Property Services (Regulation) Act 2011

SCHEDULE 5

Provisions in respect of Property Services Appeal Board

PART 1

General

Membership

1. The Appeal Board shall consist of a chairperson and such and so many other members as the Minister, with the consent of the Minister for Public Expenditure and Reform, considers necessary from time to time for the effective discharge of its functions.

Appointment

2. The chairperson and other members of the Appeal Board shall be appointed by the Government and, subject to this Schedule, shall hold office on such terms as the Government may determine.

Chairperson

3. (1)( a) The chairperson shall be a practising barrister, or a practising solicitor, of not less than 7 years’ standing.

( b) A chairperson who ceases to be such a barrister or solicitor during his or her term of office as chairperson shall thereupon cease to be chairperson and a member of the Appeal Board.

(2) The chairperson shall be responsible for ensuring the effective performance by the Appeal Board of its functions.

(3) The chairperson, if of the opinion that the conduct of a member of the Appeal Board has been such as to bring the Board into disrepute or has been otherwise prejudicial to the effective performance of the Appeal Board’s functions, may—

( a) require the member to attend for interview and, on the member so attending, inform the member privately of that opinion, or

( b) otherwise investigate the matter,

and report to the Minister the outcome of the interview or investigation if the chairperson thinks fit to do so.

Term of office

4. (1) Subject to this paragraph—

( a) the chairperson shall hold office for a period of 4 years from the date of his or her appointment, and

( b) any other member of the Board shall hold office for such period, not exceeding 4 years from the date of his or her appointment, as shall be specified by the Government when appointing the member,

and may in each case be reappointed by the Government for a second or subsequent term of office.

(2) A member of the Appeal Board may at any time resign from office by letter addressed to the Secretary General to the Government and the resignation shall take effect on the date specified in the letter or the date the letter is received by the Secretary General to the Government, whichever is the later.

(3) A member of the Appeal Board shall, unless he or she sooner dies, becomes disqualified for, resigns, is removed from office or otherwise ceases to be a member, hold office as such member until the expiration of his or her term of office.

(4) Where a member is—

( a) nominated as a member of Seanad Éireann,

( b) elected as a member of either House of the Oireachtas or to be a member of the European Parliament,

( c) regarded pursuant to section 19 of the European Parliament Elections Act 1997 as having been elected to that Parliament, or

( d) elected or co-opted as a member of a local authority,

he or she shall thereupon cease to be a member of the Appeal Board.

(5) The Government may for stated reasons at any time remove a member from office—

( a) for misbehaviour, or

( b) if it considers that—

(i) the member has become incapable through ill health of effectively performing the functions of the office,

(ii) the member has a conflict of interest of such significance that it requires that the person should cease to hold office, or

(iii) the member’s removal appears to be necessary for the effective performance of the functions of the Appeal Board.

(6) A person shall be disqualified from being and shall cease to be a member if he or she—

( a) is adjudicated bankrupt,

( b) makes a composition or arrangement with his or her creditors,

( c) is convicted on indictment of an indictable offence,

( d) is convicted of an offence involving dishonesty,

( e) has a declaration under section 150 of the Companies Act 1990 made against him or her or is subject or is deemed to be subject to a disqualification order by virtue of Part VII of that Act, or

( f) ceases to be ordinarily resident in the State.

Remuneration, etc., of members

5. Members of the Appeal Board shall be paid such remuneration (if any) and allowances for expenses as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine.

Procedure of Board

6. (1) The Appeal Board shall hold such and so many meetings as may be necessary for the effective performance of its functions.

(2) At a meeting of the Appeal Board—

( a) the quorum shall be 3 or such other number, not being less than 3, as the Appeal Board may determine,

( b) the chairperson shall, if present, be the chairperson of the meeting,

( c) if and so long as the chairperson is not present or the office of chairperson is vacant, the members of the Appeal Board who are present shall choose one of their number to act as the chairperson of the meeting,

( d) each member of the Appeal Board (including the chairperson) present at a meeting of the Appeal Board shall have a vote, and

( e) at a meeting of the Appeal Board a question on which a vote is required shall be determined by a majority of the votes of the members of the Appeal Board present and voting on the question and, in the case of an equal division of votes, the chairperson of the meeting shall have a casting vote.

(3) Subject to this Act, the Appeal Board may regulate its own procedure.

(4) Subject to subparagraphs (5) and (6), the Appeal Board may perform any of its functions through or by the chairperson or any other member or other person who has been duly authorised by the Appeal Board in that behalf.

