In Marine Terminals Limited v Dublin City Council  IEHC 294, the High Court considered the nature and extent of a stay on a decision by Dublin City Council (DCC), made under section 5 of the Planning and Development Act 2000 (the PDA 2000), that a development was unauthorised and not exempted development. The Court ruled that the stay on the DCC's decision, pending judicial review proceedings as to whether it was made in breach of fair procedures and natural justice, did not prevent DCC taking enforcement steps in regard to the unauthorised development.
The decision highlights that the provisions in Part VIII of the PDA 2000 provide a discrete and self-contained procedure for enforcement which is not in any way reliant upon any decision made under section 5 of the PDA 2000.
The applicant made an ex parte application for leave to seek relief by way of judicial review, and an order of certiorari to quash a decision of the respondent, DCC, made on 14 February 2014. The decision was that the vertical extension of a rail mounted gantry at the applicant's port facility constituted a "development" under the Planning & Development Act 2000, and was not exempted development, and that there was no authorisation obtained prior to the development.
The applicant complained that this decision was made without it being consulted, put on notice of the request for a section 5 declaration, or otherwise being given an opportunity of being heard in relation to the matter before the decision was made. Accordingly, the applicant claimed that the decision was made in breach of the principles of fair procedures and natural justice, and that it should be quashed. The applicant also sought a stay on the decision pending the determination of these proceedings.
On 31 March 2014, the Court granted the application for leave to seek the reliefs. That order also stayed the decision of DCC made on 14 February 2014.
In these proceedings, DCC asked the Court to clarify the nature and extent of the stay or to discharge the stay completely, because of the serious prejudice it would suffer if the extent of the stay was such as to prevent DCC taking any enforcement steps against the applicant under Part VIII of the 2000 Act within the statutory time limit applicable.
The High Court confirmed the stay on DCC's decision under section 5, pending the determination of a judicial review. However it clarified that the stay did not prevent DCC from taking enforcement action, under sections 153 to 160 of the PDA 2000, in respect of unauthorised development.
Peart J. stated: “Those sections provide a discrete and self-contained procedure for enforcement which is not in any way reliant upon any decision made under section 5 of the Act of 2000. In that regard I refer to section 153 (7) of the Act which provides that where a planning authority establishes, following an investigation under this section, that unauthorised development has been or is being carried out, and the person concerned has not proceeded to remedy the position, the authority may issue an enforcement notice, and take further steps thereafter as may be necessary.”
He held that it is clear from the wording of section 153(7) that any enforcement action taken under Part VIII cannot be based upon a decision made under section 5, but rather must be based on a separate investigation under section 153 of the PDA 2000.
Peart J. also noted that the enforcement procedure in Part VIII of the PDA 2000 contains within section 152(4) an opportunity for the person to whom any warning letter has issued to make submissions or observations in writing should he or she wish to do so, which is not something that is provided for in relation to the section 5 procedure.
He further pointed out that the stay on the section 5 decision would be sufficient to protect the applicant from any potential consequences which might flow from the provisions of section 151 of the PDA 2000, in so far as the section 5 decision implies at least that the applicant is guilty of an offence as provided in section 151, and in circumstances where it has had no opportunity to be heard in relation to the matter.
This decision confirms that a stay on a planning decision made under section 5 of the PDA 2000 will not prevent a planning authority from taking enforcement steps under Part VIII of the PDA 2000. The self-contained procedure for enforcement in Part XIII requires a planning authority to issue an enforcement notice where it establishes, following an investigation, that unauthorised development has been or is being carried out and that the person concerned has not proceeded to remedy the position.
The decision also serves as a reminder that, despite the lack of any statutory requirement to notify or seek submissions from a landowner before making a decision on a section 5 referral from a third party, a planning authority is at risk of having its decision quashed for lack of fair procedures or natural justice if it fails to seek such submissions.