The Court of Appeal has dismissed an environmental consultant’s appeal over his challenge to Clare County Council’s wastewater consultants register, ruling that his plenary proceedings were brought outside the time limit that applied by analogy to judicial review.
The appeal concerned only a preliminary issue: whether the consultant’s claims were time-barred. The substantive allegations about the register’s legality and his exclusion were not heard. The court affirmed the High Court’s order dismissing the claims on that preliminary issue.
The council operated a register of suitably qualified agents and consultants for wastewater treatment from November 2004 until March 2013. For planning applications involving septic tanks or other on-site wastewater systems, it required site suitability assessments to be carried out by people on the register. The consultant applied for inclusion four times and was refused each time. His court action sought declarations that the register was unlawful and damages, including for alleged financial loss and malicious falsehood. It did not seek to overturn any of the individual refusals.
The Court of Appeal held that the declaratory reliefs were essentially judicial review reliefs and that the damages claims depended on establishing the register’s unlawfulness. Adding damages claims did not avoid the judicial review time limits. The court set the start of the relevant period at 7 March 2006, when the consultant received notice of his first refusal and, in the court’s view, was first adversely affected by the register requirement. He issued proceedings on 4 November 2011.
The court rejected the argument that the consultant’s cause of action accrued afresh each day the register remained in operation. It distinguished this case from one involving a person who was ineligible to apply for a place on a register: this consultant had applied and received a refusal. The court said it was not necessary to decide whether the register’s operation fell within the planning law provision relied on by the council.
The High Court had held that the amended section 50 of the Planning and Development Act applied and also found the claims out of time under judicial review rules. The Court of Appeal disagreed with applying the amended section 50 because the cause of action accrued before that amendment commenced and the substituted provision could not operate retrospectively. It nevertheless upheld the alternative conclusion that Order 84 time limits applied by analogy. The proceedings were not brought promptly and were outside the three-month period then applicable. The consultant had advanced no reason to extend time, the court said.
The appeal was dismissed, and the High Court’s order on the preliminary issue was affirmed. The Court of Appeal expressed no view on the relevance of a separate High Court decision concerning a similar register or on the council’s later withdrawal of this register.