(5) A member of the Appeal Board may finally determine a particular case only if it has been considered at a meeting of the Board before the relevant authorisation is given.

(6) The Appeal Board may not authorise a person who is not a member to determine finally a particular case.

(7) A decision of the Appeal Board on an appeal may be by a majority of its members.

Vacancies in membership

7. (1) Where a member of the Appeal Board dies, becomes disqualified from holding office, resigns, is removed from office or otherwise ceases to be a member, the Government may appoint a person to be a member of the Appeal Board to fill the resultant vacancy.

(2) A person appointed to be a member of the Appeal Board under subparagraph (1) shall hold office for the remainder of the term of office of the member who occasioned the casual vacancy.

(3) For the purposes of subparagraph (2), a person who occasions or fills a casual vacancy shall be considered to have served a term as a member of the Appeal Board even though he or she held office for part only of the term.

(4) Subject to paragraph 6(2) (a) , the Appeal Board may act notwithstanding one or more vacancies in its membership.

Secretary of Board

8. A person who is an officer of the Minister who is an established civil servant for the purposes of the Civil Service Regulation Acts 1956 to 2005 and who is seconded to the Appeal Board on a whole-time or part-time basis shall act as its secretary.

Non-disclosure of information

9. (1) Save as otherwise provided by law, a person shall not, without the consent of the Appeal Board, disclose information obtained by the person in his or her capacity as a member or the secretary of the Appeal Board.

(2) Nothing in subparagraph (1) shall prevent the disclosure of information in a report made to the Appeal Board or by or on behalf of the Appeal Board to the Minister.

Prohibition of improper influence

10. (1) A person shall not communicate with a member or the secretary of the Appeal Board for the purpose of influencing improperly either consideration by it of an appeal or any decision of the Appeal Board in respect of an appeal.

(2) If the member or secretary is of opinion that any communication is in contravention of subparagraph (1), he or she shall not entertain it further and shall immediately inform the Appeal Board in writing of its substance, and the Appeal Board shall acknowledge in writing the receipt of such information.

Reports to Minister

11. Section 17 shall, with all necessary modifications, apply in respect of the Appeal Board as it applies to the Authority.

PART 2

Appeals

General

12. The Appeal Board shall, as far as is practicable, ensure that appeals are dealt with and determined expeditiously.

Decisions of Authority subject to appeal

13. A person aggrieved by a decision of the Authority—

( a) refusing under section 31(3)(g) , (h) or (i) to issue a licence,

( b) declining under section 63(2) to cause to be carried out an investigation of the matter the subject of a complaint,

( c) imposing under section 68(4) (a) a minor sanction,

( d) dismissing under section 68(4) (c) a complaint, or

( e) refusing to make a grant or relating to the amount of the grant made,

may, within 30 days from the date of receipt of notice of the decision, appeal to the Appeal Board against the decision by serving on the Appeal Board a notice of appeal which complies with paragraph 14(1).

Notice of appeal requirements

14. (1) The notice of appeal shall be in writing and shall state—

( a) the name and address of the appellant,

( b) the subject matter of the appeal,

( c) the appellant’s interest in its outcome, and

( d) the grounds of the appeal and the reasons, considerations and arguments on which they are based,

and shall be accompanied by the appropriate fee (if any) and by such documents relating to the appeal as the appellant considers necessary or appropriate.

(2) The appellant shall not, unless requested to do so by the Appeal Board, elaborate in writing on or make further submissions in writing in respect of the grounds of appeal stated in the notice of appeal or submit further grounds of appeal, and any such elaboration or further submission received by the Appeal Board shall not be considered by it.

(3) Without prejudice to paragraph 23, the Appeal Board shall not consider any documents submitted by an appellant at the appeal other than those which accompanied the notice of appeal.

Appeal Board not to consider appeal out of time, etc.

15. The Appeal Board shall not consider an appeal if the notice of appeal is not received by it before the expiration of the period of 30 days referred to in paragraph 13 or if the notice does not comply with the requirements of paragraph 14(1) (including clause (d) of that paragraph).

Authority to be party to appeal

16. The Authority shall be a party to every appeal.

Other parties to appeal

17. Where an appeal is brought against a decision of the Authority referred to in paragraph 13(b) or (d), or a decision referred to in paragraph 13(c) which relates to an investigation which arose from a complaint, the other party to the complaint shall also be a notice party to the appeal.

