Abbeydrive Developments Limited v Kildare County Council, [2005] IEHC 209 (2005)

Docket Number:2003 1329SS
Judge:Macken J.

Neutral Citation No. [2005] IEHC 209THE HIGH COURT [Record No. 2003 1329SS]


KILDARE COUNTY COUNCILRESPONDENTJUDGMENT delivered by Mrs. Justice Macken on the 17th day of June, 2005

This is a special case stated by John R. Shackleton, as arbitrator, for an opinion of the High Court on two questions arising out of a claim for compensation which the complainant seeks from the respondent arising from a refusal by An Bord Pleanála to grant planning permission to the claimant in respect of certain lands in County Kildare.

The arbitrator was duly nominated by the Land Values Reference Committee on 11th January, 2002, on the application of the claimant, according to the case stated.

Agreed Facts

The following facts are, according to the case stated, agreed between the claimant and the respondent:

  1. On 15th March, 2000, Abbeydrive Developments Limited lodged an application for planning permission with Kildare County Council for a development comprising 187 Residential units on lands at Broadleas Commons and Ballymore Eustace, County Kildare, Planning Reference No. 00/419.

  2. A revised proposal for 176 houses dated 31st July, 2000, was lodged with the above Council on 1st August, 2000. By order dated 6th November, 2000, Kildare County Council decided to grant planning permission for 149 housing units subject to 77 conditions which were attached to its order.

  3. The decision of Kildare County Council was appealed to An Bord Pleanála.

  4. By Board Direction dated 21st May, 2001, and by a decision dated 22nd May, 2001 An Board Pleanála refused permission for the development sought for the reasons set out in the schedule attached to the decision. The reasons for the decision are referred to in the case stated and will be set out in detail in the course of this judgment.

  5. By letter dated 11th July, 2001, John C. Reidy of Reidy Stafford, solicitors on behalf of the claimant, lodged a claim for compensation to Kildare County Council in the sum of 28,127,238 (equivalent to IR£22,152,000), this being the reduction in value of the claimant's interest in the subject lands by reason of the decision of An Bord Pleanála.

  6. By letter dated 31st July, 2001, Brown & McCann, solicitors for Kildare County Council, wrote to Reidy Stafford, solicitors for the claimant, in the terms set out in the case stated.

  7. On 17th September, 2001, the claimant complied with the said request of Kildare County Council.

Additional FactsThe arbitrator, in the case stated, has also informed the Court of the following additional facts, the meaning or consequences of all of which are not agreed between the parties, and in respect of which the questions posed arise:

1) By notice dated 13th December, 2001, Kildare County Council served a notice pursuant to s. 13(1) of the Local Government (Planning and Development) Act, 1990, notifying the claimant that notwithstanding the refusal by An Bord Pleanála to grant permission to develop the lands referred to in the said notice "the planning authority is of the opinion that having regard to all the circumstances of the case, the said lands are capable of other development for which permission under Part IV of the Local Government (Planning and Development) Act, 1963 as amended and extended ought to be granted" This notice specified the lands to which the notice referred and the nature and extent of the development which, in the opinion of Kildare County Council, ought to be granted.

2) The claimant, having failed to reach agreement on the amount of compensation, if any, to be paid by the Planning Authority to it, applied to the Land Values Reference Committee to nominate an arbitrator to determine such compensation.

3) On the basis of the agreed facts set forth above the respondent submitted that compensation was not payable on the applicant's claim made under s. 11, since the notice served by the respondent pursuant to s. 13 of the Act of 1990 was in force in relation to that claim. The claimant however, submitted that the notice was served out of time, namely after the expiry of three months from the date of receipt of the claim, and was therefore invalid and of no effect.

