Supreme Court dismisses appeal refusing preliminary issue determination on bona fide planning enforcement claim.

THE SUPREME COURT

[Appeal No. 042/2013]

McKechnie J.

Clarke J.

Laffoy J.

Between

Liam Campion, Josephine Campion, Campion Concrete Products Limited and Voran House Limited

Plaintiffs/Respondents

and

South Tipperary County Council

Defendant/Appellant

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 31st day of July, 2015

Background:

1. This is an appeal from an order of the High Court (Charleton J.) made and perfected on the 22nd October, 2012, in which the

learned judge, on an application made by South Tipperary County Council, refused to have certain specified questions determined as

preliminary issues, prior to embarking upon the substantive hearing of the full action. The background to such application can briefly

be described as follows.

2. The first named plaintiff is a developer and is together with his wife the second named plaintiff, the registered owner of the lands

hereinafter mentioned. The third and fourth named plaintiffs are companies with limited liability and are connected to Mr. Campion. All

of the plaintiffs collectively were involved in or otherwise were associated with the development, which is the subject matter of these

proceedings.

3. The defendant/appellant is a local authority for the administrative area under its control and as such, is also the planning authority

for that area. It has its main offices at the County Hall, Clonmel, County Tipperary.

4. On the 25th November, 2004, the defendant Council, in accordance with certain plans and particulars, granted planning permission

to Mr. Campion (Ref No. 01/908) for the carrying out of a specified development, to wit the construction of an international trade

centre, an international arbitration centre, aparthotel comprising 120 bedrooms complete with restaurants, lounge/bars, conference

rooms and function rooms, a leisure centre and swimming pools, 52 self contained cottages, underground car-parking and ancillary site

works: all on the aforesaid lands which are situated at Ballypadeen, Cashel, County Tipperary: (Folio 207212F Register of Freeholders

in the County of Tipperary).

5. On the 18th July, 2006, a meeting took place at the offices of the Council which was attended by Mr. Liam Campion, the first

named plaintiff, Mr. Greg Bell, the plaintiffs’ architect, Mr. Liam Ahern, an elected member of the defendant local authority who

convened the meeting and Mr. James O’Mahony, a senior planner with the Council. Whilst there is some dispute about what gave rise

to this meeting, it is clear that its purpose was to discuss proposed amendments to the original plans, so as to progress the

implementation of the development which at the date thereof, had yet to commence.

6. During the course of the meeting the architect, Mr. Bell, produced a number of revised drawings which were used to facilitate the

discussion that followed. During that discussion the following changes or amendments to the development were sought, on behalf of

the plaintiffs:

(a) Change in location of the 52 holiday cottages to accommodate the widening of the roadways and hammerheads

to facilitate compliance with Condition 6 of the said planning permission,

(b) Change in house type of the 52 holiday cottages from semi-detached houses to terraced houses,

(c) Alterations to the hotel internal plan layouts in order to improve circulation and operation of function rooms,

restaurant, reception, business suites, kitchen service areas and, repositioning of the swimming pool, and

(d) External alternations to hotel, to include replacement of bar canvas roof with copper or zinc sheet roofing,

replacement of sloping glass and timber cladding to entrance with a more traditional fenestration similar to the

western elevation of the hotel and, a proposal to make the entrance clearer at the hotel approach.

7. It is claimed that having reviewed such drawings and having considered what was proposed by Mr. Bell and others present, the

senior planner, Mr. O’Mahony, agreed that as the amendments referred to at subparas. (a), (b) and (c) above, constituted in planning

terms minor changes only, the development could proceed in accordance therewith, but that those set out at subpara. (d) did not.

Accordingly, he insisted that in respect of the latter, a revised planning application would have to be submitted. The plaintiffs say

that they duly accepted the planner’s position on each of these matters.

8. Acting on foot of what is alleged to have been agreed and on what they had been advised were the legal consequences thereof,

the plaintiffs duly commenced the development in its altered form and thereafter proceeded with it in a manner which reflected the

revised plans, allegedly so agreed at the said meeting.

District Court Proceedings:

9. The Council however as planning authority, had quite a different perspective and came to the conclusion that the development, as

then ongoing, was in breach of the only planning permission which existed (Ref No. 01/908). Accordingly, an Enforcement Notice

dated the 3rd May, 2007, was served on the plaintiffs, pursuant to s.154 of the Planning and Development Act 2000 (“the 2000 Act”),

in which it was alleged that, in the detailed manner as specified, the works being carried out were in breach of the said planning

permission. The notice reads as follows:-

“The said development has not been carried out in conformity (with Condition No. 1 of the planning permission

01/908) in that:

“(i) Cottages No’s 14-15, 16-17, 37-38 and 51-52 have been constructed as terraced rather than semi-

detached cottages, as required by Condition No. 1 of planning permission reference 01/908:

(ii) The layout, location and configuration of cottage footprints and car-parking arrangements are not in

accordance with the plans submitted with the planning application of the 25th October, 2001 and other

documentation subsequently submitted as outlined above, as required by Condition No. 1 of planning

permission reference 01/908 and:

(iii) Construction works facilitating the entire road network are not in accordance with the plans

submitted with the planning application of the 25th October, 2001 and documentation subsequently

submitted as outlined above, as required by Condition No. 1 of planning permission reference 01/908.”

