Clare Manor Hotel Ltd v Lord Alderman and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 14 November 2013
• Neutral Citation: [2013] IEHC 519
• Court: High Court
• Date: 14 November 2013

[2013] IEHC 519

THE HIGH COURT

[No. 10181 P./1999]

Clare Manor Hotel Ltd v Dublin City Council

[2013] IEHC 519

BETWEEN

CLARE MANOR HOTEL LIMITED

PLAINTIFF

AND

THE RIGHT HONOURABLE, THE LORD ALDERMAN AND BURGESSES OF DUBLIN

DEFENDANT

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010 IESC 27

STEPHENS v PAUL FLYNN LTD 2008 4 IR 31

BIRKETT v JAMES 1978 AC 297

COMCAST INTERNATIONAL HOLDINGS INCORPORATED & ORS v MIN FOR PUBLIC ENTERPRISE SUPREME 17.10.2012 2012/7/1702 2012 IESC 50

DESMOND v MGN LTD 2009 1 IR 737

REDMOND v JUSTICE FLOOD & ORS UNREP GILLIGAN 28.3.2012 2012/40/11990 2012 IEHC 253

PRACTICE AND PROCEDURE

Dismissal of proceedings

Motion to dismiss on grounds of inordinate and inexcusable delay - Claim for damages for maladministration - Refusal of planning permission - Tribunal of Inquiry into Planning matters - Balance of Justice - Obligation to conduct proceedings expeditiously where pre-commencement delay - Failure to communicate decision to await report of Tribunal to defendant - Inherent jurisdiction in certain special cases to hold unfair in all circumstances to force defendant to defend case - Allegation of corruption of most serious nature - Prejudice to defendant - Whether unique or exceptional circumstances - Whether delay inordinate - Whether delay inexcusable - Whether balance of justice in favour of proceeding of case - Rainsford v Limerick Corporation [1995] 2 ILRM 561 followed - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459; Comcast International Holdings Incorporated and Ors v Minister for Public Enterprise and Ors [2012] IESC 50, (Unrep, SC, 17/10/2012); Desmond v MGN Limited [2008] IESC 56, [2009] 1 IR 737 applied - McBrearty v North Western Health Board [2010] IESC 27, (Unrep, SC, 10/5/2010); O'Domhnaill v Merrick [1984] IR 151; Toal v Duignan (No 1) [1991] ILRM 135; Toal v Duignan (No 2) [1991] ILRM 140; Stephens v Paul Flynn Limited [2008] IESC 4, [2008] 4 IR 31; Birkett v James [1978] AC 297 and Redmond v Mr. Justice Fergus Flood and Ors [2012] IEHC 253, (Unrep, Gilligan J, 28/3/2012) considered - Local Government (Planning and Development) Act 1963 (No 28) - Proceedings dismissed (1999/10181P - Dunne J - 14/11/2013) [2013] IEHC 519

Clare Manor Hotel Limited v Lord Alderman & Burgesses of Dublin

Facts: The plaintiff claimed damages for maladministration arising from misrepresentation and abuse of discretionary powers and breach of statutory duties in respect of a refusal for planning permission was refused for reasons which were later claimed not to be true reasons. An order was sought dismissing the claim of the plaintiff on the basis of inordinate and inexcusable delay on the part of the plaintiff. It was alleged that there had been a significant delay of almost 12 years in instituting proceedings. The plaintiff maintained that it did not become aware of wrongdoing until the establishment of the Flood Tribunal.

Held by Dunne J. that there was no option but to dismiss the proceedings. The balance of justice favoured the dismissal of the proceedings given the inordinate and inexcusable delay on the part of the plaintiff since the delivery of the statement of claim which had caused prejudice to the defendant.

1 JUDGMENT of Ms. Justice Dunne delivered the 14th day of November 2013

2 The plaintiff in these proceedings claims damages for maladministration including negligence, negligent misrepresentation and abuse of the discretionary powers and breach of the statutory duties provided for in the Local Government (Planning and Development) Acts 1963 to 1992, exercised by the defendant touching and concerning the plaintiff's lands at the Clare Manor Hotel, Balgriffin, in the County of Dublin.

