Byrne v Dublin County Council

• Jurisdiction: Ireland
• Judge: Gannon J.
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-HC 1763
• Docket Number: 75 S.S./1982
• Court: High Court
• Date: 01 January 1983

1982 WJSC-HC 1763

THE HIGH COURT

75 S.S./1982

BYRNE v. DUBLIN CO.COUNCIL

IN THE MATTER OP THE ACQUISITION OF LAND (ASSESSMENT OP COMPENSATION) ACT 1919

AND IN THE MATTER OF THE PROPERTY VALUES (ARBITRATIONS AND APPEALS) ACT 1960

AND IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963 AND 1976

BETWEEN:

IGNATDS BYRNE

Claimant

.v.

DUBLIN COUNTY COUNCIL

Rspondents

Case Stated by Sean M. McDermott Property Arbitrator

1 Judgment of Gannon J. delivered the 29th day of July, 1982.

2 An area of about 65 acres of the land at the northern part of the Portmarnock peninsula bounded on the east by the beach and sea, on the north partly by the road to Malahide and partly by The Dunes housing estate and on the west by a tidal inlet, belongs to Mr. Ignatius Byrne of Kildonan House, North Road, Finglas, County Dublin. On the 11th March, 1980 he applied to the Planning Authority for County Dublin for outline planning permission for a proposed housing development and large car park on these lands. This application was refused by the Dublin County Council, the Planning Authority, on the 13th May, 1980 whereupon Mr. Byrne appealed to the Planning Board whose order dated the 28th July, 1980 refused the outline planning permission sought. On the 22nd September, 1980 Mr. Byrne applied in writing to the Planning Authority for compensation pursuant to Section 55 of the Local Government (Planning and Development) Act 1963and his claim for compensation was referred, pursuant to Section 68 of that Act, to Mr. Sean M. McDermott F.R.I.C.S., F.I.C.Arb. an arbitrator nominated by the Land Values Reference Committee. Upon each of the two sittings on the 28th May, 1981 and the 24th June, 1981 the matter was adjourned and on the 23rd July, 1981 before the adjourned hearing commenced the respondent County Council as Planning Authority produced an undertaking purporting to be an undertaking to grant permission for a development to which Section 57 of the 1963 Act applies. As Section 57 precludes payment of compensation pursuant to Section 55 in the circumstances and conditions prescribed questions of law arose upon which the arbitrator asks the advices of this Court. By special case stated dated the 23rd February,l982 the arbitrator requests the opinion of this Court on the following questions:

3 a "o(a) Has the Planning Authority power to give a valid undertaking to grant planning permission in accordance with Section 57 (3) of the Act of 1963?

4 (b) If the answer to question (a) is no, do the provisions of Section 57 (l) of the Act of 1963 preclude me from awarding compensation pursuant to Section 55 for the reduction in value of the subject lands having regard to the undertaking of the 23rd July, 1981?

5 (c) If the answer to question (a) is yes, then:

6 i (I)Is the said undertaking dated 23rd July, 1981 a valid undertaking within the meaning of Section 57 (3) of the Act of 1963?

7 (II) Is the said undertaking in force for the purposes of Section 57, and

8 (III) Was the said undertaking given in time to preclude me from awarding compensation as aforesaid?

9 (d) Is the said undertaking an undertaking within the meaning of Section 55 (2) (b) of the Act of 1963? "

10 The documents put before the Court as accompanying the case stated are:

11 1. The planning application form with maps dated the 11th March, 1980 submitted on behalf of the claimant to the Planning Authority.

12 2. Notification of the decision to refuse outline planning permission sent by the Planning Authority to the claimant dated the 13th May 1980.

13 3. The decision of the Planning Board dated the 28th July, 1980 sent to the claimant.

14 4. The claimant's claim for compensation under Section 55 of the 1963 Act sent by way of letter dated the 22nd September, 1980 and

15 5. Certified copy of the order of the Assistant City and County Manager with undertaking to grant permission pursuant to Section 57 of the 1963 Act and dated the 23rd July, 1981.

16 Neither the nature of the development for which planning permission was sought, nor the terms of the refusal, nor the reasons for the refusal are matters of concern to the arbitrator or to this Court. The Court is not required to consider nor to express any view on the merits of the proposed development nor on its character or suitability relative to the planning objectives for the area as designated by the development plan prepared pursuant to part III of the 1963 Act.