10. Furthermore, the notice directed the plaintiffs to cease all activity on the site by the 4th May, 2007, (save that as prescribed by

the notice) and no later than the 21st June, 2007, to remove the unauthorised development and restore the lands to the condition

which existed, prior to the commencement of such development: all of which works were described in the notice as follows:-

“(i) Remove, in the entirety, all 52 cottages’ units, whether partially or fully constructed on the site, including the

foundations of the said cottages and all the external drainage, piping relating to the same:

(ii) Following removal of the cottage units, re-grade that portion of the site where the cottage units were

constructed and spread thereon subsoil and topsoil and rake and seed with grass and restore the land to its

condition prior to the commencement of the development, pending construction of a development in accordance

with planning permission references 01/908 granted on 25th November, 2004, or any subsequent grant of planning

permission.”

11. Being dissatisfied with the plaintiffs’ response, the Council instituted District Court proceedings on the criminal side seeking to

enforce the terms of the said notice. Such proceedings, which were heard over a ten day period, were ultimately dismissed by the

learned District Court Judge. The Council did not seek to challenge this order.

12. Arising out of the dispute thus created and so resulting, the plaintiffs took the view that, as Mr O’Mahony was acting on behalf of

the Council and was vested with due authority to bind it, the agreement ( para. 7 supra) firstly constituted an implied representation

that the defendant Council, in its capacity as planning authority, would not object to the development proceeding in accordance with

the revised plans and secondly, that it would take no steps, in particular no enforcement steps, which might have the effect of

preventing the carrying out or completion of such development, as so revised.

The High Court Proceedings:

13. On the 28th day of June, 2007, the within High Court proceedings were instituted, which proceedings it must be said, have

undergone various transformations since their inception. Based on an Amended Statement of Claim dated the 8th day of November,

2011, which largely rested on the factual landscape described, the reliefs presently prayed for are as follows:-

“(a)Damages for misfeasance in public office.

(b) Further, or in the alternative, Damages for breach of legitimate expectation.

(c) Further, or in the alternative, Damages for breach of contract and/or agreement, mis-representation, negligent

mis-statement, negligence and/or breach of duty including breach of statutory duty;

(d) Further or in the alternative damages for defamation

(e) Further or in the alternative damages for malicious falsehood

(f) Further, or in the alternative, damages for wrongful interference in the Plaintiffs’ constitutional rights.

(g) Interest in accordance with the Courts Act 1981;

(h) Such further and other reliefs;

(i) Liberty to apply;

(j) Costs.”

14. Arising out of this Statement of Claim, particulars were sought on 20th December, 2011, and were replied to on 21st February,

2012. A defence was delivered on 15th March, 2012. In paras. 1 – 4 thereof, which are headed “Preliminary Objections”, the

defendant alleges that the pleas of estoppel, legitimate expectation and the claim of misfeasance in public office are all bound to fail

as a matter of law: it is therefore asserted that the “causes of action” as pleaded cannot be maintained.

15. Without prejudice to this plea however, the defence goes on to admit some matters, including the fact that the meeting above

referred to took place and that a plan and a number of drawings were shown to Mr. O’Mahony during the course of it. However, in all

other material respects it denies the role attributed to Mr. O’Mahony by the plaintiffs at such meeting and specifically denies that

there were any discussions about the proposed amendments, as set out at para.6 of this judgment. Consistent with this stance, the

defence also denies that the senior planner entered into any agreement or made any representation to the plaintiffs, regarding any of

the matters at issue in this case. Furthermore, even if such agreement was entered into or representation made, both of which are

denied, the council repudiates any suggestion that one of its employees has authority to bind it. It can therefore be said that in

addition to the objections taken, the appellant has in effect filed a full defence to this claim.

The Motion:

16. By notice of motion dated the 23rd May, 2012, the application, the subject matter of this appeal was moved, in which the

following six reliefs were claimed: the notice in its substantive terms reads:-

“An Order pursuant to the provisions Order 25 and/or Order 34, rule 2 of the Rules of the Superior Courts 1986

directing the trial of the following points of law and ordering that the same be set down for hearing and disposed of

as preliminary issues before the Trial of the Action, assuming for the purposes of that hearing only that the facts

alleged by the Plaintiffs in their Amended Statement of Claim, delivered on the 8 November 2011, are correct:

I. Whether an official of a planning authority, acting in his capacity as a servant or agent of the

planning authority, had due authority (at a meeting with a developer, developer’s architect and an

elected member of the local authority) to bind that planning authority by agreeing that certain

amendments to the plans on foot of which planning permission had been granted were minor changes,

as contended for by the Plaintiffs at paragraph 10 of their Amended Statement of Claim.

II. Whether an official of a planning authority, acting in his capacity as a servant or agent of the

planning authority, had due authority (at a meeting with a developer, developer’s architect and an

elected member of the local authority) to bind that planning authority in agreeing that the developer

could carry out the development in accordance with revised plans, as contended for by the Plaintiffs at

paragraph 11 of their Amended Statement of Claim.

III. Whether, as a matter of law, such an agreement constituted an implied representation by the

planning authority to the developer that the planning authority would not object to development in

accordance with the revised plans or take any steps (including the commencement of any enforcement

proceedings) to prevent or alter in any substantial way the carrying out and/or completion of those

works in accordance with the revised drawings, as pleaded at paragraph 12 of the Amended Statement

of Claim.

