O'Neill v Kerry County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 827
• Docket Number: [2015 No. 687 J.R.]
• Court: High Court
• Date: 21 December 2015

BETWEEN

BARTH O'NEILL, DUNBOY GREENER HOMES LIMITED AND DUNBOY CONSTRUCTION AND PROPERTY DEVELOPERS LIMITED

APPLICANTS

AND

KERRY COUNTY COUNCIL

RESPONDENT

[2015] IEHC 827

[2015 No. 687 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Local government – S. 50 of the Planning and Development Act 2000 – Enforcement notice – Validity – Judicial review

Facts: The applicants sought leave for judicial review against the respondent challenging the validity of the warning letter issued by the respondent. The applicants contended that the said letter was time barred, vexatious and an abuse of the process of law.

Mr. Justice Richard Humphreys refused to grant leave for judicial review and listed the matter in order for the applicants to consider whether they wished to seek leave to appeal. The Court held that the enforcement notice was not amenable to judicial review unless it was of a vexatious nature and there were substantial grounds for contending that the decision of the concerned authority needed to be quashed, more so, such decisions being non-appealable. The Court found that the unauthorized use by the applicants on a piece of land without planning permission was a valid reason for which the impugned notice was issued, for which the planning authority need not require to carry out detailed investigation. The Court held that mere visitation of the site in question together with the examination of its history against the facts was a sufficient compliance with the requirements of s. 153 of the Planning and Development Act 2000.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2015

1 In 2004, the applicants commenced the construction of a large housing estate at Páirc Chumin, Clashnagrance, Kilcummin, Killarney, Co. Kerry. The development remains unfinished. Counsel for the applicants Mr. John J. Morrissey B.L. tells me that the applicants will say that in 2005 they began storing ‘ things related to building’ on the undeveloped part of the site.

2 In or before July 2015, the respondent council received representations from third parties expressing concerns regarding an unauthorised change of use of the site from residential to commercial use, involving the unauthorised placement of truck trailers or containers on site.

3 The council then issued warning letters to the applicants on 22nd July, 2015, stating that it had come to their attention that unauthorised development might be taking place on the site. The second named applicant complains that a warning letter was delivered to it addressed to ‘Dunboy Greener Homes’ rather than ‘Dunboy Greener Homes Limited’.

4 The applicants replied on 13th August, 2015, making essentially three points. Firstly, that enforcement action in relation to unauthorised change of use was time-barred. I might observe that any such allegation, even if legally open to the applicants (a matter disputed by the council), would turn on the evidence and would, therefore, go to the merits of any planning enforcement action as opposed to its legality, and is therefore not a matter for judicial review. In this regard, I would respectfully disagree with the views to the contrary of Mr. Garrett Simons S.C. as expressed in Planning and Development Law (2nd ed.) (Dublin, 2007) pp. 297-299. The merits of the notice as to the 7-year rule or any other factual determination that is a condition precedent can be revisited in any criminal proceedings for non-compliance but are not within the ambit of judicial review. In fairness to Mr. Simons he presciently accepts that ‘ many [judges] would baulk at having to undertake the fact-finding role necessary’ on his suggested approach to judicial review in this context (p. 299).

5 The second point made by the applicants was that the allegation of unauthorised development was ‘ vexatious’. This is an entirely spurious and unstateable point. Either the applicants are carrying on unauthorised development or they are not. Any citizen is entitled to bring concerns in relation to such matters to the attention of the local council. In doing so they are doing no more than fulfilling a civic duty that rests on all citizens to safeguard the natural and built environment (see my judgment in O'Mahony Developments Limited v. An Bord Pleanála [2015] IEHC 757), as well as engaging in the active citizenship participation in the overall planning process that is encouraged by national, international and European law (such as the Aarhus Convention and implementing directives and legislation). The validity of a complaint regarding unauthorised use does not depend on absence of an ulterior motive on the part of the complainant.

6 In correspondence, the applicants relied on the decision of the High Court in Sean Quinn Group Limited v. An Bord Pleanála [2001] 1 I.R. 505, in relation to abuse of process. That decision and the doctrine in relation to abusive litigation, has no application whatsoever to the issue of planning complaints. It is limited to circumstances where individuals commence legal action in the courts of a vexatious nature. A complaint that a person or entity is carrying out unauthorised development is a valid complaint which may be acted on by the council quite independently of any inquiry into the motivation of the person making the complaint. Indeed, it is of no small relevance to the present application that they have never asserted that they had permission to carry out the development. They are essentially saying that the council is too late to enforce the planning law against them. They have provided no answer to the council's contention that a time limit does not apply to a condition to enforcement of a condition in a planning permission, which is the situation here.

7 Furthermore, Birmingham J. in Taaffe v. Louth County Council [2013] IEHC 314 held that an anonymous planning complaint was valid (para. 13). This is inconsistent with the notion that the motive of the complainant is relevant.

8 The third response made by the applicants in correspondence is that they had ameliorated the visual impact. That is, of course, all well and good, but does not address the issue of unauthorised development.

9 In the light of the attitude set out in the applicants' response, which is in the circumstances tantamount to an admission that the applicants are carrying out development without authorisation, the council issued enforcement notices dated 22nd October, 2015, requiring the applicants to cease the use of the site for a commercial business related to insulation or any similar use by 30th October, 2015, and remove from the site all materials, machinery, containers and other identified items by 23rd December, 2015. Again, complaint is made as to the omission of the word ‘Limited’ from the name of the second named applicant.

Substantial Grounds Test

10 It was not altogether clear to me from the applicants' submission whether they accepted that the ‘substantial grounds’ test, as opposed to that of arguable grounds applied to this application. However, it is evident from s. 50A(3)(a) that of the Planning and Development Act 2000, as amended, that the court cannot grant leave under s. 50 of that Act unless it is satisfied that ‘ there are substantial grounds for contending that the decision or Act concerned is invalid or ought to be quashed’. The scope of s. 50 is wide, and by virtue of subs. (2)(a), includes any decision made or act done by a planning authority, a local authority or the board in the performance or purported performance of a function under the 2000 Act. The issue of an enforcement notice was an act purporting to be done under s. 154 of the 2000 Act, as appears on its face. Therefore, the substantial grounds test applies.

11 I now turn to the specific grounds of challenge to examine whether any of them constitutes specific grounds for contending that the enforcement notices are invalid and ought to be quashed.

Incorrect Name of Second Named Applicant

12 The second named applicant advances the absence of the word ‘Limited’ from its name on the enforcement notice as a reason for contending that the enforcement notice is invalid. While there may be contexts in which the precise corporate name is important, this is not one of them. In this context, the point is meritless. There can be no doubt that the notice was intended to be addressed to the second named applicant. If and when the council come to commence in court proceedings against the second named applicant, they should, of course, use its correct corporate title. If they fail to do so, that is of course not in itself fatal as the title can be corrected by order of the court, for example, under O. 15, r. 13 or O. 28 of the Rules of the Superior Courts or the...