Duffy v Laois County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 29 October 2014
• Neutral Citation: [2014] IEHC 469
• Docket Number: [2013 No. 720 J.R.]
• Court: High Court
• Date: 29 October 2014

BETWEEN

MICHAEL DUFFY

APPLICANT

AND

LAOIS COUNTY COUNCIL

RESPONDENT

[2014] IEHC 469

[2013 No. 720 J.R.]

THE HIGH COURT

Planning permission – Statutory site assessment – Preliminary issue – Applicant seeking to challenge an ultra vires practice of the respondent – Whether applicant has the requisite standing to bring these proceedings

Facts: The applicant, Mr Duffy, is a chartered engineer based in Co. Clare at a distance of 159km from Co. Laois. Mr Duffy was anxious to get work from the general public where he could, including the provision of site assessments for a fee in areas (such as Co. Laois) a little distant from his home. Some local authorities previously operated a panel system whereby only those consultants who were on a panel were entitled to do this type of site assessment work. Mr. Duffy challenged the legality of this practice in proceedings involving Sligo County Council (2012, No. 469 JR) and by decision of the High Court in 2013 the practice was held to be unlawful. At some point thereafter, Mr Duffy learnt that the respondent, Laois County Council, operates a variant of this system, save that in Co. Laois only authorised Council personnel are permitted to carry out the site assessment. Mr Duffy wrote to the Council to protest, complaining that this practice was not authorised by the terms of the Planning and Development Regulations 2006 and calling upon it to desist from a practice which he contended was ultra vires. Mr Duffy called upon the High Court to determine this question as a preliminary issue. The Council disputed the standing of the applicant to challenge the legality of this practice on two fundamental grounds: firstly the applicant had no previous involvement with the Council in relation to planning or site assessment matters and that his first interaction with the Council was when he corresponded regarding the legality of the practice; secondly it was neither feasible nor commercially practicable for an applicant resident in Co. Clare to have any real interest in site assessments in Laois. The second preliminary issue that was to be determined by the Court was whether Mr Duffy was out of time by reason of the short delay in commencing the proceedings. The present proceedings commenced on 8th October, 2013, and the letter from the Council was sent on 3rd July, 2013. Since that was the letter which confirmed the existence of the practice and confirmed its terms, time might be said to have run from that date.

Held by Hogan J that, having considered the nature of the present proceedings, the applicant’s standing cannot be entirely divorced from the case which he would otherwise seek to make, namely, that if the Council were to be entitled to have an exclusive system whereby only Council personnel could perform such tasks, this would have to find express provision in the relevant statutory scheme. The challenge, accordingly, was to the exclusivity of the procedure adopted by the Council so far as the kind of persons who are entitled to perform this function is concerned. Hogan J considered that it is clear from O’Neill v Minister for Agriculture [1998] 1 IR 539 that any suitably qualified citizen has the right, in principle, to apply to be permitted to discharge any function provided for by law. Hogan J found that the principle identified in O’Neill applies in this case because the applicant, as a chartered engineer enrolled under the Institution of Civil Engineers of Ireland (Charter Amendment) Regulations Act 1969, is just as qualified in law to perform the site assessment service as much as any other suitably qualified professional. Hogan J held it to be irrelevant that the applicant has not yet performed these site assessment functions in Co. Laois and that it is likewise irrelevant that the Council considers that there were good reasons for the policy or that it believes that it would not be economically viable for an engineer based in Co. Clare to offer to perform these services in Co. Laois. Hogan J held that since Mr Duffy is plainly qualified with an interest in providing the service, he has sufficient standing to challenge the practice. Considering whether Mr Duffy is out of time, Hogan J held that time only runs from the date the cause of action accrued. Hogan J held that if the present case related to an individual decision of the Council, then the applicant would have been out of time, but since the policy applied by the Council is a general one there is a fresh daily accrual for time purposes of the case of action for so long as the policy is applied. Mr Duffy held that the applicant was within time when he commenced the proceedings.

Hogan J held that he would determine the preliminary questions raised by ruling (i) that the applicant has the requisite standing to bring these proceedings and (ii) that when he commenced the proceedings he was not out of time.

Application granted.

Mr. Justice Hogan

JUDGMENT of Mr. Justice Hogan delivered on 29th October, 2014

1 Has an engineer who is based some 160 km away from Co. Laois sufficient standing to challenge an administrative practice of Laois County Council which provides that only Council personnel are authorised to perform a statutory site assessment as a part of the planning permission process? This is, in essence, the principal question which this Court is now required to determine as a preliminary issue. The issue arises in the following way.

2 Article 22(2)(c) of the Planning and Development Regulations 2006 ( SI No. 685 of 2006)(“the 2006 Regulations”) provides that in the case of any planning application “where it is proposed to dispose of wastewater from the proposed development other than to a public sewer” then “information on the on-site treatment system proposed and evidence as to the suitability of the site for the system proposed” shall accompany the proposal.

3 Mr. Duffy is a chartered engineer based in north Co. Clare, a distance of some 159km from Borris in Ossory, the nearest point of Co. Laois from the applicant’s residence. It is clear, as a chartered engineer, Mr. Duffy falls into that category of persons eminently qualified to carry out such a site assessment. Indeed, such is tacitly recognised by Article 9 of the Building Control (Amendment) Regulations 2014 ( S.I. 9 of 2014), the schedule for which provides that persons named on a register maintained pursuant to s. 7 of the Institution of Civil Engineers of Ireland (Charter Amendment) Regulations Act 1969(“the 1969 Act”) ( i.e., a chartered engineer) are among those qualified to give the appropriate certificate of compliance in relation to the design of building works.

4 In these difficult economic times it is plain that Mr. Duffy is anxious to get work of this nature from the general public where he can, including the provision of site assessments for a fee in areas (such as Co. Laois) a little distant from his home. Some local authorities previously operated what was described as a panel system whereby only those consultants who were on a panel were entitled to do this type of site assessment work. Mr. Duffy challenged the legality of this practice in proceedings involving Sligo County Council (2012, No. 469 JR) and by decision of this Court (Cooke J.) on 21st January 2013 the practice was held to be unlawful. In the wake of this decision it appears that several other local...