IV. Whether, as a matter of law, such an agreement or implied representation gave rise to an estoppel

and/or a legitimate expectation and/or duty of care and/or a statutory duty whereby the planning

authority could not take enforcement proceedings, as contended for by the Plaintiffs at paragraph 13 of

their Amended Statement of Claim.

V. Whether an estoppel by representation can confer vires upon a planning authority which has not

been conferred by legislation.

VI. Whether a legitimate expectation, that –

(a) works are to be carried out in breach of a condition attached to a grant of planning

permission; or

(b) a lawful waiver of planning conditions;

can be derived from the conduct of, or representation by, an official of a planning authority.”

17. Affidavits both in support and in objection to the reliefs claimed were filed by and on behalf of the respective parties. For the

purposes of the application but not otherwise, the defendant Council agrees that the court can proceed on the basis that the facts

as alleged by the plaintiffs in the pleadings and in the particulars as given, have been established.

The Judge’s Ruling:

18. The learned judge, on this application, delivered an ex-tempore ruling on the 22nd October, 2012. As the agreed note of the

salient features of his decision is quite short, it would add to the question of clarity, if it was quoted in full:-

“The judge noted that the defence makes it clear that, if the alleged representation was given, Mr. O’Mahony did

not have the authority to bind the defendant. Thus, any claim arising from that representation is bound to fail as a

matter of law. The court stated that it did not intend to comment on the merits of that contention.

The court stated that the trial of a preliminary point of law may be ordered where such a point is capable of being

distilled from the factual matrix which will dispose of a good or substantive portion of the case.

Charleton J. then went on to consider whether it was just and convenient to try the issues identified by the

defendant as preliminary issues. The judge concluded that, it seemed to him, it would be convenient to direct a

preliminary trial because, if successful, a great deal of the case would fall away leaving the plaintiffs to consider

whether to proceed with the other aspects of the case.

The judge then discussed whether the justice of the case required the trying of the issues. The judge noted and

accepted the submissions made by counsel for the defendant that the issue is not whether an official can bind a

planning authority to do something beyond its powers, because an official can never so bind an authority.

However, what was really troubling the court is that it has been the practice since Finnegan J. was President of the

High Court to graft onto the Planning Code a de minimis provision. The issue was whether the variation to the plans

was a material variation or not. If the variation was not material, it would be permitted by the planning permission

and the planning authority would not have grounds to bring enforcement proceedings. The judge found that the

issue of whether the variation was material or not, is a question of fact.

The judge therefore declined to order the preliminary hearing.”

19. In the Notice of Appeal delivered in February, 2013, seven grounds of complaint are taken with regard to this decision. In

essence, all are similarly phrased and are to the same general effect, namely that the trial judge erred in law and in fact in refusing

the relief claimed. The grounds so relied upon are that, as the issues identified are discreet by reference to the agreed facts, the

same can be conveniently tried in the manner suggested: secondly that there would be a saving of time and costs in so doing and

thirdly that if determined in a particular manner, a substantial portion of the action would fall away. In addition, the only further point

to note is the express plea that the judge’s application of the concept of a “de minimis” variation was wrong as a matter of law, in

that such a concept could only arise in the context of enforcement proceedings under Part VIII of the 2000 Act, which was not the

context before him. In these circumstances, the appellant seeks from this Court an order setting aside that made in the High Court

and substituting in its place an order that the issues identified in the notice of motion, should be determined by way of preliminary

issue.

Discussion/Decision:

Rules of Court:

20. This application is technically moved pursuant to Order 25 and/or Order 34(2) of the Rules of the Superior Courts (the “Rules of

Court” or “RSC”): in reality the only provision which is appropriate is the former, although because of their relationship both will have

to be considered. They read as follows:-

“O. 25 - (1). Any party shall be entitled to raise by his pleading any point of law and any point so raised shall be

disposed of by the judge who tries the cause at or after the trial, provided that by consent of the parties, or by

order of the court on the application of either party, the same may be set down for hearing and disposed of at any

time before the trial.

(2) If, in the opinion of the court, the decision of such point of law substantially disposes of the whole action or of

any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the court may thereupon

dismiss the action or make such other order therein as may be just.

O. 34 – (2) If it appears to the court that there is in any cause or matter a question of law, which it would be

convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any

reference is made to an arbitrator, the court may make an order accordingly, and may direct such question of law

to be raised for the opinion of the court, either by special case or in such other manner as the court may deem

expedient, and all such further proceedings as the decision of such question of law may render unnecessary may

thereupon be stayed.”

These provisions have existed for a long time and can find expression at least as far back as the 1905 Rules of Court (Order 25, rr.2

and 3 and Order 34, r.2 respectively), and almost certainly have an antecedence well beyond that.

Encouraging Efficiency:

21. In more modern times, particularly in light of litigation becoming ever more complex, costly and lengthy, many attempts at official

level have been made to identify ways in which the consequences of such events can be avoided, or at least ameliorated. Hence,

both legislative provisions and specific rules of court with that intention in mind, have been adopted in several different sectors of

litigation, including personal injuries, commercial and competition, to name but some, as well as provision being made for mediation,

conciliation and other forms of alternative dispute resolution. (Order 56A RSC). Side by side with these changes there has been much

innovation at judicial level by way of case management, modular hearings and other imaginative steps, to the same end. Largely the

results have been very positive, but still vigilance must be exercised lest through the prism of expedition, truncated hearings will end

up having the opposite effect. I am satisfied that such would be the situation if the appeal in the instant case was allowed.

