Mungovan v Clare County Council

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 13 December 2017
• Neutral Citation: [2017] IECA 321
• Date: 13 December 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 321 Appeal No. 2016/233

[2017] IECA 321

THE COURT OF APPEAL

Peart J.

Ryan P.

Peart J.

Whelan J.

Neutral Citation Number: [2017] IECA 321

Appeal No. 2016/233

BETWEEN/

JOHN JAMES MUNGOVAN

PLAINTIFF/APPELLANT

- AND -

CLARE COUNTY COUNCIL

DEFENDANT/RESPONDENT

Planning and environment – Local authority – Register of waste water treatment consultants – Refusal to add plaintiff to register – Delay in claim

Facts: The appellant was an environmental engineering consultant, who sought to have his name added to the respondent planning authority’s Register of waste water treatment consultants. The respondent considered the plaintiff unsuitable for addition, and the appellant brought a claim before the High Court, challenging the basis for the refusal and the Register itself. The High Court had found that his claim was barred under the provision of s 50 of the Planning and Development Act 2000 as well as the Rules of the Superior Courts. He now sought to appeal.

Held by the Court that the appeal would be dismissed. Whilst the High Court’s ruling that s 50 of the 2000 Act applied would not be upheld, the finding of a failure to bring proceedings promptly in accordance with Ord 84, r 21 of the Rules would be upheld.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 13TH DAY OF DECEMBER 2017

1 By its Order dated the 30th May 2014 the High Court (Gilligan J.) with the consent of the parties ordered that in advance of any hearing of the substantive issues raised by the plaintiff in these proceedings, a preliminary issue raised by the defendant at para. 35 of its defence be heard and determined on the basis of a Statement of Agreed Facts (appended to the said order). That issue essentially is whether the plaintiff's claims are time-barred.

2 At para. 35 of the defence, the defendant stated those issues to be as to:

‘(1) the entitlement of the plaintiff to the equitable reliefs sought, having regard to the doctrine of laches, and/or

(2) whether any of the plaintiff's claims for the public law and other reliefs as sort at paragraphs 17 and 18 of the statement of claim in respect of the validity of the defendant's measure as sought to be challenged in the proceedings, are time-barred, pursuant to either the Statute of Limitations 1957 as amended, or were sought promptly, as required by Order 84, Rule 21 of the Rules of the Superior Courts and/or ss. 50 and 50A of the Planning and Development Act, 2000 as amended, within the time limits prescribed thereby, and/or by analogy with the provisions thereof.’

3 In both courts the arguments were principally addressed by reference to, firstly, the applicability of s. 50 of the Planning and Development Act 2000, as amended (‘the PDA’) and therefore the time limit of eight weeks therein provided, and/or, secondly, whether the time limit provided for in Ord.84 of the Rules of the Superior Courts for judicial review proceedings applied by analogy to the plaintiff's claims given their nature.

4 The trial judge concluded firstly that the plaintiff's claims as set forth at. 17 and 18 of his statement of claim were caught by s. 50 of the PDA (as amended), and were out of time, given the date of commencement of these proceedings by the issue of a plenary summons on the 4th November 2011, and, secondly, in the event that he was incorrect in relation to that, the nature of the reliefs being sought by the plaintiff were such that the rules as to time provided for in Ord. 84, r. 21 of the Rules of the Superior Courts for judicial review claims were applicable by analogy, and that the proceedings had not been commenced within the time provided in that rule. Having so concluded, the trial judge further ordered that the plaintiff's claim to be dismissed. The plaintiff appeals to this Court against the dismissal of his claims.

5 To better understand the nature of the claims made and reliefs sought by the plaintiff in his statement of claim, it is helpful to set out a brief background to the proceedings. It is convenient, and indeed appropriate, to do so by reference to the Statement of Agreed Facts.

