Construction Industry Federation v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 04 March 2004
• Neutral Citation: [2004] IEHC 37
• Docket Number: [No. 967 J.R./2003]
• Court: High Court
• Date: 04 March 2004

[2004] IEHC 37

THE HIGH COURT

[No. 967 J.R./2003]

CONSTRUCTION INDUSTRY FEDERATION v. DUBLIN CITY COUNCIL

Between:-

CONSTRUCTION INDUSTRY FEDERATION

Applicant

And

DUBLIN CITY COUNCIL

Respondent

Citations:

PLANNING & DEVELOPMENT ACT 2000 S48

PLANNING & DEVELOPMENT ACT 2000 S48(2)

PLANNING & DEVELOPMENT ACT 2000 S48(2)(C)

PLANNING & DEVELOPMENT ACT 2000 S48(3)

RSC O.84 r40(7)(A)

RSC O.84 r22

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

PLANNING & DEVELOPMENT ACT 2000 S49

PLANNING & DEVELOPEMENT ACT 2000 S49(5)

PLANNING & DEVELOPMENT ACT 2000 S49(1)

PLANNING & DEVELOPMENT ACT 2000 S49(2)

PLANNING & DEVELOPMENT ACT 2000 S48(5)

CAHILL V SUTTON 1980 IR 269

LANCEFORT LTD V BORD PLEANALA 1999 2 IR 270

INSPECTOR OF TAXES V KIERNAN 1981 IR 117

LOUTH CO COUNCIL V MATTHEWS UNREP GANNON 14.4.89 1989/6/1855

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1983 S3(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1983 S2

HOWARD V CMSR OF PUBLIC WORKS IN IRELAND 1994 1 IR 101

CRAIES ON STATUTE LAW

SALOMAN V SALOMAN 1897 AC 22

PLANNING & DEVELOPMENT ACT 2000 S48(17)

PLANNING & DEVELOPMENT ACT 2000 S48(3)(B)

PLANNING & DEVELOPMENT ACT 2000 S34

PLANNING & DEVELOPMENT ACT 2000 S48(7)

PLANNING & DEVELOPMENT ACT 2000 S49(7)

PLANNING & DEVELOPMENT ACT 2000 S48(2)(A)

PLANNING & DEVELOPMENT ACT 2000 S48(1)

PLANNING & DEVELOPMENT ACT 2000 S48(3)(A)

PLANNING & DEVELOPMENT ACT 2000 S48(1)

PLANNING & DEVELOPMENT ACT 2000 S139

PLANNING & DEVELOPMENT ACT 2000 S48(13)(A)

DUFFY V WATERFORD CORPORATION UNREP MCGUINNESS 21.7.1999 1999/10/2462

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 REG 134

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 REG 135

FINN V BRAY UDC 1969 IR 169

PLANNING & DEVELOPMENT ACT 2000 S48(8)(A)

PLANNING & DEVELOPMENT ACT 2000 S12

PLANNING & DEVELOPMENT ACT 2000 S12(7)(A)

KEANE LAW OF LOCAL GOVERNMENT IN THE REPUBLIC OF IRELAND 2ED 224

Synopsis:

JUDICIAL REVIEW

Planning Permission

Development Contribution Scheme - Ultra vires - Locus standi - Statutory interpretation - Whether the planning authority was required to set out in a development contribution scheme the specific facilities and developments relating to infrastructure that were covered by the contributions required to be paid - Local Government (Planning and Development) Act 1963 - Planning and Development Act, 2000 (2003/967JR - Gilligan J - 4/3/2004)

Construction Industry Federation v Dublin City Council

Facts: Pursuant to the provisions of Section 48 of the Planning and Development Act, 2000 planning authorities are empowered to draw up a development contribution scheme or schemes and to impose conditions in grants of planning permission requiring payments of contributions in accordance with such schemes. The contributions are to be imposed in respect of public infrastructure and facilities provided or to be provided by the planning authority, generally, in its area, whether or not it is of benefit to the particular development concerned. In addition, provision is made for additional development contributions to be levied in specified circumstances. Development contributions collected under the section 48 scheme form a general fund to be applied as capital for public infrastructure and facilities within the functional area of the planning authority. In or about early 2003, the respondent commenced the process of making a development contribution scheme (DCS). Consultants Deloitte & Touche, HK Chartered Town Planners, and Peter Bacon & Associates, Economic Consultants prepared a report in August, 2003. On 2 September, 2003, the respondent published a Draft Development Contribution Scheme. The applicant made submissions in relation to the draft scheme and subsequently on 1 December 2003 the respondent decided to approve the scheme subject to three changes. Consequently, on 9 December, 2003 the making of the scheme was published in national newspapers giving the date of the decision of the respondent in respect of the draft scheme and stating the nature of the decision.

