Cork County Council -v- Shackleton, [2007] IEHC 241 (2007)

Docket Number:2007 315 JR & 2007 637 P
Party Name:Cork County Council, Shackleton
Judge:Clark J.


COMMERCIAL[2007 No. 315 JR]





GLENKERRIN HOMESDEFENDANTJUDGMENT of Mr. Justice Clarke delivered 19th July, 2007.

  1. Introduction

    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.

    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.

    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.

    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").

    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.

    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

    2.1 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.

    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 was as to the approach to be adopted, in principle, to the determination of the number of units to be transferred. That question, in turn, was dependent on the proper construction of s. 96. It is clear that the arbitrator accepted the interpretation put forward on behalf of Murphy Construction (subject to one, relatively minor, technical error in calculation to which it will be necessary to turn when dealing specifically dealing with the arbitration aspects of the Cork proceedings).

    2.3 In the events that happened, the arbitration, therefore, turned solely on the arbitrator's view as to the competing contentions of the parties concerning the proper approach to be adopted to the calculation of the number of housing units to be transferred and, thus, to the proper interpretation of s. 96 in the context of an agreement in principle having been reached between the parties that the entire obligations (subject to a balancing payment) of Murphy Construction were to be met by the provision of built housing units. I now turn to the facts of the Dun Laoghaire Rathdown proceedings.

  3. The Dun Laoghaire Proceedings - The Facts

    3.1 For the reasons which I analysed in some detail in the letters of compliance judgment (see for example para. 8.6), the development under consideration was largely completed without the parties having reached an agreement as to how the social and affordable housing obligations of Glenkerrin were to be met. In those circumstances I came to the conclusion that:-"In practical terms, therefore, the only means which remain for satisfying the social and affordable housing obligations of Glenkerrin in this case is by the provision of units or cash". 3.2 Having noted that neither side any longer suggested that cash was an appropriate means of dealing with those obligations (save again for a small balancing amount needed to make up for the lack of absolute divisibility of the social and affordable housing obligations into an exact number of units) it was clear that the only means by which those obligations could, therefore, be met was by the provision of built housing units. While not, strictly speaking, deriving, therefore, from an express agreement in principle between the parties, the practical situation in the Dun Laoghaire Rathdown proceedings is, therefore, the same as in the Cork proceedings. In the events that have happened it is only by means of the provision of built housing units that the social and affordable housing obligations concerned can be met.

    3.3 The issues which have arisen between Dun Laoghaire Rathdown and Glenkerrin have not, as yet, been the subject of a determination by the property arbitrator, although, as pointed out in the letters of compliance judgment, there has been a reference to the property arbitrary by Glenkerrin of issues concerning the number of units to be transferred. As is clear from that judgment, amongst the matters in controversy between Dun Laoghaire Rathdown and Glenkerrin was the question of the proper dispute resolution mechanism with Dun Laoghaire Rathdown maintaining that at least some of the issues which remained for debate between the parties should be referred to An Bord Pleanála while Glenkerrin maintained that all of the remaining issues could properly be referred to the property arbitrator. On that issue, as appears from the letters of compliance...

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