Cork County Council v Shackleton and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 12 October 2007
• Neutral Citation: [2007] IEHC 241
• Court: High Court
• Docket Number: [2007] IEHC 334, [2007] Nos. 315 JR & No. 637 P
• Date: 12 October 2007

CORK CO COUNCIL & DUN LAOGHAIRE RATHDOWN CO COUNCIL v SHACKELTON & GLENKERRIN HOMES

BETWEEN

CORK COUNTY COUNCIL

APPLICANT

AND

JOHN SHACKELTON

RESPONDENT

AND

MURPHY CONSTRUCTION (CARRIGTWOHILL) LIMITED

NOTICE PARTY

AND

BETWEEN

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

PLAINTIFF

AND

GLENKERRIN HOMES

DEFENDANT

[2007] IEHC 241

[No. 315 JR/2007]

[No. 55 COM/2007]

[No. 637 P/2007]

THE HIGH COURT

COMMERCIAL

PLANNING AND ENVIRONMENTAL LAW

Social and affordable housing

Statutory requirements - Obligation of developer - Distinction between social and affordable housing - Definition of monetary value and aggregate monetary value - Calculation of price of houses or sites to be transferred to local authority - Calculation of compensation to developer - Whether statutory obligation warranted interference with property rights - Criteria local authority had to take account of before entering agreement with developer - Whether a planning authority could have agreement imposed upon it - Whether development plan could alter legal position of entitlements and obligations under Part v of Act - Calculation of site value - Decision of planning arbitrator - Approach to be adopted by planning arbitrator - Planning and Development Act 2000 (No 30), s 96 - Planning and Development Act 2002 (No 32) - Relief granted (2007/315JR & 637P - Clarke J - 19/7/2007) [2007] IEHC 241

Cork County Council v Shackleton

STATUTE LAW

Interpretation

Literal interpretation applied - Intention of legislature clear - Whether literal interpretation correct - Whether purposive interpretation appropriate method in circumstances - Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98 applied - Relief granted (2007/315JR & 637P - Clarke J - 19/7/2007) [2007] IEHC 241

Cork County Council v Shackleton

Facts: An issue arose as to the interpretation of social and affordable housing requirements as contained in s. 96 Planning & Development Act 2000 and the compliance by developers with the section. The applicant in the first set of proceedings sought to set aside a determination of the arbitrator. In the second set of proceedings, the plaintiff sought to establish the obligations of developers as to social and affordable housing requirements. The interpretation of s. 96 was in dispute, as it had been interpreted by the arbitrator in respect of housing unit requirements.

Held by Clarke J. that the arbitrator had erred in law in his construction of the provisions of s. 96 in respect of the method of calculation of the housing units. The error was sufficiently fundamental to warrant his decision being quashed. The question of the proper calculation of the number of housing units would be referred back to the arbitrator.

Reporter: E.F.

PLANNING & DEVELOPMENT ACT 2000 S96

GLENKERRIN HOMES v DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP CLARKE 26.4.2007 EX TEMPORE

PLANNING & DEVELOPMENT ACT 2000 PART V

PLANNING & DEVELOPMENT ACT 2000 S96(3)

PLANNING & DEVELOPMENT BILL 1999 PART V

CONSTITUTION ART 26

PLANNING & DEVELOPMENT (AMDT) ACT 2002 S3

PLANNING & DEVELOPMENT ACT 2000 S96(3)(a)

PLANNING & DEVELOPMENT ACT 2000 S96(3)(b)

PLANNING & DEVELOPMENT ACT 2000 S96(3)(c)

PLANNING & DEVELOPMENT ACT 2000 S96(3)(h)

PLANNING & DEVELOPMENT ACT 2000 S96(3)(g)

PLANNING & DEVELOPMENT ACT 2000 S96(6)(b)

PLANNING & DEVELOPMENT ACT 2000 S96(3)(d)

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998 16 5907

PEPPER v HARTE 1993 AC 593

RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION COMMISSION 1997 2 IR 291 1997 2 ILRM 1

1. Introduction

2 1.1 These two cases were heard together because they both have, at their heart, difficult questions concerning the interpretation of the social and affordable housing requirements imposed by s. 96 of the Planning and Development Act, 2000 ("S. 96", "the Act") as amended. I have already delivered a judgment in a connected matter between Glenkerrin Homes ("Glenkerrin") and Dun Laoghaire Rathdown County Council ("Dun Laoghaire Rathdown") (Unreported, High Court, Clarke J., 26th April, 2007) ("the letters of compliance proceedings"). As appears from that judgment those proceedings were concerned with the entitlements of Glenkerrin to obtain "letters of compliance" with planning conditions from Dun Laoghaire Rathdown in circumstances where issues relating to compliance with the social and affordable housing obligations of Glenkerrin in respect of the development concerned remained outstanding. As I pointed out in the course of that judgment the devil is in the detail in respect of legislation such as this.

