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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Construction Industry Federation v. Dublin City Council [2004] IEHC 37 (4 March 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/37.html Cite as: [2005] 2 IR 496, [2004] IEHC 37

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Construction Industry Federation v. Dublin City Council [2004] IEHC 37 (4 March 2004)

 
THE HIGH COURT

[2003 No. 967 J.R.]

Between:-

CONSTRUCTION INDUSTRY FEDERATION

Applicant

And
DUBLIN CITY COUNCIL

Respondent

Judgment of Mr. Justice Gilligan delivered on the 4^th March, 2004.

By Order of Kearns J. on the 18^th December, 2003, the applicant herein was granted leave to apply by way of an application for judicial review for the following reliefs:

1. An order of certiorari, by way of an application for judicial review, quashing the decision made by the respondent on 1^st December, 2003,

(the "decision") to make a development contribution scheme pursuant to

s. 48 of the Planning and Development Act, 2000 (the "scheme");

2. A declaration, by way of an application for judicial review, that the respondent in purporting to make the decision acted ultra vires and/or without or in excess of jurisdiction;

3. A declaration, by way of an application for judicial review, that the decision is null and void and of no legal effect;

4. A declaration, by way of an application for judicial review, that the decision is invalid and the respondent acted in excess of or without jurisdiction in circumstances where the said scheme;

(a) fails to state adequately or at all the public infrastructure and facilities provided or to be provided by the planning authority in respect of which it is proposed to require payment in accordance with the terms of the scheme;

(b) fails to set out adequately or at all the basis for the determination of a contribution under the scheme as required by s. 48 (2) of the Planning and Development Act, 2000;

(c) fails to provide any or any adequate information on the basis of which the respondent under s. 48(2)(c) of the Planning and Development Act, 2000, might reasonably require the payment, in addition to a contribution under the said scheme, of a special contribution in respect of "specific exceptional costs not covered by a scheme" incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development or on the basis of which An Bord Pleanála, on appeal, or any other person or body might reasonably consider or determine that such "specific exceptional costs" were or were not covered by the said scheme;

(d) fails to state adequately or at all the basis for determining the contributions in respect of public infrastructure and facilities to be paid in accordance with the terms of the said scheme as required by

s. 48 (3) of the Planning and Development Act, 2000;

(e) fails to identify adequately or at all the nature and extent of the public infrastructure and facilities included in the said scheme, whether they are existing or proposed, the cost of the same (actual or estimated), the period of time during which they have been or will be provided, or in any way provide adequate information on the basis of which a person can know in respect of what public infrastructure and facilities a contribution is being made;

(f) fails to set out in the said scheme any or any adequate information on the actual or actual estimated cost of providing the infrastructure or facilities included in the scheme;

(g) fails to set out in the said scheme any or any adequate information as to the basis on which the benefit accruing to existing development is purported to be excluded;

(h) fails to set out the rationale for estimating the anticipated volume of development in the future, an essential calculation in assessing the appropriate level of contribution;

(i) fails to set out a sound economic basis for the decision by the respondent to increase the contributions proposed in the draft scheme;

An order was made during the course of the hearing for an amendment in the following terms:

(j) failed to set out adequately or at all in the said scheme the manner in which other sources of funding of public infrastructure and facilities were dealt with in calculating the basis for the determination of contributions;

5. A declaration, by way of an application for judicial review, that the decision is invalid and the respondent acted in excess of or without jurisdiction in making the said scheme in circumstances where the respondent failed to have regard to the actual estimated cost of providing the classes of public infrastructure and facilities which are included or purported to be included in the said scheme;

6. A declaration, by way of an application for judicial review, that the decision is invalid and the respondent acted in excess of or without jurisdiction in circumstances where the respondent, in determining. the basis for contributions under the said scheme, failed to exclude any benefit accruing in respect of existing development as a result of the provision of the public infrastructure and facilities included or purported to be included in the said scheme as required by s. 48 (3) of the Planning and Development Act, 2000;

7. A declaration, by way of an application for judicial review, that the decision is invalid and the respondent acted in excess of or without jurisdiction in circumstances where the respondent, in purporting to set out or state the basis for contributions under the said scheme, failed to set out or state in any or any adequate manner the basis on which it purported to exclude any benefit accruing in respect of existing development as a result of the provision of the public infrastructure and facilities included or purported to be included in the said scheme as required by s. 48(3) of the Planning and Development Act, 2000;

8. A stay pursuant to Order 84, rule 40(7)(a) of the Rules of the Superior Courts restraining the respondent from implementing the said scheme or otherwise acting upon the said decision pending the determination of the within proceedings;

9. In the alternative, and if necessary, an injunction (including an interim or interlocutory injunction restraining the respondent from implementing the said scheme or otherwise acting upon the said decision pending the determination of the within proceedings

10. An order for discovery on oath of all documents which are or have been in the possession, power or procurement of the respondent and which are relevant to any cause or matter in these proceedings;

11. If necessary, an order pursuant to Order 84, rule 22 of the Rules of the Superior Courts directing that the application for judicial review be made by plenary summons;

12. Liberty to serve such other parties as this Honourable Court may direct;

13. Liberty to file further affidavits;

14. Liberty to apply;

15. Such further or other reliefs as this Honourable Court may direct;

16. The costs of and incidental to these proceedings.

The statement required to ground application for judicial review was subsequently amended by order to include a further relief sought in terms as follows:

17. A declaration by way of an application for judicial review that if the decision is determined to be invalid and or if the scheme is determined to be unlawful the respondent is required to reimburse promptly and without deduction any development contributions paid by any person pursuant to a condition imposed in the decision to grant planning permission or a grant of planning permission in accordance with the said scheme.

