The High Court has ruled that environmental consultant John James Mungovan brought his public law challenge to Clare County Council’s wastewater assessor register too late. The decision was made on a preliminary issue; it did not determine whether the register was unlawful or resolve Mungovan’s claims for damages.
Mr Justice David Keane found that the challenge to the council’s authority to establish and maintain the register was subject to the statutory planning time limit or, alternatively, the time limits for judicial review applied by analogy to a plenary action seeking declarations. He concluded that the claim was not brought promptly and that there was no good reason to extend time.
The council introduced the register in November 2004 for independent agents and consultants carrying out site suitability assessments for proposed single-house wastewater treatment systems. Applicants for planning permission in specified cases were required to submit assessment results, and the council advised them to use people on its recommended panel. The council said the arrangements served public health and environmental protection objectives and were connected to its planning functions.
Mungovan, an environmental engineering consultant, applied to join the register in 2005 and was unsuccessful. He applied again in 2008 and took part in a further assessment process, but the council again declined to include him. After further reports, queries and a joint site inspection, the council confirmed in April 2011 that it would not add his name. He issued proceedings in November 2011, claiming, among other things, that the register lacked a legal basis and that his exclusion caused financial loss and amounted to malicious falsehood. The council denied his claims. It discontinued the register in March 2013.
The council argued that the register was an act done in the performance or purported performance of a function under the Planning and Development Act 2000, bringing a challenge within the Act’s eight-week limit. Mungovan disputed that interpretation and argued that the six-year limitation period for his claim applied. The judge held that the statutory provision was broad enough to cover the register. He also concluded that the three-month judicial review limit and the requirement to act promptly applied by analogy to the claim for public law declarations.
The court treated the relevant challenge as one to the council’s creation and maintenance of the register, rather than to any individual refusal of Mungovan’s applications. It considered his awareness of the register from at least August 2005 and the absence of an argument establishing good reason for the delay. The council’s plea that the public law claim was out of time therefore succeeded. Mungovan’s application to strike out that part of the council’s defence failed.
The ruling did not decide the merits of the allegation that the register was ultra vires, or the separate claims for damages. The judge said those matters remained for a later stage of the modular trial.