O'Connor v Cork City Council

JurisdictionIreland
CourtHigh Court
JudgeO'Neill J.
Judgment Date17 December 2009
Neutral Citation[2009] IEHC 560
Date17 December 2009

[2009] IEHC 560

THE HIGH COURT

[No. 389 J.R./2007]
O'Connor v Cork City Council
[2009] IEHC 560
Patrick O'Connor

And

Cathal O'Connor
Applicants

And

Cork City Council
Respondent

PLANNING & DEVELOPMENT ACT 2000 S180

ROADS ACT 1993 S11(1)

PLANNING & DEVELOPMENT ACT 2000 S151

PLANNING & DEVELOPMENT ACT 2000 S50A(3)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

ROADS ACT 1993 S11

PLANNING & DEVELOPMENT ACT 2000 S180(1)

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

KENNY v DUBLIN CITY COUNCIL UNREP SUPREME 5.3.2009 2009 IESC 19

GREGORY v DUN LAOGHAIRE-RATHDOWN CO COUNCIL UNREP SUPREME 28.7.1997 1998/20/7685

O'CONNOR v DUBLIN CORP UNREP O'NEILL 3.10.2000 2000/14/5399

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 114 2003 2 ILRM 446 2003/3/564

PLANNING & DEVELOPMENT ACT 2000 S180(2)

ROSS-CLUNIS v PAPADOPOULLOS & ORS 1958 2 AER 23 1958 1 WLR 546

MONAGHAN URBAN DISTRICT COUNCIL v ALF-A-BET PROMOTIONS LTD 1980 ILRM 64 1980/7/1341

MOLLOY & WALSH v DUBLIN CO COUNCIL 1990 1 IR 90 1990 ILRM 633

SWEETMAN v SHELL E & P IRL LTD & ORS 2007 3 IR 13 2006/55/11657 2006 IEHC 85

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA 1995 2 ILRM 125 1995/3/1122

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

KENNY v BORD PLEANALA (NO 1) 2001 1 IR 565 2000/11/4343

PLANNING AND ENVIRONMENTAL LAW

Taking in charge

Judicial review - Telescoped hearing - Declaration that decision to take in charge ultra vires - Certiorari - Housing estate - Liquidation of developer - Completion of development - Bond - Shortfall paid by local authority - Request for estate to be taken in charge - Roads and open spaces- Claim by developer that decision premature - Alleged breach of property rights - Principle of proportionality -Whether substantial grounds for review - Whether decision ultra vires as development not completed in accordance with permission - Whether development completed to satisfaction of authority - Subjective test -Whether substantial compliance - Minimal alterations to scheme - Absence of prejudice - Benefit to developer - O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Kenny v Dublin City Council [2009] IESC 19 (Unrep, SC, 5/3/2009); Gregory v Dun Laoghaire Rathdown County Council (Unrep, SC, 28/7/1997); O'Connor v Dublin Corporation (Unrep, O'Neill J, 3/1/2/2000); Ashbourne Holdings Ltd v An Bord Pleanála [2003] 2 IR 114; Ross-Clunis v Papadopoullos [1958] 2 All ER 23; Monaghan UDC v Alf-a-bet Promotions [1980] ILRM 64; Molloy v Dublin County Council [1990] 1 IR 90; Sweetman v Shell E & P Ireland Ltd [2006] IEHC 85 [2007] 3 IR 13; McNamara v An Bord Pleanála [1995] 2 ILRM 125; Re The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 and Kenny v An Bord Pleanála (No 1) [2001] 1 IR 565 considered - Roads Act 1993 (No 14), s 11 - Planning and Development Act 2000 (No 30), s 180 - Planning and Development (Strategic Infrastructure) Act 2006 (No 27), s 13 - Leave granted on several grounds but relief refused (2007/389JR - O'Neill J - 17/12/2009) [2009] IEHC 560

O'Connor v Cork City Council

Facts Section 180 of the Planning and Development Act 2000 provides for the taking in charge procedure by a local authority. It provides, inter alia, as follows:-

