Doupe v Limerick County Council

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Costello
Judgment Date30 Jun 1981
Neutral Citation1976 WJSC-HC 1313
Docket NumberNo. 1142IP/1980

1976 WJSC-HC 1313

THE HIGH COURT

No. 1142IP/1980
DOUPE v LIMERICK CO COUNCIL
BETWEEN:-
JAMES DOUPE
Plaintiff
-and-
LIMERICK COUNTY COUNCIL AND PATRICK O'CONNOR
Defendants

LOCAL GOVT

Licence

NATURAL JUSTICE

Fair procedures

1

Judgment of Mr. Justice Costello Delivered the 30th June 1981

2

The Plaintiff applied to the Limerick County Council on the 15th April 1980 for a slaughter-house licence in respect of premises at Camheen, Mungret Co. Limerick. On the 24th October 1980 his application was refused. By Summons of the 16th December, 1980 he instituted these proceedings claiming a declaration that the refusal was invalid and, inter alia, relief by way of mandatory injunction ordering the Council to grant the licence. A motion for interlocutory relief was brought and the Court adjourned it and ordered that it be treated as the trial of the action. The hearing before me was based on the affidavits filed on the motion supplemented by such oral evidence as the evidence as the parties saw fit to adduce. The Plaintiff had obtained in 1977 permission under the provisions of the Local Government (Town and Regional Planning) Act, 1963 for the conversion of a haybarn and shed into a slaughter-house and submissions were initially made to the effect that by this permission an obligation in law was placed on the County Council to grant a slaughter-house licence. But this argument was subsequently expressly withdrawn, leaving two main grounds of attack on the order refusing the licence. Firstly, it was said that it was invalid because irrelevant matter was taken into consideration when refusing the licence. Secondly, it was claimed that it was invalid because the rules of natural justice were breached in that the Plaintiff was not given an opportunity to be heard before his application was turned down. Thus, if the Plaintiff succeeds the Council will be required to reconsider the application, but will not be ordered to grant it.

3

As the determination of the issues in this case depends partly on certain findings of fact which I must make and partly on the application of legal principles to those facts it will be convenient if I begin this judgment by briefly outlining the history of the Plaintiff's application and in the course of doing so indicate my conclusions on any contentious points of fact that have arisen. For reasons which will become clearer later, I should begin with the Plaintiff's application for development permission under the 1963 Act. This was dated the 16th June, 1977 and the development proposed was the "conversion of barn and leanto to slaughterhouse" The application stated that the "existing" water supply was to be used and that sewage disposal would take place by means of a septic tank. A detailed plan showing the slaughterhouse, a cattle pen, a sheep pen, offal, and storage facilities for skins and meat was filed with the application. Notification of a decision to grant the permission was given by notice of the 26th August, and the notification of the grant of the permission was dated the 3rd October. The permission was granted subject to two conditions; the first related to the disposal of offal and other waste material; the second related to the septic tank and percolation area. Sometime later the Plaintiff proceeded to build a slaughter house on his lands and finished the work about the month of March, 1980. Very imprudently he was not consent to carry out the development in accordance with the permission he had obtained. Instead he quite illegally added an enclosed building beside and connected to the converted haybarn which not only houses the electrical appliances for the slaughter-house but more significantly considerably extends the accommodation for sheep pens. The area now developed is approximately 30–40, greater than that in respect of which development permission under the 1963 Act was given. The Plaintiff's counsel accepts that this development is unauthorised.

4

Having completed his construction work the Plaintiff on the 15th April 1980 applied to the Limerick County Council for a slaughter-house licence. The application was initially dealt with by the then acting county secretary Mr.O'Connor. He referred it to Dr. Quinlan, Director of Community Care and Chief Medical Officer of the Mid-Western Health Board, who inspected the premises on the 27th May. He brought with him Mr. Barnes who is the Chief Veterinary Officer of the Limerick Corporation. A conflict of evidence arises as to what Mr. Barnes said when he act the Plaintiff and I have no difficulty in concluding that the Plaintiff's recollection on the matter is mistaken. Mr. Barnes did not tell the Plaintiff that his proposed abbatoir would cause financial hardship to the abbatoir managed by the Limerick Corporation and he did not ask the Plaintiff to come to his office in Limerick "to talk business" with him. Accordingly, I reject the suggestion made by the Plaintiff in paragraph 13 of his affidavit that his application was refused because of the financial effect it would have on the Limerick Corporation's abbatoir.