22. Despite the undoubted advantages of such insightful moves, it remains the position that at primary level, a unitary trial is the

starting point. Experience throughout many decades of litigation has shown that in the vast majority of cases this is the best

mechanism by which justiciable issues can be determined, not only so as to achieve justice, but also as representing the most

expeditious and cost effective way of doing so. Therefore, whilst I greatly favour all suggestions which curtail the possibility of having

diffuse and lengthy trials, one must be sure however that what is provided for in that regard, will in fact achieve, the intended end.

Case Law:

23. There has been a good deal of recent case law touching on the various methods by which litigation may best be conducted and

disposed of and on the jurisdictional basis for the courts so providing. See P.J. Carroll & Company Limited v. Minister for Health and

Children (No.2) [2005] 3 I.R. 457. Split or modular trials have increased greatly with the making of orders in respect thereof now being

governed by fairly well established principles, such as those laid down in Cork Plastics Manufacturing v. Ineos Compound UK Limited

[2008] IEHC 93 (Clarke J.), McCann v. Desmond [2010] 4 I.R. 554 (Charleton J.), and Atlantic Shellfish v. Cork County Council [2010]

IEHC 294 (Laffoy J.). However, as always, there must be added to these general principles any individual factor of relevance which

emerges from the circumstances of any given case. Thus, the assessment as to whether or not some modification of a unitary trial is

appropriate, will have to be considered having regard to all of the circumstances of each individual case.

24. The formal basis upon which a court can make an order that a point of law should be determined by way of a preliminary issue is,

of course set out in the Rules of Court, in particular those above mentioned (para. 20 supra). There would seem little doubt however

that being charged with the responsibility of administering justice, a judge in control of a trial or a court in control of an appeal would

have, at judicial level, similar powers to those prescribed by such rules. Whilst it is true to say that Order 25 and Order 34 overlap to

a significant extent (McDonald v. Bord na gCon [1964] I.R. 350 at 357), it is clear that Order 34 may be invoked before any evidence

is given or any question or issue of fact determined. A fundamentally different situation pertains to Order 25, which O’Dalaigh C.J., in

Kilty v. Hayden [1969] I.R. 261 at 265 explained as follows:-

“When Order 25 is contrasted with Order 36, it becomes clear that Order 25 is not providing for the separate trial of

issues which are partly of fact and partly of law, but for the separate trial of a net point of law disassociated from

issues of fact, that is to say, the point of law must arise on the basis of the facts being as the opposing party in

his pleadings alleges them to be.”

As it happened, the application for the trial of a preliminary issue was dismissed in that case as a central issue of fact remained in

dispute between the parties.

25. As appears from the passage quoted, the distinction being made was between Order 25 on the one hand and Order 36 - and not

Order 34, of RSC – on the other: in fact Order 34 was not referred to at all in the judgment. The reference to Order 36 by the Chief

Justice was to point out that in rr.7 and 9 thereof, provision is made whereby the court can direct the trial of a distinct question of

fact or one partly of fact and partly of law: (r. 7) and in addition can direct that any issue of fact should be determined by different

modes of trial or in whatever order of priority the court sees fit (r. 9). The reference in both rules 7 and 9 to the involvement of a jury

does not of course arise in an action such as the instant one. Order 36 of RSC, however, has not been relied upon or invoked on this

application.

26. Further reference was made to Order 25 of RSC by the Supreme Court in McCabe v. Ireland [1999] 4 I.R. 151 where at p. 157 of

the report, Lynch J. stated:-

“A preliminary issue of law obviously cannot be tried in vacuo: it must be tried in the context of established or

agreed facts. The facts relevant to the preliminary issue must not be in dispute, but they may be agreed for the

purposes of the preliminary issue of law only without prejudice to the right to contest the facts if the actual

determination of the preliminary issue should not dispose of the matter at issue. The facts must be agreed or the

moving party must accept, for the purposes of the trial of the preliminary issue which he raises, the facts as alleged

by the opposing party.”

The extract from the judgment of O’Dalaigh C.J. in Kilty v. Hayden [1969] I.R. 261, at 265, is then quoted, apparently with approval.

See also Ryan v. Minister for Justice [2000] IESC 33.

27. It is therefore clear that, without the relevant factual context, as asserted by the responding party being agreed to or accepted

(where such a context is necessary), the provisions of Order 25 of RSC may well be fatally compromised in their effectiveness.

Consequently, when considering the use of this provision, the court will always be obliged to have regard to the issues involved, to

the contextual setting in which these issues are pleaded and to the overall evidential footprint in which they are, at that point in the

case, then positioned.

28. Whatever may be the precise contours of either or both Order 25(1) and Order 34(2) of RSC, it is clear that each has a common

purpose namely, to save time and cost, when the preliminary process is compared with any other suggested method of hearing,

including a full trial of the issues raised. (Duffy v. News Group Newspapers Limited (No.2) [1994] 3 I.R. 63, and Croke v. Waterford

Crystal Limited (Unreported, High Court, Smyth J., 26th June 2003). Convenience will also be a consideration and whilst there is no

express reference to such in Order 25, as there in Order 34, r.2, nonetheless this matter has equal application to both rules. In this

regard it is of interest to note what O’Higgins C.J. had to say on this particular point in Tara Exploration & Development Limited v.