Prior to the enactment of s. 48 of the Planning and Development Act, 2000, (hereinafter referred to as s. 48) a planning authority, in deciding to grant permission for development could, under s. 26 (2) of the Local Government (Planning and Development) Act, 1963, (hereinafter referred to as s. 26) make the grant of planning permission subject to conditions requiring financial contributions to be made towards any expenditure incurred or to be incurred by the local authority in respect of works which had or would facilitate the proposed development. In respect of proposed work, such financial contributions were repayable in whole or in part with interest, where the said works were not commenced or completed in full within a specified period, usually seven years. In addition, the amount of such contributions could be the subject of an appeal to An Bord Pleanála.

Under the provisions of s. 48, planning authorities are empowered to draw up a development contribution scheme or schemes and to impose conditions in grants of planning permission requiring payments of contributions in accordance with such schemes. The contributions are to be imposed in respect of public infrastructure and facilities provided or to be provided by the planning authority, generally, in its area, whether or not it is of benefit to the particular development concerned. There is no appeal to An Bord Pleanála in respect of the imposition of such contributions if they are properly calculated in accordance with the scheme and no provision is made for the repayment of contributions.

In addition to these general development contribution schemes provision is made for additional development contributions to be levied in specified circumstances:

a) under s. 48(2)(c) the planning authority may impose special contributions in respect of "specific exceptional costs not covered by a scheme". In the case of such special contributions there is an appeal to An Bord Pleanála and such contributions may be repayable if the planning authority decides not to proceed with the proposed works or does not commence the works within five years or does not complete them within seven years.

b) under s. 49 of the Planning and Development Act, 2000, (hereinafter referred to as s. 49) a planning authority may make a supplementary development contribution scheme in respect of any public infrastructure project or service provided or carried out by or on behalf of the planning authority, and impose a condition requiring a contribution under that scheme in addition to the general scheme in the grant of any planning permission, if that public infrastructure or project will benefit the development to which the permission relates. There is no appeal to An Bord Pleanála in respect of that imposition of such contributions if they are properly calculated in accordance with the scheme nor are any such contributions repayable in any circumstances. However, pursuant to s. 49(5), a person cannot be required to make a contribution under a supplementary scheme "where the person concerned has made a contribution under s. 48 in respect of public infrastructure and facilities of which the said public infrastructure project or service constituted a part."

Section 48 provides, inter alia, as follows:

"(1) A planning authority may, when granting a permission under section 34, include conditions for requiring the payment of a contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority and that is provided, or that it is intended will be provided, by or on behalf of a local authority (regardless of other sources of funding for the infrastructure and facilities).

(2) (a) Subject to paragraph (c), the basis for the determination of a contribution under subs. (1) shall be set out in a development contribution scheme made under this section, and a planning authority may make one or more schemes in respect of different parts of its functional area.

(b) A scheme may make provision for payment of different contributions in respect of different classes or descriptions of development.

(c) A planning authority may, in addition to the terms of a scheme, require the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development.

(3) (a) A scheme shall state the basis for determining the contributions to be paid in respect of public infrastructure and facilities, in accordance with the terms of the scheme.

(b) In stating the basis for determining the contributions in accordance with paragraph (a), the scheme shall indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or to be provided by any local authority and the planning authority shall have regard to the actual estimated cost of providing the classes of public infrastructure and facilities, except that any benefit which accrues in respect of existing development may not be included in any such determination.

(c) A scheme may allow for the payment of a reduced contribution or no contribution in certain circumstances, in accordance with the provisions of the scheme."

Under s. 48, in contrast to the position that obtained under s. 26(2), there is no direct relationship between the contribution payable in respect of a particular development and public infrastructure and facilities provided by a planning authority. Development contributions collected under a s. 48 scheme form a general fund to be applied as capital for public infrastructure and facilities within the functional area of the planning authority.

The decision to make a scheme pursuant to s. 48 is reserved to the elected members of the relevant planning authority whereas pursuant to the Act of 1963 contribution conditions were a matter for the manager/executive.

In or about early 2003 the respondent commenced the process of making

a development contribution scheme. Consultants Deloitte & Touche, HKR Chartered Town Planners, and Peter Bacon & Associates, Economic Consultants prepared a report in August, 2003 (hereinafter referred to as the "consultants report"). On the 2^nd September, 2003, the respondent published a Draft Development Contribution Scheme. Notice of the publication of the draft scheme was published in national newspapers on the 29^th August, 2003. The draft scheme was on public display from the 2^nd September, 2003, to the 13^th October, 2003, inclusive. Submissions and observations with respect to the draft scheme were accepted up to close of business on the 13^th October, 2003.

Pursuant to s. 48(5) a copy of the draft scheme was sent to the Minister for the Environment, Heritage and Local Government and was acknowledged by the Minister on the 2^nd September, 2003. On the 15^th October a formal reply was received from the Minister (approving the draft scheme).

