Adroit Company & Granbrind Ltd v Minister for Environment

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 17 December 2004
• Neutral Citation: [2004] IEHC 397
• Docket Number: IEHC 397 [2004]
• Court: High Court
• Date: 17 December 2004

[2004] IEHC 397

THE HIGH COURT

IEHC 397 [2004]

No. 18985 P 2004

ADROIT COMPANY & GRANBRIND LTD v. MINISTER FOR ENVIRONMENT

COMMERCIAL

BETWEEN

THE ADROIT COMPANY AND GRANBRIND LIMITED

PLAINTIFFS

and

THE MINISTER FOR ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT

DEFENDANT

Citations:

BUILDING CONTROL REGS 1991 SI 305/1991

BUILDING REGS 1997 SI 497/1997

BUILDING REGS (AMDT) REGS 2000 SI 179/2000 ART 4(2)(a)(i)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963–1999

BUILDING REGS 1997 SI 497/1997 PART M

BUILDING REGS (AMDT) REGS 2000 SI 179/2000 ART 6

BUILDING REGS (AMDT) REGS 2000 SI 179/2000 ART 4(1)

BUILDING REGS (AMDT) REGS 2000 SI 179/2000 ART 4(2)

BUILDING REGS (AMDT) REGS 2002 SI 284/2002 ART 3(4)

BUILDING REGS (AMDT) REGS 2002 SI 284/2002 ART 1(2)

BUILDING CONTROL ACT 1990 S3

BUILDING CONTROL ACT 1990 S3(11)

BENNION STATUTORY INTERPRETATION 4ED 215

BUILDING CONTROL ACT 1990 S16

BUILDING CONTROL ACT 1990 S17

INSPECTOR OF TAXES V KIERNAN 1981 IR 117

MCGRATH V MCDERMOTT (INSPECTOR OF TAXES) 1988 IR 258 1988 ILRM 647

DPP, IVERS V MURPHY 1999 1 IR 98

MURPHY, STATE V JOHNSTON 1983 IR 235

ROAD TRAFFIC ACT 1968 PART III

ROAD TRAFFIC ACT 1968 PART V

KINSALE YACHT CLUB V CMSR OF VALUATION 1994 1 ILRM 457

Synopsis

PLANNING AND ENVIRONMENTAL LAW

Development

Building regulations - Disabled persons - Substantial work - Commencement date of regulations - Whether substantial work had been completed - Whether completion referred to whole development or individual dwellings - Whether uncompleted dwellings had to comply with regulations - Whether regulations with penal consequences construed strictly - Building Control Act 1990 (No 3) - Building Regulations (Amendment) Regulations 2000 (SI 179/2000), reg 4(2)(a)(i) - Regulations applied to uncompleted dwellings (2004/18985P- Kelly J - 17/12/2004) [2004] IEHC 397 - [2005] 2 ILRM 96

The Adroit Company v Minister for the Environment

The plaintiffs were in the process of building a development of over 1,500 dwellings. Certain regulations had been passed (Buildings Regulations (Amendment) Regulations, 2000)) which provided that all new dwellings should provide disabled access. The regulations applied to buildings where work commenced after the 1st of January, 2001 but did not apply where substantial work had been completed by the end of 2003. Almost 900 of the dwellings had been completed and the defendant contended that the remainder of the dwellings, that is those not substantially completed by the end of 2003, had to comply with the regulations whereas the plaintiffs disputed this assertion.

Held by Kelly J in making the following order. The expression ‘works’ included any act or operation in connection with the construction, extension, alteration, repair or renewal of a building. The notion of ‘substantial work’ must be applicable to the building in question and not the work in general which had been undertaken on foot of the planning permission. The remainder of the dwellings must comply with relevant part of the regulations.

Reporter: R.F.

1 JUDGMENT of Mr. Justice Kelly delivered the 17th day of December 2004 .

INTRODUCTION

2 The first set of building regulations made under the provisions of the Building Control Act 1990came into operation on 1 ^st June, 1992. Part M of those regulations dealt with the provision of access for disabled people in buildings to which the regulations applied. Part M did not apply to dwellings.

3 The 1991 regulations were revoked by the Building Regulations 1997. Part M of those regulations also dealt with the provision of access for disabled people. Part M of those regulations expressly did not apply to dwellings.

4 A change to the regime of non-applicability of part M to dwellings was brought about by the coming into force of the Buildings Regulations (Amendment) Regulations 2000. These regulations require in general that all new dwellings should provide for access for people with disabilities as specified in the regulations. The position is therefore that the 2000 regulations apply to dwellings where the works commence on or after 1 ^st January, 2001. There is, however, an exemption. It is contained in article 4 (2) (a) (i) of the regulations of 2000. It is with that exemption that this case is concerned.

