Dublin City Council and Another v Standards in Public Office Commission and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 29 January 2014
• Neutral Citation: [2014] IEHC 89
• Judgment citation (vLex): [2014] 1 JIC 2902
• Court: High Court
• Date: 29 January 2014

[2014] IEHC 89

THE HIGH COURT

[No. 586 J.R./2012]

Dublin City Council & Quinn v Standards in Public Office Commission

JUDICIAL REVIEW

BETWEEN

DUBLIN CITY COUNCIL AND OISÍN QUINN

APPLICANTS

AND

STANDARDS IN PUBLIC OFFICE COMMISSION

RESPONDENT

AND

MICHAEL SMITH AND CIARAN PERRY

NOTICE PARTIES

Judicial review - Local government - Property restrictions - Permissible height of buildings - Rationality - Reasonability - Ultra vires - Conflict of interest - Adequate reasoning - Remoteness - Declaration of beneficial interest - Councillors - Reasonable perception of a member of the public - Fresh evidence - Declaratory relief - Local Government Act 2001

These proceedings concerned an application for judicial review challenging a report of the respondent, issued on the 16th February, 2012, in respect of an alleged contravention of s. 177(1) of the Local Government Act 2001 by the second named applicant. One of the functions of the first named applicant was to consider the permissible height of buildings in the city of Dublin. On the 2nd December 2012, the second named applicant was a Dublin City councillor who proposed and voted upon a resolution on this issue and, thereafter, spoke in support of and voted for a composite motion to increase the height of permissible office development in the city. He had previously sought advice from Council officials as to whether he was required by s. 177 of the Local Government Act 2001 (‘the 2001 Act’) to declare that he held an interest in an office block in Dublin, which would have required him to then cease his participation in the permissible height of buildings process. He had been advised, however, that such a declaration was not necessary.

The notice parties subsequently made a complaint to the respondent that the second named applicant had had a conflict of interest when he submitted and supported motions to increase the permissible height of buildings in Dublin. The second named applicant argued that his interest in the Dublin office block was so insignificant that it could not be reasonably regarded as likely to influence him. For that reason, it was said that s. 176(3)(a) of the 2001 Act applied and the interest did not have to be declared. However, the respondent upheld the complaint in respect of a number of the motions, stating that the second named applicant should have declared the interest pursuant to s. 177 of the 2001 Act and then withdrawn from the process. The judicial review proceedings were subsequently initiated with the applicants seeking an order of certiorari quashing the report of the 16th February 2012. They argued, inter alia, that the respondent failed to give adequate reasoning for its determinations, that its decision was irrational and/or unreasonable and that it acted ultra vires.

Held by Hedigan J. that the first named applicant had no locus standi because it had not been a party to the proceedings before the respondent. It was also noted that the second named applicant was now attempting to make certain arguments and forward evidence that had not been presented when the notice parties” complaint was considered. The first named applicant had argued that it had a right to participate in these proceedings because the respondent”s report had such a wide effect that it would be unable to effectively perform its functions in the future with so many councillors being required to declare interests in property and withdraw from making decisions of that nature. It was said, however, that no evidence had been produced to the Court to support this proposition.

In regards to the second named applicant”s case, it was noted that he had presented fresh evidence in support of his argument that his interest in the Dublin office block was so insignificant that it could not be reasonably regarded as likely to influence him. It was held that it would be inappropriate to consider such evidence because it had not been before the respondent when they considered the notice parties” complaint. On a consideration of the evidence that had been before the respondent, it was held that it was reasonable to determine that a member of the public who knew the facts of the case would reasonably think the second named applicant”s interest in the Dublin office block might influence the performance of his functions. It was also said that the reasons the respondent had provided for this finding were adequate and rational.

Reliefs sought refused.

1 JUDGMENT of Mr. Justice Hedigan delivered on the 29th day of January 2014

1. The Application

2 In these proceedings, the applicants challenge the report of the Commission issued on 16 ^th February, 2012, in respect of alleged contravention by the second named applicant of s. 177(1) of the Local Government Act 2001. They seek the following reliefs:

3 i "(i) An order of certiorari by way of application for judicial review quashing the report, including the findings and/or determinations therein, of the respondent.

4 (ii) A declaration that the respondent failed to set out its findings and/or determinations and failed to give reasons therefor.

5 (iii) A declaration that the decision of the respondent was irrational and/or unreasonable.

6 (iv) A declaration that the respondent erred in law and/or acted ultra vires.

7 (v) A declaration that the obligation to give advice under s. 25 of the Ethics in Public Office Act 1995, applies in respect of a contravention under Part 15 of the Local Government Act 2001.

2.1 The Background

8 There is no material dispute on the facts which are comprehensively outlined in the statement of facts prepared herein. Certain motions concerning the permissible height of buildings in the city of Dublin were considered by the first named applicant (hereafter DCC). In the course of these considerations, the second named applicant, Mr. Quinn, sought the advice of the manager, senior city planners and the law agent of the Council and other officials as to whether his interest in a office block at 84-93, Lower Mount Street, Dublin 2 constituted a beneficial interest for the purposes of Part 15 of the Local Government Act 2001, which would require him to disclose the said interest, withdraw, and not participate in any of the motions which related to the height of certain buildings in the city of Dublin. Mr. Quinn proposed and voted upon a resolution on 2 ^nd December, 2009, and subsequently spoke in support of and voted for a composite motion to increase the height of permissible office development in the city. Following a number of meetings, DCC adopted the Draft Development Plan on 22 ^nd December, 2010.

9 2 2.2 Subsequent to this, the notice parties made complaints to the effect that Mr. Quinn had a conflict of interest in relation to certain of these motions that he had submitted and supported. The complaint before the Commission related to specific, special meetings of the Council held on 2 ^nd December, 2009, and on 28 ^th July, 2010. The complaints were to the effect that Mr. Quinn should have disclosed an interest and withdrawn from any consideration or participation in discussion of the motions dealing with the increased permitted height levels in the city of Dublin. On 15 ^th March, 2011, following initial consideration of the complaint, the respondent (the Commission) appointed an inquiry officer to conduct a preliminary inquiry into the complaint. This officer presented his report to the Commission and it determined, on 10 ^th October, 2011, that it should carry out an investigation to determine if Mr. Quinn had contravened Part 15 of the Local Government Act 2001. In the course of his investigation, the inquiry officer had obtained a report from planning consultants Williams & Grist (the WG Report). This was furnished to Mr. Quinn by the inquiry officer on 22 ^nd July, 2011, during his preliminary investigation. Mr. Quinn was notified in writing of the Commission's decision to hold a full inquiry on 7 ^th November, 2011. In this letter, the Commission noted that it appeared that there was little or no factual dispute. Mr. Quinn's consent to the production of documents without the need of formal proof was sought. In his reply, Mr. Quinn did not take issue with the proposition that there was no factual dispute and he agreed to the admission without formal proof of the documents. Mr. Quinn made no request to compel attendance of any witnesses nor was any issue taken with the investigation conducted by the inquiry officer.

10 3 2.3 On 19 ^th December, 2011, the Commission convened a public sitting in order to carry out its investigation into the complaints made. Mr. Quinn was represented by solicitor and Senior Counsel. He called no witnesses and made no objection to the procedure. It was not suggested that there was any body of evidence other than that before...