Forum Connemara Ltd v Galway County Local Community Development Committee

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 10 August 2016
• Neutral Citation: [2016] IEHC 493
• Date: 10 August 2016
• Court: High Court
• Docket Number: [2015 No. 160 JR] (2015 No. 44 COM)

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED

BETWEEN

FORUM CONNEMARA LIMITED

APPLICANT

AND

GALWAY COUNTY LOCAL COMMUNITY DEVELOPMENT COMMITTEE

RESPONDENT

[2016] IEHC 493

[2015 No. 160 JR]

(2015 No. 44 COM)

THE HIGH COURT

JUDICIAL REVIEW

Environment – Planning and Development – S. 50 of the Planning and Development Act, 2000, as amended – Practice and Procedures – O.84A of the Rules of the Superior Court Award of public contract – Judicial review – Fair procedures.

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for refusing to award the relevant public contract to the applicant. The applicant also sought various other ancillary reliefs. The applicant contended that the decision of the respondent to award the relevant contract to the named service provider was disproportionate and irrational as previously both the applicant and that named service provider were the programme implementers under the Social Inclusion and Community Activation Programme (SICAP).

Mr. Justice Hedigan refused to grant the desired relief to the applicant. The Court held that the decision of the respondent was crystal clear and set out reasons for choosing the named service provider over the applicant. The Court found that there was no disproportionality as alleged by the applicant as the respondent was bound by the parameters pertaining to the national programme. The Court held that the issue of irrationality could not be invoked as the original decision could not be challenged being statute barred in the light of the decision of the Court of Appeal in the present case.

JUDGMENT of Mr. Justice Hedigan delivered on the 10th of August 2016.

1. INTRODUCTION

1.1 In these proceedings, the applicant seeks judicial review of a determination of Galway County Local Community Development Committee under Order 84A of the Rules of the Superior Courts, 2010, relating to the review of the award of a public contract. The applicant herein seeks the following reliefs:-

1 '1. A Declaration that the decision made by the respondent, as set out in a letter dated 2nd March, 2015, from the respondent to the applicant, is invalid and ineffective.

2 Such alternative penalties as the Court may deem appropriate, including under Article 13 of S.I. No 130 of 2010 and including appropriate civil financial penalties and/or the termination or shortening of the duration of the contract.

3 An order of certiorari quashing the purported decision of the respondent to refuse to award the contract for the appointment of programme implementers to the Social Inclusion and Community Activation Programme ('SICAP') for the County of Galway, as set out in a letter by the respondent to the applicant dated 2nd March, 2015.

4 An Order pending a full inter partes hearing of the matter prohibiting the respondent from implementing, in any manner howsoever, the purported decision made on 2nd March, 2015 and evidenced in a letter dated 2nd March, 2015, which proposes to grant Galway Rural Development Company Limited the exclusive right to implement all Social Inclusion and Community Activation Programmes for the entire County of Galway, including Connemara pending further order of this Honourable Court.

5 Such further interlocutory Orders as may be necessary to correct the infringement that has occurred of the applicant's rights and or to prevent further damage to the applicant's interests including measures to suspend or ensure the suspension of the procedure for the award of the public contract the subject matter of these proceedings or the implementation of the decisions under challenge herein.

6 An Order treating the service of the Notice of Motion dated 12th May, 2015, (following on the grant of leave by Noonan J.), as an originating Notice of Motion in these proceedings for the purposes of Order 84A Rule 3 of the Rules of the Superior Courts, 1986, and dispensing with any requirement to issue a further Notice of Motion.

2. THE PARTIES

2.1 The applicant is a rural development partnership of voluntary, community and statutory bodies based in Connemara. Its main objective is to put in place strategies and programmes to tackle the problem of rural decline and peripherality in the Connemara area. Forum Connemara was established in 1990 by "Connemara West" to administer the EU Poverty 3 Programme and various other social programmes over the years. In 2006, the former Minister for Community, Rural and Gaeltacht Affairs decided that Connemara should have an organisation of its own to continue this work and deemed the applicant suitable and compliant for this purpose.