5 The exemption provides that the regulations of 2000 shall not apply to works which commence on or after 1 ^st January, 2001, where, in the case of dwellings, the works are the subject of a planning application made on or before the 31 ^st day of December, 2000, for planning permission or approval pursuant to the Local Government (Planning and Development) Acts 1963to 1999and where substantial work has been completed by the 31 ^st day of December, 2003.

6 The plaintiffs contend that they fall squarely within the terms of this exemption whilst the defendant takes the opposite view.

7 It is necessary to look at the factual background in order to see how this dispute arises.

THE FACTS

8 On 1 ^st April, 1999, the first plaintiff lodged an application with Fingal County Council for planning permission. The permission was sought in respect of a development to be carried out on a phased basis for the construction of 1,520 dwellings. Those dwellings were made up of houses, apartments and duplex units in 18 clusters. The development included a local centre as well as associated infrastructure and site development works. These included roads, footpaths, parking spaces, open spaces and amenity areas together with the necessary physical infrastructure for water, electricity, gas and telecommunications supply. The development was to be carried out on lands which formerly were part of the James Connolly Memorial Hospital at Blanchardstown, Dublin 15.

9 Fingal County Council decided to grant planning permission for the proposed development. That decision was dated 31 ^st May, 1999. The permission was granted subject to conditions.

10 The decision of Fingal County Council was upheld on appeal by An Bord Pleanála. The decision of An Bord Pleanála is dated 6 ^th December, 1999 and bears reference number PL O6F. 11820,(the permission). The permission provided that the period during which the development might be carried out should be one of ten years from the date of its order. An Bord Pleanála so decided having regard to the nature and scale of the development. The term of the permission is thus twice the normal period of five years.

11 Subsequent to the permission, a number of further planning applications for modifications and/or amendments to the development authorised were made to Fingal County Council. Planning permission was granted by that council in respect of such applications. Each of the subsequent planning permissions contained a condition requiring full compliance with the permission save and insofar as it was modified and/or amended by the subsequent permissions.

12 Development on foot of the permission commenced on or about the 1 ^st February, 2000. To date, 888 dwellings out of the total of 1,520 have been constructed. That construction has taken place in 10 of the 18 clusters of dwellings envisaged in the permission.

13 A floor area certificate is required in respect of a new dwelling where a first time buyer seeks exemption from stamp duty on the purchase of that dwelling. Such certificates were provided by the defendant in respect of the dwellings which had been completed in clusters 1 to 9. Subsequent to an application by the plaintiffs for such certificates in respect of the dwellings constructed in cluster 10, an official from the guarantee section in the defendant's department, a Mr. Connolly, carried out an inspection. He inspected some of the blocks constructed in cluster 10, which were at roofing stage. In the course of that inspection he indicated to the plaintiffs that the remaining dwelling units (other than those in cluster 10) to be constructed on foot of the permission would have to comply with part M of the Building Regulations 1997, as inserted by article 6 of the Building Regulations (Amendment) Regulations, 2000. That was confirmed to the second named plaintiff by a letter of 26 ^th February, 2004.

14 The letter insofar as it is relevant reads:-

"It was also noted that there are a large number of dwellings not yet constructed. The planning permission for this development was granted in 1999. Therefore, all dwellings not substantially complete by 31 Dec. 2003 must comply with the current part M of the Building Regulations. Please ensure that all such dwellings are constructed in compliance with part M."

15 On 4 ^th March, 2004, the plaintiffs' planning consultant wrote to the defendants setting out why the plaintiffs considered that part M did not apply to dwellings yet to be constructed on foot of the permission in clusters 11 to 18 inclusive. The letter stated that new dwellings to be constructed by the plaintiffs on foot of the permission were entitled to the benefit of the exemption from compliance with part M provided in article 4 (2) (a) (i) of the Building Regulations (Amendment) Regulations 2000. The reason for such entitlement was because work on such dwellings commenced after the 1 ^st January, 2001, were the subject of a planning application made before the 31 ^st December, 2000 and substantial work had been completed by 31 ^st December, 2003.

16 There was also a dispute between the parties concerning the issue of floor area certificates in respect of cluster no. 10 but certificates were issued by the defendant in respect of those housing units and the dispute and this judgment is concerned only with dwellings envisaged for clusters 11 to 18.

17 On 30 ^th August, 2004, the defendant set out his position as to why he considered that dwellings to be constructed in such clusters must comply with the provisions of part M. The letter insofar as it is relevant reads as...