On the 13^th October, 2003, the applicant made a submission in relation to the draft scheme. On the same day, the Irish Home Builders Association, a constituent association of the applicant, also made a submission on the draft scheme.

In or about November, 2003 a report was prepared by the city manager in relation to the submissions and observations received in relation to the draft scheme and this report was subsequently submitted to the members of the respondent for their consideration.

On the 1^st December, 2003, the draft scheme and the report of the city manager were considered at a meeting of the elected members of the respondent. A decision was made to approve the scheme subject to three changes. The contribution per residential unit was increased from €10,500 to €11,500, the industrial/commercial levy was increased from €100 per square metre to €110 per square metre and affordable housing was excluded from the scheme.

On the 9^th December, 2003, the making of the scheme was published in national newspapers giving the date of the decision of the respondent in respect of the draft scheme and stating the nature of the decision.

The applicant does not attempt in anyway to impugn the constitutionality of the Planning and Development Act, 2000, (hereinafter referred to as the Act of 2000) and in particular s. 48 thereof. The applicant's contention is that the scheme as brought into being by the respondent on 1^st December, 2003, is ultra vires s. 48 of the Planning and Development Act, 2000.

The first issue for determination is the question of the locus standi of the applicant. The respondent contends that the Construction Industry Federation is described as "an unincorporated trade association" and that it does not engage in development or in the making of any applications for planning permission and accordingly will not be liable to pay any development contributions under the scheme. The respondent further contends that the applicant is not as such affected by the scheme and accordingly does not have a "sufficient interest" in the matter to which the application relates.

The applicant contends that a wide range of persons will be affected by the development contribution scheme including members of the applicant association and it is submitted on the applicant's behalf that the applicant as a representative association had an interest in the lawfulness of the scheme and any development contributions levied thereunder. It is further contended that there is a clear public interest that the applicant should bring the within proceedings and that the issue raised is of considerable public importance. The applicant further contends that it made a submission in relation to the scheme to the respondent, as did one of its constituent members, the Irish Home Builders Association, and these submissions were considered and taken in to account by the respondent in concluding the scheme.

In Cahill v. Sutton [1980] I.R. 269 Henchy J. considered the issue of standing in the following terms:

"The Constitution has given Parliament the sole and exclusive power of making laws. The courts normally accord those laws the presumption of having been made with due observance of constitutional requirements. If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is required, as a condition of invoking the court's jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision), to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering.

This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception or qualification when the justice of the case so requires….

For example, while the challenger may lack the personal standing normally required, those prejudicially affected by the impugned statute may not be in a position to assert adequately, or in time, their constitutional rights. In such a case the court might decide to ignore the want of normal personal standing on the part of the litigant before it. Likewise, the absence of a prejudice or injury peculiar to the challenger might be overlooked, in the discretion of the court, if the impugned provision is directed at or operable against a grouping which includes the challenger, or with whom the challenger may be said to have a common interest – particularly in cases where, because of the nature of the subject matter, it is difficult to segregate those affected from those not affected by the challenged provision.

However, those examples of possible exception to the rule should not be taken as indicating where the limits of the rule are to be drawn. It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of a case, the court finds that there are weighty countervailing considerations justifying a departure from the rule."

The issue of standing was subsequently examined by the Supreme Court in the context of planning in Lancefort Limited v. An Bord Pleanala [1999] 2 IR 270 wherein Keane J. stated:

"The authorities reflect a tension between two principles which the courts have sought to uphold: ensuring, on the one hand, that the enactment of invalid legislation or the adoption of unlawful practices by public bodies do not escape scrutiny by the courts because of the absence of indisputably qualified objectors and, on the other hand, that the critically important remedies provided by the law in these areas are not abused … The need for a reasonably generous approach to the question of standing is particularly obvious in cases where the challenges relates to an enactment of the Oireachtas or an act of the executive which is of such nature as to affect all citizens equally … But it is also the case that a severely restrictive approach to locus standi where the decision of a public body is challenged would defeat the public interest in ensuring that such bodies obey the law."

He also emphasised that:

"While it is thus clear that a person initiating such a challenge by way of judicial review must at the least have what the law regards as a 'sufficient interest' in the subject matter of the impugned decision, whether he has such an interest can only be determined by reference to the circumstances of the particular case. . ."

The applicant is an unincorporated association representing the interest of parties involved in the construction industry. I am satisfied that its constituent members are clearly persons who will be affected by the operation of the development contribution scheme as brought into operation pursuant to section 48.

I take the view, following the dicta of Henchy J. in Cahill v. Sutton [1980] I.R. 269 that the impugned provision is directed at or operable against a grouping which goes to make up the constituent members of the applicant federation and I am satisfied that the applicant has a common interest with those affected because it represents those persons involved in the construction industry. I take the view that in the particular circumstances of this case there is a need for a reasonably generous approach to the question of standing and I do not believe, in the interests of justice, that it would be appropriate that I adopt a severely restrictive approach to locus standi in the circumstances of this case where the decision of the respondent is being challenged. Accordingly I find that the applicant has locus standi in this matter.

The applicant contends that it is a well established principle of statutory interpretation that a legislative provision imposing or authorising the imposition of any form of taxation must be strictly construed. The applicant relies on the principle as set out by Henchy J. in Inspector of Taxes v. Kiernan [1981] I.R. 117 wherein he states in the course of his judgment:

". . . if a word or expression is used in a statute creating a penal or taxation liability, and there is looseness or ambiguity attaching to it, the word should be construed strictly so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language."