The applicant contended that the scheme as brought into being by the respondent by the respondent on 1 December, 2003 was ultra vires section 48 of the 2000 Act. By order of Kearns J on 18 December, 2003 the applicant was granted leave to apply by way of an application for judicial review for an order of certiorari quashing the decision of the respondent together with certain other declaratory relief. The respondent contended that the applicant did not have locus standi to make the application. Specifically the respondent submitted that the respondent was an unincorporated trade association that did not engage in developments or in the making of any application for planning permission and accordingly would not be liable to pay any development contributions under the scheme. The applicant stated that as a representative association it had an interest ion the lawfulness of the scheme. Furthermore the applicant submitted that it was a well established principle of statutory interpretation that a legislative provision imposing or authorising the imposition of any form of tax must be strictly construed and accordingly section 48 must be construed strictly. The respondent on the other hand submitted that the fundamental duty of the court was to give effect to the intention of the Oireachtas as expressed in the words used by the it and not to speculate as to what subjectively the intention of the Oireachtas may have been. The applicant also contended that it was not afforded an adequate opportunity to make submissions in relation to the draft scheme because of the paucity of information contained therein. Furthermore the applicant alleged that the scheme did not set out the basis for determining the contributions to be paid but, rather, referred to the consultants' report. The applicant's principal contention was that it was necessary for a DCS to specify the public infrastructure and facilities under each of the headings as set forth in section 48(17), which have been or are intended to be provided. The applicant contended that the absence of this information could give rise to a situation of double taxation.

Held by Gilligan J in dismissing the applicant's claim:. 1. That the applicant was an unincorporated association representing the interest of parties involved in the construction industry and its constituent members were persons who would be affected by the operation of the DCS. In the circumstances a reasonably generous approach to the question of locus standi was required.

Cahill v Sutton [1980] I.R. 269 followed.

2. That the relevant provisions of section 48 of the 2000 Act were not loosely phrased or ambiguous and accordingly it was appropriate to construe the provisions strictly according to the intention expressed, in the language used in the legislation, the words used in the statute displayed the intention of the Act. Accordingly the respondents were obliged to comply strictly with the legislative terms as set out in section 48.

Howard v Commissioners of Public Works in Ireland [1994] 1 I.R. 101 followed.

3. That the court was not concerned in any way with the merits or otherwise of the scheme as proposed by section 48. The court only had to decide whether the scheme complied with the provisions of that section. None of the provisions of section 48 required a draft scheme or a scheme to specify the individual projects which the planning authority intended to find wholly or in part from money raised under that scheme, nor was the scheme required to set out the level of detail as to cost or timing. The applicant was effectively seeking additional information, which was not provided for in section 48 of the 2000 Act, and wanted explanations that were also not provided for.

4. That the scheme did set out the basis for the determination of the contributions to be paid. Furthermore the scheme indicated the contributions to be paid in respect of the different classes of public infrastructure and facilities which were provided or were to be provided by the public authority. There was no substance to the applicant's argument regarding double taxation because in the event of any dispute arising in respect of a special contribution the onus would be on the planning authority to demonstrate that the condition was appropriate and also the Act provided for a full appeal to An Bord Pleanala in that regard.

5. That there was no statutory obligation imposed on the respondent to re-advertise the draft scheme if it was subsequently varied by the planning authority. The amendments made to the scheme following the meeting at which the applicant made submissions amounted to no more than a variation of the scheme.

Reporter: L.O'S.

1 Mr. Justice Gilligan delivered on the 4th March, 2004 .

2 By Order of Kearns J. on the 18 ^th December, 2003, the applicant herein was granted leave to apply by way of an application for judicial review for the following reliefs:

3 1. An order of certiorari, by way of an application for judicial review, quashing the decision made by the respondent on 1 ^stDecember, 2003,(the "decision") to make a development contribution scheme pursuant to s. 48 of the Planning and Development Act, 2000(the "scheme");

4 2. A declaration, by way of an application for judicial review, that the respondent in purporting to make the decision acted ultra vires and/or without or in excess of jurisdiction;

5 3. A declaration, by way of an application for judicial review, that the decision is null and void and of no legal effect;

6 4. A declaration, by way of an application for judicial review, that the decision is invalid and the respondent acted in excess of or without jurisdiction in circumstances where the said scheme;

7 (a) fails to state adequately or at all the public infrastructure and facilities...