Minister for Industry and Commerce [1975] 1 I.R. 242 (“Tara Exploration”) where at p. 256 the learned Chief Justice said:-

“In addition, it must appear to the court to be convenient to try such question of law before any evidence is given.

This will involve a consideration of the effect on other issues in the case and whether its resolution will reduce

these significantly, or shorten the hearing. Convenience in this respect must also be considered in the light of what

appears fair, proper and just in the circumstances.”

29. Whilst the factors most frequently referred to in the case law, are time, costs, convenience and the potential impact which any

decision on the preliminary issue may have for the case as a whole, it is important to bear in mind, as Tara Exploration discloses, that

such are not exclusive of other factors and that rules of court are always the servants of justice. If they aid and assist that end, as

they are designed to, they are apt, fitting and pertinent: where they are at odds with that purpose, they are stood down. Simply put,

the overall requirements of justice are, as a matter of constitutional jurisprudence, intrinsic to all such rules which must be both read

and applied accordingly.

Need for Caution:

30. The caution which I have urged as being appropriate, when deciding whether or not to adopt the preliminary issue process (paras.

21 & 22 supra), stems from litigation experience which shows, that it may be very difficult in some cases to predict in advance of the

hearing what facts might be critical in determining the issues which they potentially give rise to. The same problem may even exist as

to what the established facts mean, either in a primary or secondary sense. Whilst the various procedural tools of pre-trial

investigation are designed to eliminate differences in this regard and insofar as possible to eliminate them, nevertheless the evidence

of witnesses, even that as anticipated, frequently gives rise to some variations even in the most thoroughly prepared of cases.

31. From another perspective, sometimes the reliefs claimed and the issues of law involved, when discussed at trial, may give rise to

the necessity to further explore a factual context which previously might not have been considered, as relevant. Hence, the

necessity in order to avoid these difficulties, for fairly well established certainty on the factual situation, before a point of law under

the preliminary process, can be safely dealt with. The most frequent example given of the type of issue which confidentially can be

disposed of in this way, is one arising under the Statue of Limitations (Delaney & McGrath: 3rd Ed., para. 14.13). Even then however

such may be problematic, if for example, some controversy exists with regard to a person’s date of knowledge. Whilst undoubtedly

there are certain issues which appropriately can be disposed of in this way, nonetheless there will be many others which cannot be.

Therefore careful consideration must be given to each such issue, as raised.

32. These views are also well supported by authority, an example of which is to be found in the judgment of Kenny J. in Tara

Exploration (High Court), where the learned judge at p.249 stated:-

“When this procedure is adopted, the answers to the questions of law usually have to be qualified in so many ways

that they do not lead to expedition or, indeed, to clarity. Answering the questions may be an interesting academic

exercise but the questions of law which have to be decided are usually conditioned by the facts.” (p. 249)

A more recent expression of the necessity for prudence in this regard, is to be found in the judgment of Hardiman J. in B.T.F. v.

Director of Public Prosecutions [2005] 2 ILRM 367, where at p. 565 the learned judge stated:-

“It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case

where a point is raised which in and of itself and without regard to anything else may terminate the whole

proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is whether

the statute of limitations is pleaded. In other cases, however, the position may be much less clear.”

In addition, I respectfully agree with para. 14.13 of Civil Procedure in Superior Courts, Delaney & McGrath (3rd Ed.), where the

authors point out that such procedure normally “…will only be ordered in limited circumstances where a discrete issue or issues arise in

proceedings that can be conveniently tried by reference to agreed facts and the determination of which may dispose or substantially

dispose of the entire action.”

33. All of these statements and observations can therefore be taken as inviting the court, which is asked to provide for a preliminary

issue, to evaluate the underlying circumstances with care, and to ensure as far as possible that any order so made will ultimately

satisfy the purposes which underpin the rules and practices in this regard.

34. Finally, in accordance with Article 34.4.3 of the Constitution, an appeal can be taken to this Court from an order of the High Court

on any application seeking the trial of a preliminary issue. This right has now been modified following the passing of the 33rd

Amendment of the Constitution and the enactment of the Court of Appeal Act 2014, neither of which however apply to this case. As

the making of such an order is discretionary in nature, this Court when exercising its appellate jurisdiction, as with all similar orders,

will give due and proper respect to the decision made by the trial judge and the reasons therefor, even where that decision has been

arrived at solely on affidavit evidence. The situation might be different if for example the High Court had a type of policy by which

such applications were determined: that is not the situation in the instant case. Subject however to that consideration of influence,

this Court can substitute its own views for those of the High Court, if it thinks it appropriate or necessary to do so. (In the Goods of

Morelli, Deceased: Vella v. Morelli [1968] 1 I.R 11).

Summary of Legal Position:

35. The following therefore is a summary of the legal position before Order 25 of the RSC can be successfully invoked:-

• There cannot exist any dispute about the material facts as asserted by the relevant party: such can be agreed

by the moving party or accepted by him or her, solely for the purposes of the application.

