Duffy and Others v Dublin City Council and Another
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 28 January 2005 |
| Neutral Citation | [2005] IEHC 22 |
| Court | High Court |
| Docket Number | Record No. 562JR/2003 |
| Date | 28 January 2005 |
[2005] IEHC 22
THE HIGH COURT
DUBLIN
RSC O.84 r26(4)
ARDOYNE HOUSE MANAGEMENT v DUBLIN CORPPRATION 1998 2 IR 147
MATTER FOR MENTION HEARD BEFORE MR. JUSTICE T.C. SMYTH ON FRIDAY, 28TH JANUARY 2005
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
APPEARANCES
For the Applicants
MR. C. MacEOCHAIDH, BL
Instructed by:
MICHAEL CAMPION & CO.
Keeston House
Arran Court
Smithfield
Dublin 7
For the Respondent
MS. N. BUTLER, SC
MR. C. BRADLEY, BL
Instructed by:
DUBLIN CITY COUNCIL
Civic Offices
Wood Quay
Dublin 8
For the Notice Party
MR. E. GALLIGAN, SC
MR. R. BANIM, BL
Instructed by:
COPYRIGHT: Transcripts are the work of Gwen Malone stenography.Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography services
MR. MacEOCHAIDH: May it please the Court. This matter has been remitted for two reasons:- (1) to come to a decision on what form of order should follow the Court's judgment and (2) to deal with the question of costs. If I could just address the Court first on the form of order.
Might I first of all mention as a minor and preliminary matter your Lordship's own judgment, I don't know if you have a copy of it there, at page 8 of that judgment, your Lordship as part of judgment but not as part of the ratio of the case, at the very last line does make a reference to drawings BK130\11 and the comments made on it. The Court may recall that at the end of my submissions, I mentioned that some documents had been improperly put before the Court in an affidavit of discovery and that the correspondence had agreed that they were incorrectly placed before the Court. Unfortunately, that was one of the documents that was improperly, so the Court may wish for the sake of completeness and for the sake of the record to omit that paragraph from the judgment. It is not critical, but given that there is a stenography version of your judgment, that may be something that the Court may want to consider. It is not part of the ratio in any way, it is only a matter of clarification.
MR. JUSTICE SMYTH: Yes.
MR. MacEOCHAIDH: As to the form of order, he Court invites an order, declaration, but before that announces that there would be no prejudice to any party if an order of Certiorari were to issue. I am looking at page 19 of the judgment.
MR. JUSTICE SMYTH: Yes.
MR. MacEOCHAIDH: It says:
"There is no prejudice to the Respondent in a form of order in Judicial Review proceedings, either declaring that the third party may proceed with the development in accordance with the permission dated 18th October only, or the order as a whole and an order of Mandamus to issue anew the compliance order omitting any reference to the submissions of 26th February."
Now I have prepared a draft order which I think is before the Court and before the parties.
MR. JUSTICE SMYTH: Yes.
MR. MacEOCHAIDH: But as an alternative to that, might I suggest that the Court would consider making an order pursuant to Order 84, Rule 26(4) which provides that:
"where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the court, tribunal or authority concerned with the direction to reconsider it and to reach a decision in accordance with the guidance of the court."
The advantage, in my respectful submission, of making an order pursuant to that particular provision under the rules is that this Court and Counsel wouldn't have to engage in framing a planning order as appropriate. You would simply be asking the local authority to take account of this judgment which says that the order is defective and ambiguous and should be restricted to drawings received on 18th October and let them make the proper order that follows from it. so it quashes and remits and then they make the decision again. That might be the most appropriate way out of it. If the Court doesn't want to do that, then I would ask the Court to consider making an order in the terms of the draft order that I have submitted.
MR. JUSTICE SMYTH: That is first seeking declaration that the orders are defective because of ambiguity and then a declaration that the Third Party or any party seeking to carry out development pursuant to the planning registered reference confined to a development which corresponds to the footprint of the structures indicated by drawings submitted on 13th October received by the Respondent; insofar as those drawings refer to a bicycle shed in Church Lane outside the site in respect of which the planning permission was sought, it should be "except", I presume?