3 The background to this matter is set out to an extent in the Statement of Claim herein which was delivered on the 17 ^th January, 2001. The plaintiff company operated a hotel in Balgriffin, Co. Dublin, until the hotel was destroyed by fire in November in 1980. The hotel stood on approximately 31 acres of land. On the 8 ^th September, 1982, the defendant granted the plaintiff planning permission for the development of an 88 bedroom hotel upon the lands. The hotel was not built. Subsequently on the 17 ^th December, 1986, the plaintiff applied to the defendant for planning permission for 156 houses upon the lands, which application bore the reference No. 2284/86. The zoning classification of the lands was Residential Alat that time.

4 The application for planning permission was refused by the defendant on the 12 ^th May, 1987 for the following reasons:-

5 2 "1. The existing public sewerage system would not have sufficient capacity to facilitate the discharge of foul sewage from the proposed development. Furthermore, there are no sewers in existence at the outfall point from the site. Consequently the proposed development would be premature by reason of the said existing deficiency in the provision of sewerage facilities and the period within which such deficiency may reasonably be expected to be made good.

6 2. The proposed development would be premature due to the fact that the Northern Fringe Route, from which it is intended to provide access to the proposed development, is not yet constructed.

7 3. The proposed public open spaces, which are designed to serve the housing development, are located in backland locations at the rear of the proposed houses and would have little amenity or utility value in the housing layout. Consequently, the proposed housing layout is unacceptable and would be inconsistent with the proper planning and development of the area.

8 4. The proposed carriageways in the housing layout would not be of sufficient width to serve a development on the scale proposed. Consequently, the proposed development would be substandard."

9 The refusal of planning permission was appealed to An Bord Pleanála and on the 4 ^th November, 1987, An Bord Pleanála refused planning permission for the following reasons:-

10 2 "1. The proposed development would be premature by reference to the following deficiencies in the provision of sewerage facilities and the period within which such deficiencies may reasonably be expected to be made good:

11 (a) The sewerage system in the area (Kilbarrack Road catchment area) does not have sufficient capacity to accommodate the foul sewage which would be generated by the proposed development, and

12 (b) There are no public sewers in existence at the sewage outfall point, indicated on the lodged plans and particulars, and the applicant has not demonstrated the ability to provide a connection from the said outfall point to the nearest, or any, public sewer.

13 2. The proposed development is considered to be premature because the section of the North Fringe Route from which it is intended to provide access to the site has not yet been constructed and is indicated as a long term road proposal in the Dublin County Development Plan 1983."

14 The plaintiff has pleaded in the statement of claim that the reasons given by the defendant for the refusal of planning permission were not the true reasons and it was only following the public hearings of the Flood Tribunal that it became aware of same, namely, "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".

15 Complaint is made by the plaintiff that on appeal to An Bord Pleanála, the defendant introduced two irrelevant matters, namely, that there was a proposal to rezone the lands as agricultural and secondly, the fact that the plaintiff had brought a claim for compensation arising from the refusal. It was pleaded that by introducing these points the defendant compounded the illegality and secured a decision from An Bord Pleanála on "non compensatable" grounds. The plaintiff went on to contend that the refusal of the defendant to grant planning permission, the proposal to rezone as agricultural and the conduct of the defendant's employees in connection with the plaintiff s appeal to An Bord Pleanála were all corrupt and that the truth of the situation "was fraudulently concealed from the plaintiff".

16 It is pleaded by the plaintiff that subsequent to the refusal to grant planning permission and given that the plaintiff's land were the subject of a proposal by the defendant to rezone them as "agricultural", the plaintiff on the 11 ^th May, 1990, sold the land to the owners of the adjacent lands at agricultural land values. The purchaser or his successors in title subsequently obtained permission for the building of 750 houses on an enlarged site comprising the lands purchased together with the neighbour's lands.

17 The plaintiff's then solicitors, B. Garvan and Company, brought a motion before the High Court on the 16 ^th December, 2002, seeking to come off record as the solicitor for the plaintiff. This was for a number of reasons involving funding, the complexity of the case, the requirement to restore the company to the register having been struck off and for health reasons relating to the solicitor. Rutherfords Solicitors came on record on behalf of the plaintiff in January 2004, some time after the order had been made to restore the company to the register.

18 A notice for particulars dated the 8 ^th April, 2004, was sent to the solicitors for the plaintiff by the law agent of the defendant. There was no reply to the notice for particulars at that stage.

19 Subsequently, on the 17 ^th June, 2011, Neil M. Blaney and Company, Solicitors came on record on behalf of the plaintiff. A notice of intention to proceed was served on the 4 ^th July, 2011. The present solicitors for the...