Clare Manor Hotel Ltd v The Right Honourable the Lord Mayor, Aldermen & Burgesses of Dublin
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Malley |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] IESC 41 |
| Date | 31 July 2018 |
| Court | Supreme Court |
| Docket Number | [Supreme Court Appeal No: 528/2013] [High Court Record No: 1999 10181 P] |
[2018] IESC 41
THE SUPREME COURT
O'Malley Iseult J.
Clarke C.J.
McKechnie J.
O'Malley Iseult J.
[Supreme Court Appeal No: 528/2013]
[High Court Record No: 1999 10181 P]
Inordinate and inexcusable delay – Refusal of planning permission – Balance of justice – Appellant seeking damages arising from a corrupt refusal of planning permission – Whether the balance of justice favoured the dismissal of the proceedings on the grounds of inordinate and inexcusable delay
Facts: The plaintiff/appellant, Clare Manor Hotel Ltd, appealed to the Supreme Court against the order of the High Court made on the 5th of December 2013 dismissing its proceedings on the grounds of inordinate and inexcusable delay. The claim was for damages arising from what the appellant contended was a corrupt refusal of planning permission on the part of the planning authority, Dublin Corporation, and the wrongful procuring of a further refusal by An Bord Pleanála.
Held by O'Malley J that, in the circumstances, the delay in the case had been inordinate and inexcusable, and that the balance of justice favoured the dismissal of the proceedings.
O'Malley J held that she would dismiss the appeal.
Appeal dismissed.
This is an appeal against the order of the High Court made on the 5th of December 2013(see Clare Manor Hotel Limited v. Dublin Corporation [2013] IEHC 519), dismissing the appellant company's proceedings on the grounds of inordinate and inexcusable delay. In brief, the claim was for damages arising from what the appellant contends was a corrupt refusal of planning permission on the part of the planning authority and the wrongful procuring of a further refusal by An Bord Pleanála.
The planning authority was Dublin Corporation at the material time but is now Dublin City Council. For the sake of simplicity, the parties will be referred to here as the plaintiff (or ‘the company’) and the defendant.
The plaintiff company had operated a hotel on a property of about 31 acres in County Dublin. The hotel was destroyed by a fire in November 1980. In September, 1982 the plaintiff was granted planning permission for the development of a new hotel on the site. This hotel was never constructed. The plaintiff subsequently applied, in 1986, for permission to build 156 houses on the same site. On the 12th May 1987 the defendant refused permission by reference to four separate reasons relating to the inadequacy of the then existing sewerage system, the fact that the proposed road access depended upon a public road that was not yet under construction, the unacceptable layout of the open spaces in the development and the inadequacy of the carriageways planned.
The refusal of planning permission was appealed to An Bord Pleanála. At the hearing, officials of the defendant informed the Board that the plaintiff had lodged a claim for compensation in respect of the refusal of permission, and also that there was a proposal to rezone the lands from residential to agricultural use. The Board upheld the refusal, citing two of the four reasons that had been given by the defendant: the deficiencies in the sewerage system and the difficulties with road access. These were ‘non-compensatable’ grounds under the relevant statutory provisions.
It is relevant to note that no challenge was ever taken against the decision of the Board, and that it is not named as a defendant in these proceedings.
In May 1990 the lands were sold to the owners of adjacent lands, Gannon Homes Ltd. for IR£650,000. The plaintiff claims that this sale was at agricultural prices. The new owners were granted planning permission for the development of 720 houses, 250 of which were situated on approximately 25 acres of the lands purchased from the company. It appears that the remainder of the lands were subsequently sold by Gannon Homes Ltd. in 1991 for IR£720,000.
In 1994 the plaintiff's accountant sought an explanation as to why Gannon Homes had succeeded in obtaining permission when the company had not. By letter of the 21st October 1994the defendant stated that the essential differences between the applications was that Gannon Homes had proposed to invest in sewerage facilities and additional water mains at the site, to contribute towards essential improvements works to the Santry Valley sewer and to provide for road access in the form of an extension to an existing distributor road.
