John Paul Construction Ltd v Minister for Environment, Heritage and Local Government

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 15 August 2006
• Neutral Citation: [2006] IEHC 255
• Court: High Court
• Date: 15 August 2006

[2006] IEHC 255

THE HIGH COURT

[No. 197 J.R./2006]

JOHN PAUL CONSTRUCTION LTD v MIN FOR ENVIRONMENT

COMMERCIAL

JUDICIAL REVIEW

BETWEEN/

JOHN PAUL CONSTRUCTION LIMITED

APPLICANT

AND THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT

RESPONDENT

AND

LOSAID TEORANTA

NOTICE PARTY

FINANCE ACT 1999 S50

TAXES CONSOLIDATION ACT 1997 PART 11A

TAXES CONSOLIDATION ACT 19971997 PART 10 CHAPTER 11

FINANCE ACT 2002

BUILDING CONTROL ACT 1990

TAXES CONSOLIDATION ACT 1997 S372AM

CARLTONA LTD v COMMISSIONERS OF WORKS 1943 2 AER 560

A (A) v MEDICAL COUNCIL 2003 4 IR 302 2004 1 ILRM 372

RSC O.84 r20(4)

CAHILL v SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957

LANCEFORT LTD v BORD PLEANALA & TREASURY HOLDINGS LTD 1999 2 IR 270 1998 2 ILRM 401

MULCREEVY v MIN FOR ENVIRONMENT & DUN LAOGHAIRE / RATHDOWN CO COUNCIL 2004 1 IR 72 2004 1 ILRM 419

LENNON v LIMERICK CITY COUNCIL UNREP LAFFOY 3.4.2006 2006/34/7201 2006 IEHC 112

PLANNING & DEVELOPMENT ACT 2000 S154

TAXES CONSOLIDATION ACT 1997 S372AT

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1979 S18

CRIMINAL ASSESTS BUREAU (CAB) v HUNT 2003 2 IR 168

RSC O.84 r21(1)

DE ROISTE v MIN FOR DEFENCE 2001 1 IR 190 2001 2 ILRM 241

SLOAN v BORD PLEANALA 2003 2 ILRM 61

PLANNING & DEVELOPMENT ACT 2000 S50

JUDICIAL REVIEW:

Locus standi

Sufficient interest - Substantial grounds -Alternative remedy - Delay - Applicant not applicant for certificates in question - Applicant gaining no benefit from certificates- Certificates ultimately granted by respondent - Whether defence of other court proceedings sufficient interest - Whether failure to pursue alternative remedy - Cahillv Sutton [1980] IR 269; Lancefort Ltd v An Bord Pleanála (No 2) [1999] 2 IR 270; De Roiste v Minister for Defence [2001] 1 IR190; Criminal Assets Bureau v Hunt [2003] 2 IR 168; Mulcreevy v Minister for the Environment [2004] 1 IR 72 and Construction Industry Federation v Dublin City Council [2005] IESC 16, [2005] 2 IR 496 followed -Housing (Miscellaneous Provisions) Act 1979 (No 27), s 18 - Taxes Consolidation Act 1997(No 39), s 372AT - Finance Act 2002 (No 5),s 24 - Rules of the Superior Courts 1986 (SI15/1986) O 84, rr 20(4) and 21(1) - Application for judicial review dismissed(2006/197JR - Kelly J - 15/8/2006) [2006] IEHC 255 John Paul Construction Ltd v Minister for the Environment, Heritage and Local Government

The applicant, building contractor, entered into a design and build contract with the notice party, developer. The development involved a mix of residential and commercial units. In this application, the applicant sought to challenge the manner in which the respondent dealt with an application for certain certificates in respect to the residential part of the development.

Held by Kelly J. in dismissing the application that the applicant did not have the necessary legal standing to prosecute it. It was guilty of delay in the commencement of the proceedings and there were no excusing circumstances which would warrant the court extending the time.

Reporter: R.W.

1 Judgment of Mr. Justice Kelly delivered the 15th day of August, 2006 .

Introduction

2 In October, 2003 the applicant (John Paul), which is a building contractor, entered into a design and build contract with the notice party (Losaid) which is a developer. The contract was in respect of a development known as The Tramway, Old Blessington Road, Tallaght, County Dublin (the development).

3 The development involved a mix of residential and commercial units.

4 The residential portion of the development consisted of student accommodation. Losaid intended that to be a qualifying development for the purpose of obtaining certain tax reliefs.

5 John Paul carried out the work and a certificate of practical completion of the development was issued by Cullen Payne architects on 20th December, 2004.

