The High Court has clarified that a stay on a Dublin City Council planning declaration does not prevent the Council from starting a separate enforcement process concerning a gantry extension at a port facility in Ringsend.
The ruling, delivered by Mr Justice Michael Peart on 29 May 2014, arose from a challenge by Marine Terminals Limited to a Council decision of 14 February 2014. The Council had declared, following a request by notice party Anthony Downes under section 5 of the Planning and Development Act 2000, that raising the T4 rail-mounted gantry by about five metres was development and was not exempted development. The judgment states that no authorisation had been obtained before the extension.
Marine Terminals argued that it had not been consulted or given an opportunity to be heard before the Council made the declaration, and that fair procedures and natural justice had been breached. It sought judicial review and a stay of the decision. Leave to seek judicial review and a stay were granted on 31 March 2014.
The Council then asked the court to clarify the stay or discharge it, saying a broader interpretation could prevent it from taking enforcement steps within the applicable statutory time limit. Marine Terminals contended that the stay also covered enforcement action under Part VIII of the Act.
Justice Peart left the stay on the section 5 decision in place, but clarified that it did not bar the Council from taking steps it considered appropriate under sections 153 to 160. He said enforcement under those provisions operates through a separate procedure and cannot rely on the section 5 declaration: the Council would have to carry out a separate investigation under section 152.
The judgment also noted that a person receiving a warning letter under section 152 may make written submissions or observations. The existing stay on the section 5 decision was sufficient, the judge said, to protect Marine Terminals from potential consequences under section 151 while it had not had an opportunity to be heard on the declaration.
The court did not decide the underlying judicial review challenge in this ruling. It said the parties could prepare an agreed amended order reflecting the clarification if they considered that necessary. Costs were to be costs in the cause.