White v Dublin City Council

• Jurisdiction: Ireland
• Judge: DENHAM J.,FENNELLY J.
• Judgment Date: 10 June 2004
• Neutral Citation: [2004] IESC 35
• Date: 10 June 2004
• Court: Supreme Court
• Docket Number: [S.C. Nos. 44, 46 and

WHITE v. DUBLIN CITY COUNCIL & ORS

BETWEEN

MAUD WHITE and MICHAEL WHITE

Applicants/Respondents

and

DUBLIN CITY COUNCIL IRELAND and THE ATTORNEYGENERAL

Applicants/Respondents

and

KEVIN TRACEY

Notice Party/Appellant

[2004] IESC 35

Denham J.

Murray J.

McGuinness J.

Fennelly J.

McCracken J.

44, 46 & 47/03

THE SUPREME COURT

Synopsis:

- [2004] 1 IR 545 - [2004] 2 ILRM 509

Facts: The applicants claimed a declaration that s. 82(3B)(a)(i) of the Local Government (Planning and Development) Act 1963 as inserted by s. 19(3) of the Local Government (Planning and Development) Act 1992 was invalid having regard to the provisions of Article 40.3 and Article 43 of the Constitution. Specifically, the applicants claimed that the absolute two month time-limit to challenge a decision to grant planning permission and the absence of a provision for an extension of time was unconstitutional in circumstances where the aggrieved person did not know and could not reasonably have known within the two month period that the decision affected his interests.

Held by the Supreme Court (Denham, Murray, McGuinness, Fennelly and McCracken JJ) in dismissing the appeal that the High Court was correct in holding the provision repugnant to Article 40.3 of the Constitution. The section by excluding any power to extend time undermined or compromised a substantive right guaranteed by the Constitution, namely the right of access to the courts.

Reporter: R.W.

Citations:

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(b)(a)(i)

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

CONSTITUTION ART 40.3

CONSTITUTION ART 43

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S82

IN THE MATTER OF ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

TUOHY V COURTNEY 1994 3 IR 1

CAVERN SYSTEMS DUBLIN LTD V CLONTARF RESIDENTS ASSOCIATION 1984 ILRM 24

BRADY V DONEGAL CO COUNCIL 1989 ILRM 282

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 ILRM 1 1994 2 IR 128

PLANNING & DEVELOPMENT ACT 2000 S50

STATUTE OF LIMITATIONS 1957

CAHILL V SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957 S11(2)(b)

O'BRIEN V MANUFACTURING ENGINEERING CO LTD 1973 IR 334

O'BRIEN V KEOGH 1972 IR 144

HEGARTY V O'LOUGHRAN 1990 1 IR 148

STATUTE OF LIMITATIONS ACT 1957 11(2)(a)

CONSTITUTION ART 26

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S5(2)(a)

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) REGULATIONS 1994 SI 86/1994 ART 35

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) REGULATIONS 1994 SI 86/1994 ART 17(3)

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(b)(a)

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1992 S19

RSC O.84 r21

MCDAID V JUDGE SHEEHY 1991 1 IR 1

ROCHE V MIN FOR INDUSTRY 1978 IR 149

MINERALS DEVELOPMENT ACT 1940

M & M V BORD UCHTALA & AG 1977 IR 287

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

1 JUDGMENT of the Court delivered on the 10th day of June, 2004by DENHAM J.

2 The applicants, who are respondents on the appeal, (hereinafter "the respondents the statement grounding their application for Judicial Review, claimed a declaration that see 82(3B) (a)(i) of the Local Government (Planning and Development) Act, 1963as inserted section 19(3) of the Local Government (Planning and Development) Act, 1992is in regard to the provisions of Article 40.3 and Article 43 of the Constitution. Their claim forJudicial Review of the decision of the first-named respondent/appellant, formerly the Mayor, Aldermen and Burgesses of Dublin, now Dublin City Council (hereinafter "the planning authority") was commenced outside the two-month time limit allowed by that section.

