Bord na Móna v an Bord Pleanála and Galway County Council

• Jurisdiction: Ireland
• Judgment Date: 01 January 1985
• Date: 01 January 1985
• Docket Number: [1984 No. 80 Sp]
• Court: High Court

Bord na Móna v. An Bord Pleanála

Bord na Móna

Plaintiff

and

An Bord Pleanála and The County Council for the County of Galway

Defendants

[1984 No. 80 Sp]

High Court

Local government - Planning - Planning permission subject to conditions - Appeal to An Bord Pleanála - Appeal rejected - Declaration sought - Whether conditions ultra vires - Whether severable - Local Government (Planning and Development) Act, 1982 (No. 21), ss. 2-3 - Local Government (Planning and Development) Act, 1963 (No. 28) s. 26 - Local Government (Planning and Development) Act, 1983, (No. 28) s. 19.

The plaintiff received a decision to grant permission for the erection of a briquette factory on the 12th January, 1983, subject to certain conditions. One of the conditions was that the plaintiff would make a 'contribution' of £300,000 towards the cost of the reconstruction of certain roads. Another condition was that this contribution should be paid in three annual instalments in the years 1983, 1984 and 1985.

The plaintiff appealed to An Bord Pleanála against these conditions. The Bord rejected this appeal and directed the planning authority to attach the said conditions to the permission. The plaintiff thereupon claimed in the High Court, inter alia, a declaration, (a) that the conditions were ultra vires the authority and powers of the planning authority; and (b) that the invalid conditions were severable from the grant of permission. The plaintiff relied on the following grounds: (i) That the requirement that the contribution be paid in three annual instalments imposes an unjustifiable constraint on the plaintiff as to the time within which they are to implement the permission and restrains them in the exercise of their decision to implement the permission within a five year period from the date of granting, as provided by s. 2, sub-s. 5 (c), of the Act of 1982. (ii) That the conditions failed to comply with the requirements of s. 26, sub-s. 2 (h) of the Act of 1963, in that there was no period specified in the condition within which the works were to be commenced or the contribution returned. Further, there was no stipulation providing for the payment of interest on the contribution or on the instalments, as required by s. 26, sub-s. 2 (h) (ii). (iii) That the planning authority had no power to impose a condition requiring a contribution towards the costs of developments which would amount to 100% of those costs.

Held by Keane J., in granting the plaintiff a declaration that the conditions were ultra viresthe authority and powers of the planning authority, but denying the plaintiff any other relief, 1, that the requirement that the contribution be paid in three annual instalments unjustifiably constrained the plaintiff as to the time within which it might exercise the planning permission, and frustrated the intention of the legislator to afford the owner of property a period of five years from the grant of permission to implement his permission, and was, therefore, invalid.

2. That the conditions failed to comply with the requirements of s. 26, sub-s. 2 (h) of the Local Government (Planning and Development) Act, 1963, and were thus invalid.

3. That there is nothing in the wording of s. 26, sub-s. 2 (h) of the Act of 1963 to suggest that in an appropriate case the contribution required cannot amount to the total cost of the development works.

4. The effect which a finding of invalidity has on conditions imposed on the grant of permission is to render that permission a nullity in its entirety where the condition is an essential part of the permission.

Kingsway Investments (Kent) Limited v. Kent County Council [1971] A.C. 72; [1970] 1 All E.R. 70 considered.

Case mentioned in this report:—

Kingsway Investments (Kent) Limited v. Kent County Council [1971] A.C. 72; [1970] 1 All E.R. 70.

Special Summons.

On the 12th January, 1983, the plaintiff was granted planning permission by the first-named defendant (hereinafter referred to as the planning authority) for the erection of a briquette factory. The grant of permission was conditional on the plaintiff contributing the sum of £300,000 in three annual instalments, in the years 1983, 1984, and 1985, towards the cost of the reconstruction of certain roads. The plaintiff appealed to An Bord Pleanála, confining its appeal to this condition and An Bord Pleanála, in exercise of its powers under s. 19 of the Local Government (Planning and Development) Act, 1983 (No. 28), determined the appeal on the 6th December, 1983, by directing the planning authority to attach the condition in question to the permission. The plaintiff appealed against this finding...