Mungovan v Clare County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice David Keane
• Judgment Date: 17 August 2015
• Neutral Citation: [2015] IEHC 561
• Court: High Court
• Date: 17 August 2015

[2015] IEHC 561

THE HIGH COURT

[No. 9930P/2011]

Mungovan v Clare Co Council

BETWEEN

JOHN JAMES MUNGOVAN

PLAINTIFF

AND

CLARE COUNTY COUNCIL

DEFENDANT

Planning & Development – S. 50 of the Planning and Development Act 2000 as substituted by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006 – O. 84, r. 21 of the Rules of the Superior Courts – Lapse of time

Facts: Following the initiation of the proceedings by the plaintiff for seeking a declaration that the Register of Independent Suitably Qualified Agents/ Consultants for Waste Water Treatment maintained by the defendant was ultra vires, the plaintiff sought an order for determination of the preliminary issue as to whether the claim of the plaintiff was time barred u/s. 50 of the Planning and Development Act 2000 or under o. 84, r. 21 of the Rules of the Superior Courts in compliance of an earlier order of the Court to that effect. The plaintiff contended that since the defendant stopped maintaining the Register, his declaratory reliefs under public law became moot and he could proceed with an action in tort for malicious falsehood.

Ms. Justice David Keane held that the public law declarations sought by the plaintiff were time barred. The Court observed that the maintenance of the Register by the defendant was done in exercise of powers conferred to it within the meaning of s. 50 of the Planning and Development Act 2000 and hence, any challenge to its decision must be brought within the specified eight-week time limit. The Court found that the planning and development regulations and provisions needed to be read strictly as they had been enacted for carrying out developmental projects expeditiously in the public interest. The Court held that the Court should not allow unnecessary time relaxation under those statutes as it would impede the implementation of otherwise proper rules and procedures. The Court found that even otherwise the case of the plaintiff was barred under o. 84, r. 21 of the Rules of the Superior Courts as there was an undue and unreasonable delay in filing the plenary summons in the subject case.

1 JUDGMENT of Mr. Justice David Keane delivered on the 17th day of August, 2015.

Introduction

2 1. By Order of the Court made on the 30 ^th May, 2014, on consent between the parties, Giliigan J. directed the determination of certain preliminary issues in this case by way of a modular trial based upon a Statement of Agreed Facts appended to that Order.

3 2. The preliminary issue, which it is sought to have determined is, essentially, whether a significant part of the plaintiff's claim should be held to be vitiated by his delay in commencing these proceedings, whether by application of the doctrine of laches in respect of the equitable reliefs that he claims or for failure to comply with either the statutory time-limit under s.50 of the Planning and Development Act 2000, as substituted by s.13 of the Planning and Development (Strategic Infrastructure) Act 2006, or the requirement to move within the applicable time limits and, in any event, promptly in seeking declaratory orders in public law proceedings by analogy with the requirements of Order 84, rule 21 of the Rules of the Superior Courts governing applications for judicial review.

The plaintiff's claim

4 3. The plaintiff has a degree in environmental engineering and is, and was at all material times, an environmental engineering consultant. In these proceedings, instituted by plenary summons issued on the 4 ^th November, 2011, he seeks to challenge the lawfulness of a Register of Independent Suitably Qualified Agents/Consultants for Waste Water Treatment ("the Register"), which Clare County Council ("the Council") introduced in November 2004 and operated until withdrawing it in March 2013.

5 4. In his statement of claim, delivered on the 30 ^th of January, 2012, the plaintiff seeks a declaration that the Register lacked any legal or statutory basis and that, in consequence, the maintenance of the Register was ultra vires the Council and its operation constituted an unjust attack on the property rights of the plaintiff contrary to the provisions of Article 40.3 and Article 43 of the Constitution.

6 5. The plaintiff further claims damages for the financial loss caused to him by his exclusion from the Register and, significantly, damages for malicious falsehood, together with interest pursuant to statute.

7 6. In its defence, delivered on the 10 ^th June, 2013, the Council admits the introduction and operation of the Register, as alleged, but otherwise denies the plaintiff's claims.