17 The undertaking, which was produced to the arbitrator before any assessment of value or before a commencement of the hearing for the purposes of assessing value and which has given rise to the submission of this case stated, is in the following terms:

"ORDER: I hereby undertake to grant permission for the construction of hotels, theatres or structures for the purpose of entertainment or any combination thereof, subject to conditions in relation to matters referred to in paragraphs (e) (g) and (h) of sub-section (2) of Section 26 and paragraph (c) of sub-section (1) of Section 56 of the 1963 Act.

J. Prendergast

Assistant City and

County Manager

Dated 23rd July, 1981".

18 The order, which does not set out the lands to which it refers or the applicant or claimant, or the section of the Act under which it is being given, is set out on the record of Executive Business and Managers Orders of the Council of the County of Dublin under heading "Compensation Claim Mr Ignatius Byrne, Refusal of an outline permission for housing development and car park adjacent to"The Dunes", Portmarnock.Reg. Ref. TA.5O1. It bears a certificate that it is".a true accurate and correct copy of Order No. PA/1682/81 made by me on the 23rd July, 1981" by J. Prendergast Assistant City and County Manager. The record under this heading and to which this order is appended comprises a recital of the facts of the application of Ignatius Byrne for planning permission, the grounds of the refusal by the Planning Authority, the fact of the appeal to the Planning Board and the grounds of the refusal of permission by that Board, and the subsequent claim for compensation under Section 55 and a reference to the advices of the Chief Sanitary Services Engineer and the provisions of Section 57 of the Act of 1963.

19 For the purpose of dealing with the questions in the case stated it is necessary to set out in full Sections 55 and 57 of the Local Government (Planning and Development) Act 1963. Section 55 of that Act, as amended by Section 43 of the Local Government (Planning and Development) Act 1976is as follows:

20 2 "55 - (1) If, on a claim made to the Planning Authority, it is shown that, as a result of a decision under Part IV of this Act involving a refusal of permission to develop land or a grant of such permission subject to conditions (other than any such condition as is referred to in paragraph (e), paragraph (g) or paragraph (h) of sub-section (2) of Section 26 of this Act), 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, such person shall, subject to the provisions of this part of this Act, be entitled to be paid by the Planning Authority by way of compensation the amount of such reduction in value and, in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried on the land.

21 (2) In determining reduction of value for the purposes of this section, regard shall be had -

22 (a) to any permission under this Act to develop the land existing at the time compensation is agreed or determined,

23 (b) to any undertaking that may be given to grant permission to develop the land in the event of application being made under this Act in that behalf, and

24 (c) to the fact that exempted development may be carried out on the land,

25 and, in a case in which there has been a refusal of permission, the calculation shall be made on the basis that, if the permission had been granted, any conditions which might reasonably have been imposed in relation to matters referred to in paragraphs (e) (g) and (h) of sub-section (2) of Section 26 and paragraph (c) of sub-section (1) of Section 56 of this Act (but no other conditions) would have been imposed.

26 (3) In determining reduction of value for the purposes of this section in a case in which there has been a decision involving a refusal of permission, it shall be assumed that, after the decision, and apart from any such undertaking as is mentioned in sub-section (2) of this section, permission under this let would not be granted for any development.

27 (4) Where, under Section 29 of this Act, it is the duty of a Planning Authority to acquire an interest in land, compensation in relation to that interest shall not be payable pursuant to this section.

28 (5) In this section a reference to the time of a decision shall, where the decision in question is a decision of the Minister on appeal, be taken to be a reference to the time of the decision appealed against.

29 (6) A claim under this section shall be made within (but not after) -

30 (a) six months after the notification of the decision by the planning authority, the Board or the Minister (as the case may be) or

31 (b) such longer period as the Circuit Court may allow if it appears to the Court that there are reasonable grounds for requiring a longer period and that it, would be just and reasonable to extend the period"

32 That section and Section 57 appear to be the only sections of the Acts making reference to undertakings. Section 57 of the 1963 Act is as follows:

33 2 "57 - (l) Compensation under Section 55 of this Act shall not be payable in respect of a decision whereby permission to develop land is refused if, notwithstanding that refusal, there is available with respect to that land permission for development to which this section applies or if...