In Louth County Council v. Matthews (High Court, Gannon J., 14^th April, 1989) the defendant had refused to pay service charges for refuse collection in circumstances where he had not availed of the collection service. One of the questions stated by the District Judge was whether, on a proper construction of s. 3(1) of the Local Government (Planning and Development) Act, 1983, a charge made by a local authority by virtue of s. 2 of that Act was payable by, and recoverable from, a person for whom the service was provided whether or not the person had availed of the service. Having analysed the relevant provisions of the Act of 1983, Gannon J. stated:

"It is notable from a reference to earlier Health Acts and Local Government Acts that the word 'charge' can be used with a variety of distinct and different meanings according to the context. Examples which may be found are: the imposition upon an interest in property of a liability to pay money or to satisfy a judgment; the imposition of a liability to pay a tax or levy; the requirement to pay for goods supplied or services rendered, and even the allegation of guilt for the commission of an offence. Having regard to the previous withdrawal by the legislature of the authority to raise money by a levy of a poundage upon the valuation of property I am of opinion that it was not the intention of the legislature to reintroduce this power in the oblique use of words capable in their ordinary use of a different meaning, rather than by expressly conferring a power to impose a levy to meet anticipated expenses …It is my opinion that the Defendant whose domestic refuse has not been cleared by the Plaintiff in the relevant period is not liable to pay the Plaintiff the sums claimed."

The respondent refers to Howard v. Commissioners of Public Works in Ireland [1994] 1 I.R. 101 wherein Blayney J. in his judgment considered at length the principles of construction applicable to an Act of the Oireachtas and emphasised that the fundamental duty of the court was to give effect to the intention of the Oireachtas as expressed in the words used by it and not to speculate as to what subjectively the intention of the Oireachtas may have been. He cited with approval the following passage from Craies on Statute Law:

"'A general proposition that it is the duty of the Court to find out the intention of Parliament … cannot by any means be supported' said Lord Simonds in 1957. Some fifty years before in Saloman v. Saloman & Co Ltd. [[1897] AC 22, 38] Lord Watson had said: "Intention of the legislature" is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication.' After expounding the enactment, it only remains to enforce it,

notwithstanding that it may be a very generally received opinion that it 'does not produce the effect which the legislature intended', or 'might with advantage be modified'. The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation: the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute."

In her judgment Denham J., at p. 162, states as follows:

"Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words. There is well established case law on this aspect of statutory construction."

Further at p. 163 of her judgment Denham J. states:

"The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the legislation not legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a statute then the court should not speculate but rather construe the Act as enacted."

The Chief Justice in agreeing with the judgment of Blayney J. at p. 140 made the following observation:

"I am satisfied that it would not be permissible to interpret a statute upon the basis of either speculation, or indeed, even of actual information obtained with regard to the belief of individuals who either drafted the statute or took part as legislatures in its enactment with regard to the question of the appropriate legal principles applicable to matters being dealt with in the statute."

While I will deal with the appropriate interpretation of the relevant provisions of s. 48 in due course it does appear appropriate that I state that I do not consider that the relevant provisions of s. 48 are either loose or ambiguous and in these circumstances I propose to adopt the rationale of Denham J. in her judgment in Howard v. Commissioners of Public Works in Ireland [1994] 1 I.R. 101 and construe the relevant provisions strictly according to the intention expressed, in the language used, in the legislation and I take the view that the words as used in the statute best declare the intent of the Act. In my view the language of the statute is clear and I must give effect to it, applying the basic meaning of the words as used.

The applicant contends that it was not afforded an adequate opportunity to make submissions in relation to the draft scheme because of the paucity of information contained therein. It is alleged that the scheme does not even purport to set out the basis for determining the contributions to be paid but, rather, refers to the consultants' report. The applicant contends that even if it is permissible to have recourse to the consultants' report (and this fact is not accepted by the applicant) there still was not enough information available to the applicant and other interested parties to make a proper or full submission or to engage in the consultation process in any meaningful way, and further the draft scheme is not clear.

This argument on the applicant's behalf leads in to the principal contention that is advanced which is that it is necessary for a development contribution scheme to specify the public infrastructure and facilities under each of the various headings, as set forth in sub-s.17 of s. 48, which have been or are intended to be provided. The applicant contends that it is not sufficient merely to identify classes of infrastructure and facilities to be provided. Reference is made to the "special contribution" as provided for in s. 48(2)(c) whereby a planning authority may in addition to the terms of a scheme require the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development.

The applicant relies on the evidence of Colm McCarthy, an economic consultant with DKM Economic Consultants Limited. Mr. McCarthy states that the scheme does not contain sufficient detail and information for the members of the respondent, in deciding to make the scheme, to establish and be satisfied that it complies with the requirements of section 48. Mr. McCarthy is of the opinion that deficiencies in the information provided, relating to matters such as the projects to be carried out, the works to be undertaken and the actual estimated costs for such works, are such as to frustrate the public consultation process provided for under section 48.

