Coras Iompair Éireann & Iarnród Éireann v Cork City Council & Bord Pleanála

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 28 May 2009
• Neutral Citation: [2009] IEHC 262
• Court: High Court
• Docket Number: [No. 841 J.R./2008]
• Date: 28 May 2009

[2009] IEHC 262

THE HIGH COURT

[No. 841 J.R./2008]

Coras Iompair Éireann & Iarnród Éireann v Cork City Council & Bord Pleanála

Coras Iompair Éireann

And

Iarnród Éireann

Applicants

And

Cork City Council

And

An Bord Pleanála

Respondents

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50A

TRANSPORT ACT 1944 S130

HOUSING ACT 1966 S76

HOUSING ACT 1966 SCHED 3

LOCAL GOVT (NO 2) ACT 1960 S10

HOUSING ACT 1966 S86

ROADS ACT 1993 S6

ROADS ACT 1993 SCHED 2

PLANNING & DEVELOPMENT ACT 2000 S50A(3)(A)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S50A(3)(B)(i)

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

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

PLANNING & DEVELOPMENT ACT 2000 S217

SHEEHAN, STATE v GOVT OF IRELAND 1987 IR 550 1986/8/1751

PORTLAND ESTATES (LIMERICK) LTD v LIMERICK CORP 1980 ILRM 77

GREEN DALE BUILDING CO LTD, IN RE 1977 IR 256

CORK CO COUNCIL v WHILLOCK 1993 1 IR 231 1992/10/3239

GOULDING CHEMICALS LTD v BOLGER 1977 IR 211

DEAUVILLE COMMUNICATIONS WORLDWIDE LTD & ORLAFORD LTD, IN RE 2002 2 IR 32 2002 2 ILRM 388 2002/6/1384

AG, PEOPLE v MCGLYNN 1967 IR 232

TORMEY v CMRS OF PUBLIC WORKS UNREP SUPREME 21.12.1972 (EX TEMPORE)

HENDRON v DUBLIN CORP 1943 IR 566

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1931 S40

R v BEDFORDSHIRE CO COUNCIL, EX PARTE SEAR 1920 2 KB 465

LAND SETTLEMENT (FACILITIES) ACT 1919 S10(1)

INLAND REVENUE CMRS v HINCHY 1960 AC 748 1960 2 WLR 448 1960 1 AER 505

LLOYD v MCMAHON 1987 AC 625 1987 2 WLR 821 1987 1 AER 1118

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1931 S37

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1931 S38

HOUSING OF THE WORKING CLASSES ACT 1890 PART III

HOUSING ACT 1966 S80(1)

HOUSING ACT 1966 S81(1)

HOUSING ACT 1966 S80

COMPULSORY ACQUISITION

Order

Practice and procedure - "Telescoped" hearing - Previous consent of Minister - Applicant contending that consent of Minister required prior to issuing of compulsory purchase order - Whether substantial grounds - Whether substantial interest - Whether consent of Minister required prior to making of compulsory purchase order or prior to service of notice to treat - Whether acts in pari material - Rex v Bedfordshire ex parte Sear [1920] 2 K. 465 followed; McNamara v An Bord Pleanala [1995] 2 ILRM 125, Re the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, State (Sheehan) v Ireland [1987] IR 550, Portland Estates (Limerick) Ltd v Limerick Corporation [1980] ILRM 77, In re Green Dale Building Company Ltd [1977] IR 256, Cork County Council v Whillock [1993] 1 IR 231, Goulding Chemicals Ltd v Bolger [1977] IR 211, Re Deauville Communications Worldwide Ltd [2002] 2 ILRM 388, People (AG) v McGlynn [1967] IR 232, Tormey v Commissioners of Public Works (Unrep, SC, 21/12/1972), Hendron v. Dublin Corporation [1943] IR 566, Inland Revenue Commissioners v Hinchy [1960] AC 748 and Lloyd v. McMahon [1987] 1 AC 625 considered - Planning and Development (Strategic Infrastructure) Act 2006 (No 27) - Housing (Miscellaneous Provisions) Act 1931 (No 50), ss 37 and 38 - Housing of the Working Classes Act 1890 - Housing Act 1966 (No 21), s76, 80, 81 and 86 - Local Government (No 2) Act 1960 (No 40) - Roads Act 1993 (No 14) - Planning and Development Act 2000 (No 30), ss 50, 50A and 217 - Transport Act 1944 (No 21), s 130 - Leave granted, substantive relief refused (2008/841JR - O'Neill J - 28/5/2009) [2009] IEHC 262

CIE v Cork City Council

Facts: An application was made pursuant to ss. 50 and 50A Planning and Development Act 2000 as amended for inter alia an order of certiorari quashing the decision of the first named respondent making a compulsory purchase order and a declaration that in making the order without obtaining the consent of the Minister for Transport, that the first named respondent had acted ultra vires s. 130 Transport Act 1944. The application related to the compulsory acquisition of land by Cork City Council for a Docklands Infrastructure Acquisition Order. The issue arose as to whether the first named respondent was required to obtain the consent of the Minister or whether the consent had to be obtained prior to the service of the notice to treat.