6 The plaintiff is an environmental engineering consultant with a number of professional qualifications including an Honours Degree in Environmental Engineering (NUIG), specialising in wastewater treatment. The defendant is the planning authority for the County of Clare. From November 2004 until the 7th March 2013 the defendant established and maintained a ‘Register of Independent Suitably Qualified Agents/Consultants for Waste Water Treatment’ (‘the Register’) in conjunction with the requirement for applications to the defendant on or after the 15th November 2004 for planning permission for development in its functional area involving the proposed use of a septic tank, or other non-site treatment system. All applications in writing were to be accompanied by site suitability assessment tests specified in Appendix A of the Environmental Protection Agency (2000) Manual (or any updated document). Such assessments and tests were required to be carried out only by persons who were on the Register, who were required to have professional indemnity insurance.

7 The defendant required such tests and assessments in the interests of public health and environmental protection so as to ensure the safe disposal of wastewater from a development, and had invoked the provisions of s. 10 of the PDA and the relevant purposes as set out in Parts I, II and IV of the First Schedule thereto in respect of the provision and maintenance of the Register, and provided and maintained the Register as conducive to the performance of its statutory powers and functions.

8 On the 22nd August 2005 the plaintiff wrote to the defendant requesting that his name be included on the Register. By letter dated the 8th September 2005 the defendant requested the plaintiff to submit certain information in the event that he wished to be considered for the next round of interviews for inclusion on the Register. The plaintiff submitted such information to the defendant in November 2005.

9 The defendant attended for interview for inclusion on the panel on the 14th February 2006. However, by letter dated the 7th March 2006 he was informed that he had not been placed on the Register, but was advised that the panel was a rolling panel and that he could, if he felt it appropriate, submit a further application for inclusion in the future.

10 By letter dated the 26th November 2008 the plaintiff again requested that his name be added to the panel, and indicated that if the defendant failed to do so, he would be forced to take action to protect his constitutional right to work at his profession in his native county. The defendant responded by letter dated 10th December 2008 advising the plaintiff that in order to be included on the Register, he would have to successfully undertake another interview in early 2009 and submit copies of all relevant qualifications.

11 By letter dated 20th May 2009 an elected member of the defendant council, at the request of the plaintiff, sent in a Certificate of Course Completion, and made a request that the defendant respond to him regarding the plaintiff's chances of getting onto the Register. By letter dated the 25th May 2009 the defendant advised that elected member that further interviews would be undertaken in 2009, and that it would notify the plaintiff of the date and time for interview.

12 By letter dated the 11th February 2010 the plaintiff was notified of an interview scheduled for the 8th March 2010. He attended for that interview, but by letter dated the 16th March 2010 he was again informed that on the basis of the information available to the defendant, he had not been placed on the recommended panel of agents to carry out site assessments, and once more was provided with a copy of his interview assessment form for his information. He was also once again advised that the panel was a rolling panel, and that he could in future, if he wished, submit a further application for inclusion.

13 The site characterisation assessments which the plaintiff had submitted at interview were considered to be unsatisfactory by the defendant, and not to meet the requisite standard. The plaintiff was requested to provide additional reports in support of his application for inclusion, to enable a full consideration by the defendant of the tests which had been undertaken by the plaintiff. On the 18th March 2010 these additional reports were received from the plaintiff, and were referred to the defendant's Senior Executive Chemist and an Environmental Scientist in the defendant's Environment Section for review. The conclusion reached was not to recommend the inclusion of the plaintiff on the panel, and by letter dated the 28th May 2010, the plaintiff was so informed.

14 By letter dated the 9th June 2010, the Minister for Defence wrote on the plaintiff's behalf to the defendant's Senior Planner to make representations on his behalf, following which by letter dated the 6th August 2010 the plaintiff was invited to submit to new site characterisation reports to the defendant so that these could be reviewed, and if considered appropriate, would entail an invitation to the plaintiff to attend for interview to discuss same. Such further reports were submitted by the plaintiff on the 16th August 2010. A review of those reports highlighted areas which were considered to require further clarification. Such clarification was sought from the plaintiff by letter dated the 16th September 2010. The plaintiff responded to that request by letter dated the 22nd September 2010. Yet further information was sought by the defendant by letter dated the 7th October 2010, to which the plaintiff responded by letter dated the 5th November 2010.

15 At this point, the defendant considered that the details which had been provided precluded it from...