AHP Manufacturing BV v DPP

• Jurisdiction: Ireland
• Judgment Date: 08 May 2008
• Docket Number: Neutrtal Citation [2008] IEHC 144 2007 No. 50 J.R.
• Date: 08 May 2008
• Court: High Court

THE HIGH COURT

Neutrtal Citation [2008] IEHC 144

2007 No. 50 J.R.

BETWEEN

AHP MANUFACTURING B.V. TRADING AS WYETH MEDICA IRELAND

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS THE ENVIRONMENTAL PROTECTION AGENCY,IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Abstract:

Judicial review - Set aside of leave - Licence - Time limits - Whether applicant precluded from bringing proceedings - Locus standi to argue constitutionality - Amendment of grounds - Environmental Protection Agency Act 1992, s. 87(10) - Rules of Superior Courts, O. 84, r. 21

The applicant operated a pharmaceutical production facility in Co. Kildare under a licence. The applicant was granted leave to apply for judicial review for inter alia: an order of prohibition restraining the prosecution of charges alleging breaches of conditions of the licence; and a declaration that statutory provisions under which the licences were granted were unconstitutional. The respondents issued motions to have the grant of leave to apply for judicial review set aside. The applicant issued a motion to amend his grounds.

Held by O’Higgins J. in setting aside the grant of leave and refusing the application to amend the grounds that the applicant was precluded from bringing the proceedings as it was outside the time limits set out in s. 87(10) of the Environmental Protection Agency Act 1992, as amended. The applicant had failed to comply with the requirements of O. 84, r. 21 of the Rules of the Superior Courts. The applicant had no locus standi to argue the constitutional point concerning the conditions of the licence.

Reporter: R.W.

1 Judgment of Mr. Justice Kevin O'Higgins delivered the 8th day of May, 2008.

2 The applicant has operated a pharmaceutical production facility in County Kildare pursuant to Integrated Pollution Control licences ("IPC licences") granted by the Environment Protection Agency ("E.P.A.") since January, 1997. The Agency first granted a licence to the applicant on the 14th January, 1997 and issued a revised licence registered number 309 on 27th March, 1998. The Agency then issued further revised licence registered number 581 on the 15th February, 2002. Conditions 7.1 and

3 7.2 of the IPC licences registered numbers 309 and 581 (the impugned conditions) essentially provided that waste sent off the site for recovery could only be conveyed by a waste contractor approved by the E.P.A. On the 28th November, 2006, the applicant was served with eighteen summonses charging a series of alleged offences in relation to the disposal of waste on various dates between the 18th September, 2000 and 31st May, 2001. Five of the eighteen summonses alleged offences breaching the terms of the impugned conditions. In the case of each of the five summonses the same breach is alleged to have occurred on different dates.

4 On the 22nd January, 2007, the applicant was granted leave to apply for judicial review seeking a number of reliefs against the respondents:

1. (a) In respect of the Director of Public Prosecutions ("D.P.P."), the applicant was granted leave to seek an order of prohibition or an injunction to restrain the prosecution of the five charges in the summonses alleging breach of the conditions in the licences granted to the applicant.

2. (b) In respect of the Environmental Protection Agency ("E.P.A."), the applicant was granted leave to challenge the validity of the certain conditions in the licences granted to the applicant by the E.P.A.

3. (c) In respect of the third named respondent, the State, the applicant was given leave to seek a declaration to the effect that the statutory provisions under which the licences were granted and the impugned conditions attached thereto were unconstitutional.

5 On the 13th April, 2007, the E.P.A. issued a motion to have the grant of leave set aside. On the 19th April, 2007, the Attorney General issued a motion to have the grant of leave set aside and on the 15th May, 2007, the Director of Public Prosecutions brought a motioninter alia to have the leave set aside as being out of time. There was a discrete issue between the Director of Public Prosecutions and the application but that issue is now resolved and does not require adjudication by the Court. On the 18th May, 2007, the applicant brought a motion to amend the grounds to include an argument that the statutory time limit provided for in s. 87(10) of the Environmental Protection Agency Act, 1992 (as inserted by s. 15 of the Protection of the Environment Act, 2003) is unconstitutional. The Court is concerned with these four motions.

