THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2012
Decision DEC – S2015 – 012
PARTIES
Ms Angelika Niese and Mr Marcus Baron-Niese (represented by Cllr Padge Reck)
and
An Bord Pleanála (represented by Barry Doyle & Co., Solicitors)
File Reference: ES/2013/0091
Date of Issue: 23rd July 2015
Keywords: Respondent a statutory body exercising statutory bodies in the public interest - Beatty v The Rent Tribunal & Another [2006] 2 IR 191 – no jurisdiction
1. Claim
1.1 The case concerns a claim by Ms Angelica Niese and Mr Marcus Baron-Niese, that An Bord Pleanála discriminated against them on the grounds of nationality, religion and civil status contrary to Section 3(2) of the Equal Status Acts 2000 to 2012, in terms of having overturned a planning permission previously granted to the complainants by their local authority, on appeal.
1.2 The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 15 August 2013. A submission was received from the complainant on 1 October 2013. A submission was received from the respondent on 20 November 2013. On 27 March 2015, in accordance with his powers under S. 25 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 19 May 2015. The last piece of correspondence relating to the complaint was received on 15 July.
2. Summary of the Complainant’s Written Submission
2.1 The complainants submit that the respondent discriminated against them when it overturned a planning permission for a dwelling house which they had originally been granted by Wexford County Council on appeal. The complainants state that this process repeated itself over a number of years and a number of applications and alterations in the design of the proposed house, from 2006 to 2013. They state that eight other houses were granted planning permission and subsequently built in the vicinity of their site. They submit that this amounts to discrimination on the part of the respondent and allege that such discrimination may have happened on the ground of either nationality, religion or civil status or a combination of the above.
2.2 In documents from the respondent which the complainants appended to their submission and which give the reasoning for the overturning of the planning permission, there is no mention of the complainants’ nationality, religion or civil status. The reasons stated are instead: excessive density of development, the necessity to provide uneconomic services, infrastructure and community facilities, an excessive concentration of septic tanks and associated prejudice to public health, visual obtrusion and detraction from visual amenities and the fact that the proposed development could only be accessed by a substandard rural lane.
3. Summary of the Respondent’s Written Submission
3.1 The respondent disputes discriminating against the complainants on either of the alleged grounds. It notes in its submissions that it does not ask for, and therefore is not aware, of the nationality, religion or civil status of parties whose planning permissions are subject to an appeal. It further states that the parties cited as comparators by the complainants, were parties whose planning permissions were granted and not appealed and therefore never fell to be decided by the respondent. The respondent therefore disputes that it could have been in a position to treat the complainants less favourably than their comparators, within the meaning of the Acts, in such a situation.
4. Conclusions of the Equality Officer
Preliminary issue: Jurisdiction
4.1 The preliminary issue for decision in this case is whether the respondent provides a “service” within the meaning of the Acts, and therefore, whether the Tribunal has jurisdiction to investigate the matter. The respondent’s representative made an oral and written submission at the end of the hearing in which he raised this point. His written submission was based on previous cases heard by this Tribunal, in which Equality Officers variously found that both An Garda Siochana, when exercising their statutory duty of fighting crime, and the Employment Appeals Tribunal in exercise of its quasi-judicial function, were immune from having discrimination complaints brought against them in those situations. The complainant’s representative objected to a comparison of the case on hand with the crime-fighting duties of An Garda Siochana in particular, and I concurred with this view. Accordingly, I wrote to the representative of the respondent on 25 June 2015, by post and email, to request a brief additional submission as to as to where he would see the respondent vis-a-vis the Supreme Court decision in Beatty v The Rent Tribunal & Another [2006] 2 IR 191. This submission was received the following day and forwarded to the representative of the complainant for observations, which were received on 15 July 2015.
4.2 The representative of the respondent highlighted in his submission that the respondent has been found to be a statutory body which exercises quasi-judicial functions, and cited The State (Genport Limited) v. An Bord Pleanala [1983] ILRM 12 in support of this point. He therefore argued that the respondent’s position was on all fours with the Rent Tribunal’s situation as argued in the unanimous Supreme Court decision in Beatty. He notes that:
“The majority (GeogheganJ., with whom Denham and Hardiman JJ. agreed) found the Rent Tribunal immune from legal proceedings. That was because the Rent Tribunal “is a statutory body exercising statutory duties in the public interest” (para. 7) and is “in no different position from a court” (para. 7) and “there are public law remedies in the form of judicial review” (para. 14).