Notification of appeal

18. The Appeal Board shall, as soon as practicable after receipt of a notice of appeal, send a copy of the notice by prepaid registered post to—

( a) the Authority, and

( b) if paragraph 17 is applicable, the other party to the complaint.

Withdrawal of appeal

19. An appellant may withdraw an appeal by a notice in writing to the Appeal Board at any time before the appeal is determined.

Documents to be supplied to Appeal Board by Authority

20. The Authority shall, within 14 days of receipt of the copy of the notice of appeal, submit to the Appeal Board by prepaid registered post a copy of—

( a) the application for the licence or the licence or the complaint concerned and any other information received in that regard from the applicant, licensee or complainant, as the case may be,

( b) any investigation report (or investigation reports if section 68(4)(b) is applicable) or other report prepared for the Authority or other relevant documents or information in its possession in respect of its decision which is the subject of the appeal (including any submissions referred to in section 68(2) and (5)(b)),

( c) the record of the decision of the Authority which is the subject of the appeal, and

( d) the notice of the decision to the persons concerned.

Submissions by Authority on appeal

21. (1) The Authority may make submissions in writing to the Appeal Board in respect of the appeal within 30 days from the receipt of the copy of the notice of appeal from the Appeal Board, and submissions received by the Appeal Board from the Authority after the expiration of that period shall not be considered by it.

(2) Where no submissions have been received from the Authority within the period referred to in subparagraph (1), the Appeal Board may, without further notice to the Authority, determine the appeal.

(3) The Authority shall not, unless requested to do so by the Appeal Board, elaborate in writing on any submissions made under subparagraph (1) or make any further submissions in writing in respect of the appeal, and any such elaboration or further submissions, as the case may be, shall not be considered by the Appeal Board.

(4) Where a party to a complaint appeals against a decision to which paragraph 17 applies, this paragraph shall apply in respect of the other party to the complaint as if references in this paragraph to the Authority were references to that other party.

Submissions by person not party to appeal

22. (1) A person who is not a party to an appeal may make submissions in writing to the Appeal Board in respect of the appeal within 30 days from the receipt of the notice of appeal by the Appeal Board, and submissions received by the Appeal Board from the person after the expiration of that period shall not be considered by it.

(2) The person shall not, unless requested to do so by the Appeal Board, elaborate in writing on any submissions made under subparagraph (1) or make any further submissions in writing in respect of the appeal, and any such elaboration or further submissions, as the case may be, shall not be considered by the Appeal Board.

Further information required by Appeal Board

23. (1) Where the Appeal Board is of the opinion that any information or document is necessary to enable it to determine an appeal, it may serve, on any party to the appeal or on any person who has made submissions under paragraph 22, a notice in writing—

( a) requiring the party or person, as the case may be, to submit to it such information or documents as are specified in the notice, within the period specified in the notice (referred to in this paragraph as “the specified period”), being not less than 14 days beginning on the date of service of the notice, and

( b) stating that, if clause (a) is not complied with, it may determine the appeal after the expiration of the specified period without further notice to the party or person, as the case may be.

(2) Where a notice has been served on a person under this paragraph, the Appeal Board, at any time after the expiration of the specified period, may, whether or not the notice has been complied with, determine the appeal without further notice to the person.

Determination of appeal

24. (1) The appeal, if not withdrawn, shall, subject to subparagraphs (2) and (3), be determined by the Appeal Board—

( a) by confirming the decision of the Authority to which the appeal relates,

( b) by remitting, for stated reasons and with or without directions, the matter to the Authority for reconsideration and the making of a new decision (which new decision may, in the case of a decision of the Authority which falls within paragraph 13(c), be a decision under section 68(4)(a) to impose a major sanction),

( c) by substituting its determination for that decision (which determination may, in the case of a decision of the Authority which falls within paragraph 13(c), be a decision under section 68(4)(a) to impose a major sanction) which shall thereupon stand annulled.

(2) Sections 68(10) and 73 shall, with all necessary modifications, apply to the Appeal Board as it applies to the Authority.

(3) Where a determination of the Appeal Board referred to in subparagraph (1)(c) is a decision under section 68(4) (a) to impose a major sanction, sections 69 to 72 shall, with all necessary modifications, apply to the determination as if it were a decision of the Authority to impose a major sanction on the licensee concerned.

Dismissal of frivolous, etc., appeal

25. The Appeal Board shall dismiss any appeal which in its opinion is frivolous or vexatious or without substance or foundation.