6 The reliefs sought.

7 The relief sought against the E.P.A. is a declaration that the conditions in respect of the alleged breach to which the summonses relate areultra vires the (E.P.A.) and unlawful, void and of no effect. The applicant seeks an order of certiorariquashing such conditions.

8 The applicant seeks a declaration that sections of the Environmental Protection Agency Act, 1992 are repugnant to Article 15.2.1 of the Constitution in that the said provisions allow an impermissible delegation of the sole and exclusive law making power of the Oireachtas to the authority of the E.P.A. This argument is primarily a matter to be dealt with by the State.

9 As has been already noted, the applicant also brings a motion seeking to amend its statement of ground so as to challenge the constitutionality of the time limits contained in the Environmental Protection Agency Act, 1992 (as amended).

10 The applicant seeks an order of prohibition or an injunction restraining the Director of Public Prosecutions from further proceeding with his prosecution on five of the summonses, the subject matter of these proceedings. No specific argument is directed specifically at the Director of Public Prosecutions separately. However a successful application for relief against the other respondents would have the consequence that the applicant would also succeed in his application against the Director of Public Prosecutions.

11 This hearing is not concerned with the substantive issues but only with the motions brought by the various parties. The Environmental Protection Agency, Ireland and the Attorney General, and the Director of Public Prosecutions all maintain that the applicant's application should be dismissed at this stage without going to a full hearing for the reasons argued in Court, and the applicant seeks to amend his grounds to include

12 a new constitutional claim.

13 The issues.

14 The issues for the decision of the Court are as follows:

1. (1) Is the applicant precluded from obtaining relief because of the provisions of s. 87(10) of the Act of 1992 (as amended)?

2. (2) Is the applicant precluded from obtaining the relief sought by virtue of the delay, either pursuant to the inherent jurisdiction of the Court or the provisions of Order 84 of the Rules of the Superior Courts, 1986?

3. (3) Has the applicant the requisitelocus standito pursue the constitutional claim in respect of the contention that the conditions imposed on the applicant by the Environmental Protection Agency were ultra viresthe Agency?

4. (4) Is the applicant precluded, by reason of lack oflocus standi,from seeking to pursue a new constitutional argument that the time limits imposed in the Act of 1992 (as amended) are unconstitutional?

15 1. The provisions of the Environmental Protection Agency Act (as amended

16 Section 87(10) of the Environmental Protection Agency Act, 1992 (as amended) is clear. It provides as follows:

17 "A person shall not by any application for judicial review or in any other legal proceedings whatsoever question the validity of a decision of the Agency to grant or refuse a licence or revised licence (including a decision of it to grant or not to grant such a licence on foot of a review conducted by it of its own volition) unless the proceedings are instituted within the period of 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made."

18 The applicant contends that the above provisions do not apply in the present case and asserts that it is not challenging the grant of a licence but only the conditions attached to such a licence. The applicant argues that, because it faces the possibility of a penal sanction in the present case, s. 87(10) of the Act must be strictly construed in its favour. It contends that because s 87(10) refers to a licence and not to the conditions attached thereto, the provisions of s. 87(10) are not applicable to it.

19 I was referred to the fourth edition of Bennion,Statutory Interpretation A Code,4th Ed., (Butterworths, 2002) at p. 729 under section 281, where the following passage appears:

20 "One aspect of the principle against doubtful penalisation is that by the exercise of state power the rights of a person in relation to the law and legal proceedings should not be removed or impaired, except under clear authority of law."

21 I was also referred to a decision of my own in the case ofMullins v. Hartnett [1998] 4 I.R. 424 and where under the heading "The Principle Against Doubtful Penalisation", the Court said (at p. 434):

22 "According to this principle nobody suffers a detriment by application of a doubtful law"

23 The Court went on to quote a passage from Bennion,Statutory Interpretation,2nd Ed., (Butterworths, 1992) at p. 572 as follows (on p. 434):

24 "Whenever it can be argued that an enactment has a meaning requiring infliction of a detriment of any kind, the principle against doubtful penalisation comes into play. If the detriment is minor, the principle will carry little weight. If the detriment is severe, the principle will be correspondingly powerful. As Staughton L.J. said in relation to penalisation

25 through retro-respectivity it is a matter of degree - the...