Two other judges delivered judgments that protected the Rent Tribunal, but on a slightly different basis, i.e., that it would not be just and reasonable to impose liability. One judge (Fennelly J.) found there was no relevant duty because, inter alia, there was a separate “procedure [that] will enable a [party] to have a review of the correctness of the legal approach adopted by the respondent” (para. 58) and “have a decision set aside and a new determination made” (para. 60). He was persuaded that the Tribunal was “necessarily required in every case to make a choice between conflicting submissions” (para. 63) and found that the independence of the Rent Tribunal “in performing its essentially adjudicative role” (para. 67) would be undermined, were it exposed to the kind of claim made. The Board was specifically listed as an example of a body that exercised similar functions to the Rent Tribunal (para. 63). The other judge (McCracken J.) found that “it is in the public interest that [the Rent Tribunal] should perform its functions without the fear or threat of action by individuals” (para. 77).”
4.3 The representative of the complainant, in his response, may have misunderstood the issue of jurisdiction, as he states in his submission, after noting that neither he nor the complainants have a legal background:
“Having read the response from An Bord Pleanala we are pleased to note that the Beatty case clearly indicates that you can make a decision without fear or favour relative to our issue. Particularly as all five judges in The Supreme Court gave you the authority and the why’s and wherefores are of no consequence.”
4.4 This is clearly an erroneous reading of the binding precedent which the Beatty case constitutes in the present situation, since it is the respondent’s immunity which is at issue here, rather than the Tribunal’s. I find that the Supreme Court’s jurisprudence in Beatty, especially Geoghegan J’s public interest arguments, with which the majority, including Denham CJ, concurred, and the fact that the respondent is cited directly as an example in this decision, compels me to decline jurisdiction in this matter. To attempt to interpret the Equality Tribunal’s powers otherwise would never survive an appeal. In light of the fact that this is on many levels an unusual case, however, a few additional obiter remarks seem appropriate.
4.5 First, housing and planning are important areas of social integration or social stratification, as the case may be, and the discrimination of persons with protected characteristics under anti-discrimination law can certainly happen in these areas. However, at present any such allegations against the within respondent, i.e. that it discriminated against a person covered by the equality legislation by treating it less favourably than a person outside the protected groups, will have to be canvassed in judicial review proceedings against it. 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 in legislation.
4.6 Second, it should be noted that under the general principles of anti-discrimination law, for a prima facie case of discrimination to exist, it would be necessary for anyone who believes to have been discriminated against, to show the more favourable treatment of an actual comparator, that is, a party in a comparable situation whose planning appeal was decided more favourably by the respondent. Regardless of the Tribunal’s lack of jurisdiction in the matter, it became apparent during the hearing of the complaint that this was a probative burden which the complainants would not have been able to meet.
4.7 All of this notwithstanding, I finally want to note that I have considerable sympathy for the complainants and for the first-named complainant in particular. She has lived in her community in Wexford for several decades at this point, yet apparently there are persons in that community who harbour an animus against her and her son to the point of preventing them from building a house on land they own by way of planning appeals, and who have been doing so consistently for more than a decade. This is the case even as, by the complainant’s evidence, none of their Irish neighbours had their planning permissions appealed and in fact, a small estate of private homes has grown up around this local beauty spot. It is undoubtedly a regrettable situation for the complainants to find themselves in, and one is left to wonder whether xenophobia on the part of those who lodged all these appeals to the respondent may have played a part in the matter. But this is an issue which, apart from the issue of jurisdiction, would have been wholly outside the parameters of the within complaint.
5. Decision
Based on all of the foregoing, I find, pursuant to Section 22(1) of the Equal Status Acts, that the within complaint is misconceived in law and that I have no jurisdiction to investigate the matter.
______________________
Stephen Bonnlander
Equality Officer
23 July 2015