Bennett Construction Ltd v Greene and Greene
| Jurisdiction | Ireland |
| Judge | Keane C.J. |
| Judgment Date | 25 February 2004 |
| Neutral Citation | [2004] IESC 15 |
| Court | Supreme Court |
| Date | 25 February 2004 |
[2004] IESC 15
THE SUPREME COURT
Keane C.J.
Murray J.
Geoghegan J.
BETWEEN
AND
Citations:
CONNELL V O'MALLEY UNREPBARRON 28.7.1983 1983/8/2116
DALY V MIN MARINE 2001 3 IR 513
WHEELDON V BURROWS 1879 12 CH 31
HEAD V MEARA 1912 1 IR 262
BLAND LAW OF EASEMENTS & PROFITS A PRENDRE (1997) 1206
CONVEYANCING ACT 1881 S6
WYLIE IRISH CONVEYANCING LAW 2ED
SOVMOTS LTD V ENVIRONMENT SECRETARY 1979 AC 144
LOCAL GOVT (PLANNING & DEVELOMENT) ACT 1963 S28(5)
READYMIX (EIRE) LTD V DUBLIN CO COUNCIL UNREP SUPREME 30.7.1974
LOCAL GOVT (PLANNING & DEVELOMENT) ACT 1963 S26(11)
DORAN V THOMPSON LTD 1978 IR 223
Synopsis:
CONTRACT
Sale of Land
Planning permission - Implied condition - Easement - Promissory estoppel - Conveyancing Act, 1881 - Whether the defendants's refusal to allow the drain for the disposal of sewage to cross the land retained by them as shown on the site layout plan lodged for the purpose of obtaining the outline permission amounted to a derogation from the defendants's grant of the land - Local Government (Planning and Development) Act, 1963 (216/2002 - Supreme Court - 25/2/2004) - [2004] 2 ILRM 96
Bennett Construction Ltd v Greene
Facts: The defendants were the owners of a plot of land which they intended to develop for housing. Accordingly they obtained outline planning permission for the erection of eighteen dwelling houses. The said outline permission contained a condition that it was for the housing development as shown on the site layout plan received by the planning authority. On that plan a drain for the disposal of sewage was shown running in a south-easterly direction to connect with the foul water sewer in the road adjoining the site. The defendants subsequently decided to sell the site with the benefit of the outline permission. However they also decided to retain part of the site and the drain for the disposal of the sewage was shown on the site layout plan as crossing that land. The plaintiff subsequently purchased the site pursuant to a contract which contained a condition that ‘the property was subject to the purchaser obtaining planning permission for the erection of eighteen dwelling houses on the subject property....’ The contract was executed on 8 June 2000 and on 17 November 2000 the planning authority issued an approval for the development of eighteen dwelling houses. Subsequent to the completion of the sale on 31 January 2001 the first named defendant informed the plaintiff that he was not prepared to allow the drain for the disposal of the sewage to cross the land retained by him as shown on the site layout plan lodged for the purpose of obtaining the outline permission. Consequently the plaintiff instituted proceedings seeking an injunction restraining the defendants from preventing the plaintiff’s exercise of what he described as the “way leave” set out on the site layout plan. The plaintiff alleged that the cost involved in bringing the sewage out through the main entrance, as suggested by the defendants would be in excess of £120,000.00 and that he would not have purchased the site if he had known that the defendants would not permit him to dispose of the sewage in the manner indicated on the site layout plan.
Mr Justice O’Higgins in the High Court preferred the evidence of the first named defendant to that of the plaintiff that no discussion as to sewage took place at a specified meeting and accordingly he refused the relief sought. The plaintiff appealed this decision, claiming that the trial judge erred on law in concluding that the actions of the defendants in declining to allow the plaintiff to dispose of the sewage in the manner indicated in the site layout plan had not derogated from their grant of the land. Alternatively, the plaintiff claimed that the doctrine of promissory estoppel applied.
