Cooper v Cork City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 08 November 2006
• Neutral Citation: [2006] IEHC 353
• Court: High Court
• Date: 08 November 2006

[2006] IEHC 353

THE HIGH COURT

[2004/1955 SS]

COOPER v CORK CITY COUNCIL (FORMERLY CORK CORPORATION)

IN THE MATTER OF THE ACQUISITION OF LAND (ASSESSMENT OF

COMPENSATION) ACT, 1919,

THE ARBITRATION ACTS, 1954 AND 1980,

THE PROPERTY VALUES (ARBITRATIONS AND APPEALS) ACT,

1960,

THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT)

ACTS, 1963– 1999

AND

IN THE MATTER OF SEAN COOPER

v.

CORK CITY COUNCIL (FORMERLY CORK CORPORATION)

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

ARBITRATION ACT 1954

ARBITRATION ACT 1980

PROPERTY VALUES (ARBITRATION & APPEALS) ACT 1960

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1999

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S11

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S12

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S12(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4(6)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4(10)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4(12)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4(18)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4(19)

PLANNING & DEVELOPMENT ACT 2000 SCHED 3

PLANNING & DEVELOPMENT ACT 2000 SCHED 4

PLANNING & DEVELOPMENT ACT 2000 SCHED 5

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4(6)(b)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4(10)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4(10)(b)

EUROPEAN COMMUNITIES (CONSERVATION OF WILD BIRDS) (AMDT) REGS 1994 SI 59/1994

XJS INVESTMENTS LTD v DUN LAOGHAIRE CORPORATION 1986 IR 750 1987 ILRM 659

DUBLIN CITY COUNCIL v LIFFEY BEAT LTD 2005 1 IR 478

DUBLIN CO COUNCIL v EIGHTY FIVE DEVELOPMENTS LTD (NO 2) 1993 2 IR 392 1992 ILRM 815

HOBURN HOMES v BORD PLEANALA 1993 ILRM 368

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 SCHED 4(17)

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46

PEPPER v HART 1993 AC 593

INTERPRETATION ACT 2005 S5(1)

O'SULLIVAN & SHEPHERD IRISH PLANNING LAW & PRACTICE PARA 6.106

BALLYMAC DESIGNER VILLAGE LTD v LOUTH CO COUNCIL 2002 3 IR 247 2002 2 ILRM 48

O'CALLAGHAN v COMMISSIONER FOR PUBLIC WORKS 1985 ILRM 364

CENTRAL DUBLIN DEVELOPMENT ASSOCIATION LTD v AG 1975 109 ILTR 69

ART 26 OF THE CONSTITUTION & PART v OF PLANNING & DEVELOPMENT BILL 1999, RE 2000 2 IR 321 2001 1 ILRM 81

TOWN & REGIONAL PLANNING ACT 1934

PINE VALLEY DEVELOPMENT LTD v MIN FOR ENVIRONMENT 1987 IR 23

READYMIX (EIRE) LTD v DUBLIN CO COUNCIL & MIN FOR LOCAL GOVT UNREP SUPREME 30.7.74

BARRETT (BUILDERS) LTD v DUBLIN CO COUNCIL UNREP SUPREME 28.7.1983 1983/7/1929

WESTPORT UDC v GOLDEN & ORS 2002 1 ILRM 439

KENNY v AN BORD PLEANALA (NO 1) 2001 1 IR 565

NI EILI v ENVIRONMENT PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S56

FAIRYHOUSE CLUB LTD & ORS v BORD PLEANALA & MEATH CO COUNCIL UNREP HIGH COURT FINNEGAN 18.7.2001 2001/9/2432

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1990 S12(1)(b)

CORK CITY DEVELOPMENT PLAN REVIEW 1998 PARA 6.6

CORK CITY DEVELOPMENT PLAN REVIEW 1998 PARA 6.7

CORK CITY DEVELOPMENT PLAN REVIEW 1998 PARA 6.27

INTERPRETATION ACT 2005 S5

Abstract:

Arbitration - Property law - Case stated - Compensation - Property values - Statutory interpretation - Whether property arbitrator precluded from awarding compensation through grant of planning permission - Interpretation Act 2005 - Arbitration Acts 1954 -1980 - Local government (Planning & Development) Act 1990 - Property Values (Arbitration and Appeals) Act 1960

: A property arbitrator made an award in the form of a special case stated for the opinion of the High Court as to whether the provisions of the Fourth Schedule to the Local Government (Planning and Development) Act 1990 precluded an award of compensation pursuant to the Act of 1990. The applicant submitted that if a condition of a grant of planning permission was to exclude compensation, it had to fall squarely within the Fourth schedule. The respondent submitted that there was no constitutional presumption in favour of compensation.