Mr. McCarthy states that in his opinion the scheme fails to set out the information required by section 48 of the Act. Mr. McCarthy states that it appears to him, as an economist, that the scheme must, inter alia, set out the actual estimated cost of providing the classes of infrastructure and that, in order to comply with this requirement, the scheme should show the actual estimated cost of the various projects that go to make up the public infrastructure and facilities provided or to be provided during the lifetime of the scheme to which the planning authority had regard. He further states that this actual estimated cost should then be reduced to exclude any benefit to existing development. Mr. McCarthy also states that the scheme should show that the scheme itself related to actual costs incurred or to be incurred in specific projects capable of being defined and costed.

Mr. McCarthy states that the scheme does not comply with the requirements as it does not specify the costs associated with particular projects detailed in the scheme. Neither does the scheme provide any description of the works involved in the projects, or the timeframe for commencement or completion of any project. Mr. McCarthy states that it is his opinion this type of information is necessary for the purposes of any meaningful consultation process. Mr. McCarthy also states that the effect of s. 48(2)(c) which provides for the imposition of a special contribution by the planning authority requires that this information be provided in the interests of transparency.

Further, Mr. McCarthy states that the consultants' report fails to set out and explain the basis for key calculations and assumptions which underpin the scheme, and that therefore it is not possible to determine whether the level of contributions has been correctly calculated in accordance with the requirements of section 48.

The applicant refers to s. 49(5) which provides for the making of supplementary development contribution schemes authorising the imposition of conditions requiring the payment of a contribution in respect of any public infrastructure service or project. Section 49(5) specifically provides that:

"[a] planning authority shall not, pursuant to a condition under subsection (1), require the payment of a contribution in respect of a public infrastructure project or service where the person concerned has made a contribution under section 48 in respect of public infrastructure and facilities of which the said public infrastructure project or service constitutes a part."

The applicant contends that it is clear from the foregoing provisions that a planning authority is not permitted to double charge an applicant in respect of any given item of public infrastructure and facilities but, because the scheme as adopted does not identify clearly and with particularity the public infrastructure and facilities included in it, this may well occur. The applicant goes as far as to make the case that any particular applicant for planning permission may not be aware that he is incurring a double charge and is deprived of a remedy whether by means of an appeal to An Bord Pleanála or by recourse to the High Court. The lack of detail in the scheme as to the nature, extent, and cost of the public infrastructure and facilities included in the scheme means that only the respondent and its advisers are in a position to say what is or is not included. The applicant contends that in order for this scheme to comply with the provisions of s. 48 not only should each individual item of public infrastructure and facilities be identified but also it should be stated whether the particular infrastructure or public facility has been already provided or is intended to be provided and that only the provision of this information would bring about a situation whereby applicants for planning permission will not be double charged where a special contribution situation or a supplementary development contribution were to arise pursuant to s. 48(2)(c) or s. 49 of the Act.

The respondent contends that none of the provisions of s. 48 require, in its terms, a draft scheme or a scheme to specify the individual project which the planning authority intends to fund wholly or partly from money raised under the scheme lest still the level of detail as to cost and timing as is contended for by the applicant herein. The respondent's principal contention is that there is a requirement in s. 48 of the scheme to set out the basis for the determination of a contribution and that, it is submitted, requires no more and no less than that a person looking at the scheme will be able to determine what development contribution if any will be payable by them in their capacity as an applicant for planning permission in respect of any given development. It is further submitted that as a matter of ordinary language the wording of the statute cannot be construed as importing a requirement to set out in the scheme all of the underlying data and analysis or a requirement to specify individual projects/timings and costings and that if such a requirement was necessary then the provisions of s. 48(3)(b), which provides that "in stating the basis for determining the contribution … the scheme shall indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or are to be provided by any local authority", would be entirely redundant.

Mr. Michael Flynn, partner with Deloitte & Touche, states that in preparing the consultants' report the persons involved went through a process, in conjunction with the respondent, of identifying particular projects and developing a projection of the anticipated related costs. It is his opinion that this process more than satisfied the requirement in s. 48 "to have regard to the actual estimated cost of providing the classes of public infrastructure and facilities".

Mr. Flynn described the deliberative process which led to the production of the consultants' report. The consultants were required to provide a sound, justifiable, equitable and accountable basis for imposing development-related contributions under section 48.

The work programme involved, inter alia, the determination of the types of projects which it appeared appropriate to include in a scheme, deciding on criteria for including particular projects within a scheme, the collection of data on these projects including projected costs and other sources of finance, a consideration of the benefit attributable to existing developments of these projects, the calculation of the total costs to be recouped under the scheme, a review of the current zoned land in the city council area considering potential for new development, and an estimation of projected demand for new development in the respondent's area which would be expected to result in new planning permissions being sought. The consultants would also be involved in the provision of advice on the management of the scheme post implementation.

The consultants in conjunction with the respondents set out specific criteria for the inclusion of particular projects in the scheme. The criteria included, inter alia, whether the project had or would be included in the development plan, whether a preliminary report been prepared for the project, whether it appeared fair to include the particular project in a countywide contribution scheme, whether the costs for the project could be recovered elsewhere and did the costs genuinely accrue against the planning authority and thus were they appropriate to be included in a contribution charge, the likelihood that the project would be implemented within five to seven years and, if this was not likely, would it be more appropriate to include it in a subsequent scheme and the status of the particular project.