• There must exist a question of law which is discreet and which can be distilled from the factual matrix as

presented.

• There must result from such a process a saving of time and cost, when the same is contrasted with any other

suggested method by which the issues may be disposed of: in default with a unitary trial of the entire action. In the

absence of admissions, appropriate evidence will usually be necessary in this regard: impressions of what might or

might not be, will not be sufficient.

• The greater the impact which a decision on the preliminary issue(s) is likely to have, on the entire case, the

stronger will be the argument for making the requested order.

• Conversely if irrespective of the courts decision on that issue(s), there should remain for determination a number

of other substantial issues or issue(s) of a substantial nature, the less convincing will be the argument for making

such an order.

• Exceptionally however, even if the follow on impact will not dispose of any other issue, the process may still be

appropriate where the subject issue is substantial in its own right and where its determination will clearly benefit the

action in an overall sense.

• As an alternative to such a process in such circumstances, some other method or mode of proceeding, such as a

modular trial may be more appropriate.

• It must be “convenient” to make such an order: at one level this consideration of itself, can be said to incorporate

all other factors herein mentioned, but for the purposes of clarity it is I think more helpful, to retain the traditional

separation of such matters.

• “Convenience” therefore should be understood as meaning that the process will enhance in an overall way the

most efficient, timely and cost effective method of disposing of the entire litigation.

• The making of such an order must be consistent with the overall justice of the case, including of course fair

procedures for all parties.

• The court at all times retains a discretion whether or not to make such an order: when so deciding it should

exercise caution so as to make sure that if an order is made, it will meet the purposes intended by it; finally

• Subject to giving due and proper weight to the decision of the trial judge, the appellate court can substitute its

own views for those of the High Court where it thinks it is both necessary and appropriate to so do.

The Instant Case:

36. In this case the appellant submits that the essential requirements which a court looks for, before ordering the trial of a preliminary

issue, are that the facts are agreed, that the decision on the point(s) of law will substantially dispose of the whole action or of a

distinct cause of action and that when compared with a full hearing, there will be a saving of time and expense. Several authorities

were cited in this regard, including McCabe v. Ireland [1999] 4 I.R. 151, Kilty v. Hayden [1969] I.R. 261, and more recently Ryan v.

Minister for Justice & Ors [2000] IESC 33, all of which are noted above.

37. The Council says that as it has agreed for the purpose of this application, but not otherwise, that the facts as pleaded can be

taken as having been established, it has satisfied the first requirement. Secondly, it claims that much of the case would be

determined by the court’s decision on the preliminary issues and finally, it suggests that such a course would inevitably result in a

substantial saving of both time and cost. Therefore, in its view the trial judge was incorrect in refusing the relief prayed for.

38. The respondents on the other hand, whilst firmly supporting the decision of Charleton J., which it is said was absolutely correct on

its merits and was entirely in keeping with the cautious jurisprudence of the Superior Courts in this field, also cite, as the appellant

has, several cases which directly or indirectly touch upon this issue. In fact more than forty authorities in all were referred to: this in

an area where the law is well settled, readily available and easily understood. It is not readily apparent or easy to follow why such

was thought necessary. In any event, they point out that, as appears from the agreed note of the decision (para. 18 supra), the

learned judge was keenly aware that the issues could not be safely decided in a vacuum and could only be determined within a

factual context; context which in their submission has not as yet, despite the concession made, been fully explored, let alone been

definitively decided upon. Accordingly for this critical reason the decision of the High Court should be upheld.

39. In order to resolve this appeal it is firstly necessary to consider whether, there are any facts still in dispute which might be

material to the points of law in question: this involves looking at what has been accepted by the appellant for this purpose and what

factual matters (if any) remain in controversy between the parties. Secondly, one must look at what savings in time and costs would

be likely to result from adopting this preliminary process as well as having regard to the question of convenience. Furthermore and of

particular significance in this case, is the impact or affect which a ruling would have, even one fully in favour of the appellant, on the

entirety of the case so as to determine what issues (if any),would still require a court decision; and also to that end, to see what

evidence would have to be called on those issues. Finally, an overview of all of the circumstances must be taken so as to decide on

what course best serves the interests of justice.

40. Before embarking on these matters however, it should be stated that in an application such as this, it is important for the court

not to express any real opinion on the merits of the substantive action, or even on how the causes of action or the reliefs therein

claimed, have been formulated or structured. Such, should be avoided for obvious reasons as well as being quite evidently premature,

given the fact that no trial court as yet, has inquired into such matters or offered any concluded view thereon. However, and

notwithstanding this constraint, some reference to the dispute quite evidently is required so as to put the issues for consideration,

into an understandable context.

41. It will also be convenient at this stage of the judgment, to deal with a discrete submission, to the effect that the decision to

refuse (or for that matter to make) an order directing the trial of a preliminary issue, is the same as or is sufficiently close to a case

management decision, that the principles set out by the Supreme Court in Wavering Macro Fixed Income Fund Ltd v. PNC Global

Investments Servicing (Europe) Ltd [2012] IESC 60 (“Wavering Macro”), should be applied. In principle, I think there is a difference in

substance between both situations.

42. What is involved in a case management decision is fairly accurately reflected in its own description: it is in fact managing the

case so that it can proceed to a hearing and determination as smoothly and as expeditiously as possible. Whilst it is of course true to

say, that time, cost and convenience considerations are influential in what decision is arrived at, nonetheless even if the only benefit

was the more orderly running of the case, the same process would still be worthwhile.

43. On the other hand, a preliminary direction order is intended to largely, if not fully resolve, not simply those issues which are the

subject matter of the direction, but also to have a significant follow on effect on the other issues in the case. On occasion it might

be the case for good reason that only a single controversy can be resolved in this way, but normally the process is designed to have

a much wider impact than that. A good example is the present application which the Council says will, if successful, dispose of

virtually the entire case, save for the claim based on misfeasance in public office. Therefore, in my view the type of order under

appeal on this application is quite different to that which ‘Wavering Macro’ was dealing with. Accordingly, whilst the scope of this

Court’s appellate jurisdiction when dealing with a case management decision would necessarily be circumscribed, as normally the judge

in charge of the trial will be best positioned to decide on the appropriate orders, the same restraint, at least to the same level does

not apply to the instant appeal. I would therefore respect the comparison as made.

44. As is clear from the motion which issued, the suggested questions No’s 1 and 2 have as their essence, the issue as to whether

Mr. O’Mahony had authority to bind the Council when allegedly agreeing that the proposed changes were “minor” and that as varied,

the development could proceed on the revised plans. Questions 3 and 4 ask, whether such agreement could give rise to a

representation, enforceable against the defendant Council, that it would not object to the development as thus proceeding, and,

whether such agreement or representation created an estoppel or a legitimate expectation, the effect of which was to prevent it

from instituting the proceedings which it did. The remaining questions are firstly, whether by conduct, a planning authority could

confer upon itself a vires which otherwise it did not have, (question 5) secondly whether it could authorise the carrying out of a

development in breach of planning permission and finally whether it could lawfully waive any breach of such permission (question 6).

45. The essence of the appellant’s argument, upon which the application was made and consistent with its terms, rests on what it

perceives the respondents claim to be: this understanding of the situation is set out at paras. 6 – 8 and 11 – 13 of the affidavit of

Mr. Binchy, Solicitor, grounding the issuing of the said motion. In short and in brief terms the Council’s interpretation of the claim it

has to meet, and its response thereto is as follows:-

• Point 1:-

Case made

That the conduct/agreement/representations as alleged (i) prevented the taking of any enforcement proceedings

relating to planning permission (Ref 01/908): and (ii), permitted the Planning Authority, in legal terms, to unilaterally

allow a development which it believed was in breach of planning conditions.

Response of Council

Any such conduct/agreement/representations entered into or made by Mr. O’Mahony cannot confer a vires on an

administrative body which otherwise it does not have it.

• Point 2:

Case Made

That such conduct/agreement/representations gave rise to a legitimate expectation that the planning authority will

act outside the statutory framework of the Act of 2000 .

Response

No action of any kind can give rise to such an expectation that a planning authority will act ultra vires.

• Point 3:

Case Made

That such conduct/agreement/representations gave rise to a legitimate expectation that the planning authority

could legally authorise the execution of works which it believed were in breach of a planning permission.

Response

No action of any kind can give rise to such an expectation.

46. The plaintiffs seriously dispute this characterisation of their claim. They say that the development as carried out was in

accordance with the November, 2004 permission, and in particular was duly compliant with the conditions attached thereto.

Therefore, it is no part of their case that some new or different permission was created by or resulted from the meeting held in July

2006, or that some material variation to the original conditions took place: they do not as a matter of fact suggest that the

agreement as reached or the representations as made, had either effect. In substance, their point is that having examined the

revised plans, the senior planner was satisfied, that the development would, if carried out in accordance therewith, remain fully within

the parameters of the permission and conditions thereof as initially laid down and provided for.

Accordingly, it is not in any way suggested that what occurred at the July 2006 meeting had the effect of conferring a power on the

planning authority which otherwise it did not have, or of imposing an obligation on it, by action or inaction, to act in any manner

outside its lawful competence.

47. At trial the plaintiffs wish to establish that the amendments discussed and which they say were agreed to at the 2006 meeting,

can correctly be described as a matter of planning law, as minor and thus be regarded as immaterial. This issue unquestionably has a

factual element to it. Of course when that inquiry has been conducted, the legal consequences will have to be determined, but in the

first instance the factual content must be established, as otherwise one cannot apply any legal principles, whatever they might be.

Incidentally, I express no view whatsoever on the law on this point, whether on the “de minimis” rule or on any other similar or

analogous principle.

48. Although not so stated in these precise terms, it is quite evident that this is the general basis upon which the learned trial judge

refused the application, taking the view that one of the essential issues in dispute was whether or not the revised scheme

constituted, “an immaterial” variation of the plans. That of course as I have said, involves a question of fact which can only be

resolved when the evidence in respect thereof, including any expert opinion offered by either party, is fully explored by the trial court.

Such will require a qualitative assessment as to how much the variations differ from the original proposals, when the same are

considered in the context of the overall plans and the terms and conditions imposed. Only then can it be decided whether such

variations, were or were not materially different to the proposals, as originally submitted.

49. That this is the major point at issue cannot I think be disputed: it is quite clear from all of the documentation, that a primary

issue will be the extent of the variations. Did these variations come within the scope of the planning permission or were they of such

a nature that a revised permission was necessary? In determining this point, further matters will inevitably arise, such as the

relevance of Mr. O’Mahony’s expressed opinion, and what legal effect that could have on the planning authority. Whilst I offer no view

on the point, I can certainly see the scope for an argument that it may have a bearing on the stance or approach which the authority

is permitted to take, even if ultimately that issue is a matter of law for the court to decide.

50. Reference has been made to the case of Lever (Finance) Limited v. Westminster Corporation [1973] 3 W.L.R. 732 which was

opened to and considered by Charleton J. in the High Court. Whilst it is not necessary to refer to that case in any detail, and

certainly not necessary to pass comment on whether it represents the law in this jurisdiction, nonetheless the decision, and the other

cases associated with the principles therein outlined, provides some scope for legal debate as to whether a senior planner can make a

decision in such circumstances and if so, whether a planning authority as an entity, will be allowed to resile therefrom.

51. For the avoidance of doubt, it should be stated once more that the appellant does not concede the nature of the variations as

being immaterial. This is not surprising as if such a concession was made, the same would have a significant bearing on the ultimate

outcome of the case when the appropriate principles of law are considered. Whilst I offer no criticism whatsoever of the approach so

adopted, nonetheless, the same results in a situation whereby primary and secondary issues of fact may arise which will inevitably

require court determination.

52. It can also be pointed out that, if the variation should fall within the scope of the planning permission, then the necessity for a

preliminary issue will no longer exist or at least not exist in the context of how the questions are presently formulated. As Laffoy J.

made clear in Dempsey v. Minister for Education and Science [2006] IEHC 183, the court should consider whether the subject

issue(s) of the preliminary application will inevitably fall for determination in any event. If there is a realistic possibility that such

issue(s) or such issue(s) so formulated may not call for resolution at all, then it will be very difficult to justify the making of such an

order.

53. In opposing this appeal, the plaintiffs also rely on the conduct of certain officials of the defendant Council following the meeting of

the 18th July, 2006. Between that date and March, 2007 they allege that such officials paid many visits to the site and on the basis

of what they said and indicated, conveyed to the plaintiffs the view that the works as then ongoing, were in compliance with the

original permission. Evidence, perhaps of an extensive nature, will be required on these matters. What will have to be explored is the

position which these individuals held with the Council at the time, what role that position ordained for them and as a result what

authority, actual or ostensible, so vested in them. All of these matters are issues of high significance as is, of course, what might

follow from the court’s findings in this regard. These, once again will require a fact finding exercise, because even if viewed in the

most favourable way possible for the Council, they at least involve a mixed question of fact and law.

54. There is another reason of the highest significance why I would dismiss this appeal. It relates to the claim based on misfeasance

in public office, which even if standing alone would itself justify such a course. It is accepted without serious contest that even if this

appeal should be allowed, the outcome of the preliminary hearing will not affect such a claim. This cause of action, although boasting

of a long history, is still the subject matter of some debate regarding its precise parameters. That issue does not fall for consideration

on this appeal and accordingly I would prefer to make no observation on it. In fact, in any event it is unnecessary to do so as all

parties accept that its determination will involve a consideration of the actions of the defendant council and some of its key officials

in their dealings with the plaintiffs arising out of the events above described. Questions of fact will be at the forefront of this inquiry

which will include ascertaining inter alia, the reason why such enforcement proceedings were issued, the identity and positions held

by those who were involved in that decision, what views were expressed and by whom at the meeting in July 2006, what advice the

Council officially received regarding the legal effect of that meeting, and what was the true motivation for taking such proceedings:

all in the context of an allegation that it failed to exercise its statutory powers in a bona fide way. As Weir v. Secretary of State for

Transport [2005] EWHC 2192 (Ch), and Luck v. Tower Hamlets LBC [2003] 2 CMLR 12, makes clear, such a cause of action, of

necessity, involves the existence of an evidential foundation which must be established before any submissions of a legal nature, can

be made.

55. This being the case, it is highly probable that even a decision in favour of the appellant on the preliminary issues, would not

reduce significantly the number of potential witnesses who might be relevant to this particular claim: nor would it necessarily curtail

the issues which would have to be traversed at the hearing. Likewise it is difficult to see any substantive decrease in the necessary

preparation for the hearing of this issue when compared with the overall claim. As a result, it inevitably follows that there would be

very little saving in either costs or time and certainly it does not appear convenient to embark on the course as suggested by the

council. In fact the contrary would likely be the position, as same would involve two substantive hearings rather than one.

Accordingly, on this basis I would also dismiss the appeal.

56. Finally, it is at least as likely as not, that if the issues were determined by way of a preliminary hearing, either party, if aggrieved

by the result, may undertake an appeal in respect thereof to this or as may now be more appropriate, to the Court of Appeal. Duffy v.

Newsgroup Newspapers Limited (No.2) [1994] 3 I.R. 63, is apt on point where O’Flaherty J. said:-

“I would also make the observation that the whole point of setting down a preliminary point of law is to save in time

and costs. This is surely not being achieved in the course of these proceedings. Even if there were a preliminary

hearing on this matter whoever lost would, presumably, appeal to this Court and would mark the third appeal in an

interlocutory manner in these proceedings.”

57. For these reasons I would dismiss this appeal.