MR. MacEOCHAIDH: Pardon?
MR. JUSTICE SMYTH: "Confined to a development which corresponds to the footprint". Then it goes on: "Save insofar as those drawings refer to a bicycle shed." I see what you are at, yes, very well.
MR. MacEOCHAIDH: The particular difficulty is that the disadvantage of proceedings by way of making declarations only is that there is still on the record the ambiguous order and a third party in future might not get sight of this Court order; it may not be placed with the title or it may not be placed on the planning file. so I do think that the neatest way of dealing with the Court's judgment is to remit the matter and ask them, with direction, that they re-draw the order in accordance with the Court's judgment, and the court's judgment is perfectly clear.
MR. JUSTICE SMYTH: All right, very well.
MR. MacEOCHAIDH: May it please the Court.
MR. JUSTICE SMYTH: Ms. Butler?
MS. BUTLER: My concern is with the form of the draft order that the Applicants have submitted to us. It would be of concern to Dublin City Council as planning authority that the order not take the form of a series of declarations. If, on foot of your Lordship's judgment, the compliance order has been found to be invalid, it is our view that the appropriate thing to do is to quash it and, for the interests of clarity, to quash it in its entirety with whatever direction the Court might feel necessary as regards the issuing of any further compliance orders in the reconsideration of the matter.
MR. JUSTICE SMYTH: In other words, just the first declaration only is suggested in the draft, is that it?
MS. BUTLER: Without any of the declarations. Why is there any legal need for a declaration that the original order is ambiguous if it is going to be quashed? It doesn't follow that there is a need for any declaration. Your Lordship has delivered a judgment which is now in written form and in the circumstances, if the order is to be quashed, I think it is unnecessary for the Court to go through its judgment and to put its reasons into the form of a declaration. It doesn't add anything.
MR. JUSTICE SMYTH: In other words, you are prepared to accept an order of Certiorari?
MS. BUTLER: An Order of certiorari. In fact, not only am I prepared to accept it, but having considered the matter from the point of view of the planning file, it would be preferable that if the compliance order is to be treated as invalid that it would be quashed by the Court so that there can be no future doubt.
MR. JUSTICE SMYTH: What do you say then to the extent that the developer, having made one application which in large measure, if not totally, meets the requirement? Is he not entitled to expect that there will issue then a form of compliance, however qualified, about those elements of the October 2003 that are outside the bounds?
MS. BUTLER: Certainly, my Lord, we would have no difficulty in accepting a direction that any further compliance order is to be consistent with the site layout plan for October 2003 with whatever further drawings may be necessary in respect of the bicycle shed portion, which was the reason that that wasn't approved immediately by the planner.
MR. JUSTICE SMYTH: Yes. If that is to be the case, shouldn't the compliance order in that case, it is really in a sense more or less what Mr. MacEochaidh is saying, except not in declaratory form, that you would accept that so much of it as indicated the correct compliance, i.e. the footprint of the building, that that should be permitted but no other part of the drawing that strayed outside the terms of the planning permission had any sanction as a result of the compliance.
MS. BUTLER: That is correct.
MR. JUSTICE SMYTH: Is it really a question to be framed in terms of a declaration or is it simply that the compliance order does comply with the directions of the Court as expressed in the judgment?
MS. BUTLER: I don't think there is a need for an Order of Mandamus, it is not the intention of Dublin city Council to appeal your Lordship's decision. They are happy to comply with any direction which your Lordship would make. So I would suggest an order of Certiorari which would entail remitting the matter and if the Court feels it appropriate, a direction to Dublin City Council as regards the further compliance order and its consistency with the layout plans submitted in October 2003.
MR. JUSTICE SMYTH: All right. A direction rather than a declaration.
MS. BUTLER: I would suggest so, my Lord.
MR. JUSTICE SMYTH: The only point about that is, and I...
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