Held by O’ Neill J. That the CPO was merely a stage or step in the process that lead to a compulsory acquisition and could not be regarded as that compulsory acquisition. That only took effect on the service of the notice to treat. The consent of the Minister required pursuant to s. 130 of the Act of 1944 was not an initial pre-condition or jurisdictional step or requirement in the compulsory acquisition and could be obtained at any time in the process up to the service of the notice to treat. The reliefs sought would be refused.

Reporter: E.F.

O'Neill J.

2 1.1 This is an application pursuant to ss. 50 and 50A of the Planning and Development Act2000 (as amended) for leave to apply for judicial review for the following reliefs:-

1 An order ofcertiorari quashing the decision of the first named respondent making a compulsory purchase order described as Cork City Council Docklands Infrastructure Acquisition Order No. 1 of 2008 as stated in the notice dated the 23^rd May, 2008, sent to the applicants, insofar as the said order relates to lands of the applicants including lands located at plots 62, 67, 71, 74, 75, 76 and/or any land in the scheme which are in the ownership and/or occupation (reputed or otherwise) of the applicants.

2 A declaration that in making the said compulsory purchase order, without obtaining the previous consent of the Minister for Transport, the first named respondent actedultra vires and/or erred in law by acting in breach of section 130 of the Transport Act 1944.

3 An order of prohibition restraining the first named respondent from acting on foot of and/or consequent upon the decision to make the compulsory purchase order.

4 Further and/or in the alternative and without prejudice to the above, a declaration that the first named respondent is required to obtain the consent of the Minister for Transport prior to the confirmation of the compulsory purchase order by the second named respondent.

5 If necessary an order of prohibition/injunction restraining the second named respondent from making a decision on whether to confirm the making of the compulsory purchase order by the first named respondent.

3 1.2 The parties agreed that the hearing before me would be a "telescoped" hearing of the substantive matter, if the Court concluded that there were substantial grounds for contending that the impugned decision should be quashed.

2 2.1 The first named respondent made a compulsory purchase order entitled "Compulsory Acquisition of Land Cork City Council - Docklands Infrastructure Acquisition Order No. 1 of 2008" ("the C.P.O."), pursuant to s.76 of the Housing Act 1966 and the Third Schedule thereto, as extended by s.10 of the Local Government (No. 2) Act 1960 (as substituted by s.86 of the Housing Act 1966) as amended by s.6 and the Second Schedule to the Roads Act 1993 and by the Planning and Development Acts 2000-2006. The C.P.O. includes lands within the ownership of the applicants and it relates to the acquisition of lands for a proposed road scheme. The making of the C.P.O. was notified to the applicants by way of notice dated the 23^rd May, 2008. The notice stated, inter alia, the following:-

"If confirmed, the order will authorise the local authority to acquire compulsorily the lands described in Schedule Part I to this notice together with any easement, wayleave, water-right or other right over or in respect of the said lands or water or any sub-stratum of the said lands for the purposes of performing its functions under the Planning and Development Acts 2000-2006 including giving effect to and facilitating the implementation of its Development Plan.

…

If land to which the order, as confirmed by either the Board or the local authority, relates is acquired by the local authority, compensation for the land will be assessed in respect of the acquisition as the value of the land at the date that the relevant notice to treat is served"

3 2.2 The process of the compulsory acquisition of lands comprises of four stages. The first, the referencing procedure, involves identifying the lands and rights and interests over those lands and the occupiers and owners of the lands. Draft schedules of the lands are prepared and the preferred route for the proposed development is selected. The schedules describe the lands, the rights over those lands and private rights of way and easements on those lands. The second stage is notifying the public and individual landowners of the scheme and the actual making of the C.P.O. The third stage is the confirmation stage where the second named respondent either accepts or rejects the scheme. The fourth step is the compensation process where the acquiring authority (the first named respondent in this case) is given eighteen months to serve the notice to treat. When the notice to treat has been served, the acquiring authority may take possession of the land. The acquiring authority may ultimately make a vesting order upon the satisfaction of certain conditions.

4 2.3 The applicants, by letter dated the 5^th June, 2008, wrote to the first named respondent objecting to the compulsory acquisition of the lands on the grounds that the lands were required for railway purposes. Section 130 of the Transport Act 1944 ("the Act of 1944"), which requires the "previous consent" of the Minister for Transport ("the Minister") to acquire railway lands compulsorily or to acquire, terminate, restrict or otherwise interfere compulsorily with any easement, wayleave or other right over those lands, was quoted in the letter...