3 1.2 At para. 1.3 of the judgment I said the following:-

"Where that detail is not adequately worked out so as to give rise to clear and unambiguous legislation then the practical operation of the scheme is highly likely to become embroiled in litigation." While those comments were specifically directed to questions concerning the intricacies of the dispute resolution mechanisms provided for in the legislation, it is, unfortunately, the case, that those comments apply, if anything, with even greater force to the issue which is at the heart of both of these proceedings.

4 1.3 In form the two separate proceedings are quite different in character. In the first set of proceedings the applicant ("Cork") seeks to set aside a determination of the respondent who is a property arbitrator appointed to conduct an arbitration under s. 96 ("the property arbitrator") in relation to the social and affordable housing obligations of the notice party ("Murphy Construction") arising out of a development by it of 186 dwellings at Fernwood, Ballinglanna, Glanmire in County Cork. I will refer to those proceedings as the "Cork proceedings". The property arbitrator, as is in accordance with normal practice, did not participate in the proceedings.

5 1.4 In the second proceedings Dun Laoghaire Rathdown, as plaintiff, seeks a number of declarations designed to establish the obligations of Glenkerrin under its social and affordable housing requirements deriving from a development conducted by it at Ballintyre Hall, Ballintyre in Co. Dublin which development, in its final and relevant form, consisted of the construction of 149 housing units of various sizes. ("the Dun Laoghaire Rathdown proceedings").

6 1.5 In both proceedings the proper interpretation of s. 96 is crucial. While the facts of the two separate cases are, to some extent, different, it is that core issue which led to both proceedings being heard together and which must be determined in respect of both of them. There are, of course, some additional issues which arise in the Cork proceedings by virtue of the fact that those proceedings are a challenge to a decision of an arbitrator and issues, therefore, arise as to the extent to which it is open to the court to interfere with such a decision. There are also some factual complexities present in the Dun Laoghaire Rathdown case which do not arise in the Cork case.

7 1.6 It is, however, clear that the proper construction of s. 96, lies at the heart of both proceedings. I propose, therefore, to turn shortly to that question. I should, however, briefly outline some key facts in the respective proceedings which are the backdrop against which the construction issues arise. I propose to turn, therefore, to some of the undisputed facts which, in my view, determine the manner in which s. 96 can apply to the facts of these cases. I turn firstly to the Cork proceedings.

2. The Cork Proceedings - The Facts

2 2.1 It is, firstly, necessary to note at this stage that an agreement was reached between Cork and Murphy Construction to the effect that the entirety of the social and affordable housing obligations to be complied with by Murphy Construction in favour of Cork, arising out of the development under consideration, would be met by the provision of built housing units from the development concerned. As will become apparent there are a number of different methods by which, either by agreement or as a result of an appropriate arbitration, the social and affordable housing obligations of a developer can be met. The parties to the Cork proceedings did, however, agree that only one of those methods would be applied in this case, that is to say the method, permitted by s. 96, of providing built housing units. This latter point is subject to one caveat which it will be necessary to address briefly in due course. For reasons which will become apparent in the course of the discussion of the provisions of s. 96, it will rarely be the case that the precise obligations of a developer will be met by the provision of an exact number of housing units. In those circumstances all parties accept that a small balancing payment may require to be made, in practice, in virtually all cases, so that either the developer will be required to provide one additional unit but receive a balancing payment back or alternatively, may be permitted to provide one less unit but make a balancing payment to the local authority concerned.

3 2.2 In any event having reached such an agreement in principle, the matter was referred to arbitration before the property arbitrator. It will be necessary to return to certain aspects of the findings of the property arbitrator in due course. However for these purposes it is sufficient to note that Cork and Murphy Construction put forward to the property arbitrator a significantly different approach to the proper interpretation of s. 96. One striking feature of the case as it ultimately developed before the property arbitrator was that, prior to the end of the hearing before him, all questions of technical valuation, relative to the determination of the number of housing units to be provided, had been agreed, so that, in practice, the only issue which remained for decision...