The respondent's individual departments were requested to identify the various projects to be included in the scheme and to provide specific data with regards each particular project. The data included the capital costs, analysed by year, for the particular project, the maintenance/lifecycle costs, analysed by year, the expected life of assets, the other sources of funding for the project, the details of planning levies pursuant to s. 26 of the Act of 1963, the classification of users for the relevant location/catchment area, the type of asset, and the date of commencement and completion of the particular project. As many of the projects had not yet commenced the data was compiled with the best available information at the time of the collection of the data.

Section 48 provides that any benefit which accrues in respect of existing development may not be included in determining the contribution to be paid. Mr. Flynn notes that ultimately, the determination of the discount depended on considered and informed judgment rather than any arithmetical exercise but stresses that this, however, is not to suggest that the exercise was an arbitrary one.

The consultants further had regard to the treatment of water pricing receipts in order to ensure that the scheme as developed complied with the requirements of all water related legislation.

It is clear from the provisions of s. 48 that the planning authority shall have regard to the actual estimated cost of providing the classes of public infrastructure and facilities which are provided or to be provided by the local authority. However, the planning authority is not under an obligation to include in the scheme details of specific projects it intends to complete. In the instant case the consultants' report was commissioned by the respondent in order to ascertain the actual estimated cost for a scheme in their planning area.

Mr. Flynn also noted that given the data involved for each project is significant and complex, in order to calculate the scheme, the provision of the detailed information in the scheme was not considered to provide additional benefit to the reader. However, in determining the basis for the contribution to be paid the respondent had regard for the results of the complex processes involved in assessing the actual estimated cost.

In relation to a special contribution, s. 48(2)(c) permits the planning authority to require the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit a proposed development.

Section 49(1) permits a planning authority when granting a permission under s. 34 of the Act of 2000 to include conditions requiring the payment of a contribution in respect of any public infrastructure project or service, specified in a supplementary development contribution scheme made by the planning authority, provided or carried out as may be appropriate by a planning authority or pursuant to an agreement entered into by a local authority with any other person and that will benefit the development to which the permission relates when carried out.

Section 49(7) defines public infrastructure project or service for the purposes of s. 49 (1) in specific terms viz. the provision of particular light rail or other public transport infrastructure, including car parks and other ancillary development, the provision of particular new roads, the provision of particular new sewers, waste, water and water treatment facilities, drains or water mains and ancillary infrastructure.

The respondent contends that the contrast between the relevant provisions of s. 48 and s. 49 is dramatic and that it is clear that, when it considered it appropriate to do so, the Oireachtas was able to use language which clearly required particular projects to be identified and details of same to be specified. The absence of such language in the provisions relating to a s. 48 scheme is clearly not the result of any accidental omission but the result of legislative choice.

It appears appropriate that I state that I am not concerned in any way with the merits or otherwise of the development scheme as proposed by section 48. I am only concerned to decide whether the scheme as brought into being by the respondent on 1^st December, 2003, complies with the provisions of that section.

In my view s. 48 is straightforward in its language and intent, in allowing a planning authority, in this case the respondent, when granting a permission under s. 34 to include a condition requiring the payment of a contribution in respect of public infrastructures and facilities benefiting development in the area of the planning authority and that is provided or that it is intended will be provided by or on behalf of a local authority regardless of other sources of funding for infrastructure and facilities.

Section 48(2)(a) provides that subject to paragraph (c) the basis for the determination of a contribution under subs-s. 1 shall be set out in a development contribution scheme made under the section and a planning authority may make one or more schemes in respect of different parts of its functional area.

Section 48 (3)(a) sets out that the scheme shall state the basis for determining the contribution to be paid and sub-s. (3)(b) sets out that in stating the basis for determining the contributions in accordance with paragraph (a) the scheme shall indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or are to be provided by any local authority and the planning authority shall have regard to the actual estimated cost of providing the classes of public infrastructure and facilities except that any benefit which accrues in respect of existing development may not be included in any such determination.

Section 48(2)(c) provides for the payment of a special contribution in respect of a particular development where specific exceptional costs not covered by a scheme are incurred by any local authority in respect of public infrastructure and facilities which benefit the proposed development.

It is clear that s. 48(2)(c) allows a planning authority to require the payment of a further contribution in respect of a particular development where specific exceptional costs not covered by the development contribution scheme are incurred by the local authority in respect of public infrastructure and facilities which benefit the proposed development, in addition to the development contribution as provided for in section 48 (1).

I am satisfied that none of the provisions of s. 48 require a draft scheme or a scheme to specify the individual projects which the planning authority intends to fund wholly or partly from money raised under that scheme nor is the scheme required to set out the level of detail as to cost or timing.

I also have to bear in mind that the scheme at issue in these proceedings is the product of a democratic decision by the members of Dublin City Council duly informed by expert advice from the council's officials and consultants. It is also the product of a wide ranging and public consultation process in which inter alia the applicant was entitled to participate and did in fact participate fully.

I accept the submission, as made on the respondent's behalf, that if it is to be imported into the wording of s. 48(3)(a) that all of the underlying data and analysis has to be included in the scheme, or that a requirement to specify individual projects and provide costings should be detailed, then the provision of s. 48(3)(b) would be entirely redundant.

Further I am satisfied that the relevant subsections of s. 48 dealing with the contribution to be paid refer specifically to the different classes of public infrastructure and facilities which are provided or are to be provided by the local authority and specifically do not refer to individual projects of public infrastructure or facility. It follows in my view that the Oireachtas did not intend that individual projects and facilities would be specifically referred to and costed.

