The High Court has refused Dunnes Stores permission to cross-examine a Dublin City Council official in a judicial review concerning an awning at Harry’s on the Green, a public house operated by Taculla Limited at St Stephen’s Green Shopping Centre.
Mr Justice Max Barrett delivered the ruling on 16 December 2016, while the judicial review was at hearing. The application concerned an affidavit sworn by council official Aidan Walsh on 23 May 2016. It did not determine the underlying judicial review or whether the awning had planning permission.
Dunnes sought to question Mr Walsh about a council letter of 22 January 2016. The letter said the awnings were on private property, had been in place for more than seven years and did not require a planning permission application, so their use complied with the street furniture licence conditions. The licence’s General Condition 26 says side or front awnings may cover the licensed area only where planning permission has been granted.
Dunnes argued that the letter’s reasoning was legally wrong and that Mr Walsh’s affidavit took a different position by describing the structure as an “overhead awning” outside the condition. It also wanted to question him about how the letter was prepared, the council’s decision-making, and the history of an enforcement notice and related District Court proceedings. These were Dunnes’s submissions, not findings made in this ruling.
The judge said Dunnes had not established relevant, material conflicts of fact that justified cross-examination. He considered that the proposed questioning would amount in part to a roving inquiry into the council’s dealings with Taculla. The description of the structure as an overhead, front or side awning was a matter of interpretation that questioning Mr Walsh would not advance, he said.
The judge also said the enforcement notice and the council’s decision not to pursue a prosecution were not challenged in these proceedings. Other points raised by Dunnes were matters for legal submissions, rather than oral evidence. Citing the exceptional nature of oral evidence in judicial review, the court declined to grant Dunnes liberty to cross-examine Mr Walsh on his affidavit.