5

After receiving Dr. Quinlan's report (dated the 12th June) Mr. O'Connor wrote to the Plaintiff by letter of the 7th July. As this letter features prominently in the submissions made on the Plaintiff's behalf I think I should quote it in full. It reads as follows:

"Dear Mr. Doupe,"

6

I refer to your application for a slaughter-house License. To enable me to consider the matter further, I would if you would let me have the following information:

7

(1) The maximum number of cattle and sheep you propose to slaughter per week.

8

(2) Details of your proposed arrangements for the disposal of the hides, blood and contents of beef and sheep bellies, giving the name of the person or firm who would collect the materials, how often they would be collected and naming the final place of disposal.

9

(3) The slurry tank situation at the rear of the slaughter house does not seem adequate to deal with the effluent resulting from the slaughter of a large number of animals. It is understood that you propose to have the slurry emptied from the slurry tank and spread on low lying land. This, however, does not seem feasible in winter conditions.

10

I await hearing from you"

11

The Plaintiff replied to this letter on the 9th July, informing the council that it was proposed to slaughter 80 cattle and 200 sheep approximately per week. He gave particulars of the proposals for the disposal of the matter referred to in paragraph 2 of Mr. O'Connor's letter. As to the slurry tank he said

"The tank holds 35,000 gallons of slurry. The water seeps away through the field from the tank thus leaving the slurry in the tank. The solid manure in the bellies is loaded on a trailer and taken to make a manure heap similar to a farmyard manure heap then spread as fertiliser on the land at intervals. The slurry is spread in a field well away from the slaughter house. There is an old roadway through the farm and through the field where the slurry will be spread making it possible to spread it anytime".

12

Mr. O'Connor sent this letter to the Chief Medical Officer for his report and recommendations. On the 31st July he made his recommendations. The first point he made was that the total number of killings should be limited to a maximum of 20 cattle and 100 sheep per week, a figure it will be noted well below that proposed by the Plaintiff in his letter of the 9th July. Dr. Quinlan also pointed to the need to screen the effluent from the slurry house before it entered the tank; the need for a daily veterinary inspection; and the need for the Plaintiff to comply with the Council's Bye-laws. He expressed the view that a licence could be issued if the requirements he set out were complied with.

13

After receipt of this report in the offices of the County Council a number of important developments occurred which involved Mr. Hughes, who was acting as county secretary, in the absence on leave of his colleague, Mr. O'Connor. The Plaintiff says that he went into the County Council offices about the middle of August and had an interview with Mr. Hughes. His recollection in this regard is incorrect. Mr. Hughes had a telephone conversation with the Plaintiff on the 7th August (it is possible to be precise about the date as he recorded it the same day in a letter to the Council's solicitor)but he had no interview with the Plaintiff and indeed had never seen him until the trial of this action. What transpired between them on the telephone is of considerable significance. The Plaintiff has sworn that after he received a new form of application from the County Council (dated the 12th August, 1980) it was indicated to him that if he reduced the number of animals he wanted to be killed that a licence would be granted to him, and that on above the 14th August he had a conversation with Mr. Hughes and that during his interview he agreed to a reduction in the number of cattle slaughtering by a half and a reduction in the number of sheep slaughterings by one quarter for a trial period of one year and that Mr. Hughes indicated that this was acceptable. Again, it is clear that the Plaintiff's recollection of the substance of his conversation with Mr. Hughes is incorrect. Mr. Hughes was only filling in during Mr. O'Connor's holidays and as the ultimate decision in any event was one for the County Manager and not for the County Secretary he was in no position to reach any agreement with the Plaintiff as to the terms on which a licence would be granted and I am satisfied that he did not do so. But he was aware of the urgency of the matter and his contemporary records show that he telephoned the Council's legal adviser on the 7th August to get his advice on the recomendations in Dr. Quinlan's report of the 31st July. On the same day...

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