"(1) Where a development for which permission is grantedincludes the construction of 2 or more houses and the provision of new roads, open spaces, car parks, sewers, water mains or drains, and the development has been completed to the satisfaction of the planning authority in accordance with the permission and any conditions to which the permission is subject, the authority shall, where requested by the person carrying out the development, or, subject to subsection (3), by the majority of the qualified electors who are owners or occupiers of the houses involved, as soon as may be, initiate the procedures under section 11 of the Roads Act, 1993. (2) (a) Notwithstanding subsection (1), where the development has not been completed to the satisfaction of the planning authority and enforcement proceedings have not been commenced by the planning authority within seven years beginning on the expiration, as respects the permission authorising the development, of the appropriate period, within the meaning of section 40 or the period as extended under section 42 , as the case may be, the authority shall, where requested by the majority of qualified electors who own or occupy the houses in question, comply with section 11 of the Roads Act, 1993, except that subsection (1)(b)(ii) of that section shall be disregarded. (b) In complying with paragraph (a), the authority may apply any security given under section 34 (4)(g) for the satisfactory completion of the development in question. (4) Where an order is made under section 11(1) of the Roads Act, 1993, in compliance with this section, the planning authority shall, in addition to the provisions of that section, take in charge any open spaces, car parks, sewers, water mains, or drains within the attendant grounds of the development."

The applicants sought, by way of application for judicial review, a declaration that the decision of the respondent to initiate proceedings to take in charge roads, open spaces, car parks, sewers, water mains or drains at lands which they owned and formed part of a housing estate which they had built was ultra vires and void. They contended that the decision to initiate the taking in charge procedure was premature, that it constituted an impermissible breach of their property rights and offended the principle of proportionality. They contended that the decision to commence the s. 180 procedure was ultra vires by reason of the fact that the development had not been completed in accordance with the terms of the grant of planning permission.

Held by Mr. Justice O'Neill in refusing the reliefs sought that section 180 of the Act of 2000 required a subjective test to be applied to the question of whether a development had been completed, "to the satisfaction of the planning authority in accordance with the permission and any conditions to which the permission is subject". Because the planning authority was undertaking a liability in the taking in charge of a development, it enjoyed a wide discretion in circumstances where it would incur an onerous obligation. This had to include a discretion to take in charge a development which may have had an unfortunate history. The purpose of s. 180 (1) of the Act of 2000, differed from provisions concerning compliance with and enforcement of conditions of a planning permission where objective construction of conditions was appropriate. The effect of taking in charge a development was that no other party was prejudiced other than the local authority. Accordingly, when assessing the question, it had to be assessed by reference to the test in O'Keeffe v. An Bord Pleanla [1993] 1 I.R. 39. That the outstanding works were of such a minimalist nature as not to be capable of affecting the validity of the decision to take the lands in charge, even if an objective test were applied to determine whether there had been compliance with the planning permission. Substantial compliance with the terms of the planning permission was what is required.

Reporter: P.C.

1

O'Neill J. delivered the 17th day of December 2009.

1. Relief sought
2

2 1.1 In these proceedings the applicant seeks leave to apply by way of judicial review for the following reliefs:-

3

1. A declaration that the decision of the respondent of the 9 th March, 2007, to initiate proceedings to take in charge roads, open spaces, car-parks, sewers, water mains or drains at the lands known as Lindville, Blackrock Road, Cork is ultra vires, null and void and of no legal effect.

4

2. An order of certiorari quashing the said decision of the respondent of the 9 th March, 2007.

5

3. An order restraining further prosecution of the procedure to take in charge the roads, open spaces, car-parks, sewers, water mains or drains pursuant to the said decision of the 9 th March, 2007.

6

4. In the alternative a stay on the proceedings relating to the said taking in charge of the roads, open spaces, car-parks, sewers, water mains or drains pursuant to the said decision of the 9 th March, 2007, and/or a stay on the consideration of the submissions made in relation to the proposed taking in charge.

7

3 1.2 The parties have agreed that if the Court is disposed to grant leave to apply for Judicial Review, it should then continue to determine the full Judicial Review in what has become known as a "telescoped hearing".

2. The Facts
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2 2.1 The first named applicant is the owner of lands at Lindville, Blackrock Road, Cork. The second named applicant is his son. The first named applicant is the principal shareholder and director of Croft Park Builders Limited. That company, the developer, applied for and was granted planning permission by the respondent on the 23 rd May, 1997, which was upheld on appeal to An Bord Pleanála, on the 18 th November, 1997, to build a housing estate comprising of 61 houses on the lands at Lindville, subject to seventeen conditions. The original grant of planning permission was subsequently varied by a decision of the respondent dated the 1 st December, 1998. Condition 1 stated as follows:-

"1. The development shall be carried out in accordance with the house plans received by the planning authority on the 17 th day of January, 1997 and the site layout plan received by the planning authority on the 24 th day of April, 1997, except as may otherwise be required in order to comply with the following conditions.

Reason: In the interest of clarity."

9

Another condition provided for the lodgement of a cash deposit or bond...

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