Held by the Supreme Court (Keane C.J., Murray, Geoghegan JJ) in dismissing the appeal: 1. That the defendants had never at any stage used any part of their land for the disposal of sewage by means of a pipe connecting with the main sewers of the local authority. They did no more than indicate in the site layout plan lodged with the application for permission that that was how they would propose to dispose of the sewage, in the event of permission being granted for the development and the development proceeding. There was, accordingly, no easement in existence being used at the time of the grant by the grantor for the benefit of the property granted over the property retained and hence no room for the application of the doctrine that the grantor cannot derogate from his grant.
Connell v O’ Malley Unreported, noted at (1984) ILRM 563 distinguished.
2. That the effect of Section 6 of the Conveyancing Act, 1881 is to ensure that any easements in existence and appertaining to the land at the time of the conveyance pass with the conveyance. It does not enlarge the rights to which the purchaser is entitled under the contract.
3. That a grant of permission to develop land inures for the benefit of the land and of all persons for the time being interested therein. Accordingly, the plaintiff in the present case, in implementing the planning permission, was in no different position so far as the disposal of the sewage was concerned than if it had been shown in the layout plan as crossing the land of a third party to whom the defendants had sold the land subsequent to the obtaining of the permission.
That the plaintiff failed to establish the existence of a clear and unambiguous promise or assurance by the defendants to grant him a way leave over the retained land and consequently he could not rely on the doctrine of promissory estoppel.
Reporter: L.O’S.
JUDGMENT delivered the 25th day of February 2004 , by Keane C.J.
The defendants were the owners in the year 2000 of a plot of land at Clonroche, Co. Wexford. They had originally intended to develop the land for housing and to that end the first named defendant applied for, and was granted, an outline planning permission for the erection of eighteen dwelling houses. The decision to grant outline permission contained a condition that it was for the housing development as shown on the site layout plan received by the planning authority. On that plan a drain for the disposal of sewage was shown running in a south-easterly direction to connect with the foul water sewer in the road adjoining the site.
Because of family circumstances, the defendants decided not to proceed with the development and to sell the site with the benefit of the outline permission. They also decided, however, to retain part of the site as shown on the site layout plan. The drain for the disposal of the sewage was shown on the site layout plan as crossing that land. That is what has given rise to the present litigation.
Mr. William Bennett (the proprietor of the plaintiff/appellant company and hereafter referred to as "the plaintiff") was interested in acquiring the site being offered for sale by the defendants. He met the first named defendant towards the end of January 2000 and it is not in dispute that they agreed at that meeting on a purchase price of £250,000.00. It is also accepted by the parties that, at that meeting, the plaintiff made it clear that he would not be interested in proceeding with the purchase unless what is usually referred to as a"full planning permission" was available in respect of the proposed housing development. The draft contract for sale of the land was sent by the defendants”solicitors to the plaintiff's solicitors on the 20th April, 2000 and returned to them signed on behalf of the plaintiff on the 28th April. Condition 4 of the special conditions provided that
"The property is subject to the purchaser obtaining planning permission for the erection of eighteen dwelling houses on the subject property, the closing date shall be one month from the grant of planning permission. In the event that the said planning permission has not issued within six months from the date hereof either party shall be entitled to rescind this contract and the purchaser will be refunded his deposit in full without interest costs or compensation."
Since there was already available an outline permission for the erection of eighteen dwelling houses on the lands being sold, it is accepted by both parties that the reference to the purchaser obtaining"planning permission" was either to an approval obtained by him consequent on the outline permission or a"full" permission (i.e. not an outline permission).
Under the heading"Documents Schedule", two documents were referred to in the contract, i.e. "folio 11353 F", in which the lands being sold were registered, and"Outline planning permission register reference991372". Paragraph 6 of the General Conditions provided that
"The documents specified in the documents schedule or copies thereof have been available for inspection by the purchaser or his solicitor prior to the sale. Where any of the subject property is stated in the particulars or in the special conditions to be held under a lease or to be subject to any covenants, conditions, rights, liabilities or restrictions, and the lease or other document containing the same is specified in the documents schedule, the purchaser, whether availing of such opportunity of inspection or not, shall be deemed to have purchased with full knowledge of the contents thereof, notwithstanding any partial statement of such contents in the particulars or conditions."
On the 8th June, 2000, the contract was executed by the defendants. On the 17th November, 2000 the planning authority issued an approval for the development of the eighteen houses.
The sale was completed by the execution of a transfer...
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