3 Section 19(3) of the Act of 1992 inserted the following provision into section 82 of the Act of 1963:

4 2 "(3A) A person shall not question the validityof—

5 (a) a decision of a planning authority on an application for a permission or approval under Part IV of this Act, or

6 (b) a decision of the Board on any appeal or on any reference, otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986)(hereafter in this section referred to as "theOrder").

7 3 (3B) (a) An application for leave to apply for judicial review under the Order in respect of a decision referred to in subsection (3A) of this section shall—

8 (i) be made within the period of two months commencing on the date on which the decision is given, and

9 (ii) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave)to—

10 (I) if the application relates to a decision referred to in subsection (3A) (a) of this section, the planning authority concerned and, where the applicant for leave is not the applicant for the permission or approval under Part IV of this Act, the applicant for such permission or approval,

11 (II) if the application relates to a decision referred to in subsection (3A) (b) of this section, the Board and each party or each other party, as the case may be, to the appeal or reference,

12 (III) any other person specified for that purpose by order of the High Court, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.

13 In the present case, the Court is concerned with the absolute two-month time limit imposed by the section, especially with the fact that there is no power to extend the time.

14 The respondents argued that, by enacting this provision, which contains an absolute and unqualified limitation period and without any provision for an extension of time in circumstances where an aggrieved person did not know and could not reasonably have known within the period that a decision had been made affecting his or her interests, the State has failed to respect and vindicate their personal and property rights.

15 The learned High Court judge identified the constitutional issue for determination as being:

"... whether the decision of the Oireachtas to legislate in the manner in question without the saving clause contended for on the part of the applicants was irrational such as to require this Court to strike down the impugned provision, where the failure of the applicants to bring the proceedings in question was one where the essential blame lies with the planning authority."

16 Having considered the matter, he reached the following conclusion:

"The applicants' ignorance of their rights during the short limitation period was caused by the first respondent's own wrong-doing and the law still imposes an absolute bar unaccompanied by any judicial discretion to raise it. I am satisfied in these circumstances that there must be very compelling reasons indeed to justify such a rigorous limitation in the exercise of a constitutionally protected right. The constitutionally protected right of the applicants is the right to litigate. Against that must be balanced the constitutional right of the notice party in his property to be protected against unjust or burdensome claims. The interest of the public is twofold, namely that constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims. There is also an interest of the public in proper planning and development. The issue in this case is whether the balance contained in the impugned provision is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights. This must be determined from an objective stance."

17 I am satisfied that the limitation period at issue in this case, in the absence of any saver, is so restrictive as to render access to the courts impossible for persons in the position of the applicants and that as such it must be considered to be unreasonable and, therefore, unconstitutional. I am satisfied that while the imposition of a limitation period such as that at issue in these proceedings must be such as inevitably to cause some hardship, "the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionallyflawed."" [This is a citation from the judgment of the court in Tuohy v Courtney, discussed later.]

18 reasonable policy decision, which it is for the Oireachtas to take. The decision of the Court in the Illegal Immigrants Bill caseshowed that an extremely short limitation period—in that case fourteen days—could be justified by objective reasons.

19 Counsel for the Attorney General next outlined the legislative policy considerations. These include the need for certainty about future development, the right of developers to know at an early stage that there is a challenge, to avoid unnecessary costs in planning appeals. These were recognised by Costello J in Cavern Systems Dublin Ltd v Clontarf Residents Association [1984] I.L.R.M. 24. Despite the declaration by Costello J in Brady v Donegal County Council [1989] I.L.R.M. 282 that section 82(3B)(a)(i) was unconstitutional (a decision set aside by this Court for other reasons), the Oireachtas made the deliberate choice to re-enact the absolute time-limit in 1992. This, in itself, belies the contention that this legislative decision is irrational. The rationale was explained by Finlay C.J. in KSKEnterprises Limited v An Bórd Pleanála [1994] 2 I.R.128 at page 135: a person who has obtained planning permission should "at a very short interval after the date of the decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge and therefore presumably left in a position to act with safety upon the basis of that decision."

20 The Attorney General acknowledges that section 50 of the Planning and...