T.D.I. Metro Ltd v Delap (No. 2)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Keane C.J.,Mr. Justice Geoghegan,Hardiman J.
• Judgment Date: 05 July 2000
• Neutral Citation: [2000] IESC 62
• Date: 05 July 2000
• Docket Number: [S.C. No. 208 of 1999]

[2000] IESC 62

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

208/99

TDI METRO LTD & HALLIGAN v. DELAP & FINGAL CO COUNCIL

Between:

T.D.I. Metro Ltd. and Patrick Halligan

Applicants/Respondents

and

Judge Sean Delap

Respondent

and

Fingal County Council

Notice Party/Appellant

and

The Attorney General

Added Notice Party

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S80

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S13

DPP, PEOPLE V MCDONAGH 1996 1 IR 565

CUMANN LUTHCHLEAS GAEL TEORANTA V WINDLE 1994 1 IR 525

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S9

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S80(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S8(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S9(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S20(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S20(7)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S9(1)

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S9

CONSTITUTION ART 30.3

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S8

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S20

CRIMINAL JUSTICE ACT 1951

CRIMINAL PROCEDURE ACT 1967 S5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S90

MCDONNELL, AG V HIGGINS 1964 IR 374

CLARKE, STATE V ROCHE 1986 IR 619

AG V CONLON 1937 IR 762

DPP V LOGAN 1994 2 ILRM 229

COURTS (NO 3) ACT 1986

ENNIS, STATE V FARRELL 1966 IR 107

Synopsis:

Planning

Planning; statutory interpretation; applicants had failed to comply with statutory obligation to obtain planning permission for development; whether planning authority can only prosecute for summary offence or whether it can also prosecute for indictable offences provided they are tried summarily; whether the expression "prosecuted summarily" should be interpreted narrowly so as to confine it to prosecution for summary offences; whether the declining of jurisdiction by District Court could have the effect of retrospectively rendering invalid the prosecution up to that point; s. 80, Local Government (Planning and Development) Act, 1963; s. 13, Local Government (Planning and Development) Act, 1982;

Held: Appeal allowed; order of certiorari of High Court set aside.

TDI. Metro Ltd. v. Judge Delap - Supreme Court: Keane CJ., Geoghegan J., Hardiman J.(*dissenting), Denham J., Murray J

05/07/2000 - [2000] 4 IR 520 - [2001] 1 ILRM 338

Fingal County Council (the "planning authority") had brought a summary prosecution against the respondents pursuant to section 24 of the Local Government (Planning and Development) Act, 1963. The respondents were convicted in the District Court. The respondents sought to judicially review the conviction on the basis that the offence in question was an indictable one and that a prosecution could not therefore be brought by the planning authority but must be brought by the Director of Public Prosecutions. In the High Court McGuinness J accepted those arguments and granted an order of certiorari quashing the conviction in question. The planning authority appealed. The Supreme Court, in a majority judgment, held that the planning authority was entitled to bring the prosecution in question. This applied to summary offences or indictable offences of a summary nature. The appeal would be allowed. Hardiman J delivered a dissenting judgment.

1 JUDGMENT delivered the 5th day of July 2000by Keane C.J.

2 I agree with the judgment of Geoghegan J. There are two matters in respect of which I would wish to add some short observations.

3 It was urged on behalf of the applicants/respondents that, in construing the amendment effected to s. 80 of the Local Government (Planning and Development) Act 1963by s. 13 of the Local Government (Planning and Development) Act 1982, the court should have regard to the speech in DáilÉireann of the then Minister for the Environment when opening the debate on the second stage of the bill which subsequently became that Act. While not expressing any view as to whether this was an admissible guide to the construction of the relevant provision, the court allowed counsel for the applicants/respondents to open the relevant passage from the debate.

