Altara Developments Ltd and Another v Ventola Ltd

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 06 October 2005
• Neutral Citation: [2005] IEHC 312
• Docket Number: [No. 193COS/2005]
• Court: High Court
• Date: 06 October 2005

[2005] IEHC 312

THE HIGH COURT

[No. 193COS/2005]

ALTARA DEVELOPMENTS LTD & CROSSAN v VENTOLA LTD

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE

PLANNING AND DEVELOPMENT ACT, 2000

AND IN THE MATTER OF AN APPLICATION

BETWEEN

ALTARA DEVELOPMENTS LIMITED AND PETER CROSSAN

APPLICANT

AND

VENTOLA LIMITED

RESPONDENT

CORK CO COUNCIL v CLIFTONHALL LTD & ORS UNREP HIGH COURT FINNEGAN 06.04.2001 2001/4/825

READYMIX (EIRE) LTD v DUBLIN CO COUNCIL UNREP SUPREME 30.7.1974

Injunction

Discretionary remedy - Planning permission- Condition - Housing development -Condition that road be "commissioned" -Whether road must be operational - Whether applicant motivated by mala fides - Whether injunction would cause undue hardship to respondent and employees - Readymix (Eire)v Dublin County Council (Unrep, SC,30/7/1974) followed - Planning and Development Act 2000 (No 30), s 160 -Injunction refused (2005/193COS -O'Sullivan J - 6/10/2005) [2005] IEHC 312 - Altara Developments Ltd v Ventola Ltd

Facts: the applicants sought to halt the construction by the respondent of a housing estate beside an estate it had built on the basis that it was built in breach of a condition imposed by An Bord Pleanála intended to ensure that the road network in the immediate area was completed before the last 130 houses were built. The condition in suit provided, inter alia, that “only 125 houses shall be constructed until the…road has been commissioned…in the interest of traffic safety and orderly development”. The respondent contended that the word “commissioned” meant “authorised or ordered such that steps have been taken to put in train the construction of the road and to ensure that it will be constructed”. The applicants contended that it meant “operational” and, in any event, had to be construed contra proferentem against the respondent. The respondent further contended that the application was governed by an improper motive and that the second applicant had sought to mislead the court as to his residency.

Held by Mr Justice O’Sullivan in refusing the relief sought that the words used in a planning permission had to be construed objectively and the word “commissioned” used therein meant “has become operational”. There was no principle that the proper interpretation of a planning condition was the one least onerous to the developer by reference to a principle of contra proferentem. However, the fact that the second applicant had incorrectly presented the application on the basis that he was a local resident and that third parties would sustain disruption and damage if the order sought was made favoured the exercise of the court’s discretion to refuse the relief sought.

Reporter: P.C.

O'Sullivan J.

1 The first applicant is a development company of which the second is a director. The applicants seek to halt the construction by the respondent, itself a development company, of a residential development comprising 255 houses at Delgany Woods which is between Delgany and Killincarrig Greystones Co. Wicklow. The first applicant has completed a residential development in the immediate vicinity of the respondent's and says that the latter is being conducted in breach of a condition imposed by An Bord Pleanála which, it says, is intended to ensure that the road network in the immediate area is completed before the last 130 houses are constructed.

2 There is a background of acrimony between the parties relating to a failed attempt by them to link the internal traffic systems of their respective developments. The proceedings before me were conducted on the basis that this matter would not be ventilated. I agreed because I heard the case on the last two working days of the legal year and the matter seemed urgent. On balance I thought it better to hear the matter there and then rather than postpone it to the new year when further affidavits could be available.

3 The sole issue, therefore, concerns the meaning of a planning condition imposing a phasing of construction in tandem with nearby roadworks.

The condition is as follows:-

4 2 "2.(1) No house construction shall commence until the planning authority has confirmed in writing that it is satisfied that road improvement works on route R 762 from the site to Killincarrig Crossroads have reached a stage where site construction traffic can safely use this road.

5 (2) Subject to the requirements of 2(1) above only 50 houses shall be constructed until the planning authority is satisfied that work is in progress on the Greystones Southern Access Route

6 (3) Subject to the requirements of 2(2) above, only 125 houses in total shall be constructed until the Delgany By Pass Road (R 762, via Road 1, to the Black Line Road) has been commissioned.

7 Reason: in the interest of traffic safety and orderly development".

8 An Bord Pleanála granted the permission on 9th June, 2000 and by condition 3 provided that it should last for 10 years.

9 The application originally sought a lifetime of seven years for the permission and it is reasonable, I think, to infer that An Bord Pleanála extended this timeframe having regard to the imposition of phasing of the work in tandem with the development of the road network servicing the area.

10 On 1st October, 2003 Wicklow County Council served an enforcement notice requiring the respondent to cease unauthorised works which were not in compliance with the permission. Specifically the notice said

"Cease all works immediately at Delgany Wood on houses over 125 number pending compliance with condition 2(3)."

11 Prior to that the respondent had taken advice from a senior counsel specialising in planning law, an architect and an engineer specialising in planning and environment and all three had advised that the respondent had complied fully with condition 2(3) and was entitled to construct the final 130 houses. Clearly at that time Wicklow County Council had a different opinion.

12 The road referred to in condition 2(3) is a local distributor road linking Delgany village to the Black Line Road. Approximately three quarters of the road runs through the respondent's development and has been already constructed and I infer was constructed at the time of the service of the enforcement notice. The remaining quarter, however, runs through lands then and still in the ownership of third parties.

13 Following the service of the enforcement notice intensive discussions took place between the respondent and Wicklow County Council which resulted in an agreement the salient terms of which were

14 (a) the respondent would design and provide specifications for the remainder of the road, same to be submitted to and agreed by the council's engineer

15 (b) the council would obtain all necessary consents for the construction of this road;

16 (c) the council would enter discussions with adjoining land owners and if necessary after 12 months set in train a compulsory acquisition process for the necessary lands;

17 (d) the respondent would hand over to the council the portion of the road on its lands;

18 (e) provision was made for the respondent to construct the road if appointed by the council;

19 (f) the respondent would pay all outstanding contributions due or to become due under the permission to assist the purchase of the adjoining lands for the proposed roadway;

20 (g) the respondent would further lend any land acquisition costs exceeding such contributions if requested by the council, such loan to be repaid within four years;

21 (h) on receipt of contributions the council agreed to confirm in writing to the developer its acceptance of the developer's proposal for compliance with condition 2 (and 24) of the planning permission.

22 In addition by clause 9 of the agreement it was provided that in the event that the council had not acquired the adjoining lands and constructed the roadway within a period of four years from the date of the agreement (26th November 2004) then the agreement should be at an end and the obligations of either party to one another should forthwith cease save that the loan money should be repaid if still outstanding.

23 The situation contemplated by clause 9 is anomalous: if the council have not managed to purchase the adjoining lands and construct the roadway within four years from the...