De Burca v Wicklow County Manager and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 04 February 2009
• Neutral Citation: [2009] IEHC 54
• Court: High Court
• Date: 04 February 2009

[2009] IEHC 54

THE HIGH COURT

RECORD NO. 1052 JR/2005

De Burca v Wicklow Co Manager & Chairperson of Wicklow Co Council

BETWEEN:

DEIRDRE DE BURCA

APPLICANT

AND

WICKLOW COUNTY MANAGER and CHAIRPERSON OF WICKLOW COUNTY COUNCIL

RESPONDENTS

AND

FACHTNA WHITTLE

NOTICE PARTY

LOCAL GOVT ACT 2001 PART XV

LOCAL GOVT ACT 2001 S176(2)

LOCAL GOVT ACT 2001 S174

RSC O.84 r21

LOCAL GOVT ACT 2001 S181

LOCAL GOVT ACT 2001 S182

RSC O.84 r20(4)

LOCAL GOVT ACT 2001 S175

LOCAL GOVT ACT 2001 S176

LOCAL GOVT ACT 2001 S177

LOCAL GOVT ACT 2001 S176(3)

LOCAL GOVT ACT 2001 S177(1)

O'FLYNN v MID-WESTERN HEALTH BOARD 1991 2 IR 223

SLATTERYS LTD v COMMISSIONER OF VALUATION 2001 4 IR 91

RSC O.84 r21(1)

SOLAN v DPP 1989 ILRM 491

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT 2003 2 IR 270

O'BRIEN v MORIARTY 2006 2 IR 221

MAGUIRE v ARDAGH 2002 1 IR 385

DE ROISTE v JUDGE-ADVOCATE GENERAL 2005 3 IR 494

RYANAIR v FLYNN 2000 3 IR 240

CONSTITUTION ART 40.3.2

CAHILL v SUTTON 1980 IR 269

LANCEFORD LTD v BORD PLEANALA 1999 2 IR 270

ANISMINIC LTD v FOREIGN COMPENSATION CMRS 1969 2 AC 147

KILLEEN v DPP 1997 3 IR 218

KEANE v BORD PLEANALA 1997 1 IR 184

INTERPRETATION ACT 2005 S5

MONAHAN v LEGAL AID BOARD UNREP EDWARDS 6.10.2008 2008 IEHC 300

JUDICIAL REVIEW

Certiorari

Delay - Time limits - Leave to be made promptly - Whether good reason for extending time limits - Whether any evidence to explain delay - Special circumstances justifying extension of time - Prejudice - Conduct of applicant - - O'Flynn v Mid-Western Health Board [1991] 2 IR 223, Slattery's Ltd v Commissioner of Valuation [2001] 4 IR 91 and Solan v Director of Public Prosecutions [1989] ILRM 491 applied; Dekra Éireann Teo v Minister for Environment [2003] 2 IR 270 and O'Brien v Moriarty [2005] IESC 32, [2006] 2 IR 221 considered - Availability of relief - Whether non-justiciable issue - Whether complaint amenable to judicial review - Whether proceedings inadmissible - Whether any material implications for applicant- Public interest - Maguire v Ardagh [2002] 1 IR 385, de Roiste v Judge-Advocate General [2005] IEHC 273, [2005] 3 IR 494 and Ryanair v Flynn [2000] 2 IR 240 considered - Locus standi - Participation in investigative process - Legal arguments not adequately raised throughout complaint process - Whether applicant had sufficient interest in impugned determination - Issue estoppel - Cahill v Sutton [1980] IR 269, Lancefort Ltd v An Bord Pleanála [1999] 2 IR 270 and Crotty v An Taoiseach [1987] IR 713 considered - Error of law - Whether findings reached ultra vires- Interpretation of legislation - Literal or purposive approach - Whether determination premised on manifest error of law - Whether respondents deprived of jurisdiction - Rules of statutory interpretation - Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, Killeen v DPP [1997] 3 IR 218, Keane v An Bord Pleanála [1997] 1 IR 184 and Monahan v Legal Aid Board [2008] IEHC 300, (Unrep, Edwards J, 6/10/2008) considered - Rules of the Superior Courts 1986 (SI 15/1986) O 84, rr 20(4) & 21 - Interpretation Act 2005 (No 23), s 5 - Local Government Act 2001 (No 37), ss 175 & 176(2) - Certiorari granted, declaratory relief refused (2005/1052 JR - Hedigan J - 4/2/2009) [2009] IEHC 54

De Burca v Wicklow County Manager

1 Mr. Justice Hedigan, delivered on the 4th day of February, 2009

2 1. The applicant was elected to Wicklow County Council for the Bray constituency in 1999. She served in that capacity until 2007, when she was selected by the Taoiseach as a member of the 23rd Seanad Éireann.

3 2. The first named respondent is an appointed public official with responsibility for the executive functions and operational activities of Wicklow County Council.