6 In this application John Paul seeks to challenge the manner in which the respondent (the Minister) dealt with an application for certain certificates in respect of the residential part of the development.

7 There has been a good deal of confusion on the part of John Paul as to the certificates which were sought. The certificates were misdescribed and mischaracterised in the application which was made to Peart J. ex parte on 20th February, 2006 and which resulted in leave being granted to bring this application. It was not until receipt of the replying affidavit from the Minister that the correct position appears to have been appreciated by John Paul. The fact that John Paul was not the applicant for such certificates may have been the cause of its confusion. It has certainly contributed to the difficulties which John Paul faces in endeavouring to obtain the reliefs sought in these proceedings.

The Certificates in Suit

8 In its statement of grounds and grounding affidavit John Paul contended that Losaid applied for a certificate of reasonable cost and a floor area compliance certificate in respect of the development. The grounding affidavit went into some detail as to the certificates required in order to be able to rely upon the provisions of s.50 of the Finance Act, 1999, which inserts Part 11A into the Taxes Consolidation Act, 1997.

9 In fact, no application was made for certificates of either of those types.

10 It is now accepted that the actual application made was for certificates of compliance pursuant to Part 10, Chapter 11 of the Taxes Consolidation Act, 1997, as amended by the Finance Act, 2002. This has resulted in John Paul having to amend both the reliefs sought and the grounds for them.

Progress of the Application

11 The application for the certificates of compliance was received by the Minister on 18th December, 2003. The document has been exhibited by the Minister and it is quite clear that it is an application for certificates of compliance in respect of a third level student accommodation scheme. The application was made on a standard form. The form is called an HPF2 form.

12 It is contended that the making of such an application was subject to the same conditions as those applying to the award of a grant to first time buyers of new houses. These conditions are set forth inter alia in a document intituled "HA 1 Explanatory Memorandum". The relevant version of that document has also been exhibited by the Minister. The version exhibited by John Paul has no application to these proceedings since it was produced in April, 2004 and thus postdated the application in suit.

13 On 23rd December, 2003, the Minister wrote to Losaid requesting further information on the application before an inspection of the project could be carried out.

14 This request was responded to and the information sought provided.

15 On receipt of this information the Minister's file was referred to a senior inspector of his Department, a Mr. Rafter. On 22nd April, 2004, Mr. Rafter wrote to Losaid seeking further information on the project. That was responded to on 17th May 2004, and the inspector visited the site shortly thereafter. He noted what he considered to be an unconventional form of construction in use and informed John Paul's construction representative on site of his concerns in that regard.

16 Shortly after that a representative of the parent group of Losaid spoke to the inspector concerning the issues which had been raised by him.

17 On 11th June, 2004, the inspector wrote to Losaid indicating that a certification by a competent body as to the suitability of the wall construction used and its compliance with the building regulations was required by the Minister.

18 The letter (insofar as it is relevant) read as follows:

"Further to our telephone conversations, additional information received and my recent site visit, I confirm as follows;"

19 1. The form of construction being used in the external walls is of an unconventional system (metal studwork, rain screens and external insulation systems). Certification by a competent body (NSAI, Irish Agrement Board or equivalent) as to their suitability and compliance with the Irish Building Regulations is required.

20 2. The compartment wall construction is single studwork with the services (electric wires etc.) contained therein. This form of construction also requires similar certification......

21 Further consideration of your application cannot be made until all the above information is received."

22 On 22nd July, 2004, a letter was sent to the Minister by the representative of the parent group of Losaid. It read as follows:-

"I refer to your letter of 11th June, 2004 and my fax of 6th July, 2004, regarding the above application. I was awaiting information from our building contractor, John Paul Construction and our architects, Cullen Payne, before replying to your letter."

23 1. John Paul Construction has assured us that the British Board of Agreement (sic) (BBA) will certify the form of construction used in the external wall. We will forward the relevant documentation in due course.

24 2. John Paul Construction has assured us that the form of construction used in the compartment walls will be certified. We will forward the relevant documentation in due course......

25 I trust the above is of assistance and I look forward to your comments. Should you wish to discuss any of the above points please do not hesitate to contact me."

26 A further meeting took place on 12th August, 2004. At that meeting the Minister's inspector was asked if a letter of intent concerning certification from the BBA would suffice. He made it clear that it would not.

27 In December, 2004, Losaid submitted what it contended was the appropriate certificate from the BBA. A further document issued by the BBA called an Irish Building Regulation Statement was furnished to the Minister's...