In my view the respondent did have regard to the actual estimated cost of providing the classes of public infrastructure and facilities and the scheme does indicate the contribution to be paid in respect of the different classes of public infrastructure and facilities which are provided or to be provided by them. It also appears that any benefit which accrued in respect of existing development was not included in the relevant determination.

The respondents were obliged to comply strictly with the legislative terms as set out in s. 48. In effect the applicant wants additional information not provided for in s. 48 and wants explanations which are not provided for. The respondent is asking the court to ignore the intention of the Oireachtas as set out in the provisions of the statute. The power in relation to the scheme is located with the elected members of Dublin City Council and is no longer an executive function. The judgment involved, and the decision to be taken, is that of the elected members. The respondent in my view is not obliged to include in the scheme further information than is required of it pursuant to section 48.

There is no suggestion in s. 48 that the amount of specific detail sought by the applicant should be set out. In effect the applicant is asking for more information to be read into the scheme than is provided for in section 48. The applicant wants every piece of working information to be disclosed in the scheme but in my view the content of s. 48 does not go this far. A reader of the consultants' report will see in broad terms how the basis of the contribution was arrived at.

The consultants' report, which was commissioned by the respondent, sets out in detail the methodologies employed to provide a sound, justifiable, logical, equitable, and accountable basis for the determination of financial contributions under sections 48 and 49. It is clear that the respondent grounded the scheme, as adopted, on the findings of the conslutants' report and express reference is made to the report in the scheme. However, there is no provision in s. 48 requiring the respondent to transpose the actual findings of the consultants' report into the scheme. The scheme must set out the basis for the determination of the contributions to be paid. The Act does not require the respondent to expressly refer to how it arrived at the actual estimated cost upon which the contribution to be paid was based.

In my view the scheme as adopted by the respondent at the meeting of its elected representatives on the 1^st December, 2003, sets out the basis for the determination of a contribution pursuant to s. 48(1) which is €11,500 in respect of each residential unit and €110 per square metre of industrial/commercial development. Further, I am satisfied that in stating the basis for determining the contributions in accordance with s. 48(3)(a) the scheme as adopted does indicate the contributions to be paid in respect of the different classes of public infrastructure and facilities which are provided or to be provided by the public authority and it does appear that the planning authority had regard to the actual estimated cost of providing the classes of public infrastructure and facilities allowing for the fact that any benefit which accrued in respect of existing development was not to be included in any such determinations.

In my view the substantive point of the applicant's case is that because each particular public infrastructure and facility has not been identified and costed there is a possibility, if the respondent does not act in good faith, that an applicant for planning permission will be required to make a double contribution. The applicant submits that an applicant for planning permission could possibly be subjected to a general development contribution and also a further contribution, pursuant to s. 48(2)(c) or s. 49(5), for the same project, and that an applicant will never be able to ascertain precisely whether the general contribution included that particular project and therefore whether the further contribution was warranted.

It is clear that, to date, pursuant to the scheme, no applicant has been required to pay a special contribution nor has there been a supplementary development contribution scheme and if either of these events are to take place they are specifically provided for in s. 48 and s. 49 and both situations can only arise in certain defined circumstances.

I do not consider that there is any substance to the applicant's arguments in this regard because in the event of any dispute arising in respect of a special contribution the onus will be on the planning authority to demonstrate that the condition is appropriate and in this regard it is of significance that there is a full right of appeal to An Bord Pleanála. Section 139 of the Act of 2000 provides for appeals against conditions imposed on the grant of planning permission. Section 48(13)(a) recognises that an applicant for planning permission may appeal against a condition imposed in relation to a special contribution. The provision provides that An Bord Pleanála shall not determine the relevant application as if it had been made to it in the first instance, but shall determine only the matters under appeal, that being that a special contribution was imposed. Furthermore, it is to be presumed that the planning authority will exercise their powers pursuant to s. 48(2)(c) fairly and reasonably.

It also appears to me that, at this point in time, the applicants contention in this regard is somewhat hypothetical and I would not be satisfied on the balance of probabilities that the applicant has made out a case that either it or its constituent members will suffer prejudice or financial loss now or in the future.

The circumstances in which a supplementary contribution maybe imposed pursuant to s. 49 of the Act are strictly defined and a scheme can only come into being after a process of consultation. It is to be presumed that the planning authority will exercise their powers pursuant to s. 49 fairly and reasonably. Further, it is clear from the provisions of s. 49 that the infrastructural projects are quite different to those referred to in s. 48 and accordingly the scheme, the subject matter of this application, does not pre-empt or preclude the lawful operation of either s. 48 (2)(c) or s. 49 by the respondent.

The applicant also contends that the consultation process relating to the draft scheme was inadequate because the scheme does not even purport to set out the basis for determining the contributions to be paid referring instead to the consultant's report and, even if it is permissible to have recourse to the consultants' report (and this is not accepted by the applicant) that there still was not enough information available to the applicant and other interested parties to make a proper or full submission or to engage in the consultation process in any meaningful way. Further it is contended on the applicant's behalf that the respondent was not entitled to refer to, or to include in any way in the scheme, the consultants' report. It is submitted that this is not a Dublin City Council document.

