High Court of Ireland Decisions

1. In these Judicial Review proceedings the Applicants seek an Order of Certiorari quashing the Order of the Respondent dated the 26th day of February, 1998 on foot of which the Applicants were convicted of an offence under Section 24 of the Local Government (Planning and Development) Act, 1963. Leave to issue the proceedings was granted by McCracken J. on the 18th June, 1998.

2. The proceedings arise out of a prosecution brought by the Notice Party (Fingal County Council) against the Applicants and heard by the Respondent as judge of the District Court. The prosecution was for offences alleged to have been committed by the Applicants contrary to the provisions of Section 24 of the Local Government (Planning and Development) Act, 1963 ("the 1963 Act") as amended in respect of the erection of an advertising hoarding on the west side of the Dublin/Belfast Road at Ballough, Balrothery, Co Dublin.

3. The first named Applicant is a limited liability company alleged to have carried out the unauthorised development as occupier of the land in question and the second named Applicant is the owner of the relevant land on which the alleged unauthorised development took place.

4. The form of the summons against the first named Applicant, which was dated the 11th day of December, 1997, was as follows:

5. The summons against the second named Applicant was in similar form.

6. The matter came before the Respondent in the District Court at Balbriggan on 12th February, 1998 and was adjourned for a period of two weeks.

7. On the 26th day of February, 1998 both summonses came on for hearing before the Respondent and were dealt with at the same time. Evidence was adduced by Fingal County Council of an inspection of lands at Ballough on the Dublin/Belfast Road and of the erection of an unauthorised advertising hoarding on the west side of the Dublin/Belfast Road. Evidence was also adduced by the planning authority of an Order made on the 9th day of September, 1997 of a principal officer of the said planning authority instructing the law agent for the said planning authority to institute prosecution proceedings against the second named Applicant as owner of the said lands and against the first named Applicant as occupier of the said lands, for the erection of unauthorised advertising hoardings. Solicitor for the Applicants, Mr Peter Dempsey, submitted to the learned judge of the District Court that the offences in question were indictable offences and that the Notice Party had not statutory authority to institute proceedings for an indictable offence. He referred to Section 80(1) of the Local Government (Planning and Development) Act, 1963 as amended by Section 13 of the Local Government (Planning & Development) Act, 1982 ("the 1982 Act").

8. The Respondent indicated that he was holding against the Applicants in relation to this jurisdictional challenge. The Applicants were then put on their election and elected for summary disposal of the offences with which they were charged. Following the hearing of the matter before the Respondent both Applicants were convicted of the offences charged. The Respondent imposed fines and ordered both Applicants to pay the measured costs of the Notice Party.

9. The Applicants issued their Judicial Review proceedings by Statement dated the 27th April, 1998. The grounds upon which the Applicants seek to quash the Orders of the Respondent are set out in the Statement as follows:-

10. The Notice Party filed the Statement of Opposition on the 2nd July, 1998. The Grounds of Opposition are set out as follows:-

11. At the hearing before this Court it was accepted that the Notice Party would not pursue either the estoppel point (paragraph 3 above) or the appeal point (paragraph 8 above). The Notice Party accepted that it did not purport to prosecute the offences as a common informer or otherwise than under its statutory powers. The real issue, therefore, agreed by Counsel to be "the heart of the case" is whether Fingal County Council had statutory power to prosecute, or to commence prosecution, in respect of the offences charged against the Applicants. It was accepted by the parties that the offences charged were indictable offences which could be tried summarily subject to statutory preconditions.

12. The relevant provisions of the Local Government (Planning and Development) Acts, 1963 to 1992 are as follows:-

13. Subject to the provisions of this Act, permission shall be required under this Part of this Act -

14. The remainder of this section is not relevant to the instant case.

15. Section 80 of the Principal Act is hereby amended by the insertion of "summarily" after "prosecuted" in subsection (1), and the said subsection (1), as so amended, is set out in the table to this section

16. During the course of their submissions to this Court Counsel also referred to article 30.3 of the Constitution and to Section 9 of the Criminal Justice (Administration) Act, 1924.

17. Article 30.3 of Bunreacht na hEireann provides as follows

18. Senior Counsel for the Applicant in his submissions relied on the authority of the judgment of the Supreme Court (Finlay C.J.) in Cumann Luthchleas Gael -v- Windle [1994] 1 IR 525. He pointed out that in that case the Supreme Court held, inter alia, that the right of a private prosecution, both in respect of a summary offence and of an indictable offence up to the stage of an order of return for trial, was an important common law right which had survived the enactment of the Constitution but that a body corporate could not prosecute privately or as a common informer. In that case the prosecution was brought by Dublin Corporation. The Supreme Court held that Dublin Corporation could not prosecute the offence in question as a common informer and in the absence of statutory authority could not prosecute the offence up to the stage for return for trial. The Court indicated that there was 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 the same up to the stage of a return or a refusal of information. Counsel submitted that similar considerations applied in the instant case. Counsel for the Notice Party submitted that the offences with which the Applicants were charged were indictable offences which, under Section 9 of the 1982 Act, could in the proper circumstances be tried summarily. The procedure up to the time of election in the District Court was purely an administrative one involving the hearing of complaints by a judge, the issuing and service of summonses on the Applicants and the procedure pursuant to Section 9 of the Act. The Notice Party had proceeded in a summary manner. If it had wished the matter to proceed on indictment, then the complaint would have been made to the Director of Public Prosecutions and the decision to prosecute on indictment would have rested with him. Counsel referred to Section 9 of the 1924 Act and submitted that the provision contained in Section 80 of the Local Government (Planning and Development) Act, 1963 (as amended) was a provision authorising the Notice Party to prosecute in a court of summary jurisdiction. Thus under that section it was "authorised in that behalf by the law for the time being in force". He referred also to the similar phraseology of Article 30.3 of the Constitution.

