O'Donoghue v Judge Keyes

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 26 May 2016
• Neutral Citation: [2016] IEHC 262
• Court: High Court
• Date: 26 May 2016

[2016] IEHC 262

THE HIGH COURT

Barrett J.

Between:

ANDREW O'DONOGHUE

Applicant

and

JUDGE GERALD KEYES

Respondent

and

THE COURT SERVICES

Respondent

and

CLARE COUNTY COUNCIL

First Notice Party

and

JAMES PATRICK BURKE

AND

PATRICK JOSEPH EGAN

Second Notice Parties

Planning & Development – S. 180 of the Planning and Development Act 2000 – Locus standi – Failure to maintain housing estate – S.11 of the Roads Act, 1993 – Demand and refusal of performance

Facts: The applicant sought an order of mandamus for requiring the first notice party to fulfil its statutory obligations under s. 180 (2) of the Planning and Development Act 2000. The first notice party contended that it was granted discretion under s. 180 (2A) of the Act of 2000 in relation to taking an estate into charge.

Mr. Justice Max Barrett granted an order of mandamus to the applicant. The Court observed that before granting an order of mandamus, the Court must determine whether the statute in question imposed a mandatory duty, the performance of which had been demanded by the applicant and refused to be complied by the local government body. The Court held that in the present case, the applicant being a resident of the relevant estate asked the first notice party to carry out the development of the relevant estate, which was plainly refused by the first notice party. The Court held that if the pre-conditions referred to under s. 180 (2) of the Act of 2000, the planning authority had no choice regarding its actions as emanated from the words ‘The authority shall comply with section 11 of the Roads Act, 1993’ appearing under S. 180 (2) (a) of the Act of 2000.

JUDGMENT of Mr Justice Max Barrett delivered on 26 ^th May, 2016.

Part 1

Overview

1 This case affords another example of the difficulties that continue to present as a result of our turn-of-the-century national economic “boom and bust”. Mr O'Donoghue has come to court seeking an order of mandamus requiring Clare County Council to discharge the statutory obligation that he contends to arise for it under s.180(2) of the Planning and Development Act 2000, and so to take charge of “Westpark”, a housing estate at Spanish Point that has not been completed to the satisfaction of the planning authority, principally, it seems, because the development company collapsed.

2 Since November 2011, the Council has been in receipt of a valid request from the residents of “Westpark” to take the estate into charge. So far, the Council has failed to discharge the mandatory obligation that Mr O'Donoghue contends to arise for it under s.180(2). In fact, the Council maintains that s.180(2) is not the applicable provision of the Act of 2000, and seeks instead to rely upons.180(2A). That latter provision was enacted into law in 2010. It was intended to enable planning authorities to deal with the problems posed by so-called “ghost estates” and gives the man ‘absolute discretion’ as to whether or not to take an estate into charge, in effect enabling them to allocate and prioritise scant resources in a manner that was not possible in the mandatory environment contemplated by s.180(2).

3 As a resident of “Westpark” whose interests are directly and detrimentally affected by the Council's inaction pursuant to s.180(2), if that is the applicable provision (and the court finds later below that it is), Mr O'Donoghue undoubtedly has locus standi to bring the within application.

Part 2

Section 180 of the Planning and Development Act 2000

4 Section 180, as amended, currently provides as follows:

‘Taking in charge of estates

180. –(1) Where a development for which permission is granted under section 34 or under Part IV of the Act of 1963 includes the construction of 2 or more houses and the provision of new roads, open spaces, car parks, sewers, water mains or service connections (within the meaning of the Water Services Act 2007), 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 owners of the houses involved, as soon as may be, initiate the procedures under section 11 of the Roads Act, 1993.[1]

(2) (a) Notwithstanding [2] subsection (1), where the development referred to in subsection (1) 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 the owners of the houses involved, comply with section 11 of the Roads Act, 1993, except that subsection (1)(b)(ii) of that subsection shall be disregarded.[3]

(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.