Background

8 7. According to the Statement of Agreed Facts, the Register was established in conjunction with the imposition by the Council of a requirement upon applicants for planning permission, on or after the 15 ^th November, 2004, where the application involved the proposed use of a septic tank or other onsite treatment system, to include with their application the results of the appropriate site suitability assessment tests specified in Appendix A of the Environmental Protection Agency (2000) Wastewater Treatment Manual: Treatment Systems for Single Houses. In establishing the Register, the Council gave notice that, subject to limited exceptions, any application for a single house lodged on or after the 15 ^th November, 2004, must include such test results and that only persons on the recommended panel contained in the Register should be used for the purpose of carrying out such tests. All panel members were required by the Council to have current professional indemnity insurance, which applicants were advised to check before engaging a panel member.

9 8. The Council introduced the requirements just described in the interests of public health and environmental protection so as to ensure the safe disposal of wastewater from a development and having regard to the Council's development objectives, inter alia, for:-

10 (i) the provision, or facilitation of the provision, of water supplies, waste water services and ancillary facilities, and

11 (ii) the conservation and protection of the environment.

12 In doing so, the Council invoked the provisions of s.20 of the Planning and Development Act 2000 (as amended) and the relevant purposes set out in Parts I, II and IV of the First Schedule to that Act, and the Council asserts that it maintained the Register as conducive to the performance of such powers and functions.

13 9. The key interactions between the plaintiff and the Council in connection with the operation of the Register as it affected the plaintiff may be summarised as follows:-

14 (a) On the 22 ^nd August, 2005, the plaintiff wrote to apply for inclusion on the Register. The plaintiff was asked to provide further information and, subsequently, to attend for interview.

15 (b) On the 7 ^th March, 2005, the Council wrote to inform the plaintiff that he had not been successful but that, as the Council was operating a rolling panel, he was free to apply again in the future, by reference to whatever additional training, experience or qualifications he might have accumulated in the interim.

16 (c) On the 26 ^th November, 2008, the plaintiff again wrote seeking inclusion on the panel failing which, he stated, he would have no alternative but to take action to protect his constitutional right to work.

17 (d) On the 10 ^th December, 2008, the Council replied that a further interview would be necessary. That interview was ultimately scheduled to take place on the 8 ^th March, 2010, and the plaintiff attended it.

18 (e) On the 16 ^th March, 2010, the plaintiff was again informed that he had not been successful in his application. The plaintiff was informed that the "site characterisation assessments" that he had submitted in advance of interview were considered to be unsatisfactory and below the requisite standard and the plaintiff was requested to provide additional reports in support of his application to enable it to be fully or properly considered.

19 (f) On the 18 ^th March, 2010, the Council received the additional reports it had requested from the plaintiff and they were furnished to its Senior Executive Chemist and its Environment Section for review.

20 (g) On the 28 ^th May, 2010, the Council wrote to inform the plaintiff that the result of the review was to uphold the decision not to include his name on the Register.

21 (h) On the 6 ^th August, 2010, the Council wrote once again to the plaintiff inviting him to submit two new reports for review if he wished to make a further application for inclusion on the Register.

22 (i) On the 16 ^th August, 2010, the plaintiff submitted two new reports as requested.

23 (j) On the 16 ^th September, 2010, the Council invited the plaintiff to provide clarification of certain aspects of those reports at the request of its Environment Section.

24 (k) On the 7 ^th October, 2010, further queries were raised concerning the precise location of the sites, which were the subject of the relevant reports.

25 (l) On the 5 ^th November, 2010, the plaintiff provided a response to those queries.

26 (m) On the 6 ^th December, 2010, the Council e-mailed the plaintiff (fearing that postal deliveries might face weather disruption) to inform him that it considered it necessary to conduct a site inspection of one of the subject sites in the presence of the plaintiff and seeking to arrange one.

27 (n) On the 17 ^th December, 2010, the plaintiff's solicitors wrote to the Council on the plaintiff's behalf, requiring confirmation within seven days that the plaintiff would be added to the Register, failing which they would immediately apply to the High Court for leave to seek judicial review. It is common case that no such confirmation was provided and that no such application was made. Rather, the parties agreed to the...