De Burca -v- Wicklow County Manager & Anor, [2009] IEHC 54 (2009)

Docket Number:2005 1052 JR
Party Name:De Burca, Wicklow County Manager & Anor
Judge:Hedigan J.






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

  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.

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

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

  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.

  5. The applicant seeks the following reliefs:

    (a) an order of certiorari, quashing a report dated the 15th 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.

    (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

    (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.

    1. Factual and Procedural Background

  6. On the 12th 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 1st 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.

  7. On the 17th 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.

  8. 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.

  9. 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.

  10. 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 2nd of September 2004. The material was ultimately provided by the applicant on the 11th of October 2004, following a series of further written requests.

  11. On the 14th 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.

  12. The applicant replied to the Council on the 22nd 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 7th of January 2005 and on the 2nd of March 2005.

  13. The respondents specified the 15th 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 18th 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.

  14. 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.

  15. 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 10th of June 2005. The parties were given 5 days during which to make observations on or objections to the content of the report. Neither the applicant nor the notice party availed of this opportunity.

  16. On the 15th of June 2005, the final report on the complaint ('the report') was issued by the respondents. This report included, inter alia, the submissions made by the notice party at the meeting and the submissions of the applicant which were made in earlier correspondence. The report concluded that although the proposal of the motion by the notice party was "unwise" and "an error of judgment" on his part, it did not amount to a breach of the requirements of Part XV of the 2001 Act. In particular, the report found that there was no evidence that the notice party had a beneficial or pecuniary interest in the outcome of the motion. The report did, nonetheless, proceed to make a number of general recommendations as to the procedures to be adopted under Part XV of the 2001 Act. It also criticised the applicant for her failure to attend the meeting.

  17. Arising out of these facts, the applicant now seeks certiorari in addition to certain declaratory reliefs. The applicant first came before the High Court on the 5th of October 2005, at which point the matter was adjourned for a number of days. Leave to proceed by way of judicial review was ultimately granted by O'Neill J. in the High Court on the 10th of October 2005.

    1. The Submissions of the Parties

    (a) Delay

  18. The respondents and the notice party have submitted, by way of preliminary objection to the applicant's case, that the applicant has failed to comply with the requirements of the Rules of the Superior Courts ('the Rules') in bringing this application before the Court. In particular, they place reliance on Order 84 rule 21 of the Rules which provides as follows:-

    (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.

    (2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.(3) The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

  19. It is important to note at this juncture that the Rules prescribe different limitation periods in respect of the different categories of relief being sought by the applicant in the present case. In respect of the application for certiorari of the report, a maximum period of 6 months is provided for, whereas the declarations sought are subject to a limitation period of 3 months duration. In both cases, however, the Rules make clear that there is a supervening requirement that the applicant should make her application for leave 'promptly'. These limitation periods may only be avoided in circumstances where the Court is of the opinion that there are 'good reasons' for doing so.

  20. The report was delivered to the applicant on the 15th of June 2005, while the applicant first came before the High Court on the 5th of October 2005, some 3...

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