Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 21    Equal Status Act, 2000

CA-00007257-001

29/09/2016

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 10^th.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 7^th.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 12^th.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 5^th.Sept. 2015 which did not allow him enough   time to study its contents before the 10^th.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.

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 Pleanala[1992]2 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[1] 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.