In January 1998 Mr. Gerald Bresnan, a director of the company, wrote to the Chairman of the Tribunal of Inquiry into Certain Planning Matters and Payments (hereafter ‘the Tribunal’) asking for an investigation into the matter.
A plenary summons was issued on behalf of the plaintiff on 12th October 1999. The claim was for ‘damages for Maladministration including (but not limited to) negligence, negligent misrepresentation, and abuse of discretionary powers and breach of the statutory duties provided for in the Local Government (Planning and Development) Acts 1963 to 1992 exercised by the Defendants touching and concerning the Plaintiff's lands at Clare Manor Hotel, Balgriffin, in the County of Dublin’.
The plenary summons was served in January 2000 and an appearance was duly entered by the law agent. A statement of claim was not delivered until the 17th January 2001. The claim made by the plaintiff was that the reasons given by the defendant for its refusal of permission were not the true reasons, and that in fact the reasons were ‘the failure of the Plaintiff to bribe the relevant officials and employees of the Defendants and/or the corruption of such officials/employees by an interested third party’. The refusal was alleged to have been unlawful and based upon irrelevant planning considerations. It was pleaded that the plaintiff had only become aware of these matters as a result of the public hearings at the Flood Tribunal. It was further pleaded that the defendant had corruptly compounded its illegality by securing a decision from An Bórd Pleanála on non-compensatable grounds.
The company further claimed that the proposal to rezone the lands as agricultural had caused it to sell them at agricultural land values. However, the rezoning proposal was alleged to have been itself corrupt, in that it was motivated by ‘non planning considerations’. It was claimed that the truth of the situation had been fraudulently concealed.
On the 16th December 2002 the plaintiff's solicitor was permitted to come off record. Among his reasons was the fact that, unknown to him, the company had in fact been struck off in 1999, before the plenary summons issued. An application would have to be made to have it restored to the register, and he was not in a position to undertake the work involved in the case. It seems that counsel on behalf of the defendant attended court for the hearing of this application and sought, on an informal basis, an order dismissing the proceedings – this was refused.
A new solicitor was not appointed until January 2004, and a notice of intention to proceed was served shortly thereafter.
The defendant served a notice for particulars in April 2004. The notice asked, inter alia, whether it was alleged that the Tribunal had enquired into, or heard evidence concerning, the company's planning application; whether it was alleged that any official or employee of the defendant had sought payment or reward from the company; the nature of the ‘irrelevant planning considerations’ alleged to have motivated the refusal of permission; the nature of the matters allegedly introduced by the defendant in the appeal to An Bord Pleanála and how they were alleged to have influenced the decision; the identity of persons alleged to have acted corruptly; the identity of the ‘interested third party’; and the nature of the actions alleged to amount to fraudulent concealment.
The notice was not replied to at that time and there was no further communication from, or step taken by, the plaintiff until June 2011 when there was a further change of solicitor. A second notice of intention to proceed was then served on the 4th July 2011. By letter of the 17th August, 2011 the defendant referred to the notice for particulars served in 2004, and gave consent to the delivery of replies within a period of 21 days. The plaintiff's replies were sent on the 19th August 2011.
In its replies to the queries about the Tribunal's investigations, the plaintiff asserted that it had become clear as a result of the Tribunal's work that corruption was widespread and systemic in the planning process. It was stated, in response to the query as to whether the Tribunal had investigated this particular matter, that the company's planning file ‘was a matter which was addressed in the narrative as a sequence of events on behalf of the Plaintiff’. A full and detailed answer to the query would, it was stated, be given on publication of the Tribunal's final report and after discovery by the defendant.
An almost identical answer was given to the questions concerning the allegedly corrupt actions of officials and employees, with the additional element that the plaintiff would be seeking discovery of the Gannon Homes file.
The question about the ‘irrelevant’ considerations that motivated the defendant's refusal of permission was answered with the assertion that it had, in its decision, referred to rezoning of the lands in a way that ‘clearly’ indicated that the plaintiff's land was to be rezoned for agricultural use, thereby significantly affecting the value of the land and reducing the level of compensation to which the company would be entitled in respect of the...
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