of comfort given to the Notice Party. That certificate signed by Mr. McCormack, the Town Clerk, was in the form “I hereby certify that the above information is correct”. The “above information” was in a question and answer format in a standard type of form used regularly by the Urban Council for the benefit of buyers and indeed used by the County Council also. The form was headed “Nenagh Urban District Council Local Government (Planning and Development) Acts, 1963 to 1993 Planning Search”. It then contained a reference to the property at “Limerick Road, Nenagh Shopping Centre” and to the owner “Thomas Mulqueen”. The controversial questions and answers were as follows:- “Question: ‘Is the Planning Authority aware of breach or non-compliance with the permission or any conditions attached thereto?’ Answer: ‘No’. 2. Question: ‘Is the Planning Authority aware of any unauthorised structure on the property?’ Answer: ‘No’. 3. Question: ‘Does the Planning Authority have any objection to the property as developed?’ Answer: ‘No’. 4. The Applicant claims that the Planning Authority could not have regarded the development as in fact complying with the 1974 permission and that therefore could not reasonably have answered the first question, as it did, in the negative. For the same reasons the Applicant objects to the negative answers to the remaining two questions. 5. The Application is being resisted by both the Respondent and the Notice Party on a number of grounds which include the following: “1. That the Applicant has no locus standi to claim the reliefs sought. 2. The certificate was given as far back as the 27th September, 1994. The Application is well out of time under the Rules of the Superior Courts. 3. That the document itself is not capable of being certioraried. Furthermore that there is no public element in relation to it that would justify any declaratory relief by way of Judicial Review. It is argued that it is merely a private comfort being given to a buyer having no more status than a letter of reply to a query from a buyer or his professional advisers. 4. That at any rate as a matter of discretion the relief sought should not be granted because: (a) The Applicant is a trade competitor of the Notice Party and his only motive in bringing the Application is to put the Notice Party out of business. (b) That with one exception all the statutory remedies dealing with any alleged contraventions of planning permissions or failure to obtain planning permission are statute barred, the five year period having long ago expired. This would apply to both the enforcement notice procedure and the procedure under Section of the Local Government (Planning and Development) Act, 1976 as amended. In relation to criminal prosecutions, a six month period would have elapsed in relation to a summary prosecution. The one exception is that theoretically there might be a right to bring prosecution upon indictment but quite apart from the fact that this has rarely if ever been invoked, such a prosecution would have to be brought by the Director of Public Prosecutions and not by the Planning Authority. It is therefore suggested that this Judicial Review Application is a method of getting round the time limits and ought not to be entertained. Its only effect would be potentially to damage the Notice Party and it is not suggested that there was any improper collusion as between the Urban Council and the Notice Party." 6. That is not a comprehensive list of the grounds of objection but it represents the main grounds which were argued. 7. In addition to the alterations in the siting and orientation of the buildings, it is also suggested that flooding and sewage problems have arisen as a consequence of further breaches of the 1974 permission. I accept that it was as a consequence of flooding problems that the Applicant originally examined the planning file and discovered the situation of which he now complains. Having regard to the fact that he is a member of the Urban Council and in that capacity in particular would be entitled to be concerned that the public functions of the Council were being carried out lawfully, I am inclined to think that he does have locus standi but I have great doubts about this. As to whether he has a locus standi or not is not dependent in my view on his motives. It is his legitimate interest in the matter in an objective sense and not his motives which determine whether he has locus standi or not. He makes no secret of the fact that he is unhappy about having Dunnes as a competitor but he complains that he is being treated unequally by the Council in that the planning laws have been enforced with the utmost strictness against him whereas, as he sees it, that has not been the position in the case of the Notice Party, Dunnes. I am not satisfied on the evidence that I have heard that any case of inequality of treatment can be made out but having regard to the Applicant's role as a public representative, I am prepared to accept with considerable misgivings that he may have locus standi. 8. I am also inclined to the view that the document sought to be quashed or in respect of which in the alternative declaratory relief is sought, is of a sufficiently public nature to permit of being judicial reviewed. First of all, it is a document that came into being pursuant to a system adopted by each of the Local Authorities in Tipperary. Secondly, because of its official appearance and nature and the certification by the Town Clerk, it is likely to be given the status of a planning permission in practice. There was some evidence before me that that did in fact happen in a licensing application and I think it highly likely that a District Judge in a licensing application would rely on it. I do not agree that it is analogous to a reply to an ordinary letter or an oral answer to an oral query. Therefore, in an appropriate case, I think that it could be made the subject of judicial review. I have no doubt for instance that if Mr. Mulqueen made analogous queries before he developed and, had been told that if he developed in accordance with the plans they would be treated as compliance with the 1974 permission that certificate would be reviewable. The case is less strong when the person to whom the document is addressed is a buyer but nevertheless having regard to the general appearance of the document and the fact that it was issued as part of the system adopted by the Planning Authority, I think that it can be the subject of judicial review. 9. But even if the Applicant does have locus standi and the document can, in theory, be the subject of judicial review I am absolutely satisfied that the Applicant ought not to be granted such relief in this case. There are good public policy reasons why the Oireachtas has imposed time limits on both the Section 27 and the enforcement notice procedures. Unless there was some proven element of fraud or public corruption, it would be wrong in my view for the Courts to circumvent those time limits by giving reliefs which would take the form of denying or at least querying the compliance with planning permission by the route of judicial review. This would, apart from anything else be most unfair towards the Notice Party of whom Counsel for the Applicant concedes that the Applicant has no legitimate criticism. The Applicant's annoyance is directed solely against the Council. While an Order of Certiorari or a Declaration of the kind sought would not have the effect of compelling the Notice Party to demolish and rebuild, it would unfairly throw in doubt the compliance with the Planning Acts and could conceivably have adverse effects on the Notice Party in certain situations such as, for instance, a compulsory purchase order and a consequent compensation claim. Not only is there no evidence of wrongful collusion or corruption as between the Council and the Notice Party but there is in fact no evidence of mala fides on the part of the Council. Mr. McCormack issued the certificate on foot of a report from a draughtsman technician. In reliance on that report and in reliance also on what he knew had been the view at a much earlier stage of the engineer then in charge of planning, Mr. Haugh, he accepted that there was no material deviation from the 1974 permission. There possibly was some ambiguity about his evidence in this regard but I interpreted him as accepting that there was no material deviation or at the very least no material deviation of sufficient seriousness that the Council would consider taking any action. 10. I am satisfied that Mr. Haugh and Mr. McCormack acted bona fides at all stages. That being so, I think that it would be wrong for me to enter into any consideration of whether the view taken by them was a justifiable one or not. I would only do this if I considered that if the view was unjustifiable, the relief sought should be granted but as I have already indicated, I do not take that view. 11. Even if I were to extend the time under Order 84 of the Rules of the Superior Courts therefore, I could not grant the relief sought. But if I am wrong about that, I would still see no reason to extend the time. While courts frequently extend the time for judicial review under Order 84, I think that in this case there would be no good reasons for doing so. I cannot accept that the time should run from the commencement of the flooding. I also think that I should have regard to the public policy embodied in statute imposing strict time limits in relation to almost every aspect of planning enforcement and therefore, I would not be prepared to extend the time. But as I was against the Applicant for other reasons also I thought it best to state those reasons. © 1996 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII