Mulhern v. Bundoran U.D.C. [1998] IEHC 14 (30th January, 1998)

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4. On the 22nd February, 1996 the Respondent caused a notice to be published in the Donegal Democrat newspaper inviting hackney drivers and other interested parties to attend a meeting to discuss the Regulations and to hear their views. The Applicant attended that meeting at which it was decided to proceed to have Bundoran declared a taximeter area.

6. On the 16th May, 1996 a further notice was published in the Donegal Democrat which indicated that the Respondent proposed to determine that five taxi licences and one wheelchair accessible licence might be granted in respect of its functional area. Once again representations were invited. No objections or representations were made. Finally, on the 2nd July, 1996 the Respondent decided that there would be five taxi licences and one wheelchair accessible licence granted in respect of its functional area.

7. Three days later a notice was published in the Donegal Democrat newspaper advising that the licences might be granted for the Respondent's area and that application forms and details were available from the Respondent's Town Clerk. Completed application forms had to be lodged not later than 4 p.m. on Friday the 9th August, 1996.

8. The Applicant attended at the offices of the Town Clerk and obtained three application forms and a copy of the notice which had been published in the newspaper. He had a conversation with the Town Clerk and was informed by him that there were no further details concerning the matter. The Applicant completed the application forms and returned them by hand to the Assistant Town Clerk on the 24th July, 1996. Both the notice which appeared in the newspaper and the application forms filled out by the Applicant have been exhibited before me and there is no mention in either of the necessity to pay a fee to accompany the applications. On the occasion when the forms were returned to the Respondent, the Applicant received a receipt in respect of them which was signed by the Assistant Town Clerk.

9. The Applicant was aware from his own knowledge that the Regulations in question required a fee to be paid so he specifically asked the Assistant Town Clerk when handing in his application forms on the 24th July, 1996 whether there were any fees due at that time. It is accepted by the Respondent that he was informed by the Acting Town Clerk that no fees were payable at that stage, but rather they would be when the licences were issued. The Applicant was in a position there and then to pay all fees if required to do so.

10. On the 6th September, 1996 the Applicant in his capacity as a member of the Respondent received a letter dated the preceding day informing him that a special meeting had been arranged to take place on the 10th September, 1996. The purpose of the meeting was to consider an extension of time for the submission of applications for taxi licences. He immediately contacted his Solicitor who wrote to the Respondent on the 9th September, 1996 pointing out that there was no provision under the Regulations to extend the time for the submission of applications. The letter pointed out that the Respondent had imposed a time limit and that no consideration should be given to any further applications because that would prejudice existing timely applicants which included the Applicant in these proceedings.

11. The Applicant attended the meeting. He was informed by the Solicitor for the Respondent that the application forms which he had completed were the wrong forms and furthermore that the applications were invalid because of the non-payment of a fee of £10 which should have accompanied each application form. The Applicant was taken aback by this information and immediately offered to pay the appropriate fees to the Town Clerk. He was then informed by the Town Clerk that the applications submitted by him were invalid and that it was too late at that stage to pay the appropriate fees.

12. The Applicant then received two letters from the Respondent dated the 11th and 12th September, 1996. The letter of the 11th was sent to him in his capacity as a member of the Respondent. In it the Applicant was informed that since the conclusion of the meeting of the previous day it had come to the notice of the Assistant County Manager that the Minister for the Environment was carrying out a review of the Regulations and was seeking the views of local authorities throughout the country. One of the issues which was to be the subject of the review, was the application of the Fifth and Sixth Schedules of the Regulations. The Department of the Environment had sought observations from all local authorities before Friday the 28th September, 1996. Because of this development and the discussion which had taken place at the meeting on the previous day the Assistant Manager had decided:-

13. The second letter was sent to the Applicant in his capacity as a person who had applied for the licences. It pointed out that under Article 10 of the Regulations his applications had to be accompanied by the appropriate fee which was specified in the Fourth Schedule thereto. None of the applications lodged were accompanied by this fee. Accordingly, the Respondent regarded the applications as being invalid. The letter furthermore pointed out that the application form which had been completed by the Applicant was not a prescribed form under the Regulations and the Respondent had decided that amendments to it would be necessary so as to enable it to contain all the information required to assess applications under the terms of the Regulations. The letter went on to point out that the Respondent intended to publish a fresh notice in due course and to invite applications on new forms which would be made available. It also told the Applicant that a review of the Regulations was being undertaken by the Minister and the Respondent had been invited to submit observations to him. Because of this the Respondent decided to defer the re-publication of the notice and the invitation of fresh applications until after that review was completed.

14. Further correspondence between the Applicant's and the Respondent's Solicitors took place but to no avail as far as the Applicant was concerned. Accordingly, on the 24th January, 1997 Barron J. gave leave to apply for the following reliefs:-

(d) A declaration that the Applicant had a legitimate expectation not to submit a fee simultaneously with the said applications or accompanying the said form on the basis of the express representations and assurances of the Respondent, its servants and agents that no such fee was required at that stage.

(e) An Order of Certiorari quashing the Respondent's decision to invalidate the said applications by reason of the non-payment of a fee of £10 accompanying each of the said applications and by reason of the fact that amendments to the said application form were necessary. (f) An Order of Mandamus directing the Respondent to accede to the Applicant's application and to consider and determine the said applications within a reasonable period or such time as this Court might fix.

"(a) The Respondent acted ultra vires and in breach of a statutory duty in determining that the said applications were invalid on the grounds that amendments to the said application forms were necessary and that the provision as prescribed in paragraph 10 of the Regulations requiring that a fee shall accompany an application for a taxi licence is mandatory.

(b) The said decision was arbitrary unfair, unreasonable, contrary to due process and contrary to the applications (sic) legitimate expectation that no such fee was required at the application stage, which said expectation was created by the express assurances and directions of the Respondent, its servants and agents that no such fee was payable at that stage and having regard to the fact that a fee was not submitted with any of the application forms received by the Respondent.

the fact that the Regulations did not prescribe any application form. Rather, this was left to be determined by the licensing authority. He made enquiries of another licensing authority regarding a form which would be appropriate. He obtained from that authority the form of application which was used in this case. His belief was that this form was appropriate for use under the Regulations but he now realises that such was not the case because the form did not require applicants to furnish information which the Respondent would need to enable it to determine eligibility by reference to the number of points which a particular applicant might be entitled to in accordance with the provisions of the Fifth Schedule to the Regulations. The form of application was in fact one which had been used for applications under earlier Regulations. This was the first time in which a taximeter area had been proposed for Bundoran, hence the confusion.

18. The town clerk further contends that it is a mandatory requirement of Article 10 of the Regulations that applications for licences must be accompanied by the appropriate fee specified in the Fourth Schedule. This is a sum of ten pounds which is prescribed in respect of an application for the grant of a taxi licence. In paragraphs 2 and 4 of the Fourth Schedule separate fees are specified in respect of the grant of such licences. Two distinct fees are involved. He was under the mistaken impression that only one fee had to be paid and then only after an offer of a grant of a licence had been made. He accepts that he and other officials of the Respondent were under the mistaken impression that only one fee was payable and that such a view may have been conveyed to the Applicant and indeed other applicants for such licences.

19. Finally, he admits that the closing date for receipt of completed applications for licences was Friday, the 9th August, 1996. After that date representations were made by a person who had overlooked the notice and was seeking an extension of the period for making applications. As a result, a special meeting of the Respondent was called on the 10th September, 1996 to consider this issue. Prior to the meeting, but on the morning of it, a letter was received from the Applicant's Solicitor. This letter pointed out that there was no provision in the Regulations which would permit an extension of the period in question.

THE REGULATIONS The Regulations came into operation on the 1st September, 1995. Under Article 3(1) the Respondent is established as a licensing authority. Article 7 permits the Respondent to declare an area to be a taximeter area. Where it has so declared it is, pursuant to Article 8, entitled to determine the number of taxi licences or wheelchair accessible taxi licences to be granted in respect of such an area. When it has determined the number of taxi licences, it is obliged to cause notice of that determination to be published in one or more newspapers circulating in the area in question. Such a notice must, pursuant to Article 9, state the period within which applications may be made and the place at which applications may be submitted for such licences.

22. Article 11 provides that where a licensing authority has declared an area to be a taximeter area and where taxi licences are to be granted in respect of the area for the first time, it may consider more than one application for such licences from a person who is the holder of more than one hackney licence granted or deemed to be granted by the licensing authority.

23. Where the number of applications received for the grant of taxi licences or wheelchair accessible taxi licences exceeds the number determined by a licensing authority, the licensing authority must, where the licences are to be granted in respect of a taximeter area for the first time, consider the applications in accordance with the criteria prescribed in the Fifth Schedule to the Regulations. In all other cases it must consider the applications in accordance with the criteria set out in the Sixth Schedule.

24. The Fifth Schedule provides for an award of points to be made to applicants. The Sixth Schedule provides both for the award and deduction of points to an applicant. In determining the form and manner of the applications, the Respondent ought to have been mindful of the provisions of Article 11 and the points system provided for in the Fifth and Sixth Schedules. The forms provided to the Applicant did not seek information which would enable the Respondent to determine eligibility for licences in accordance with the provisions of the Regulations. Forms provided by the Respondent were therefore defective to that extent. Had they sought the necessary information, the appropriate calculations required under the Fifth and Sixth Schedule of the Regulations could have been carried out.

26. The net question which falls to be decided here is whether the expression "shall be accompanied by the appropriate fee specified in the Fourth Schedule" contained in Article 10 of the Regulations is directory or mandatory. This issue is dealt with in the judgment of Henchy J. in The State (Elm Developments Limited) v. An Bord Pleanala [1981] ILRM 108. In that case the Prosecutor obtained permission from Bray Urban District Council to build a shopping centre. The local Residents Association wrote to An Bord Pleanala stating its intention to appeal that decision of the Council. The written notice complied with the relevant regulations save that it did not set out the grounds of appeal. It did however indicate that they would be forthcoming in due course. The developer sought to prohibit An Bord Pleanala from entertaining the appeal. It was unsuccessful in the High Court and the Supreme Court. In the course of his judgment in the Supreme Court Henchy J. (at p. 110) said:-

"Whether a provision in the statute or a statutory instrument, which on the face of it is obligatory (for example, by the use of the word 'shall'), should be treated by the Courts as truly mandatory or merely directory depends on the statutory scheme as a whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the Courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be excused.

An example of a truly mandatory provision is to be found in the decision of this Court in Monaghan UDC v. Alf-a-Bet Promotions Limited (24 March 1980; unreported). The developer in that case was seeking development permission which would allow him to convert a drapery shop in the town of Monaghan into a betting office and amusement arcade. The relevant planning regulations required that a notice published by the developer in a newspaper of his intention to apply for development permission should state, inter alia, 'the nature an extent of the development'. The notice published by the developer in that case referred only to 'alterations and improvements'. By no stretch of interpretation could that be said to be indicative of the nature and extent of the proposed development. The Court considered that the inclusion in the notice in a newspaper of information as to the nature and extent of the proposed development was vital to the proper operation of the statutory scheme for the grant of development permission. The veiled and misleading notice that was published was held to be a non-compliance with that mandatory provision and it could not therefore be excused. In the course of my judgment I said:-

'I feel it pertinent to express the opinion that when the 1963 Act prescribed certain procedures as necessary to be observed for the purpose of getting a development permission, which may affect radically the rights or amenities of others and may substantially benefit or enrich the grantee of the permission, compliance with the prescribed procedure should be treated as a condition precedent to the issue of the permission. In such circumstances, what the legislature has, either immediately in the Act or mediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the Courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially and therefore adequately, complied with'.

The present case is the antithesis of that case. In that case it was the developer who was seeking to have the departure from the statutory requirements excused. In that case the notice in the newspaper, so far from informing the public of "the nature and extent" of the proposed development, concealed that information behind the general and undescriptive words 'alterations and improvements'. Local residents or business people to whom a betting office and amusement arcade would be anathema might well have been led by the notice to think that all that was proposed was a refurbished drapery premises. Whether intentionally or inadvertently, the notice was calculated to lure interested parties into abandoning their opportunity of making representations against the grant of the permission. In the circumstances it would have been a travesty of the statutory scheme of development control if the requirement which was departed from had been held to be merely directory".

"The decision of a planning authority to grant a development permission, while not necessarily final, will become final if an appeal is not lodged within the time fixed by the Act. Since an extension of that time is not provided for, the requirement as to time is mandatory, so that a departure from it cannot be excused. The requirement that the appeal be in writing is so obviously basic to the institution of an appeal that it too must be considered mandatory. So also must be the requirement that the written appeal state the subject matter of the appeal, for the absence of such identification could lead to administrative confusion. The lodgment of a deposit of £10 with the appeal (perhaps not necessarily physically or contemporaneously with the appeal) would also seem to be an essential part of the statutory scheme, so as to discourage frivolous, delaying or otherwise worthless appeals".

28. I take the view, as did Henchy J., in the Elm Developments case, that the lodgment of the fee specified in the Regulations is an essential part of the scheme prescribed by the Regulations in suit. However, I do not take the view that the fee has to be paid physically or contemporaneously with the application. It is in my view sufficient if such fee is paid prior to the closing date for receipt of applications fixed by the relevant authority. By so requiring, the statutory object of discouraging frivolous or worthless applications can be achieved. Applying that logic to the present case, it would mean that the fee ought to have been paid by the Applicant not later than 4 p.m. on Friday, 9th August, 1996. It is common case that it was not. However, it is also common case that the reason why that was so was the information given to the Applicant by the acting Town Clerk that the application fee would be payable only when the licences were issued. There is no question but that the Applicant was in a position to pay all fees if required to do so at the time when he handed in the application forms on the 24th July, 1996. Having been misled by the Respondent, it would, in my view, be quiet unjust in these circumstances to permit it to treat his application as invalid by reason of the failure to pay the fee.

29. I am of the view that the Applicant is entitled to call in aid the doctrine of legitimate expectation. It was first considered in the Courts of this country in Webb and Anor. v. Ireland and Anor. [1988] IR 353. In his judgment Finlay C.J. (at p. 384) said this:-

"It would appear that the doctrine of 'legitimate expectation' sometimes described as 'reasonable expectation', has not in those terms been the subject matter of any decision of our Courts. However, the doctrine connoted by such expressions is but an aspect of the well recognised equitable concept of promissory estoppel (which has been frequently applied in our Courts), whereby a promise or representation as to intention may in certain circumstances be held binding on the representor or promisor. The nature and extent of that doctrine in circumstances such as those of this case has been expressed as follows by Lord Denning M.R. in Amalgamated Property Co. v. Texas Bank (1982) QB 84, 122:-

'When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the Courts will give the other such remedy as the equity of the case demands'".

30. The equitable origins of this doctrine of legitimate or reasonable expectation were further underlined by the decision of Hamilton P. (as he then was) in Duggan v. An Taoiseach and Others [1989] ILRM 710. In that case at 727 he said:-

"The doctrine of legitimate or reasonable expectation, being in accord with equitable principles, is recognised by the Courts and if a person establishes that he has a legitimate expectation of receiving a benefit or privilege, the Courts will protect his expectation by Judicial Review as a matter of public law".

32. In the present case there is no suggestion that the Applicant's applications were frivolous, vexatious or worthless. He was misled by the representations of the Respondent and, in my view, has successfully made out his complaint under this heading.

33. The forms supplied by the Respondent did not require an applicant to submit information which would enable the points system, to which I have already referred, to be operated. Whilst there was undoubtedly a defect in the form which the Applicant was asked to fill out, it does not appear to me that the Respondent was precluded from seeking further information from any applicant so as to become apprised of the information necessary to implement the points system. Article 10 of the Regulations requires the application to be made in such form and manner as shall be determined by a licensing authority. Having discovered that the application form was defective, I see no reason why supplemental information could not have been sought from all the applicants who had applied in time so as to require them to furnish the missing information. It appears to me that it was within the jurisdiction of the Respondent to seek such additional information since it is at large in prescribing the form and manner of the applications which fall to be considered by it.

34. I do not consider that the comparison which is sought to be drawn by the Respondent between the Regulations in suit and those contained in the Local Government (Planning and Development) Regulations, 1994 is a valid one. Those Regulations apply in circumstances where the planning authority is under a statutory obligation to give a decision within a prescribed time. Failure to do so can give rise to a default permission being granted. The seeking of additional information by the planning authority stops the clock running in the computation of the statutory time. It is hardly surprising therefore that the Regulations would contain express provisions for the seeking of information in such circumstances. The position in the present case is quite different where the Respondent does not operate under any such statutory time constraint.

35. In these circumstances I do not see any impediment placed in the way of the Respondent in seeking further information from applicants so as to apprise itself of the necessary information with a view to carrying out its obligations under the Regulations.

37. The circumstances and the manner in which this decision was made are set forth in the Affidavit of Mr. McNulty. The decision to extend time and re-advertise for the licences appears to have been taken for a number of reasons. First, representations had been received from a third party who had overlooked the original notice and sought an extension of time in order to make application. Secondly, legal advice had been obtained that none of the applications lodged were valid for the reasons which I have already dealt with in this judgment.

38. Having decided to extend time and re-advertise for the licences, the Respondent then concluded that it should not proceed further with the matter because of correspondence which had been received from the Minister for the Environment indicating that a review of the Regulations was being undertaken. The Respondent has made submissions to the Minister concerning that review but has not had any response to them notwithstanding the passage of a lengthy period of time.

39. Assuming, but without deciding, that there was power to extend the time for the making of applications, I am of the opinion that such power could only be exercised in circumstances where there were objectively justifiable reasons for so doing. The Applicant, in my view, had a legitimate expectation that having complied with the requirements of the Respondent, his application for a licence would be considered in common with all other applicants who complied with their obligations in that regard. The fact that somebody else was less vigilant than the Applicant and had overlooked the notices published does not of itself appear to me to be a good ground for extending the time for the making of applications. The admission of another candidate after the closing date would dilute the Applicant's chances of success. His legitimate expectation of the procedures being followed in accordance with the time limits laid down was thereby infringed. There may well be objectively justifiable reasons for extending the time for applications to be made but the mere fact of inadvertence on the part of another prospective applicant is not, in my view, one of them.

12th September, 1996. That letter speaks of a deferral of the re-publication of the newspaper notice and the invitation of fresh applications. Elsewhere it speaks of a fresh notice being published. There appears to be some confusion on the part of the Respondent as to whether it is abandoning all that has gone before but may in the future begin the procedure afresh or is attempting to graft on to the existing position new procedures. In my view the Respondent has no entitlement to do the latter having regard to the Applicant's rights.

42. There is no difficulty in the Respondent participating in the ministerial review of the regulations. If, however, it wishes to do so it cannot leave the Applicant in a form of limbo. The letter of the 12th September, 1996 is not a model of clarity. I read it as an indication that an entirely fresh start may in the future be made on the question of the allocation of taxi licences in the Respondent's functional area. Meanwhile the status quo ante will be maintained. If that is what is intended I do not think that the Applicant is in any way damnified. He continues as before and will have a full opportunity to participate in any new procedures.

43. Participation in the ministerial review was, in my view, a legitimate reason for not proceeding with the allocation of licences. However, if the Respondent wishes to allocate licenses in the future it must begin the whole process afresh. It cannot have regard to the applications already made and seek to include them in some new procedure or process which may be grafted on to that already undertaken.

44. In my opinion, the procedure originally embarked upon has now effectively been abandoned by the Respondent. If at some stage in the future the Respondent wishes to proceed to allocate taxi licences it will have to go back to square one and begin the process over again, thereby affording everyone who wishes an opportunity to make their case.

45. In these circumstances the only possible reliefs to which the Applicant might be entitled to would be the declarations sought at (a), (b) and (d). In the circumstances they have, in my view, little of value to offer him in any real sense (apart from their relevance on the question of costs). Subject to hearing Counsel, I do not therefore, as a matter of discretion, propose to grant the declarations.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mulhern v. Bundoran U.D.C. [1998] IEHC 14 (30th January, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/14.html Cite as: [1998] IEHC 14

High Court of Ireland Decisions

Mulhern v. Bundoran U.D.C. [1998] IEHC 14 (30th January, 1998)