19. Counsel for the Applicants, however, submitted in reply that the provisions of the 1924 Act and indeed of Article 30.3 of the Constitution referred to prosecutions by persons "authorised in that behalf by the law for the time being in force" or "some other person authorised in accordance with law to act for that purpose" . Neither the statutory provision in the 1924 Act nor the article of the Constitution were of assistance to the Notice Party since the very issue before this court was whether in fact the Notice Party was "authorised by law" to prosecute the particular offences.

20. It seems to me that Counsel for the Applicants is correct in this submission.

21. I turn, therefore, to the authority of the judgment of the Supreme Court in Cumann Luthchleas Gael -v- Windle [1994] 1 IR 525. In that case the Applicant Cumann had been charged with offences under the Fire Services Act, 1981 in connection with safety exits from Croke Park on the occasion of an All Ireland Hurling Final. The judge of the District Court, Judge Windle, held that the offences charged were indictable offences and sent the matter forward for trial in the Circuit Court. (In this decision on the facts he was upheld by both the High Court and the Supreme Court). The Applicant sought in judicial review proceedings to quash the order of Judge Windle. The Applicant contended that the offence in respect of which it had been sent forward for trial was not an indictable offence, and in particular, that the provisions of Section 5(2) referring to "an offence by reason of a contravention ... of Section 37" were too inexact a description of a breach of regulations made pursuant to Section 37 to render the offence of being in contravention of those regulations an indictable offence. It was further contended that the Notice Party had no power to bring proceedings in respect of an indictable offence. The Notice Party contended that the proceedings had been initiated pursuant to the power conferred by Section 6 of the Fire Services Act, 1981. That section provides in subsection (1) that

22. In the High Court the learned O'Hanlon J. refused the relief sought by the Applicant. He held, inter alia, that the Notice Party, a municipal corporation, must be regarded as having initiated the prosecution as a private prosecutor, and that the Notice Party being a private prosecutor, was obliged to yield its position as dominus litis in the prosecution to the Director of Public Prosecutions subsequent to the making of the order returning the Applicant for trial. The Applicant appealed.

23. In the Supreme Court judgment was given by Finlay C.J., with whom O'Flaherty J., Egan J., Blayney J. and Denham J. agreed. In dealing with the question as to whether Dublin Corporation had instituted the prosecution as a private person or "common informer", the Supreme Court held that a body corporate could not be seen as a member of the public having an interest in the conviction and punishment of offenders against public law and that in a case such as the one before the Court, where a liability to criminal prosecution was involved, there were no grounds for implying a right in the body corporate to institute proceedings for an indictable offence as an common informer.

24. The learned former Chief Justice (at page 544 of the report) stated:-

25. The Notice Party in the instant case is, of course, bound by this decision and freely accepts that it did not prosecute the Applicant as a "common informer".

26. In considering the provisions of Section 6(1) of the Fire Services Act, 1981, however, the learned former Chief Justice stated (at page 541):-

27. He went on to say (at page 544):-

28. The learned former Chief Justice does, however, observe at page 545;

29. It seems to me that this observation, mutatis mutandis, would apply in the instant case. However, this is not the issue before this court.

30. Under the 1963 Act, when by Section 80 the relevant planning authority was given statutory authority to prosecute offences, all offences under the Act were classified as summary offences. The question of the prosecution of indictable offences therefore did not arise. When the prosecution of indictable offences under the planning legislation arose by reason of the 1982 Act, Section 80 of the Principal Act was amended as set out above. This was clearly essential to avoid a situation where the statutory provisions would offend against Article 30.3 of the Constitution. However, the Oireachtas in amending Section 80(1) of the Principal Act did not specifically provide for a right to institute proceedings and bring them to the stage of a return for trial in relation to indictable offences under Section 24 or, indeed, other indictable offences under the planning legislation.

31. The proceedings brought by the Notice Party against the Applicants were, as described by the learned former Chief Justice at page 545 of his Judgment in the Cumann Luthchelas Gael case, "truly for an indictable offence". Offences under the Planning Act are criminal offences, carrying very substantial penalties, and the statutory provisions must be interpreted strictly. As in the case of the Fire Services Act, 1981 in the Cumann Luthchleas Gael case, it would have been open to the legislature to have provided the power in the relevant planning authority, in this case Fingal County Council, to institute proceedings in respect of indictable offences under Section 24 of the Principal Act and Section 8(3) of the 1982 Act and to bring them to a stage of a return for trial. For whatever reason the Oireachtas chose not to take that step.

32. I would therefore accept the contention of the Applicant that the Notice Party lacks the statutory power to prosecute indictable offences. Accordingly, I will grant the relief sought by the Applicants.