4 3. The second named respondent is a publicly elected representative whose functions include presiding over meetings of Wicklow County Council.

5 4. The notice party is a member of Wicklow Town Council, having been first elected in 1999. In 2004, he was re-elected in that capacity and was further elected to Wicklow County Council. He is also a practising solicitor, being the principal of Haughton McCarroll solicitors.

6 5. The applicant seeks the following reliefs:

7 (a) an order of certiorari, quashing a report dated the 15 ^th of June 2005 and prepared by the respondents pursuant to Part XV of the Local Government Act 2001 ('the 2001 Act'), on the basis that the respondents misconstrued the provisions of section 176(2) of the 2001 Act, which deals with 'beneficial interests' requiring disclosure.

8 (b) a declaration that a professional person has a beneficial interest which falls to be disclosed under Part XV of the 2001 Act, specifically section 176(2) where the said professional person has an interest in a particular motion or resolution by reason of his profession; and

9 (c) a further declaration that the respondents erred in law in concluding that the notice party had no beneficial or pecuniary interest in lands at Ballylusk Quarry then proposed for re-zoning and/or that the notice party had adequately declared his interest for the purposes of Part XV of the 2001 Act.

I. Factual and Procedural Background

10 7. On the 12 ^th of July 2004, the notice party attended a meeting of Wicklow County Council ('the County Council') for the purposes of discussion of the Wicklow County Development Plan. At that meeting, he proposed the re-zoning of certain lands at Ballylusk, Ashford in the County of Wicklow in order to extend the scope of an existing quarry and to develop a small Enterprise Park. This proposal was seconded and adopted as a material amendment to the draft Development Plan. However, it should be noted that the amendment was ultimately deleted from the Plan at a meeting of the County Council on the 1 ^st of November 2004. It is not disputed that, at all times, the notice party disclosed the basic fact that he was a solicitor practising in the local area.

11 8. On the 17 ^th of August 2004, the applicant made a complaint against the notice party to the designated Ethics Registrar for the County Council, Mr. Tom Murphy, requesting that an investigation into the matter be carried out. In her complaint, the applicant contended that the notice party's firm were the solicitors on record for the owner of the lands and that the notice party had personally acted for the owner in judicial review proceedings against An Bord Pleanála in respect of a ruling relating to the quarry.

12 9. The applicant further contended that the failure to declare such an interest was in contravention of Part XV of the 2001 Act. She submitted that the notice party ought to have declared his professional involvement with the quarry and recused himself from any re-zoning decision in relation to the land.

13 10. Upon receipt of the complaint, the Ethics Registrar advised the respondents that they were the appropriate parties to investigate the complaint pursuant to section 174 of the 2001 Act.

14 11. The original complaint made reference to a number of supporting documents evidencing the notice party's role in both proposing the motion to the County Council and also acting for the quarry owner in matters which at the time remained extant before the courts. This documentation, however, was not included with the complaint and copies of same were requested in writing by the respondents on the 2 ^nd of September 2004. The material was ultimately provided by the applicant on the 11 ^th of October 2004, following a series of further written requests.

15 12. On the 14 ^th of December 2004, the Ethics Registrar forwarded to both the applicant and the notice party a copy of all correspondence in relation to the complaint. The Ethics Registrar further indicated that the respondents would be asking for written submissions from both parties, following which it was proposed to hold a meeting at which both parties and their representatives would be present.

16 13. The applicant replied to the Council on the 22 ^nd of December 2004, indicating that she had nothing further to add to her previous correspondence and could not be of further assistance to the investigation. The applicant submitted that her complaint was now a matter of public record and had been substantiated by the documentation submitted by her. The applicant was further of the opinion that the facts of the case were largely uncontroverted and, as such, the issue for consideration by the respondents was the proper construction of Part XV of the 2001 Act. This position was confirmed by the applicant on the 7 ^th of January 2005 and on the 2 ^nd of March 2005.

17 14. The respondents specified the 15 ^th of April 2005 as the cut-off date for written submissions. The notice party prepared written submissions but the applicant chose not to do so. A meeting was then arranged for the 18 ^th of May 2005 ('the meeting'), to which both parties were invited. The applicant declined to attend but the notice party attended and made submissions through the medium of his legal representative.

18 15. Among the submissions made by the notice party at the meeting were: that although he was the principal in Haughton McCarroll solicitors, he was only aware of the judicial review proceedings between the quarry owner and An Bord Pleanála in a general way; that the re-zoning proposal, even if ultimately adopted, would have no effect on the judicial review proceedings; and that the failure of the applicant to participate fully in the investigation undermined the fair procedures adopted.

19 16. Following the meeting, the respondents compiled a draft report on the complaint which was circulated to the applicant and the notice party on or about the 10 ^th of June 2005. The parties were given 5 days during which to make observations on or objections to...