Matters on which appeal is grounded

26. An appeal shall be grounded on—

( a) the record of the decision of the Authority which is the subject of the appeal,

( b) the information contained in the notice of appeal,

( c) any submissions (including any elaborations thereon) made in accordance with this Part to the Appeal Board on any matter arising on the decision or that information,

( d) any other document or information received in accordance with this Part by the Appeal Board on the hearing of the appeal.

Sittings of Appeal Board

27. Sittings of the Appeal Board shall be held otherwise than in public unless—

( a) the Authority, the appellant or, if paragraph 17 is applicable, the other party to the complaint makes a request in writing to the Appeal Board that the sittings (or a part thereof) in respect of the appeal concerned be held in public and states in the request the reasons for the request, and

( b) the Appeal Board, after considering the request (in particular, the reasons for the request), is satisfied that it would be appropriate to comply with the request.

Oral hearings

28. (1) Subject to subparagraphs (2) to (5), the Appeal Board, of its own motion or at the request of a party, may in its absolute discretion conduct an oral hearing of an appeal.

(2) A request by a party for an oral hearing—

( a) shall be made in writing to the Appeal Board,

( b) subject to clause (c), shall be made within the period of 30 days referred to in paragraph 13,

( c)(i) where the request is made by the Authority, shall be made within the period of 30 days referred to in paragraph 21 (1) , or

(ii) if the request is made by the person referred to in paragraph 17 as the “other party”, shall be made within 30 days of the notice of appeal being received by that person.

(3) The Appeal Board shall not consider a request for an oral hearing made later than the expiration of the relevant period referred to in subparagraph (2).

(4) Where the Appeal Board refuses a request to conduct an oral hearing, it shall serve notice of its decision and the reasons for its decision on each party to the appeal and on any person who has made a submission under paragraph 22 in respect of the appeal.

(5) The Appeal Board in conducting an oral hearing may take evidence on oath, and the administration of such an oath by any member of the Appeal Board is hereby authorised.

(6) The Appeal Board may by notice in writing require any person to attend at such time and place as is specified in the notice to give evidence in respect of any matter in issue in the appeal or to produce any relevant documents within his or her possession or control or within his or her procurement.

(7) A person referred to in subparagraph (6) shall be entitled to the same immunities and privileges in respect of compliance with any requirement referred to in that subparagraph as if the person were a witness before the High Court.

(8) Where a person referred to in subparagraph (6) does not comply or fully comply with a requirement referred to in that subparagraph, the Appeal Board may apply to the Circuit Court, on notice to that person, for an order requiring the person to comply or fully comply, as the case may be, with the requirement within a period to be specified by the Court, and the Court may make the order sought or such other order as it thinks fit or refuse to make any order.

(9) The jurisdiction conferred on the Circuit Court by this section may be exercised by the judge of that Court for the circuit in which the person concerned ordinarily resides or carries on any profession, business or occupation.

Expenses of persons attending before Appeal Board

29. The reasonable travelling and subsistence expenses of any person attending before the Appeal Board in accordance with paragraph 28 (6) shall be paid out of moneys provided by the Oireachtas.

Notice of determination

30. The Appeal Board shall serve a notice in writing of its determination and the reasons for its determination on each party to the appeal and on any person who has made a submission under paragraph 22 in respect of the appeal.

Delayed or abandoned appeals

31. (1) Where the Appeal Board is of the opinion—

( a) that proceedings on an appeal have been unnecessarily delayed by the conduct of the appellant, or

( b) that an application for a licence to which the appeal relates has been abandoned,

it may serve on the appellant a notice in writing stating that it is of that opinion and requiring the appellant, within a period specified in the notice (being not less than 14 or more than 28 days from the date of service of the notice) to make a submission in writing to it as to why the appeal should not be treated as having been withdrawn.

(2) At any time after the expiration of the period specified in a notice under subparagraph (1), the Appeal Board may, after considering any submissions made to it pursuant to that subparagraph—

( a) declare that the appeal is and, where appropriate, the application under section 30 for a licence also is to be treated as having been withdrawn, or

( b) determine the appeal.

(3) Where under subparagraph (2)(a) the Appeal Board declares that an appeal or application referred to in that subparagraph is to be treated as having been withdrawn, then—

( a) the appeal is deemed to have been withdrawn and, accordingly, shall not be determined by the Appeal Board, or

( b) notwithstanding any previous decision relating to the application, a licence shall not be issued as a result of it,

as the case may be.