(2A) (a)[4] Notwithstanding subsections ( 1) or (2)[5], where a development referred to in subsection (1) has not been completed to the satisfaction of the planning authority and either –

(i) enforcement proceedings have been commenced by the planning authority within seven years beginning on the expiration, as respects the permission authorising the development, of the appropriate period,

or

(ii) the planning authority considers that enforcement proceedings will not result in the satisfactory completion of the development by the developer,[6]

the authority may in its absolute discretion, at any time after the expiration as respects the permission of authorising the development of the appropriate period, where requested by a majority of the owners of the houses in question, initiate the procedures under section 11 of the Roads Act 1993.[7]

(b) In exercising its discretion and initiating procedures under section 11 of the Roads Act 1993, the authority may apply any security given under section 34(4)(g) for the satisfactory completion of the development in question.

(3) (a) The planning authority may hold a plebiscite to ascertain the wishes of the owners of the houses.

(b) The Minister may make or apply any regulations prescribing the procedure to be followed by the planning authority in ascertaining the wishes of the owners of the houses.

(4) (a) Where an order is made under section 11(1) of the Roads Act 1993 in compliance with subsection ( 1) or (2), the planning authority shall, in addition to the provisions of that section take in charge –

(i) (subject to paragraph (c)), any sewers[8], water mains[9] or service connections[10] within the attendant grounds of the development, and

(ii) public open spaces or public car parks within the attendant grounds of the development.

(b) Where an order is made under section 11(1) of the Roads Act 1993 in compliance with subsection (2A), the planning authority may, in addition to the provisions of that section take in charge –

(i) (subject to paragraph (c)) some or all of the sewers, water mains or service connections within the attendant grounds of the development, and

(ii) some or all of the public open spaces or public car parks within the attendant grounds of the development,

and may undertake,

(I) any works which, in the opinion of the authority, are necessary for the completion of such sewers, water mains or service connections, public open spaces or public car parks within the attendant grounds of the development, or

(II) any works as in the opinion of the authority, are necessary to make the development safe,

and may recover the costs of works referred to in clause (I) or (II) from the developer as a simple contract debt in a court of competent jurisdiction.

(c) A planning authority that is not a water services authority within the meaning of section 2 of the Act of 2007 shall not take in charge any sewers, water mains or service connections under paragraph (a)(i) or (b)(i), but shall request the relevant water services authority to do so.

(d) In paragraph (a)(ii), “public open spaces” or “public car parks” means open spaces or car parks to which the public have access whether as of right or by permission.

(e) In this subsection, “public open spaces” means open spaces or car parks to which the public have access whether as of right or by permission.

(5) Where a planning authority acts in compliance with this section, references in section 11 of the Roads Act, 1993, to a road authority shall be deemed to include references to a planning authority.

(6) In this section “appropriate period” has the meaning given to the term in section 40, as extended under section 42 or 42A as the case may be.’

Notes

5 [1] Subsection (1) is not relevant to the within proceedings as the development in question has not been completed to the satisfaction of the planning authority, and the provision is in any event developer-driven.

6 [2] (and[5]). As used in s.180, the word ‘Notwithstanding’ bears its ordinary dictionary meaning. So what is that meaning? A Google search of the word ‘Notwithstanding’ and ‘definition’ defines ‘Notwithstanding’ to mean ‘In spite of’ and offers the following synonyms: ‘Despite’, ‘Regardless of’ and ‘For all’. The Collins Online Dictionary yields the following definition ‘In spite of’ and ‘Despite’ and offers those words and ‘Regardless of’ as synonyms. So, there is a broad consistency of meaning in the definitions available online. Turning then to, e.g., subsection (2A)(a),it reads ‘Notwithstanding subsections ( 1) or (2)…’ and, having regard to the definitions and synonyms just considered can be read as...