Dublin County Council v Elton Homes Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-HC 2517
• Docket Number: 1982 No.103 MCA
• Court: High Court
• Date: 01 January 1984

DUBLIN CO.COUNCIL v. ELTON HOMES LTD.

IN THE MATTER OP SECTION 27 OF THE LOCAL GOVERNMENT

(PLANNING AND DEVELOPMENT) ACT 1976

AND IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE

COUNTY OF DUBLIN

BETWEEN/

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

APPLICANT

AND

ELTON HOMES LIMITED (IN LIQUIDATION) MYLES KEOGH AND JOHN ENGLISH

RESPONDENTS

1983 WJSC-HC 2517

1982 No.103 MCA

THE HIGH COURT

Subject Headings:

COMPANY: directors

PLANNING: permission

1 Judgment of Mr. Justice Barrington delivered the 19th day of May 1983

2 This case raises a difficult point on the interpretation of section 27 of the Local Government (Planning and Development) Act 1976.

3 The Applicants are the Planning Authority for the County of Dublin.

4 The first named Respondent is a limited liability company formerly engaged in the building trade. It was incorporated on the 14th day of May 1976, had its registered office at 51, Rathgar Avenue, Dublin 6 and went into voluntary liquidation on the 15th of September, 1980. The company went into voluntary liquidation to forestall a petition about to be presented by one of its creditors who was pressing for payment. The directors of the company, who are the second and third named respondents, believed that, on the winding up, there would be a surplus of assets over liabilities and they hoped to have a members voluntary winding up. I am satisfied however that the company is insolvent; the liquidation, in the events which have happened, is a creditors" voluntary winding up; and the liquidator, Mr. Thomas P. Kelly, chartered accountant, estimates that the dividend payable to the ordinary unsecured creditors in the winding up will not be more than 25 pence in the pound.

5 By order number P 2270/78 of 16th of June, 1978 the applicant Council decided to grant permission to the company to build houses at sites number 1 to 20 Esker Glebe, Lucan in the County of Dublin subject to certain conditions.

6 By order number P 3911/78 of the 22nd of September, 1978 the Council decided to grant permission to the Company to build a house at site number 21 Esker Glebe, Lucan in the County of Dublin, subject to certain conditions.

7 These houses have been built, but all the conditions relating to remedial works, public lighting etc. have not been complied with.

8 The parties are agreed as to the works which need to be done to complete the development in accordance with the conditions in the planning permission and which the Planning Authority estimates would cost £15,424.00 but a dispute arises as to whose liability it is to carry them out.

9 The Planning Authority is naturally concerned for the plight of the residents in the new houses who are living in an unfinished estate and deprived of the amenities which were conditions of the planning permission.

10 They have accordingly brought this motion against the company and the directors personally in a effort to secure compliance with the conditions of the planning permissions.

11 Section 27 sub-section 2 of the Local Government (Planning and Development) Act 1976provides as follows:-

"Where any development authorised by a permission granted under Part IV of the Principal Act has been commenced but has not been, or is not being, carried out in conformity with the permission because of non-compliance with the requirements of a condition attached to the permission or for any other reason, the High Court may, on the application of a Planning Authority or any other person, whether or not that person has an interest in the land, by order require any person specified in the order to do or not to do, or to cease to do, as the case may be, any thing which the Court considers necessary to ensure that the development is carried out in conformity with the permission and...