The High Court has advised that Clare County Council may prosecute Derek Floyd over an alleged failure to comply with a planning enforcement notice on 25 March 2004, despite his earlier acquittal in a case concerning a different notice and date.
The ruling was given in a consultative case stated from Ennis District Court. Mr Justice Charleton answered questions referred by Judge Mangan about whether the council could bring the later prosecution and whether the District Court had jurisdiction to hear it. The High Court did not determine Floyd’s guilt or whether the alleged unauthorised development continued on the date charged.
The council’s first enforcement notice, served on 23 October 2002, required Floyd to cease unauthorised development and use of a road for commercial haulage, decommission quarry operations and restore the site and road at lands in Ballybran, Ogonnelloe, County Clare. A summons relating to that notice was dismissed at Tulla District Court on 19 June 2003. The judge accepted a defence argument that the prosecution had to prove a public complaint had been received. A second summons based on the same notice was later dismissed after the prosecutor said the council would not proceed; costs were awarded to Floyd.
A further notice was issued on 18 February 2004. A summons alleged that Floyd knowingly failed to comply with its requirements on 25 March 2004. His solicitor argued that the earlier acquittal prevented the new case and that the council had no express power to issue another enforcement notice for the same alleged development.
Charleton J held that the first dismissal was an acquittal on the merits, but the later charge concerned a different alleged offence. The notices focused on different dates, and the evidence required for the later summons would address whether the development continued after the cessation date specified in the later notice. The rule against trying a person again for an offence after acquittal therefore did not bar this prosecution.
The judge also advised that a prior complaint, investigation or warning letter is not an element the prosecution must prove for an offence of failing to comply with an enforcement notice. He said the required proof includes service of the notice and evidence of unauthorised development or development contrary to planning permission; the accused’s mental element may be inferred from evidence of control over the development.
The High Court answered that the council was entitled to bring the prosecution concerning 25 March 2004 and that the District Court had jurisdiction to hear and determine it. The matter remained for the District Court; the High Court’s answers did not amount to a conviction.