In my view it was permissible for the respondent to have referred to the consultants' report and to have incorporated it into the scheme. The consultants' report was clearly an integral part of the consultation process and was freely available to all concerned persons including the applicant and it constituent members. The respondent did not in my view have to set out the basis for the scheme but did have to set out the basis for determining the contribution. In my view the consultants' report, in fact, is supplementary to the scheme itself. The real criticism in this aspect is to the extent of the information contained in the consultants' report. It is accepted by the respondent that all the information available is not set out in the consultants' report for a number of reasons. The reality however is that, in my view, the scheme itself complies with s. 48 and if the legislature had intended that every piece of information as considered by the respondent must be set out in the scheme it could clearly have said so in the provisions of section 48. The scheme does no more or less than it is obliged to do and the consultants' report provides significant background detail.

Accordingly I reject the applicant's submission that because the consultants' report does not contain all the information considered, the scheme itself as brought into being by the respondent is ultra vires the provisions of s. 48 and I further reject the applicants contention that because of the inclusion of the consultants' report in the scheme the scheme itself is ultra vires the provisions of section 48.

The applicant further contends that the respondent was not entitled to vary the scheme which it did on 1^st December, 2003, when the draft scheme and the report of the City Manager were considered at a meeting of the elected members of Dublin City Council. A decision was made to approve the draft scheme, which had been subjected to the consultation process, subject to three changes being made. The changes were that the contribution per residential unit would be increased from €10,500 to €11,500 (9.5%) per residential unit, the commercial/industrial levy was increased from €100 per square metre to €110 (10%) per square metre and affordable housing was excluded from the scheme.

The applicant contends that the whole process of consultation should have been commenced afresh because of the changes made by the elected members of Dublin City Council to the draft scheme prior to voting in the scheme itself.

In Duffy v. Waterford Corporation (Unreported, High Court, 21^st July, 1999) the local authority proposed to build a scheme of local authority houses which was exempt from the normal planning permission process. However, the local authority was bound to follow the procedures set out in Part X of the Local Government (Planning and Development) Regulations, 1994. It was argued by the applicant that the local authority, having amended the scheme subsequent to the consultation process was obliged to re-advertise the scheme as amended and again allow for objections from members of the public. The applicant argued that as material alterations were made in the draft scheme the authority were again obliged to go through the procedure of notification of the public and receiving and considering objections.

Rule 134 of the Regulations of 1994 provided that, after the expiration of the period during which submissions or observations with respect to proposed development may be made, the local authority shall prepare a report which shall indicate, inter alia, "whether it is proposed to proceed with the proposed development, to proceed with the proposed development as varied or modified in a manner indicated in the report, or not to proceed with the proposed development." Rule 135 provided that a local authority shall indicate, by sending notice, that it will "proceed with the proposed development, or proceed with the proposed development subject to variations or modifications, or not proceed with the proposed development, as the case may be."

McGuinness J. determined that the situation which arose in the instant case, being a development to be carried out by the planning authority and therefore not requiring planning permission, was not analogous to the situation dealt with in Finn v. Bray U.D.C. [1969] I.R. 169. She determined that the respondent had complied with its obligations under the Regulations and accepted that there was no obligation to re-advertise the amended scheme and go through the objections procedure again. The learned judge accepted the submissions of the respondent including that, in theory, there would be no end to the circular process of amendment and subsequent objections if such a situation was allowed to occur.

I take the view that there is no substance in the applicant's contention because s. 48(8)(a) specifically provides for the planning authority to make the scheme by resolution or to vary or modify the scheme. The section states:

"Following the consideration of the manger's report, and having had regard to any recommendations made by the Minister, the planning authority shall make the scheme, unless it decides, by resolution, to vary or modify the scheme, otherwise than as recommend in the manager's report, or otherwise decides not to make the scheme."

In my view the elected members of Dublin City Council were entitled to vary the draft scheme and if it had been intended in any way that the making of a material variation obligated the city council to go through a further consultation process such an intention could easily have been stated by the Oireachtas in the relevant section.

I note in particular in this regard the provisions, as set out in s. 12 of the Act of 2000, relating to developmental plans where specific provision is made, at s. 12(7)(a) requiring the planning authority to carry out the consultation process again if a material amendment is made to the draft development plan. No similar provision is provided for in conjunction with section 48(8)(a).

I note the proposition as put forward in Keane on Local Government at p. 224 2^nd edition where in it is stated:

"The planning authority, through the elected members, must then consider the scheme, the report of the manager and any recommendation made by the Minister. They may then, by resolution, make the scheme. They may vary or modify the scheme, or decide not to make the scheme. Either way, the resolution must be within six weeks of receipt of the manager's report. The subs. is silent as to whether, where a variation or modification of the scheme is proposed, further consultation is required. It is submitted that further consultation is not required in line with the decision of Duffy v. Waterford Coporation. If such further consultation was required, an unending series of modifications and variations requiring further publication and consultation might be required. Upon the making of the scheme notification must be published."

I take the view that there is no statutory obligation contained in s. 48 which obliges the respondent to re-advertise the draft scheme, if it is subsequently varied by the planning authority. I am satisfied that the amendments as made were no more than a variation of the scheme and could not be construed as in anyway affecting the underlying structure or the basis of the scheme. I do not consider the amendments in any event as being material.

In these circumstances I reject the applicant's contention that the respondent was not entitled to vary the scheme pursuant to s. 48(8)(a) without going through the consultation process again.

In these circumstances I refuse the reliefs as sought I dismiss the applicant's claim.