2.2 The Respondent Committee is a statutory body established pursuant to the provisions of the Local Government Act and, in particular, pursuant to Section 36 of the Local Government Act, 2014, which provided for the establishment of Local Community Development Committees ('LCDC's'). The establishment of these Committees were further provided for in Statutory Instrument No. 234/2014, which came into force only on 1st June, 2014. The respondent was also, at all material times, the contracting authority for the purposes of the award of the public contract under challenge in these proceedings.

3. BACKGROUND

FACTUAL BACKGROUND

3.1 Galway County LCDC was established in June, 2014. Under the Local Government Act 2001, it is charged with, inter alia, co-ordinating, managing and overseeing the implementation of local and community development programmes that have been approved either by the relevant local authority or by agreement between the LCDC and a relevant public authority, such as a Government Department or State Agency.

3.2 One such programme is the Social Inclusion and Community Activation Programme ('SICAP') which is aimed at tackling poverty and social exclusion in disadvantaged communities. That programme is managed and administered by local community development committees which provide direct funding to various programme implementers or service providers.

3.3 At a meeting held on 30th September, 2014, Galway County LCDC made a decision that there should be only one service provider or programme implementer for SICAP for the entire County of Galway. Previously, the funding for SICAP had been implemented by two separate programme implementers and each was in control of one of two areas or lots. Forum Connemara and Galway Rural Development Company Limited were the relevant service providers.

3.4 The award of the contract for programme implementer of SICAP was a two-stage procurement process. The result of the stage one phase led to five entities, including Forum Connemara, being deemed capable of delivering SICAP in County Galway and each of these were invited to participate in stage two of the process.

3.5 As mentioned above, on 30th September, 2014, Galway LCDC decided that there should be one programme implementer for SICAP for the whole county of Galway. Subsequently, an invitation to tender for the provision of programme implementation services for SICAP was issued to the five companies selected under the stage one procedure. The tender documentation was issued on 20th October, 2014. The same clearly outlined that the contracting authority, Galway County LCDC, required the delivery of services in respect of one single lot- Lot 27- the said area being in respect of the whole of the county of Galway as identified on the map contained in the tender documentation.

3.6 The budget for the SICAP for County Galway which would come under the control of the successful candidate was to be 1.2 million Euro or thereabouts for the period spanning April to December, 2015.

3.7 The applicant submitted a tender referable to what is described in its tender documents as Galway County (Lot 27) comprising an area of 5,796 kms (squared) with a population of 175,124 as of 2011. Sometime later, Galway Rural Development Company Limited was awarded the contract and by letter dated 2nd March, 2015, Forum Connemara was advised that it had been unsuccessful in its tender.

3.8 It is now accepted, although initially disputed, by Forum Connemara that the decisions of 30th September, 2014 and 2nd March, 2015, concern a contract which falls within the scope of the Public Works Contracts, Public Supply Contracts and Public Services Contracts Directive ( Directive 2004/18/EC) and the Review Procedures Directive ( Directive 2007/66/EC as amended) as implemented by S.I. 329/2006 European Communities (Award of Public Authorities' Contracts) Regulations 2006 and S.I. 130/2010 European Communities (Public Authorities' Contract) (Review Procedures) Regulations 2010.

PROCEDURAL BACKGROUND

3.9 On 23rd March, 2015, the applicant was given leave to apply for judicial review, seeking an order of certiorari quashing the decision of Galway County LCDC made on 30th September, 2014, that there should be one service provider or programme implementer for SICAP for the entire Galway County area. Forum Connemara was also given leave to seek to have the decision of 2nd March, 2015, to award the contract to Galway Rural Development Company Limited, quashed. An order was also made staying the decision of 2nd March, 2015, until the determination of the proceedings. On 12th May, 2015, the proceedings were transferred to the Commercial Court by Order of McGovern J.

3.10 In response, Galway County LCDC brought an application to strike out the proceedings on the basis that the claim was one to which the provisions of O. 84A applied and, as such were, at that time, improperly constituted under O. 84. It also sought an order striking out the applicant's challenge to the resolution of 30th September, 2014, to the effect that the implementation of SICAP should proceed by way of one lot, on the grounds of the delay on the part of Forum Connemara in seeking to challenge that decision....