Held by Murphy J., that a purposive approach to statutory construction was mandated by s. 5 of the Interpretation Act 2005. The case stated had to be answered in the negative and the arbitrator would not be precluded from awarding compensation.

Reporter: E.F.

1 Judgment of Mr. Justice Roderick Murphy dated the 8th day of November, 2006

1. Outline

2 This is a case stated on the net point of construction of a condition in a planning permission which relates to a claim for compensation under the Local Government (Planning and Development) Act, 1990(the Act of 1990).

3 The applicant owned land at Douglas Hall, Cork which is situate on the sea side of the M55. The site consisted of 0.83 hectares out of a larger site of 1.4 hectares.

4 Previous applications for planning permission for development of 42 units had been refused. On 28th July, 1999 planning permission was granted for 33 apartment units. This was appealed to An Bord Pleanála.

5 On 15th March, 2000, the Board granted permission for 33 units subject to twelve conditions. The units have since been constructed.

6 A claim was made to the Property Arbitrator on 11th September, 2000 for the loss of the eight apartments pursuant to s. 11 of the Act of 1990.

2. Legislative provisions

7 Section 11 of the Act of 1990 provides as follows:

"11. — If, on a claim made to the planning authority it is shown that, as a result of a decision under Part IV of The Principal Act involving a refusal of permission to develop land or a grant of such permission subject to conditions, 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, that person shall, subject to the provisions of this Part, be entitled to be paid by the planning authority by way of compensation —

(a) such amount, representing the reduction in value, as may be agreed,

(b) in the absence of agreement, the amount of such reduction in value, determined in accordance with the First Schedule, and

(c) in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried out on the land."

8 The First Schedule details rules for the determination of the amount of compensation, s. 12 of the Act provides that such compensation shall not be payable in respect of any development of a class or description set out in the Second Schedule or for a reason or reasons set out in the Third Schedule or for the imposition of conditions on the granting of permission which conditions are of a class or description set out in the Fourth Schedule.

9 Section 12(2) of the Act of 1990 provides as follows:-

"Compensation under s. 11 shall not be payable in respect of the imposition, on the granting of permission to develop land, of any condition of a class or description set out in the Fourth Schedule."

10 The following paragraphs of the Fourth Schedule are relevant:

"6 — Any condition relating to all or any of the following matters —"

11 …

12 (b) building lines, site coverage and the space about dwellings or other structures;

13 …

14 10 — Any condition relating to —

15 (a) the disposition or layout of structures or structures of any specified class (including the reservation of reasonable open space in relation to the number, class and character of structures in any particular development proposal);

16 (b) the manner in which any land is to be laid out for the purpose of development, including requirements as to road layout, landscaping, planting;

17 …

18 12 — Any condition relating to the layout of the proposed development, including density, spacing, grouping and orientation of structures in relation to roads, open spaces, and other structures.

19 …

20 18 — Any condition relating to the preservation of views and prospects and of amenities of places and features of natural beauty or interest.

21 19 — Any condition relating to the preservation and protection of trees, shrubs, plants and flowers."

22 The claim in the present case is, of course, under the provisions of the Act of 1990, the notice of claim for compensation having been served on 11th September, 2000. The arbitrator submitted his question in relation to the relevant provisions of the 1990 Act.

23 The subsequent Planning and Development Act, 2000and the Third, Fourth and Fifth Schedules of that Act considerably reduce the circumstances in which compensation can be claimed and also considerably reduce the likely amount of such claims. The principle of compensation following adverse planning decisions is retained but the entitlement is virtually eliminated in case of developments which would have unduly interfered with the general amenities of the public or neighbourhood or with public safety or environmental well being.

3. Case Stated

24 Mr. Eoin O Buachalla, property arbitrator, made an award in the form of a special case stated for the opinion of the High Court on 14th October, 2004.

25 At the request of the respondent (Cork City Council) he submitted the following question for the decision of the High Court:-

"Do the provisions of s. 12(2) and one or more of paragraphs 6(b), 10(a), 10(b), 12, 18, 19 of the Fourth Schedule to the Local Government (Planning and Development) Act, 1990preclude me from awarding compensation pursuant to s. 11 of the 1990 Act to the claimant in this case."

26 If the answer of the court to that question is in the negative he awarded that the respondent pay to the claimant the sum of €150,000 as compensation pursuant to s. 11 of the 1990 Act in respect of the imposition of condition number 5 of the grant of planning permission by An Bord Pleanála...