ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005415
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 27/02/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Location of Hearing: Sligo Meeting Room 2
In accordance with Section 41 of the Workplace Relations Act, 2015 Acts and/or Section 25 of the Equal Status Act, 2000, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant is a young farmer living and working in the West of Ireland.
The claimant had erected fencing on his farm and it was the subject of an enquiry by a third party – ultimately culminating in the matter being appealed through the statutory mechanisms and a refusal of planning permission by the respondent.
It was submitted that the decision of the 10th.March 2016 by the respondent to grant planning permission to Mr.MW was discriminatory on age grounds against the claimant.The claimant was refused planning permission for a fence on the 7th.Sept.2015 and it was suggested that the same grounds for refusing planning permission to the claimant should have applied to the case of Mr.MW.Both farmers had applied for planning permission in and around the same time – the planning inspector advised the respondent that both applications should be refused .
It was submitted that the claimant’s land was in an area of less scenic beauty than Mr.MW’s and that this had been confirmed by the Local Authority.Both fences bordered commonage.The claimant’s farm , it was submitted , cannot function without a boundary fence along the commonage.It was submitted that the only conclusion one could reach was that the respondent discriminated against the claimant on age grounds because he was younger than Mr.MR.
The claimant’s representative gave a detailed account of the inspectors report and observations on both applications and compared and contrasted the matters raised therein – the inspector ultimately recommended refusal of permission for both applications.The respondent however granted permission with respect to Mr.MW’s application
The claimant’s representative set out the respondent’s reasons for refusing the claimant’s application and challenged the grounds set out for that refusal and submitted that those reasons conflicted with the findings of the local authority who had given consent to erect the fence under the “precautionary principle”. He proceeded to record the respondent’s reasons and considerations for granting planning permission to Mr.MW and argued that the reasons advanced were more relevant and applicable to the claimant’s fence .It was submitted that the reasons for approving Mr.MW’s application were consistent with previous decisions .
It was submitted that the respondent discriminated against the claimant “ for reasons unknown based on his age i.e. they knew he was younger than Mr.MW , was starting out as a farmer and his fence and the viability of his farm did not matter to the respondent so they decided to refuse planning permission for this fence”.
It was submitted that when the claimant referred his case to the respondent , he stated
“I became the registered owner of the land in question on which the fence is located on the 12th.May 2011.I inherited this land due to the death of the previous owner…. .who was my great grand uncle.I had worked on this farm growing up as did my father uncles and grandfather before me.I was welcomed into the farming community as the new owner and my ownership was seen as a positive development in an industry that has seen a decline in the number of young people in recent years
It was advanced that young was the key word – the respondent was aware of that and Mr.MW was not a young farmer starting out.It was contended that by ignoring the claimant’s case , the respondent had discriminated against the claimant on the basis of age even though he was in an area of less scenic importance and his fence was needed for exactly the same reasons as Mr.MW .
The claimant’s representative rejected the respondent’s assertion that the Act did not apply to the respondent.It was submitted that the rejection of the claimant’s application by the respondent could not have been on planning issues when compared to Mr.MW’s application.
In response to the respondent’s submission that the complaint was out of time,the claimant’s representative asserted that he was awaiting publication of another decision in which similar issues to the claimant’s case had been raised.The date of that decision was the 5th.Sept. 2015 which did not allow him enough time to study its contents before the 10th.Sept.2015.He stated that he was not represented by anyone and assumed he would meet the time limit once the application was made in the month of September.
Summary of Respondent’s Case:
The respondent set out a chronology of the events leading up to the referral to the WRC .The respondent submitted that the WRC did not have jurisdiction to investigate the complaint.It was submitted that the Act cannot be applied to decisions made by the respondent.It was submitted that the decision to refuse planning permission was made by the respondent exercising quasi-judicial adjudicative functions under the Planning Act.An outline of various stages in the decision making by the respondent was set out – the respondent it was submitted was restricted to considering the proper planning and sustainable development of the area .Where the decision differs from the recommendation of the inspector , the respondent is obliged to state the reasons for departing from the recommendation.It was advanced that there was no provision for further appeal of a decision made by the respondent – it was advanced that the only way the decision can be challenged is by way of judicial review within strictly defined time limits. It was advanced that this framework had already been endorsed by the Supreme Court in (per Lynch J.,Lancefort (No.2)v An Bord Pleanala2 IR at 270,at319).
It was submitted that Section 50(2) of the Planning Act provides that “[a} person shall not question the validity of any decision made or other act done by ..the Board in the performance or purported performance of a function under [the Planning Acts]… otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts”.It was contended that it follows that the complainants brought their complaint to the wrong forum more than 9 months late.The provisions of DEC-S2015-012 were invoked and in particular the finding that “ if the Equality Tribunal were to have any jurisdiction in alleged discrimination done by the respondent in connection with planning matters, it would be for the superior courts or the Oireachtas to provide for it to do so in a decision or legislation”.It was submitted that the complainant should not be allowed to circumvent the statutory provisions and precedents in relation to judicial review in planning matters.
It was submitted that the words “providing” and “service” in Section 5 do not extend to the exercise of quasi – judicial adjudicative statutory functions by the respondent in making a decision on a planning appeal.Several authorities were invoked to support the respondent’s contention that the exercise by it of quasi judicial adjudicative functions under the Planning Act is no different from the exercise of similar adjudicative functions by the EAT and GSOC or the functions of police control .The Equality Tribunal had treated these functions as outside the scope of the Equal Status Act.It was submitted that the Supreme Court decision on Beatty where it was found that the Rent Tribunal was immune from legal proceedings on the basis that the Rent Tribunal “ is a statutory body exercising statutory duties in the public interest and is “ in no different position from a court” with “public law remedies in the form of judicial review” was especially pertinent to the instant case.
It was submitted that the decision on a planning appeal comprises “ the taking of [an]action that is required by or under [an]enactment , such that Section 14 applies.This particular Section provides that nothing in the Act “ shall be construed as prohibiting …(a) the taking of any action that is required by or under – (i) any enactment or order of a court…”
It was submitted that the complaint was out of time and the reasonable cause advanced by the claimant was not credible.
Without prejudice to the matters of jurisdiction, it was submitted that the respondent did not discriminate against the claimant- it was advanced that the claimant had not identified any relevant comparison , that throughout the decision making process on the planning appeal , the respondent was unaware of the age of the claimant and the decision made by the respondent were made in accordance with the proper planning and sustainable development of the area.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Preliminary Matter of Jurisdiction
I have reviewed the evidence presented at the hearing and noted the respective submissions made by the parties. While I acknowledge the detailed research and submissions made by the claimant and acknowledge their contention that a judicial review as a remedy can be cost prohibitive, I find that I must decline jurisdiction on the basis of the similarity between the remit of the respondent , GSOC and the EAT and in particular the findings of the Supreme Court in Beatty on the Rent Tribunal. The respondent exercises a quasi judicial adjudicative function and as set out in Beatty the only remedy in terms of an appeal is a judicial review.
Workplace Relations Commission Adjudication Officer: Emer O'Shea