4) Further or in the alternative the respondent submitted that the reason or reasons for refusal of planning permission set out in the decision of An Bord Pleanála of 22nd May, 2001 constituted reasons for refusal that came within the meaning and intent of s. 12(1)(b) of the Act of 1990, being reasons set out in the third schedule at reasons 1, 3, 8 and/or 11 of the said Act. The claimant disputed this and said that none of the reasons for refusal could properly be construed as coming within the true meaning and intent of the said reasons in the third schedule or any of them.Arising from the foregoing, and at the request of Kildare County Council, as respondent, the arbitrator has submitted the following two questions for the opinion of the High Court:A. Is the notice of 13th December, 2001, served on the claimant by the Planning Authority pursuant to s. 13 of the Local Government (Planning and Development) Act, 1990 valid?

  1. If not, are the reasons for the refusal of the planning permission by An Bord Pleanála recited at para. 4 of the case stated such as to exclude the payment of compensation for the refusal of permission pursuant to s. 12(1)(b) of the Local Government (Planning and Development) Act, 1990 by reason of some or all of them coming within the terms of the third schedule to the said Act?

The sequence of events leading up to service of the S. 13 notice are not really in dispute between the parties. Both parties filed legal submissions on the law governing the two questions.

The First QuestionThe first question concerns the correct interpretation of certain provisions of the Act of 1990 and the regulations made thereunder, specifically the Local Government (Planning and Development) Regulations, 1994, as well as a decision as to whether the letter of 31st 2001 from the solicitors for the respondent to the solicitors for the claimant, falls to be considered as having issued under Article 109 of the said regulations.

The Local Government (Planning and Development) Act, 1990 effected certain changes in relation to the granting or otherwise of compensation to the owners of lands in respect of which planning permission has been refused. The relevant sections of the Act of 1990 so far as this case stated is concerned, are ss. 6, 11, 12 and 13.

Section 11 of the said Act, which is entitled 'Right to Compensation', reads as follows:"11. If, on a claim made to the planning authority, it is shown that, as a result of a decision under Part IV of The Principal Act involving a refusal of permission to develop land or a grant of such permission subject to conditions, the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced, that person shall, subject to the provisions of this Part, be entitled to be paid by the planning authority by way of compensation -(a) such amount, representing the reduction in value, as may be agreed,

(b) in the absence of agreement, the amount of such reduction in value, determined in accordance with the First Schedule, and

(c) in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried out on the land."

This is not really different to the provisions which always operated under the legislative schemes applicable to planning applications and refusals, and their consequences. However, even thought a claim may be lodged pursuant to s. 11, a local authority may nevertheless, pursuant to s. 13 of the Act of 1990, serve a notice on the claimant invoking circumstances giving rise to no entitlement to compensation.

Section 13 of the Act of 1990 and reads as follows:-"(1) Where a claim for compensation is made under section 11, the planning authority concerned may, not later than three months after the claim is received and having regard to all the circumstances of the case, serve a notice in such form as may be prescribed on the person by whom or on behalf of whom the claim has been made stating that, notwithstanding the refusal of permission to develop land or the grant of such permission subject to conditions, the land in question is in their opinion capable of other development for which permission under Part IV of The Principal Act ought to be granted. (2) For the purpose of subsection (1), other development means development of a residential, commercial or industrial character, consisting wholly or mainly of the construction of houses, flats, shops or office premises, hotels, garages and petrol filling stations, theatres or structures for the purpose of entertainment, or industrial building (including warehouses), or any combination thereof.

(3) A notice under subsection (1) shall continue in force for a period of five years commencing on the day of service of the notice unless before the expiration of that period-

  1. The notice is withdrawn by the planning authority, or

  2. A permission is granted under Part IV of The Principal Act to develop the land to which the notice relates in a manner consistent with the other development specified in the notice, subject to no conditions or to conditions of a class or description set out in the Fourth Schedule, or

  3. The notice is annulled by virtue of subsection (5)… ." In addition to the foregoing two sections, s. 6 of the Act provides that the Minister may make certain regulations pursuant to the Act. It states:-"6. Regulations made by the Minister may provide for:-a) The form in which claims for compensation are to be made,

  4. the provision by a claimant of evidence in support of his claim and information as to his interest in the land to which the claim relates,

  5. a statement by a claimant of the names and addresses of all other persons (so far as they are known to him) having an interest in the land to...

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