4 In the event, the passage in question from the Minister's speech proved of little, if any, assistance in resolving the problem of interpretation with which the court was confronted in this case. In the circumstances, I would expressly reserve for consideration in an appropriate case the question as to the extent, if any, to which parliamentary debates are admissible in the construction of legislation enacted by the Oireachtas. We were referred to the decision of this court in The People (Director of Public Prosecutions) .v. Michael McDonagh (1996) 1 IR565. That case, however, was not concerned with anything thatwas said during the course of parliamentary debates on a particular measure but with the legislative history of a particular provision. While there are undoubtedly authorities both of the High Court in this jurisdiction and the House of Lords which lend support to the proposition that in certain circumstances regard may be had to what was said during the course of the parliamentary debates on a particular measure in order to ascertain the meaning of one or more of its provisions, they were not opened to the court and, in the absence of any detailed argument on the issue, this court should not, in my view, express any concluded view as to how it should be resolved.

5 Another issue arose during the arguments as to the stage at which the Director of Public Prosecutions should assume the conduct of a prosecution, assuming, as the court now finds to be the case, that the planning authority were entitled at the least to institute the proceedings. In Cumann Lúthchleas Gael Teoranta .v. Judge Windle & Others (1994) 1 IR 525, Finlay C.J. said

6 I am also satisfied that, of course, as is usual in modern legislation, statutes may provide by express terms for the institution of proceedings by bodies corporate, and indeed, the entitlement under s. 6 sub-s. 1 of the Act of 1981 of a fire authority to institute summary proceedings is such a provision. There could be no reason why the Oireachtas could not in its discretion, in any particular statute, provide that a body corporate might institute proceedings for an indictable offence and prosecute them up to the stage of return or refusal of informations."

7 It appeared to have been accepted, during the course of the argument in the present case, that if the three preconditions to a summary disposition of the case required under s. 9 of the 1982 Act were not met, the case would have to be adjourned in order to enable the Director of Public Prosecutions to take over the prosecution. I cannot see why that should be so and it does not appear to have been the view of Finlay C.J. in the passage which I have just cited. In such a case, the District Judge retains seisin of the case and it remains one being heard in a court of summary jurisdiction on a complaint or summons and not on indictment. Until such time as the District Judge has determined to return the defendant for trial, a body such as a planning authority statutorily authorised to prosecute would appear to be in the same position as a common informer and there seems no reason why it should yield place to the Director of Public Prosecutions at any earlier stage than the return for trial. I express that view with some hesitation, however, since the matter was not fully argued in the hearing before this court.

8 I would allow the appeal and substitute for the order of the High Court an order refusing the application for judicial review by way ofcertiorari.

9 jud 137

10 JUDGMENT of Mr. Justice Geoghegandelivered the 5th day of July, 2000.

11 This is an appeal from an order of certiorari made by the High Court (McGuinness J.) on the 9th of June, 1999 in respect of an order of Judge Delap Respondent herein on the 26th February, 1998 on foot of which the Applicants on the Judicial Review Application and Respondents on the appeal were convicted of an offence under Section 24 of the local Government (Planning and Development) Act 1963as amended. Rather than set out in detail the grounding statement and the statement of opposition, particulars of which are fully set out in the judgment of the learned High Court judge, I will briefly explain what was really at issue.

12 Section 24 of the Local Government (Planning and Development) Act, 1963contains the basic statutory obligation to obtain planning permission for development. As originally enacted sub-section (3) of that section provided that a person who carried out development without permission was guilty of a summary offence and penalties in the form of fines were set out in the sub-section both for first offence and continuing offences. Section 80 (1) of the same act as originally enacted provided that an offence under the Act might be prosecuted by the Planning Authority in whose area the offence was committed. By Section 8 (3) of the Local Government (Planning and Development) Act 1982an offence under Section 24 of the 1963 Act was made an indictable offence. But under the provisions of Section 9 of the same Act ajudge of the District Court was given jurisdiction to try sumarily such indictable offence if:-

13 a "(a) the (judge) is of opinion that the facts proved or alleged against the defendant charged with such an offence constitute a minor offence fit to be tried summarily,

14 (b) the Director of Public Prosecutions consents, and

15 (c) the Defendant (on being informed by the (judge) of his right to be tried by a jury) does not object to being triedsummarily..."

16 Section 13 of the 1982 Act amends Section 80 of the 1963 Act by inserting the word "summarily" after the word "Prosecuted" in sub-section (1). The new sub-section following...